The Lawsuit-Proof Phone: Sidestepping The Injunction Headache


Software patents are awful. Just how they came to be legally protected, and why there’s a strong case to be made for why they shouldn’t be, are stories for another time; for the moment, all we’re concerned with is that they’re very much a current-day reality of the smartphone industry. Lately, these legal spats between patent holders and the manufacturers they accuse of infringement have been getting to the point where judges have granted preliminary injunctions, preventing the sale of certain smartphones and tablets until these battles become resolved. Might there be something we could do about that, though, without needing to bring the software patent system to its knees?

What if smartphone and tablet manufacturers sold their products with little more than a bootloader on board, and end-users themselves downloaded and installed device firmware upon first taking them home?

A Blank Slate

That sort of idea’s far from novel; there are plenty of reasons why a manufacturer might want to provide hardware independently of software. We can look to the gray market of console modding for many such examples. With the original Xbox, for one, chips were sold either blank, alongside a programmer, or loaded with a homebrew BIOS that didn’t enable any piracy; the tacit understanding was that most customers would re-flash such chips with the illegal software of their choice once they were installed.

Obviously, there’s a huge difference in the ethics between running that kind of software, and smartphone code that has a legal injunction against its distribution, but that doesn’t mean that phones can’t take advantage of similar work-arounds.

How Would This Work?

So, what exactly am I proposing? Manufacturers should start shipping smartphones and tablets with just this bare minimum of code. There needs to be enough to let these products connect to a PC, receive downloaded firmware, and flash it to the device. Companies will need to make sure all their ducks are in a row when it comes to licensing any patents that covers those functions, but then everything else gets so much easier. Heck, if they gave end-users convenient access to JTAG test points, you wouldn’t even need this code present and could ship devices basically software-free.

While the injunctions we’re talking about are manifesting as a problem for Android, there’s no reason this should be platform-specific, and these same steps are just as applicable to Windows Phone or iOS.

When there aren’t any legal issues at play, you’d simply visit the manufacturer’s website, download a flashing app, and have it retrieve the appropriate software. Injunctions would stop manufacturers from distributing the offending code, but a system like this offers several workable alternatives.

The Benefits Of A Software/Hardware Divide

This would enable manufacturers to quickly turn-out new versions of their software without any infringing code. Think about what Google did with the Galaxy Nexus, stripping it of its universal search before returning it for sale with new software. If the phone shipped with nothing but this loader code on it, Google never would have had to take it off the shelves in the first place.

Even with the ability to quickly introduce new software revisions, what about sales of these devices post-injunction but before new official software is ready? Are users who buy them in that window just out of luck?

Think back to the “tacit understanding” with those modchips; the manufacturers knew their users would install other software on their own, even if they weren’t the ones providing it. The internet being the archive that it is, once firmware is released, it’s released, and even an injunction can’t make it just disappear.

A cunning smartphone manufacturer would allow users to manually specify software to flash to their new handsets, even if it hadn’t been directly retrieved from the company’s servers. They’d probably want to use some sort of signature check to verify that it’s a legit release, but there’s no legal reason to force users to only flash their devices with currently-approved code; users could easily spend a couple minutes Googling to retrieve and install month-old software released before any injunction went into effect.

Reality Check

I realize that some of this sounds a bit backwards. After all, we’re moving away from tying phone and tablet use to requiring a PC, and there are many users of such devices who just don’t have a computer of their own. That’s a big problem for a system like I’m proposing, and if we’re going to rely on retail stores or carriers to pre-flash phones for these computer-less users, we’re in just as big of a legal mess as before.

It also seems like a bit of a hassle, and I’m sure that there are plenty of people who think that even the few moments it takes to get all your info entered into a new phone, and transfer over your contacts, is already far too long. Considering all these problems, I don’t expect a system like this to even warrant a second consideration form smartphone manufacturers today. With more and patents awarded as time goes on, though, we could be looking at a future where the threat of injunctions becomes increasingly frequent; maybe then a system like this would start to look a lot more attractive.

Of course, none of this does anything to help against injunctions based upon infringement of registered design trademarks; if you’ve got an elegant solution for that, I’d love to hear it.

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About The Author
Stephen Schenck
Stephen has been writing about electronics since 2008, which only serves to frustrate him that he waited so long to combine his love of gadgets and his degree in writing. In his spare time, he collects console and arcade game hardware, is a motorcycle enthusiast, and enjoys trapping blue crabs. Stephen's first mobile device was a 624 MHz Dell Axim X30, which he's convinced is still a viable platform. Stephen longs for a market where phones are sold independently of service, and bandwidth is cheap and plentiful; he's not holding his breath. In the meantime, he devours smartphone news and tries to sort out the juicy bits Read more about Stephen Schenck!