Comment by tzs | Hacker News Reader

Comment by tzs | Hacker News Reader

Saying its "legally protected" is slightly misleading. Rather, it is not prohibited by copyright law and the DMCA. However, the manufacturers are free to use technological means to stop you from jailbreaking, to refuse to provide service for jailbroken devices, and to use other legal means besides copyright/DMCA such as contracts to stop you.

Law is often tri-state. For instance, at one time it was not legal to sell property to black people in certain neighborhoods in the US, because of legally binding covenants. This is the first state: prohibited.

The law was changed so that such covenants were not enforceable. However, that didn't mean black people could actually buy property in those neighborhoods. The property owners were still free to refuse to sell to black people. This is the second state: not prohibited.

The law was again changed, so that discrimination in real estate on the basis of race was illegal, and a seller could get in trouble if the seller used race to decide who to sell to. This is the third state: protected.

There IS a 4th status: undefined. If there are no laws on a specific something, then it is open for interpretation. A judge may use existing case law to rule that a specific something is merely an extension of an existing something (eg, email vs. snail mail), but until that ruling (and depending on the jurisdiction), that something is in a legal gray area.

Is this really a grey area? If there is no law on a particular topic, how does it differ from merely being 'not prohibited'?

That depends on whether you're talking about statute or common law. With statute law, no law does mean "not prohibited". With case law it does not: the courts can and do make up new law to fit the facts.

Lack of case law affords no protection. It just makes it hard to predict the outcome in advance.

Well, if there are no statutes nor established case law precedents that apply to or can be extended to a particular situation, any cases would be more a matter of equity than law. And neither common law nor equity rulings apply a priori; a case must be brought to the court after the fact in order for the court to make a ruling on it. Common law also requires mens rea for any action to be considered an offense.

So even in a situation where a court would award damages if a case was filed and malicious or negligent harm were proved, I'm not really sure it makes sense to say that anything was "prohibited" in advance.

Not prohibited != can be done without legal consequence.

New torts are invented, albeit rarely. Every so often there's a new duty of care in negligence. There are, I'm sure, other examples and the point is this: the lack of case law wasn't much help to the first defendant to lose on that point.

The second state is important as legal consequences are removed and the situation becomes subject to market forces.

If an ecosystem for adapting and jailbreaking phones or cracking DRM for fair use grows up, then it will start drawing customers in if that's what people want.

At some point some of the original sellers will realize that if they remove the original locks themselves, their customers will get their unlocked phone with less money (just buying price instead of buying price + unlocking price), and eventually the markets make the shift because they are no longer constrained by the old legal monopoly.

Right, but ultimately if Apple wants to cripple their device to for app store profit and I don't like it, I can spend a few hundred bucks on a competitors phone and call it a day. If I can't live in any neighborhood but Harlem the landlords their can jack the rent as high as they want and I live in poverty no matter what.

I'm actually fine with losing service contracts and stuff for jailbroken devices. What I'm interested to see is how much ammunition this actually gives youtube to say "fuck you" when media companies send cease&desist notices and takedown letters and such to fair use youtube videos and that sort of thing. If there are no consequences for that sort of corporate bullying then it probably won't stop.

Could one consider protection of a certain action as prohibition of its anti-action, and thereby we recognize only two states? So, instead of the buying of property itself being protected, it's the refusal to sell is prohibited.

Yes, exactly. This is how libertarians prefer to few things because it recasts things like equal housing opportunity laws from "protecting the rights of minorities" to "infringing upon the rights of property owners".

Hopefully this provides ammunition though to combat companies that continue to use technological locks. A decision like this helps to muddy any corporate arguments used to claim that locking mechanisms are ethical.

Technological locks aren't always about ethics. Often times it's about being practical. As much as people love bashing Apple, Apple works hard to give people a stable environment to build apps in. If you think it's not stable, then you've certainly never built apps in the jailbreak environment. Sure there are cool things you can do which you can't in Apple's sandboxed environment, but it's also the wild west. It's cool if people want to jailbreak and invent cool stuff, but expecting Apple to support it doesn't really support the community at large in a scalable way. Jailbreaking is a good thing, but most people don't really consider the business implications of it.

Honestly I don't think most users want to jailbreak the OS, just as most android users don't want to install other OSes. iPhone users resort to jailbreaking just so they an use their carrier of choice without restrictions.

As far as I know (I don't own iPhone myself), what you describe is called unlocking. Users resort to jailbreaking to install non-AppStore applications. Jailbreaking is different from unlocking.

I would just reserve the right to refuse to service jailbroken phones (and maybe service them anyway if there is no added hassle, as a goodwill thing) instead of trying to stop people from doing it. Not supporting is very different from legally and technically limiting.

Now that there's no uncertainty about the legality of it, maybe more effort will go into providing stable jailbroken environments.

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