The no sale requirements in the "contract" is interesting. However, is the following actually legal in the US?
> You have only yourself to blame. Once you get the unlock code, your device is no longer covered by the Motorola warranty; in other words, please don't blame us if things go wrong, even if they appear unrelated to unlocking the bootloader.
In Australia they can revoke the "Motorola warranty" all they want. However, everything sold comes with a warranty that can't be revoked which entitles you to repair, replacement or refund for a reasonable time frame (yes it's intentionally open ended). You have to be using the item as intended, but if the company lets you unlock the device, then that's an intended use case. Even if you do "unlock a device" against a company's wishes, you're able to make warranty claims against the individual parts which are being used as intended. The company would have to demonstrate your tampering was responsible for the damage.
I'm aware the US does not have these same consumer rights, but can a company revoke a warranty?
Not generally - they can refuse a warranty service if it seems like the custom modification you made is causing whatever issue you're trying to use the warranty for, but they can't deny it if it unrelated. So if you have a warranty on your car, and you put a custom engine in it, and then it turns out you received defective seatbelts, the warranty is still active. But if your drive train is trashed from the extra power of the new engine, then the warranty will not be honored.
Canada is the same. In fact, some provinces in Canada require the retailer to honor the warranty if the manufacturer refuses and the warranty was advertised.
> In Australia they can revoke the "Motorola warranty" all they want. However, everything sold comes with a warranty that can't be revoked which entitles you to repair, replacement or refund for a reasonable time frame (yes it's intentionally open ended).
Can you sell your warranty rights? For example let's say I've sold you something and later I offer you 150 AU$ to buy back your warranty rights. You decide that is worth way more than the warranty is worth to you and accept. Does this work?
What you are referring to is not a warranty, they are statutory rights. [1][2]
* Consumer guarantees are automatic and can't be negotiated away.
* Warranties are voluntary and are additional to consumer guarantees.
Here is the required text in Australia for goods:
# Mandatory text for goods and services supplied after 9 June 2019
The mandatory text for the supply of goods and services after 9 June 2019 is:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
to cancel your service contract with us; and
to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods.
If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
Does the warranty in Australia deal with the manufacturer, or is it related to the reseller/point of sale?
There are similar laws in the EU in various implementations, but most of them make the party that sold it the one to warrant the product, and the manufacturer isn't really involved (unless the manufacturer is the one that sold it).
Point of sale. Although, if I'm getting into the weeds, I should probably use the terminology "consumer rights and guarantees" rather than warranty, since I believe that's how we make the distinction locally.
What's actually really interesting is the same guarantees apply even if the item is a gift[1].
Warranties are just normal contracts. If both parties agree to modify a contract, they are pretty much always allowed to do so. In this case, Motorola is offering a second contract, which modifies an earlier agreement (the warranty) in exchange for the key to unlocking one's phone.
Warranties in the US are not normal contracts. They are heavily regulated by the Federal Trade Commission, including those implicit in offering a product for sale, which cannot be unilaterally terminated post facto by a manufacturer: https://www.ftc.gov/business-guidance/resources/businesspers...
>Warranties are just normal contracts. If both parties agree to modify a contract, they are pretty much always allowed to do so. In this case, Motorola is offering a second contract, which modifies an earlier agreement (the warranty) in exchange for the key to unlocking one's phone.
You're completely glossing over the part where an illegal contract is invalid whether both parties agree to it or not. If I write up a contract that says you agree to let me murder you, and you sign it, I can't just murder you without repercussions.
> Warranties are just normal contracts. If both parties agree to modify a contract, they are pretty much always allowed to do so. In this case, Motorola is offering a second contract, which modifies an earlier agreement (the warranty) in exchange for the key to unlocking one's phone.
That's just not true. Most countries have regulations, or concrete laws, around what manufacturers and retailers are required to offer as warranty, as well as when they're allowed to refuse honoring the warranty.
It's not just a "contract". The same way you can't just sign away your labor rights in Germany, for example. Doesn't matter if it's a contract. Laws determine what contracts are actually allowed to do.
> And now a word from our lawyers. Finally, in order to unlock your device, you need to agree to important legal terms[1], which can be found on the next page. Agreeing creates a binding legal agreement, so be sure to read them carefully.
From linked terms:
> Devices that have been unlocked are for your personal use only. Once you unlock the device, you can only use it for our personal use, and may not sell or otherwise transfer the device.
Inquisitive question: is there such a thing as a unfair contract? There's this saying 'the price is always right'. Likewise, isn't the contract always fair?
It kind of makes sense. If you unlock it, install software and then try to sell it, it is a Motorola branded device, but it no longer functions as Motorola designed or intended. I can see where the lawyers are trying to prevent the consequences of actions by the end-user from falling back on them.
Seems like an area of the law that's a bit unclear.
Sure, if you sell a phone with unofficial modifications, without disclosing that it's been been modified, I could see that being a problem. But not a blanket ban.
This feels like they don't want to be liable if someone roots a phone, installs malware or something, sells it to another person, and then proceeds to exploit the compromised phone they just sold.
Which would be entirely understandable. IDK if that's what this is, or if this is the best way to do that.
edit: in a way, once you do this it's not "a motorola phone" anymore. They are selling you a device and software configuration together branded as the motorola whatever. If you modify that, it's not what they sold you, but they have no way to note to the secondary market that the device is not what they intended it to be. It's not a visible change. Again, no idea if this is the right way to stop that (I'm guessing not), but I can also see where they would be upset about this.
edit 2: Setting aside the "we don't want to be liable" idea. It could also be a "we don't want to support this device anymore" idea. We do this sort of thing all the time - you did what with our code? Sorry dude you're on your own. Again, why do it this way. But maybe.
That doesn't really make sense either though. If you buy a brand new Ford, and punch a hole in the brake lines on purpose, then sell the car - Ford isn't getting sued by the buyer when something horrible happens. They have 0 liability, and are under no obligation to put in measures to prevent you from damaging the brake lines.
Someone jailbreaking a phone, then installing malware sounds like a great way for the seller to face criminal and civil crimes, but I don't see why Motorola is under ANY responsibility for the state of the device after initial sale unless it's refurbished by Motorola.
I agree, but I am thinking about scenarios where businesses get sued for consumer safety. This happens, right? Someone is harmed and they assert it's because the manufacturer of the thing didn't take adequate care to prevent a situation?
Like I said in another comment, I think it's ridiculous. I'm just open to the idea that they are doing it to protect themselves rather than trying to give (I assume) a very very small minority of their users the finger.
I'm wondering how many used Windows PCs have been sold with malware on them, and whether anyone has ever attempted to hold the OEM legally responsible for it.
Let me be clear: I think it would be ridiculous to do that. But a lot of what I read about that's "our lawyers said to do this" comes off as ridiculous to me. And some court decisions I read about, and the reasoning, seem ridiculous to me.
So I don't trust that anything legal-ish that seems ridiculous to me is not legitimate.
If you buy it second hand, I don't see why you'd have a warranty regardless. The manufacturer has a contract with the original buyer; they never made an agreement with the secondary buyer
First sale just says that if you sell a copy you legally own of a copyrighted work that does not infringe the copyright owner's distribution right. That just means that if the copyright owner wants to stop the sale they will not be able to turn to copyright law to do so.
It does not mean that they can't turn to some other method to stop the sale. In this case they would turn to contract law. You defense to that would not involve first sale. It would involve trying to argue that a contract was not formed.
Does that prevent you re-selling a device with an unlocked bootloader if you clearly indicate that it is unlocked? Probably not, but it's more complicated than I thought at first glance.
I can see how trademarks could allow for them to restrict the selling of such phones. This is to fight against people who buy Motorola phones, unlock them, install a new operating system on them including malware, and then sell them to consumers as a Motorola phone. Normal consumers think they are getting a Motorola phone, but in actuality they aren't and they are buying a device that is compromised. The attackers are using Motorola's trademark to trick people.
> The attackers are using Motorola's trademark to trick people.
I am sorry, this is absurd.
Firstly my right of ownership over my device is greater that Motorolas twice-removed claim over trademark, which is only a small part of its value.
Second -precedent. We have laptops, there is unblocked boot loader and this has never been the norm. If a crime occurs, it’s dealt with by the justice system, not by taking away my rights.
Agreed, though that certainly _feels_ orthogonal to unlocking the bootloader? If I modify the hardware some other way (a la a modchip) and achieve the same thing, it'd be illegal for the same reasons.
Can downvoters explain why they are doing so? I agree with both of these points (first sale doctrine and that a license is not a contract) and would like to hear explanation of why they are mistaken here.
In particular, there is no consideration offered by either party, and so this cannot be contractual on its face.
Agree. Contracts can't override legal obligations. You can't sign away your rights and companies can't write contracts that absolve them of their legal obligations. It doesn't matter if both parties involved "agree" to it.
If I've understood the Motorola page correctly, they do not give you the unlock code for your device if you do not agree to the terms. That would be consideration.
Thanks. reading the rest of the document I think I see what the point is here.
This basically adds an extra layer of legal protection for motorola against people unlocking the bootloader, installing bad things on it, then selling it on.
The whole t&cs are basically "use this software and it will be considered legally as intentionally breaking the device".
It doesnt stop anyone selling the device - but it does shift any warranty or damage claims directly onto whoever broke it.
selling a "broken" mobile as working has wider implications because of the SOS call laws.
I do not own Motorola's devices but would still like to send them big warm FUCK YOU. As for me personally now it is guaranteed that I will never buy any of your crap.
Given they took thentime to out this together, I'm guessing they won't actually go after anybody for this, they're just putting it there to distance themselves from any consequences that arise from somebody selling unlocked devices. But agreeing to terms on the belief that they won't actually be enforced is a risky game to play. Bot sure what the consequences could possibly be though.
edit: Going to leave this up, but the first-sale doctrine gets a little iffy around "materially different" devices. IANAL so it's pure speculation on my part.
Readit News
> You have only yourself to blame. Once you get the unlock code, your device is no longer covered by the Motorola warranty; in other words, please don't blame us if things go wrong, even if they appear unrelated to unlocking the bootloader.
In Australia they can revoke the "Motorola warranty" all they want. However, everything sold comes with a warranty that can't be revoked which entitles you to repair, replacement or refund for a reasonable time frame (yes it's intentionally open ended). You have to be using the item as intended, but if the company lets you unlock the device, then that's an intended use case. Even if you do "unlock a device" against a company's wishes, you're able to make warranty claims against the individual parts which are being used as intended. The company would have to demonstrate your tampering was responsible for the damage.
I'm aware the US does not have these same consumer rights, but can a company revoke a warranty?
Can you sell your warranty rights? For example let's say I've sold you something and later I offer you 150 AU$ to buy back your warranty rights. You decide that is worth way more than the warranty is worth to you and accept. Does this work?
No
> Does this work?
No
What you are referring to is not a warranty, they are statutory rights. [1][2]
* Consumer guarantees are automatic and can't be negotiated away. * Warranties are voluntary and are additional to consumer guarantees.
Here is the required text in Australia for goods:
# Mandatory text for goods and services supplied after 9 June 2019
The mandatory text for the supply of goods and services after 9 June 2019 is:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
You are also entitled to choose a refund or replacement for major failures with goods.If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
[1] https://www.accc.gov.au/consumers/buying-products-and-servic... [2] https://classic.austlii.edu.au/au/legis/cth/consol_act/caca2...
There are similar laws in the EU in various implementations, but most of them make the party that sold it the one to warrant the product, and the manufacturer isn't really involved (unless the manufacturer is the one that sold it).
What's actually really interesting is the same guarantees apply even if the item is a gift[1].
[1] https://www.accc.gov.au/consumers/buying-products-and-servic...
You're completely glossing over the part where an illegal contract is invalid whether both parties agree to it or not. If I write up a contract that says you agree to let me murder you, and you sign it, I can't just murder you without repercussions.
Contracts have limits determined by statutes and common law. People also have rights that they legally can't give away in a contract.
That's just not true. Most countries have regulations, or concrete laws, around what manufacturers and retailers are required to offer as warranty, as well as when they're allowed to refuse honoring the warranty.
It's not just a "contract". The same way you can't just sign away your labor rights in Germany, for example. Doesn't matter if it's a contract. Laws determine what contracts are actually allowed to do.
From linked terms:
> Devices that have been unlocked are for your personal use only. Once you unlock the device, you can only use it for our personal use, and may not sell or otherwise transfer the device.
[1] https://en-us.support.motorola.com/ci/fattach/get/741421/138...
edit: Thank you to Louis Rossmann for bringing this to our attention: https://www.youtube.com/watch?v=U2k9D81fbpA
[1] https://www.accc.gov.au/media-release/businesses-urged-to-re...
Seems like an area of the law that's a bit unclear.
Which would be entirely understandable. IDK if that's what this is, or if this is the best way to do that.
edit: in a way, once you do this it's not "a motorola phone" anymore. They are selling you a device and software configuration together branded as the motorola whatever. If you modify that, it's not what they sold you, but they have no way to note to the secondary market that the device is not what they intended it to be. It's not a visible change. Again, no idea if this is the right way to stop that (I'm guessing not), but I can also see where they would be upset about this.
edit 2: Setting aside the "we don't want to be liable" idea. It could also be a "we don't want to support this device anymore" idea. We do this sort of thing all the time - you did what with our code? Sorry dude you're on your own. Again, why do it this way. But maybe.
Someone jailbreaking a phone, then installing malware sounds like a great way for the seller to face criminal and civil crimes, but I don't see why Motorola is under ANY responsibility for the state of the device after initial sale unless it's refurbished by Motorola.
Like I said in another comment, I think it's ridiculous. I'm just open to the idea that they are doing it to protect themselves rather than trying to give (I assume) a very very small minority of their users the finger.
So I don't trust that anything legal-ish that seems ridiculous to me is not legitimate.
like SD cards and other sorts of storage devices with embedded microcomputers; why storage? for a huge binary payload for the host system!
all it takes is one super secret 64-bit instruction that makes the cpu drop its pants and bend over, or one super secret exploit
Deleted Comment
You can put anything in a click-through license, but that doesn't make it a contract nor override established legal paradigms.
It does not mean that they can't turn to some other method to stop the sale. In this case they would turn to contract law. You defense to that would not involve first sale. It would involve trying to argue that a contract was not formed.
https://en.wikipedia.org/wiki/First-sale_doctrine#Overview_o...
Does that prevent you re-selling a device with an unlocked bootloader if you clearly indicate that it is unlocked? Probably not, but it's more complicated than I thought at first glance.
I am sorry, this is absurd.
Firstly my right of ownership over my device is greater that Motorolas twice-removed claim over trademark, which is only a small part of its value.
Second -precedent. We have laptops, there is unblocked boot loader and this has never been the norm. If a crime occurs, it’s dealt with by the justice system, not by taking away my rights.
Deleted Comment
In particular, there is no consideration offered by either party, and so this cannot be contractual on its face.
https://en-us.support.motorola.com/ci/fattach/get/741421/138...
This basically adds an extra layer of legal protection for motorola against people unlocking the bootloader, installing bad things on it, then selling it on.
The whole t&cs are basically "use this software and it will be considered legally as intentionally breaking the device".
It doesnt stop anyone selling the device - but it does shift any warranty or damage claims directly onto whoever broke it.
selling a "broken" mobile as working has wider implications because of the SOS call laws.
IMHO.
I'm sorry but the text says otherwise ..
“Once you unlock the device, you can only use it for your personal use, and may not sell or otherwise transfer the device.”
edit: Going to leave this up, but the first-sale doctrine gets a little iffy around "materially different" devices. IANAL so it's pure speculation on my part.