Binding the iPhone

On Steve Jobs and his design obsessions, Nick Carr writes:

Steve Jobs, I think it’s fair to say, looks at Apple products as works of art, as little functional sculptures aimed at giving aesthetic pleasure as well as utilitarian benefit. That’s why it pains him so deeply to have people hack into his machines and fiddle with their guts. When a customer “opens” an iPhone, the act doesn’t just complicate Apple’s business relationship with AT&T and the phone’s other exclusive carriers; it stands as a personal affront to Jobs. It’s an assault on the integrity of his artifact.

Nick has nailed it, not just for the iPhone but any Apple device. Utility is sacrificed to form. Whether it’s a good decision for Apple depends on when you ask the question. Ask it the day of a product release, good. Ask it two weeks after a product release, bad.

Nick’s responding to the disgruntled grumbles of iPhone buyers who are now the proud owners of iBricks after the iPhone upgrade. So disgruntled that many customers are contemplating a class action lawsuit against Apple.

Serendipity knocks. A little digging around discovers for us the iPhone/AT&T service agreement out at Apple. Included within the agreement we find the following:

(1) AT&T and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

* claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
* claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
* claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
* claims that may arise after the termination of this Agreement.

References to “AT&T,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or equipment under this or prior Agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by entering into this Agreement, you and AT&T are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.

(6) The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND AT&T AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and AT&T agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provison is found to be unenforceable, then the entirety of this arbitration provison shall be null and void.

(emph. mine)

Another opportunity to highlight the Arbitration Fairness Act of 2007, calling for the elimination of binding mandatory arbitration agreements from contracts.

Recently, The Ninth Circuit Court ruled that the class action provision of the arbitration agreement for AT&T/Cingular in California was unconscionable under California Law.

However, whether this clause or the ruling would hold with the iPhone/AT&T agreement depends: if the class action claim is brought in California; whether the wording on the agreement is the same, and still would be ruled unconscionable in court; whether the agreement applies only to the service, or to the phone/service combo.

Regardless, if the customers were to move on a class action lawsuit, it’s very likely AT&T would move to compel arbitration. Maybe it would be simpler just to be a good little Apple customer, stop being naughty, and let Steve preserve his artistic vision.

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12 Responses to Binding the iPhone

  1. Julian Bond says:

    What’s going to make this fun to watch is the law surrounding phones and especially unlocking them and number portability in other markets, especially the European ones.

  2. Bud Gibson says:

    Aspects of the form factor on Apple’s hand held computing devices (iphone, itouch) are tempting, but this silliness about not being able to alter a device you purchased in any way is way over the top.

    There is one simple solution to this: Don’t buy one. These things are not needs, and there are alternatives in the market place (Nokia N800) if you feel you must have the form factor.

  3. Seth Gordon says:

    Also, note that the original Mac and the Apple //c (which came out in the same year), unlike the ][, ][+, and ][e series, were closed boxes with no expansion ports.

  4. If I bought the iPhone from Apple and received software updates from Apple, I don’t see where any details of the AT&T contract would matter. Instead, I see a technology vendor who is breaking its customers’ products.

  5. You know what, I HAVE an iPhone, I’m very happy with it, and I find all the hullaballoo about unlocking, modding, and various Draconian agreements wildly overblown.

    I bought it knowing what I was getting into and it has greatly exceeded my expectations for usability and utility. I rather expect it will continue to do so going forward, and if it doesn’t, I’m still content with it AS SOLD TO ME with the conditions I agreed to upon activation.

    No one (especially Apple) forced people who did mod their iPhones to do the upgrade. And, amazingly, Apple warned people that the upgrading might brick their phones… rather than letting them find out the hard way. This seems to me to be walking just the right line. What is Apple supposed to do? Test for every conceivable modification every time they want to roll out an update? Welcome to Windows-world and no thank you.

    Perhaps someday the iPhone have an open SDK for native apps (I’m quite sure, in fact, that it’s just a matter of time). That’ll be swell too. Until then, I’m still a happy camper.

  6. Shelley says:

    Well, I’m kind of cheap. I’ll invest money in a good printer and computer, but not as much in the other gadgets in my life.

    This one might be interesting to watch, because it really does create a break in the ranks of some of the most dedicated Apple fans–the gadget lovers. It would be especially interesting to watch if a class action is attempted.

    Pascale, I can see the problems because people broke the link with AT&T. However, I don’t understand the push back against installing 3rd party applications. That one is a control issue that would be enough to push me away from the tool.

    At the same time, I did buy an iPod a couple of years ago.

  7. dave rogers says:

    Everyone has an opinion, especially us kitten-eating trolls, so here’s mine:

    this silliness about not being able to alter a device you purchased in any way is way over the top.

    The thing about this is, you’re not purchasing “a device” per se. You’re purchasing something that has its intrinsic value as part of a larger “something” (I guess you could call it a “network” or a “service”) that you haven’t “purchased,” that you must use with lots of other people in order for it to be useful.

    Now, some “alterations” to the device are probably harmless and may make the device more valuable to its owner. But how is anyone responsible for the “network” or the “service” to be certain that any given “alteration” is harmless?

    I know this goes against the whole libertarian, rugged-individualist, steely-eyed, techno-visionary, change-the-world-through-software-and-the-wholesale-creative-destruction-of-everything-(which is miscellaneous)-that-went-before-because-we-didn’t-invent-it-and-we’re-so-much-smarter-than-anyone-who-ever-lived-before ethos of the true believers; but old farts who like to take some responsibility for things other than their own personal desires, kind of want to ensure that the customer pretty much gets what they pay for, at least most of the time. So that means, no, you don’t get to alter your iPhone any way you want. When you own the network and take responsibility for providing the service, you get to change the rules.

    I’m sure lots of the steely-eyed libertarian techno-utopians will only be too eager to tell me how full of crap I am, and that nothing anyone could do to an iPhone could possibly in any way harm the network, and even if it did, it would be Apple and AT&T’s fault because, well, they’re corporations, and they’re to blame for everything anyway.

    Technology changes how we do things, it doesn’t change what we do. It usually expands those things in space, and compresses them in time. The net effect is, we’re all living much closer together. That means we all have to learn to be more considerate of one another. And that often means we don’t all get to do everything we want to do when we want to do it.

    And yes, I know I’m a “bitter, bitter man.”

    I’m also a guy who can’t believe we have to have these sorts of “conversations.”

    I’m also a guy who doesn’t own an iPhone because I don’t like AT&T. But I think the iPhone is pretty cool, even if you don’t get to do whatever you want to it.

    And this isn’t meant to be taken personally by anyone. I’m just being cranky for the sake of being cranky. :^)

  8. Dave, the telecom industry has used the tortured logic of ‘harming the network’ before. The ‘Carterphone’ decision in 1968 settled things for a while, now we’re going through the same damn thing again.

  9. dave rogers says:

    the telecom industry has used the tortured logic of ‘harming the network’ before

    Except now we have an entire industry devoted to “creative anarchy,” to put it more charitably than it deserves. To say nothing of the vulnerability inherent in complex systems.

    Who knows? Maybe our ever-growing dependence on technology will eventually cause us to learn to “play nice” with one another. I won’t hold my breath.

  10. Bud Gibson says:

    Fascinating skim of your comment, Dave. My point was really that I can exercise freedom of choice. If I don’t like Apple’s terms, I don’t gotta buy. Period. That’s my current stance on the iphone.

    The truth of the matter is that I’m much more interested in the wifi devices, and the ipod touch is particularly interesting in this regard. However, when I hear about the iphone being bricked, a big red flag appears. As I age, all my diminished perceptual powers are able to distinguish is the fact that the company broke the device because they did not like my precise use of it. Hmm. Sounds bad.

  11. Shelley says:

    I think where Apple failed was not providing a way for third parties to install software in a manner that the company would deem safe. It must have known that people would be wanting to do this, and would be expecting to do this. I think that it didn’t is more likely because it felt vulnerable moving into a new field such as this. It may also have had some pressure back from AT&T (remember AT&T blows Apple out of the water when it comes to being a power), or the fact that they had a date to meet and decided to push any SDK off until later.

    Or maybe they decided since they provided a web browser, that was enough — build your applications online.

    It isn’t a fatal decision, though, because the number of people who want to hack it is probably pretty small compared to the people who just want the phone and are happy with it as is.

    I can understand the frustration of folks just wanting to provide ‘value added’. I don’t feel as charitable for the people hacking to disconnect AT&T. Don’t like AT&T? Don’t buy the iPhone, or buy an iTouch instead.

    Apple’s philosophy has always been the more it controls the less insecure and the less hacking problems, compatibility problems, but more importantly, support issues. Someone installs a badly designed third party application on a computer. Well, we’re all experienced enough to know that this can happen and to accept responsibility. I’m not sure that the iPhone is in this space. The iPod isn’t, and it’s been out for years.

    If you think about it, when Apple released this latest upgrade, what people are calling ‘spoilers’, Apple may think of as fixing security leaks.

    Julian has a very good point in this thread: the EU is much more rigid when it comes to companies putting out locked-in devices. I’m not sure that Apple’s stand as regards to single carrier (or even iTunes lock-in) will survive in Europe.

  12. Bud Gibson says:

    But Shelley, I keep on coming back to the gut level, as many people who may not be following the detailed arguments probably are.

    They sold me a device.

    I did, to me, normal things with it.

    An upgrade has now broken the device, and I’m told it’s my fault.


    The less technically inclined will hear this and think that Apple is being arbitrary. Any time you tell consumers they are in the wrong, you’ve cut away a part of your market.