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Re: ANDROID (back to the OQ)



On 10/31/2013 03:36 PM Neal Murphy wrote:
On Thursday, October 31, 2013 02:56:21 PM ken wrote:
On 10/31/2013 02:02 PM Beco wrote:
On 31 October 2013 13:12, ken <gebser@mousecar.com

<mailto:gebser@mousecar.com>> wrote:
     Alex,

     As you can see (from this long conversation), there are a variety of
     interpretations of what "free" means and its value to the end user.
     Getting back to your original concerns, here are some observations
     I've made about android which indicate to me that it's not free.

     When you buy a phone with android on it, you don't have root access
     to the system.  You're just a regular user.  Yes, you can root the
     phone, but then you invalidate the warrantee, from what I
     understand, both the software and hardware warrantees.  So if
     something fails on your phone, the company whom you bought it from
     won't provide support.  If something breaks (whether it's software
     or hardware), you're on your own.  There are some android-specific
     lists which could be helpful.

[cut]


Hello Ken,

I agree with you in all the topics bellow (the [cut]) but this one above.

The fact that you cant be root doesn't add to Android not being FOSS.

Lets say, for example, that you create an "enterprise" that makes
software (and hardware, to be more close to the example. Suppose you
build a small computer using go'old Z80 processor. The motherboard isn't
that big. You call it Z80-Alive! )

Now, you sell this machines in your community (school, church, whatever)
with a support contract, and state: You'll be THE only sysadmin, you'll
have root access and buyers will be a regular users. As long as buyers
don't try to gain root access, you'll give support to software and
hardware.

In some enterprises, if you try to get root access, you may be fired! :)
But Z80-Alive!, as someone buy the piece of hardware and you are just
helping out, the buyer can't (won't) be fired, just lose warranty.

Well, for me, this enterprise can't be called "not free" based only on
that.

I agree with the other topics in your email: closed softwares installed
without your agreement, and other stuffs (closed hardware, drivers,
etc). But to isolate the "feature" -->become root<--, suppose this
enterprise will only install FOSS, will only use public domain hardware,
and ask you if you are ready for an update before pushing it to your Z80
machine.

Avoiding users to become root is just a policy matter of an
organization, in which you are part.

Of course you can become root anyway and void warranty. That is not bad.
That is just an weighted conscious option.

My best,
Beco.

Beco,

This could get us into another abstract ontological discussion about
what constitutes FOSS and how to define it... a sort of discussion I
don't really care to engage in right now.  I'll just say that, in your
example, perhaps the machine is free for you, but not free to those you
sell it to.  And at work I might have root access to a FOSS system
running a webserver, but visitors to that website don't.  True, this
doesn't mean that it's not FOSS.  But I own the system, the visitors
don't.  If someone else at work has root access to a machine and I'm
just the DBA and don't have root access, true, it's still FOSS; if
something's not right with the system, the sysadmin can change it
(because that's his job); but he doesn't have to beg the whim of the
owner or vendor of proprietary software.  So the distinction between
FOSS and proprietary remains.

In the case of android, I've paid for the hardware and for someone to
install and support the software and provide updates.  Vendors don't
advertise the fact at all that you don't get root access and that,
actually, other unseen people are controlling your phone.  And that's
what it really comes down to-- who has control.  And this is a prime
condition for FOSS, that *you* have full control of something you
bought, not someone else.

It's also true that I could root my phone and accept that I've voided
the warrantee.  But part of the purchase price I paid for the phone
includes support and the reasonable guarantee that the hardware won't
fail in the first year (or whatever the term paid for).  So by rooting
my android, by simply taking control of something I paid for, I'm losing
something else I paid for.  With FOSS, I think we could agree, this sort
of conundrum doesn't arise.

In the US, the Magnusson-Moss act *may* act to invalidate such warrantee
denials; 15-USC2302(c) is the specific section:

-----
Prohibition on conditions for written or implied warranty; waiver by
Commission
No warrantor of a consumer product may condition his written or implied
warranty of such product on the consumer’s using, in connection with such
product, any article or service (other than article or service provided
without charge under the terms of the warranty) which is identified by brand,
trade, or corporate name; except that the prohibition of this subsection may
be waived by the Commission if—
(1) the warrantor satisfies the Commission that the warranted product will
function properly only if the article or service so identified is used in
connection with the warranted product, and
(2) the Commission finds that such a waiver is in the public interest. The
Commission shall identify in the Federal Register, and permit public comment
on, all applications for waiver of the prohibition of this subsection, and
shall publish in the Federal Register its disposition of any such application,
including the reasons therefor.
-----

Generally, a manufacturer must prove that aftermarket parts caused a failure.
They cannot blanketly prohibit the use of aftermarket parts and supplies
unless they provide their required parts and supplies for free. That is, if
you use a proper aftermarket oil in your engine and the engine fails, the
automaker must prove that that 3rd-party oil caused the failure. And an
automaker cannot void your entire warrantee just because you installed an
aftermarket stereo. This can easily be extended to smart phones. The
manufacturer cannot void your entire warrantee just because you installed some
3rd-party software; they have to prove that that software caused the smart
phone to fail.

Neal,

It's very cool that you know about this. I'm not a lawyer but I would interpret the situation differently, and this based on the part in parentheses: "other than article or service provided without charge under the terms of the warranty".... That is, the warrantor, in my case Samsung, could quite plausibly maintain that the specific version of android which came on my phone with purchase was provided "without charge", along with any and all updates to that provided version. If, on the other hand, I was charged money for their version of android (and the updates to it), then the conditions would properly fall under this statute. I would also have a case under this statute if Samsung made its warrantee contingent on my using, say, T-Mobile as my cell- and/or internet-provider (which, of course, I would be paying for separately). But that's not the case either. So I don't think that
the Magnusson-Moss Act-- at least not the section you quoted-- applies here.

Secondly, and as a practical matter, the legalese I got in the package with my phone (legal language which is almost universal in the US these days) provides that, in the event of a legal dispute, cases will go, not before a judge or jury, but rather to binding arbitration. I don't know much about how that works, but can only imagine that this language wasn't put in the conditions of purchase for the benefit of the consumer, but rather is there to give the corporation further advantage in legal proceedings.


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