Do You Believe Hacking Your Phone Is Allowed?
The recent post about smartphone hacking and the active community supporting it struck a vein with readers, according to the commentary. It seems that some folks believe that jail-breaking or hacking the phone they own is allowed under any circumstances. Others feel that hacking is OK in some situations but not others. It’s time for a poll to see what the real story might be.
This is not a scientific poll by any means; it is simply a quick and dirty chance to see how people feel about hacking their own phone. Fill out the poll as best you can, and if you want to elaborate on your choice, leave a comment.
It largely depends on what you’re doing and how you’re doing it.
On the iPhone, it’s explicitly against the Terms of Service to do a jail-break, so yes, it is really not permitted.
On the WinMo platform, I wouldn’t say it’s explicitly favored, and it’s certainly not “supported” by the carriers or OEM’s. However, it’s not frowned upon either, and it doesn’t violate any major policies on the condition that:
1. The OS version is the same as a past/current OS release by the OEM (for licensing considerations). So, for my Touch Pro, I can legally do anything with WinMo 6.1. Once a Sprint 6.5 ROM is released, 6.5 would be legally licensed to the phone.
2. The same is true of other phones. As long as the “bundled software” is either freeware (which most of it is), or as long as it would otherwise be provided with the phone it’s fine.
Of course, a lot of people ignore those and put whatever they want in a custom build, but I’m not one of them. I stick to what is properly licensed, but I still have my own environment that is tweaked to improve both performance, functionality, and battery life.
I violate EULAs like I violate the speed limit: I’m prepared to assume the risks involved, and know that God isn’t killing kittens every time I do it.
We’re talking about a private contract between you and the vendor here, folks: that’s all an EULA is. Businesses breach contracts with each other all the time; especially when the balance of incentives and risks makes it rational to do so. The law has a concept for this too: it is called “efficient breach”.
GoodThings2Life, running custom ROMs on WinMo – even if it is the same general OS version that has already been released by the carrier as a ROM update for that phone – is a violation of the WinMo EULA and likely the fineprint of your carrier contract as well. Software EULAs generally contain draconian and far-reaching terms that forbid any ‘messing around’… the informed user often concludes that EULAs are not worthy of respect.
Here in the UK you aren’t allowed to overwrite a custom ROM on a contract phone. Doing so violates your warranty. However, it’s up to you if you do it, just don’t expect support from the carrier. Of course, you don’t have to buy phones from the carrier. Why not just buy your own copy if you aren’t happy with having your phone gimped?
Having said that I wouldn’t do something like activate tethering on an account that didn’t allow it. If you want tethering then choose a contract that offers it. I don’t have any problem with a carrier taking measures to prevent unauthorised use of their network.
I have a contract with Alltel soon to be Verizon. I have the ability to tether with my phone now under the contract that I signed. I still have 14 months left on my contract and Verizon tells me that I can not tethering under their system. I signed the contract in “good faith” but Verizon intends to screw me by telling me if I want to tether I have to pay an additional fee. They don’t seem to mind breaking the contract, why should I?
If you go off of TOS and EULAs and whatever other licensing agreements you (are forced) to accept when you purchase a phone then the answer and simple: it is not okay. There is no way around that. However, I think what most of us struggle with is whether or not those agreements are fair. I think most of us can agree (as the poll is currently indicating) that we should be allowed to use our device as we see fit. We have already purchased it and if we want to take it apart, we should be able to take it apart. If we want to use it as a paper weight, then so be it. If we want to install certain software on it, then we should.
The issue of “stealing” comes into play simply because there is a licensing fee that OEMs pay to MS. Even with an open-source platform like Android, and non-licensed platforms like WebOS and Apple’s iPhone OS, there is R&D expense for every update and release. Even so, when was the last time that you actually paid a fee for an update on the OS? OEMs that choose to update hardware from WM5 to WM6 or 6.1 do so without a fee. Cupcake for Android was free, and so have 2.0 and 3.0 for the iPhone. These manufacturers absorb the R&D costs. If I install a cooked ROM onto an HTC phone, the R&D effort is being done by the community and the developer of the ROM.
In the end, we all know that we are violating agreements and whatnot, but is the agreement in itself fair? It’s the same question with the idea of being able to rip a DVD you own for backup purposes or to play a digital file and keep the physical copy stored away. According to the DMCA this is not legal, but so we really agree with that. We have to cause the old school way of thought to change somehow, right?
I think it depends on what you’re doing with you hacks. If you’re hacking to steal service, I think that’s a problem. If you’re hacking to improve your user experience, I don’t see a problem with it.
I don’t think there’s anything wrong with hacking smartphones — other than the self-serving cellco policies that try to prohibit it.
You’re buying a computer, plain and simple. You should be able to do whatever you want with it, just as you can with a desktop. The idea of cellcos blocking apps or built-in functionality is outrageous — it’s like a store selling you a filing cabinet and locking you out of one of the drawers.
I long ago stopped believing any of the talk about the companies’ need to “protect” their networks or “ensure quality” by “approving” features. It’s a cynical attempt to drive users to their paid services, period.
TOS and EULAs apply to the software. There’s nothing to stop you from doing anything you want with the hardware. Just don’t expect the same user experience from your hacked phone that you’d get from an unhacked phone.
e.g., if you jailbreak iPhone and run 3rd party apps in the background, you have no right to expect that they’ll run well, or even run at all. Developers haven’t tested that their software will function meaningfully under condition the OS typically guarantees can never happen, and there’s no reason for them to.
So, by all means, hack your phone. Just recognize that there is a trade-off. If you enjoy the benefits of a hacked phone because it no longer behaves as advertised in a good way, you shouldn’t blame others because it no longer behaves as advertised in a bad way.
I have a friend whose iPhone 3G was hacked not to long ago. I loved the customizations that he was able to put on it once it was hacked. So, as soon as they hack the 3GS, I’m going to jailbreak it as well. I won’t even think twice!
I’m Part of the Camp that’s in Hacking is always allowed, as I’ve usually paid full price for all my phones so Believe that I am entitled to what ever I want to It.
The Only Locked Phone I’ve ever Bought is the iPhone 3G and even then I bough that on Pre Paid in the UK, Paying full Price and Jailbroke and unlocked it as soon as possible.
EULA’s have repeatedly found to be overreaching and Unlawful, and unlocking has been Legal in the UK for a while as long as your contractor subsidy is over, so the only reason preventing you might be the Carriers / Manufacturers warranty.
Having said that, while I have usually extensively Modified my WM phones, The Only thing I added on my iPhone was a Video Capture Program and the Unlock as I could manage most things using the official apps.
IF I buy a hammer, I should be able to use it as I wish.
If I hit someone over the head with it, then one is breaking an already existing law.
If I use it to break the window at the bank and steal their money, then one would be breaking an already existing law.
However, if I was limited as to the uses of my hammer…ei.. it’s only allowed to be used on framing a house, but not to nail up a picture on my wall, then
I’d say the rules are just silly…
I OWN this phone, I can do anything I want with it. Most of these agreements (EULA, TOS, License, etc) are legal hogwash and will not hold up in a court of law. I will exercise my right under the United States Constitution and do as a wish with my personal device and nobody would dare stop me.
- Brutus
You have a drivers licence. You buy a car. So that means you can drive as fast as you want? Licences come with rules. And to use the licence youj need to obey the rules.
When you purchase a device with an OS, you should know what it can and can’t do when you purchase it. If it doesn’t do what you want, DON’T BUY IT! There’s no point whinging about what it can’t do. You bought it with the knowlege of it’s capabilities. There are alternatives if you’re not happy with a particular device.
If you don’t like that you’re licencing the OS and not buying it then either you need to get something different or learn some programming and develop your own.
Do what you want with the hardware because you own it. But the OS is on loan (licence) and tampering with it is illegal.
Gordon
Gordon’s reply is logically incorrect and incorrect in law.
A contract cannot be enforced if it is contrary to the law. In other words the EULA and the TOS only apply in so far as they comply with the existing laws for that jurisdiction.
There was an interesting case in Australia where a user broke the “breaking this sticked invalidates your warranty” sticker and then claimed the warranty. The court ruled that breaking the sticker had absolutely nothing to do with the warranty and the company had a legal obligation to repair the computer regardless.
Whether jailbreaking is illegal depends entirely on your legislation and has absolutely nothing to do with what Apple chooses to place in their various documents. In fact under Australian law it could be argued that the inability to run unsigned code could constitute an unfair or restrictuive practice. The only way we would know is if it is taken to the high court.
Jailbreaking could be seen in terms of breaking a sticker to enable the user to enable features on the phone. In any case I believe jailbreaking is ok from a moral standpoint and I doubt whether any case brought against a jailbreaker would succeed. There are a ton of free JB apps to justify it.
“Gordon’s reply is logically incorrect and incorrect in law.”
Really? I don’t see that.
Removing a sticker has no effect on the operation or performance of the unit. Jailbreaking most certainly does. I don’t see how these actions can be compared to each other. The removal of a sticker is a hardware issue, which I stated you own, and can therefore do waht you want. You can drill holes in your phone, no worries but you can’t legally tamper with the OS, because it’s not yours. Not only does it volate the OS licence, it may also violate the terms of use for your network providor.
The OS is licenced, like hiring a new release DVD. You don’t own the rights to the OS just like you don’t own the content of the DVD. You pay a licence to be able to use the OS. When you modify the OS you are breaking the agreement you made to be allowed to use it.
It may be the case that a court may find the terms of the EULA untennable, but as far as I am aware no court has yet granted “ownership” of the OS to the end user. So please don’t lecture us on the law unless you can provide examples where the courts have made judgement in favour of the user over the OS developer. If these agreements were illegal, I’m fairly sure the local authorities would have made it illegal to write these EULA’s in the first place.
I’m also not saying it’s moraly right to restrict the OS. I think when mobile carriers disable hardware (like the GPS units in Blackberries in the US) that it’s a rotten thing to do. I also don’t see anything morally wrong with hacking. But it’s not legal and just cause you don’t like an agreement is not a good enough reason to break it after you have agreed to abide by it. Unless the carrier/manufacturer hides the limitations of the OS from you, you do know what you’re in for when you sign the agreement.
Isn’t this what Android is all about? An open source OS that you are free to modify.
You have purchased a dozen cookies,
however your user agreement states you can only
eat 10 of them….
If you’re not hacking it, you’re doing it wrong
it is better if we hack because it is only an enginerring which we do with technology
I think it is fine, what is the harm.
I see it as just like buying a house or a car, and you try to improve it or make it acceptable for your tastes. In essence it is no difference.
I have used XDA forums, and modded my HTC Hermes 100, I improved the look and functioning of my phone/pda.
For me, it is possible. I have bought the unit and I can do whatever I want with it – even destroy it or flash it. (However, I have to take responsibility for it, it is obvious – flashed unit would probably be not accepted for service unless flashed back to original ROM.) Since HTC doesn’t care about me – they are not willing to release a new firmware for Diamond in my language even if all other languages are already released and I can’t use different language ROM nor explicitly pay for my update – I think that I can help myself.
@Gordon
Your argument is highly inaccurate on many points. I’ll sorta take them in the order you present them.
The sticker argument in the 1st paragraph:
You base this on changing the function or performance of your device, you imply that only changing the OS would affect the performance/function. While it’s uncommon, I can certainly replace certain components (Camera for example) and get better pictures, or I can overclock the processor to affect performance. Surely modifying the OS begs questions, but many of the hacks and even firmware flashes do not actually modify the OS itself, only the configuration settings and included software (which does not legally or functionally constitute the OS).
DVD argument in the 2nd paragraph:
You’re misrepresenting the meaning of buying a DVD and the terms of it’s license. The license does not prevent you from modifying the DVD content, only redistribution or public display. Certainly redistributing the copyrighted OS is prohibited, but that’s copyright violation only…The modifying isn’t strictly illegal, even by the DMCA, unless the modification adds features that are either illegal or can only be used for an illegal act (breaking encryption, copyright violation, phreaking, etc).
EULA + Courts in 3rd paragraph:
This was loaded with inaccurate information. First, “ownership” does not need to be granted, only the right to make use of the OS under the circumstances in question. Ownership implies the right to sell/re-sell the OS, which you clearly don’t have.
You want examples of the court granting rights to the user to modify their purchased equipment against the wishes of the manufacturer, research TiVo and how the GPL was upheld. I admit, this has extra factors (the GPL itself), but they wrote a license agreement which was untennable and it was overturned to grant modification rights.
Finally, anybody can write anything in a EULA, it’s not “illegal”…I can give you a free download saying you have to commit suicide in a month to use my product. Totally legal for me to write it, but when I take it to court, that clause will not be upheld, even if you knowingly agree to it.
The final paragraph, I mostly agree with. I don’t deny that aspects of the hacking aren’t completely legal…but you bring up an interesting point with the disabling of the GPS unit. If it’s advertised *ANYWHERE* that there’s a GPS chip inside that phone, and it’s not expressly stated that it’s disabled, then it constitutes false advertising. While arguing the legally appropriate measures would take months or years, there are legal precedents already in existence stating that the owners have the right to take actions to restore the advertised capability of a product as long as it does not directly violate some other law. Essentially, it becomes a breach of contract initiated by the manufacturer (or more often the carrier, especially with Verizon). Again, this gets too complicated to argue, but if it ever actually reached a court and wasn’t settled (plus both sides had reasonably equal legal council) then it would likely turn out in favor of the user since the manufacturer/carrier effectively falsified the capabilities of the product.
I’m getting a good understanding of your position and from a moral point of view I’m not in total dissagreement. But morals aside.
You brought up the sticker. I didn’t mean to imply that the OS could be the only change. I said you owned the hardware. Mod away! My point is that whether or not you think you should own the software, you don’t. It is the intelectual property of the developer (usually) and modifying it is not legal. You have a licence to use it.
The DVD annalogy is the one I could think of that is similar, not the same as an OS licence. It’s certainly closer than hammers, cookies or stickers. I’d love to debate the modifying the content of a DVD with you but it’s waaay off topic. I don’t think Mr Speilburg would be happy if you edited the first 10 minutes out of one of his movies for example and I’m sure you can’t juse any part of the content of the DVD in any other way than what the licence says you cna, ie; watch the movie. I certainly don’t think that I’ve misrepresented the usage rights of a DVD.
And OT: In Australia you have the right to backup a DVD you own, but you don’t have the right to bypass the copy protection on the disc to be able to make the copy. Work that out! No wonder people are frustrated by this.
As for the Tivo example. I believe this was more like the user ageement you have with your carrier rather than hacking the actual OS. It was the terms of use set by Tivo that were disputed, not the OS of the unit. I’ve yet to see a case where a user was allowed access to and moifying the source code was permitted. As I said, that code is the intelectual property of the developer. They say what you can and can’t do with their software in the EULA. If you could do what you wanted with an OS you could install it on as many devices as you wanted for example. The EULA says you can’t and you agree to that (well you’re supposed to). Same thing with modifying the OS.
I also agree with you on non-OS hacks. As long as the OS remains in tact I don’t see how this could be a legal issue. I’ve just enabled VT on a laptop where turning it on in the BIOS has been disabled. Didn’t hack the Bios, just added a patch. But loading a new ROM for your HTC phone or jailbreaking your iphone involves either downloading a non legal ROM or changing the source code of the original OS. Unfortunately (and I wish it was legal – imagine the potential) it’s not legal to do this.
While we don’t agree, I’ve enjoyed this. It’s been a well mannered debate and I do appreciate your point of view even if I don’t agree with it.
Gordon
The issue other than legality is: we all want our devices to do more, and all that it can. There are two kinds of artificial restrictions: content locks (ATRAC, region-lock, DRM etc), and impaired software. Jail-breaking addresses the latter, but also allows the former to be bypassed, so while it facilitates piracy, it is not to allow piracy. Anyone remembers the video-recorder app for Jail-broken iPhones?
Content locks are contentious ;p because it can violate the spirit of Fair Use, but does protect content from piracy. So it’s like any other measure, an even hand is needed.
I personally use winmo, because I like my smartphone OS to get upgrades/bugfixes just like my laptop. I use freewarepocketpc to get what I need.
I always like to share that if Sony got their software right (ATRAC, region lock, DRM) their minidisk players would never have died, and would rightfully succeed the Walkman, versus their also-rans in the phone and DAP market space.
oops some typos: “it is not to *primarily* allow piracy.”
To begin with I must state I buy my phones unlocked and unsubsidized. Even if that weren’t the case, have no problem with hacking a device to configure it as I like to use it, filling the functionality holes the “standard issue” has left. A smartphone by definition is a small form-factor computer, with it’s own limitations (usage, resources, i/o etc). No less.
The main reason I went for Windows Mobile instead of the fruity kind is the walled garden said fruit company has set up: Come on, no filesystem access? No “save as” on the browser? Can’t install my own app/put a data file on it through usb/can’t send a file over wifi/BT on a computing device I hold in my hand (where it’s clear the hardware can do it)? Jeez.. And I thought Microsoft was restrictive, it’s now clear even MS is an angel of openness by comparison.. (I do like the Android but it’s not available over here, and currently MS has more of the kind of software I need).
(As long as it’s not stealing service or pirating software) hacking to get more from a device is not only OK and tons of geeky fun, it’s a moral imperative.
The question is “Do You Believe Hacking Your Phone Is Allowed?” and the answer is “absolutely!”
It is YOUR phone. You bought it, paid for it and can do with it as you will. If it came with a contract to a provider you are still legally obligated to fulfil that contract but the carrier is in no more of a position to tell you what you can or cannot do with your phone than the manufacturer is.
The iPhone is a good example. Apple cannot legally stop you from hacking the phone but they can “brick” your phone via software updates without fear of reprisal as you are modding thier software. If you installed something elso on the device, say linux for example, then you arent affected in any way.
I myself use a Windows Mobile device (The HTC Diamond) and have successfully hacked it to network unlock it (as I have more than one sim card) and installed a better version of the OS and the RADIO (basically the HAL for a mobile phone that makes the hardware talk to the OS). I am not using any software I dont have a licence for and am using several programs I have purchased for the WM platform.
If you use pirated software that is an entirely different matter and has nothing to do with hacking the phone.
Shut up mate, u r chatting crap its like my shit in the bog
Oh please be quiet, you inconsiderate waste of space. Let colonel bullcock have his word.
Hello Raj.
Typo in my website url…
oops.. sorry… mispelt again.
Yeah, absolutely. It is not allowed but its still in practice.
Allowed: clearly no. Should be allowed: absolutely yes.
I agree with most people that, when you sign up for service, you are (in most cases) putting your name on a contract saying that you won’t hack the phone. Therefore, at least you should be prepared for whatever consequences come about if you do hack your phone (e.g. no support, termination of service, additional fees, etc…).
It’s also worthy to mention that, when you get a phone under most agreements, no, you do not really own your phone outright. The carrier is willing to let the phone go at a drastically reduced price on certain conditions, among those that you commit to a certain plan for a certain amount of time and that you follow the terms of service. I’ve never gotten out of a contract early, but I suspect if you do that, the carrier will either 1) want the phone back, or 2) want the difference between the MSRP of the phone and whatever discounted price you got for it.
In the end it boils down to the TOS and EULA of your telecoms contract and software agreement.
If you buy the phones subsidised from the carrier then you will have to expect that in return for the lower price they want to restrict your use of the phone.
Think of it as a hire purchase agreement where at the end of your contract the phone is yours for £0.00 or free.
I find that equitable but EULA seem to be very restrictive.
If I buy a phone sim free with say Winmo on it and then I remove winmo and replace it with Android I am not breaking my EULA.
However if I remove winmo and install a cooked ROM then it is clear you have broken the EULA not in removing the old ROM but installing a cooked ROM which you did not pay for. As you now have 2 ROM – the original and cooked ROM.
Why do Phone manufacturers pay little attention to this? Simple when you buy the hardware you buy it with the origianl ROM / o/s pre-installed. So the phone manufacturer and o/s vendor are not losing a sale when you install a cooked ROM – because the cooked ROM was never available from the vendor in the first place.
It’s my phone, I can blow it up to my hearts content. I don’t advocate stealing service, but if I want to replace or modify my system I will. The grey area is something like running SlingPlayer – I can do it via jailbreak but AT&T has clearly stated that it’s not OK.
I bought it, i can do what i want with it. If i buy an iPhone and have the means to put Windows xp on it, then that’s my perogative. If i have an HTC Diamond (windows mobile smartphone), and want to run Android on it then that’s my choice.
However, should i break it then the ‘carrier’ might chose not to service it. That is their choice.
Seriously, it’s my property I will do what I want with it, anyone who things otherwise can take a long walk off a short pier. EUL blah blah blah, I own it I can play with it.
I don’t consider anything like a EUL binding in anyway. A one sided contract that I can’t negotiate on means absolutely nothing.