Apple is not happy with its customers. Disobedient iPhone owners are unlocking their iPhones (modifying them to work with carriers other than AT&T) and installing “unauthorized” third-party apps. Last week the company struck back with a software update that acts much like a virus. It wrecks the operation of third-party applications and can turn unlocked iPhones into “bricks.” Is Apple on the right side of this fight? Is it really wrong or illegal to unlock your iPhone? Well, I figured, there’s only one way to find out.
Unlocking works, is doable, and improves the iPhone. But while unlocking can be fun, it’s still a vaguely scary process, a little like installing your own car brakes. My project began at the giant Apple Store on New York’s Fifth Avenue. I needed to buy the iPhone and figure out how to unlock it, and I had imagined that Apple’s sales staff might be ambivalent or even helpful—”You really shouldn’t, but ….” I know that there’s even discontent inside Apple headquarters, that some of the company’s own employees have unlocked their phones and are complaining about Apple’s Empire Strikes Back mentality.
My hopes were high as I approached a typically chipper Apple salesman, clad in black with spiked hair. “I’m purchasing an iPhone,” I began, “but I’m a T-Mobile customer, and so I was just wondering, I read that you can unlock the phone—”
“No,” he cut me off.
“But I had read that it’s possible to unlock the phone and use it—”
“You heard wrong,” he said, his voice rising. “That’s impossible.” The tone was harsh; a few people looked over.
In the absence of friendly advice from Apple’s employees, I handed over $432.42, took the phone home, and gave some thought to the legal questions. Part of the copyright code, Section 1201 of the famous Digital Millennium Copyright Act of 1998, makes it illegal to break digital locks to get at copyrighted works. But that doesn’t make unlockers criminals. The reason is an explicit exemption for personal unlocking issued by the librarian of Congress in 2006. As the librarian wrote, the locks “are used by wireless carriers to limit the ability of subscribers to switch to other carriers, a business decision that has nothing whatsoever to do with the interests protected by copyright.” If that’s good enough for the librarian of Congress, that’s good enough for me.
It’s true that the library’s rule doesn’t say anything about people who help you unlock your phone or “traffic” in software to do so. But its logic tracks recent case law suggesting that unlocking for compatibility, as opposed to copyright infringement, is no crime. In one case, Lexmark, a printer company, tried to prevent the use of competitors’ ink-jet cartridges in its printers. In another, the manufacturer of a garage-door opener sued to block a firm marketing a “universal” remote control. In both instances the federal courts said, roughly, that the lawsuits were about blocking competition, not piracy. Without going into a full legal analysis, that’s probably what a court would say if Apple sued a distributor of unlocking software. In any event, none of this is an issue for personal unlocking.
Whether you’ve violated your terms of service, as Apple claims, is a closer question. When you begin to use an iPhone, you agree, via an on-screen contract, that “except as … permitted by applicable law you may not … reverse engineer, [or] disassemble … the iPhone Software.” Copyright allows reverse engineering for compatibility as a “fair use,” so Apple has tried to create an alternative ban using fine print. Dastardly, perhaps, but also probably irrelevant. When you unlock your phone, you don’t “reverse engineer” anything in the normal sense of that phrase. The contract may cause problems for authors of programs for unlocking phones, but it just doesn’t seem to address personal unlocking.
This is where things get a bit tricky. Even with good instructions, activating and unlocking your iPhone isn’t very easy. It’s a cinch for a supergeek, but for regular humans without technical superpowers, the experience is more like, say, scuba diving: If you do everything right, you’ll be fine, but you really don’t want to make a mistake. That, by the way, gives AT&T and Apple a degree of protection from a major unlocking wave—unlocking an iPhone is, by my guess, something that maybe one in 20 Americans will feel comfortable doing.
As I unlocked it, I was constantly aware of the risk of turning my brand-new phone into a gleaming paperweight. Trust is crucial—you must believe that various strangers have written programs to help you, not hurt you. During the “jailbreak” phase of the activation process, you stare at an image of prison bars for two minutes. This is not reassuring. At the penultimate stage, you need to trust your iPhone to an entity named “Cyberduck.” At another point I hit a long delay for want of a paper clip. None of this is for the faint of heart, but it’s also exhilarating. Especially when you hit the last screen:
The good news is that my iPhone works flawlessly. With my existing T-Mobile account, I get 1,300 more minutes of talk time than I would have received from AT&T for a comparably priced plan; I also now have a phone that I can take to Asia and Europe. I avoided a $200 termination fee, AT&T’s activation fee, and having to wait for AT&T to port my existing number. On the downside, I don’t have AT&T’s visual voicemail, and I have to stay away from Apple’s software upgrades, which might brick the phone. But it’s easy to download third-party apps, like iPong. Best of all, my geek friends are impressed.
Did I do anything wrong? When you buy an iPhone, Apple might argue that you’ve made an implicit promise to become an AT&T customer. But I did no such thing. I told the employees at the Apple Store that I wanted to unlock it, and at no stage of the purchasing process did I explicitly agree to be an AT&T customer. There was no sneakiness; I just did something they didn’t like.
Meanwhile, lest we forget, I did just throw down more than $400 for this little toy. I’m no property-rights freak, but that iPhone is now my personal property, and that ought to stand for something. General Motors advises its customers to use “genuine parts,” but it can’t force you to buy gas from Exxon. Honda probably hates it when you put some crazy spoiler on your Civic, but no one says it’s illegal or wrong.
The worst thing that you can say about me is that I’ve messed with Apple’s right to run its business exactly the way it wants. But to my mind, that’s not a right you get in the free market or in our legal system. Instead, Apple is facing trade-offs rightly beyond its control. When people unlock phones, Apple loses revenue it was hoping for, but also gains customers who would have never bought an iPhone in the first place. That’s life.
And what, exactly, is Apple afraid of? In the short life of the iPhone, its fans have built surprisingly good, if unauthorized, third-party programs, ranging from Sudoku to a great app that uploads your photos directly to Flickr. As economist Eric Von Hippel teaches in Democratizing Innovation, much product improvement comes from users who monkey with and enhance the products they use every day. Apple’s aggressive upgrade strategy is not just blocking unlocking but also shutting down its “Think Different” customers. Apple is making its product less valuable to its most loyal fans, and that’s a big mistake.