The web is buzzing with news that Apple is cracking down on companies that are giving away free iPhones and iPads on the ground that such practices are against their policies.
Can Apple really do anything about these giveaways? Can a company dictate what you do with their products after you purchase them? Let’s discuss.
The Rules
Apple has an official document outlining what you are and aren’t allowed to with their products as far as promotions go. In this document, it’s obvious that Apple is under the impression that you require their consent to give away their products and threaten to revoke this consent if you don’t play by their rules.
In this document, Apple states that “iPad, iPhone and the iPhone Gift Card” may not be used in third-party promotions. They also go on to prohibit the use of “free” in headlines about their products. So if we’re reading this right, the hundreds of “free iPad” giveaways that you see all over the web are actually in violation of Apple’s wishes.
Surely this isn’t something Apple is pursuing though right? The sheer number of violators is proof that you can get away with it without any negative results whatsoever.
A Warning from Fortune
Earlier this week, Fortune reported on this very subject. The author pointed out that the document containing these rules had been around since January with little to no action. However, Apple has apparently recently begun “reaching out to companies” to enforce the policy.
So what does this mean? How is Apple reaching out to companies and why do they want to prevent free hype over their products? Unfortunately, Fortune neglected to comment about how they found out about Apple’s actions or what action the company has been threatening violators with.
As far as why Apple wouldn’t want people to give away their products, it’s likely because this robs them of a chance to up-sell by talking customers into getting MobileMe, AppleCare, etc. Also, let’s face it, the words “Get a free iPad” have become fairly synonymous with Internet scams and Twitter spam.
Is it Illegal to Run an iPhone Giveaway?
I’m not a lawyer, and even if I were I’m sure the collective knowledge of Apple’s legal team would crush any opinions that I have about the matter. However, I can’t help but wonder how Apple could possibly enforce such a policy aside from levying empty threats.
The idea is simple and cuts at the very core of one of the principles that America was founded on: property rights. If I purchase an iPhone or an iPad, it is my property. Apple is not renting it to me but selling it to me. As long as I pay up, they retain zero rights to say what I can and can’t do with that product. If I want to throw it off the Empire State Building, they can’t stop me (though the police do in fact frown on killing pedestrians with flying phones).
By extension of this logic, if I want to host a giveaway of an iPhone duct-taped to an iPad, I have every right to do so. If you don’t agree, let’s take a look at another time when Apple tried to dictate what customers could and couldn’t do with their iPhones.
Apple Defeated on Jailbreaking Issue
Last year around this time Apple was issuing statements making the official claim that jailbreaking your iPhone was in fact illegal. According to Wired, Apple’s position was that “modifying the iPhone operating system leads to the creation of an infringing derivative work that is protected by copyright law.”
Regulators didn’t buy it and ruled that jailbreaking was protected under “fair use“, oddly enough the same principle that makes it acceptable for us to post commentaries and opinions about Apple and their products.
The point is, Apple was certain that jailbreaking was something that they needed to stomp out and legal action seemed like the strongest move they could make, but ultimately the law was on the side of consumers.
Not So Fast
To my knowledge, Apple has not in fact stated that running an iPhone promotion is illegal, just that they don’t consent to you doing so. According to Fortune, it’s more than an empty statement though as Apple is in fact trying to enforce it.
To me it would seem that there are in fact a few circumstances under which Apple would have power over you. For instance, if you are a certified retailer of Apple goods, your right to do so could conceivably be revoked upon violation of Apple’s terms.
This leaves Apple with a fairly small target, limited to the people that actually make them money regularly! However, there is one issue that Apple could possibly go after everyone for: they own the terms iPhone and iPad and therefore do in fact have the rights to police how others use those terms. So if you violate Apple’s policy against saying “Win a Free iPhone” in a headline, they might in fact be able to stop you.
I used to do a lot of promotional graphic design work and this very issue came up frequently. For instance, we would run a promotion to win two tickets to the Super Bowl, but our headlines always read “Win Two Tickets to the Big Game”. We were still free to run the giveaway, but didn’t possess the rights to use terms protected by the NFL. It’s conceivable that the same laws apply here, which would mean that you really can’t say “Win a free iPhone” without fear of legal retribution.
What Do You Think?
At this point I throw it back to you. Your opinions and experience are just as valid as mine and I’d love to hear what you think about Apple’s ability to dictate what people can and can’t do with their products.
Can Jobs and the gang successfully prohibit iPhone and iPad giveaways? Will they really even try? If so, what legal grounds do they have to stand on? Chime in below!