Apple should also change their EULA about their operating system, allowing it to go on non-apple computers too.

This attitude of Apple’s is exactly the reason that they have never, and will never, get my money.

Apple #1 – Their goal, their belief, their attitude. Anyone and everyone comes dead last to their bottom line. Nevermind the people that actually buy their products, any complaints they may have on that front are irrelevant. Their bottom line is all they care about.

WHILE THIS IS NOT LEGAL ADVICE AND NO ONE SHOULD RELY UPON IT – THERE I GOT THAT OUT OF THE WAY — I am looking at the jailbreak situation and believe that there is another angle to the problem of Apple stopping it.

I do consumer rights class actions cases (google my name to see some of the cases I have brought, e.g. the original Blockbuster Late Fee case, the original American Family Publisher Case, the U.S. Robotics 56k modem case, the Sony 1080p case, etc.) and I believe the problem is not addressed by copyright infringement but by good old fashion consumer unfair trade practices.

I believe that Apple maybe engaging in unfair competition by tying software designed by it to its products.

Basically by restricting the ability for 3rd parties to design and develop software for their devices they are crushing competition and damaging consumers.

There may be a claim under § 5 of the Federal Trade Commission Act, 15 U.S.C.S. § 45 , § 3 of the Clayton Act, 15 U.S.C.S. § 13a, § 1 of the Sherman Act, 15 U.S.C.S. § 1 as well as State law.

See for example the case of Jefferson Parish, 466 U.S., at 12, 104 S. Ct. 1551, 80 L. Ed. 2d 2, “[o]ur cases have concluded that the essential characteristic of an invalid tying arrangement lies in the seller’s exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms.”

A tying arrangement is defined “as an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier.” Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5-6, 2 L. Ed. 2d 545, 78 S. Ct. 514 (1958); Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 461-62, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992).

Tying arrangements have been found to be “unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a ‘not insubstantial’ amount of interstate commerce is affected.” Northern Pac. Ry., 356 U.S. at 6.

A tying claim under the Sherman Act requires that the plaintiff prove that a seller had substantial economic power in the tying product’s market, and an anticompetitive effect in the tied-product market. Highland Capital, 350 F.3d at 565 (citations omitted), Eastman Kodak, 504 U.S. at 462 (arrangement constitutes impermissible tie under § 1 of Sherman Act “if the seller has ‘appreciable economic power’ in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market.”).

The Supreme Court has “condemned tying arrangements when the seller has some special ability — usually called “market power” — to force a purchaser to do something that he would not do in a competitive market. . . . When ‘forcing’ occurs, our cases have found the tying arrangement to be unlawful.” Jefferson Parish Hospital v. Hyde, 466 U.S. 2, 13-14, 80 L. Ed. 2d 2, 104 S. Ct. 1551 (1984).

“From the standpoint of the consumer — whose interests the statute was especially intended to serve — the freedom to select the best bargain in the second market is impaired by his need to purchase the tying product, and perhaps by an inability to evaluate the true cost of either product when they are available only as a package.” Id. at 15.

The Sixth Circuit has adopted the following three-step analysis for determining whether a tying arrangement is likely to cause such an anticompetitive effect: “(1) the seller must have power in the tying product market; (2) there must be a substantial threat that the tying seller will acquire market power in the tied-product market; and (3) there must be a coherent economic basis for treating the tying and tied products as distinct.” Hand v. Central Transp., Inc., 779 F.2d 8, 11 (6th Cir. 1985).

Under traditional per se analysis, restraints of trade were condemned without any inquiry into the market power possessed by the defendant. However, under current per se analysis, the antitrust plaintiff must show the seller possesses substantial market power in the tying product market and that the arrangement affects a substantial volume of commerce in the tied market. Kodak, 504 U.S. at 462, 478-79. The two theories differ in only one respect – the per se analysis dispenses with proof of anticompetitive effects. PSI Repair Services, Inc. v. Honeywell, Inc., 104 F.3d 811, 815 n.2 (6th cir. 1997) (citing 10 Phillip E. Areeda et al., Antitrust Law P1760e, at 372 (1996)).