Apple beats Voda injunction in Germany - but may still face iPhone "brick" challenge in law

by Guy J Kewney | posted on 04 December 2007

In France, it's illegal to lock a phone to a network; and for two weeks in Germany, a temporary injunction - overthrown today - prevented T-Mobile from locking iPhones to its network, too. But victory over Vodafone may still leave Apple facing other legal issues in Europe.

The situation may be clarified soon, if French updates "brick" locked phones which have been unlocked unofficially in other countries. Legally, it seems likely that if updates do not brick French phones, but do brick German or UK models, then this will prove that Apple is deliberately disabling them.

That would certainly breach regulator rules, even if it isn't actually illegal.

One report by the BBC said:

In the two weeks since the temporary injunction was granted, T-Mobile sold the handsets without a network contract for 999 euros or £719.
Now that a German court has cancelled that injunction, the price drops to normal. But this doesn't answer an important legal question: whether the normal 399 Euro cost for a two year contract is subsidised.

In the UK, it is an Ofcom rule that phones which are locked to a network must be unlocked on request. In France, it is actually illegal to lock the phone at all. The only thing that the law does allow, is for the operator to reclaim any subsidy, and to charge an unlock fee - but it may not refuse the service.

What isn't known is what the raw cost of the phone is, when the network buys it for resale.

If, for example, T-Mobile or O2 pays Apple more than 399 Euros, then the price is subsidised. That price, however, is a trade secret between Apple and its European operators.

In the end, however, the crunch may come when the first European "brick" appears after an iPhone upgrade. Apple has warned customers that hacking into the phone themselves may make it "permanently inoperable" but that won't apply if the network itself unlocks the phone in accordance with Ofcom rules.

At that point, Apple may find itself in a legal hole. If unauthorised unlocking causes a crash, but authorised unlocking doesn't, it may be possible for users to claim that this is a deliberate disabling by Apple and breaches Ofcom rules which prohibit deliberate interfering with the normal working of a device - the same rule which prohibits jamming.

However, it may take considerable technical research to prove that it's deliberate.

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