By that court's logic, one party can impose terms on another unilaterally, after the contract has been agreed to, and assume silence as consent
Not at all. You can't impose a unilateral contract after the fact at all without a new acceptance. The issue is one of timing. The offer includes terms delivered with the product. Your acceptance is acceptance of those included terms, regardless of whether you ask for them or whether you read them beforehand (there are certain kinds of agreements which must be executed in writing by signature [usually credit and land purchase, but almost never personalty]).
You're looking at what the customer actually knew at the time of agreement, rather than what they were responsible for knowing. In order for your scenario to exist, they would have to send supplemental terms
after the acceptance (and in order to demonstrate that, they'd have to show how the terms were different from those available beforehand).
impose significant additional costs to the other party should they reject the additional terms (e.g. the costs of returning the hardware, or the cost of the software that's non-returnable once opened
The retailer isn't a factor if they're separate from the manufacturer. The cost of returning the hardware is bargained for in the purchase agreement by way of the store's return policy. More to the point, though, there are still no
additional terms. They are the same terms attached to the original offer. They do not become additional merely because the offeree has not yet chosen to
read them.
I disagree with your assertion that installing arbitrary 3rd party software on the iPhone is not illegal.
It is not. The
installation of software is not illegal. The installation by
illegal means would be, but the factor there is the
illegal means, not the
installation. Do you see the difference?
In using that software in a way that is not provided for under the license agreement, you are infringing on Apple's copyright. Illegal.
You're still mixing up the relevant acts. Installation of third party software is not barred by license, nor would it be enforceable in the agreement.
Hacking the firmware to do so would be in violation, but you don't prosecute end users for running executables that otherwise have no consequences. If you install the "Sketches" application,
you don't have the unclean hands of breaking prohibitions on reverse engineering. The person(s) who wrote and distributed the software are your targets. Yes, you can sue the end user if you
really want to, but what relief would you get? An injunction against the end users is worthless; most customers are relatively judgment proof in damages; making the case is much, much harder; it's bad policy. They're small fish, and not worth it.
Yes it is, because in order to install your own software, you'd first have to modify Apple's software.
It's the
modification you're talking about, not the installation. You can't punish someone for doing something which merely
includes an unlawful act. You can't sue me for "flying to Florida" if while in Florida, I burn down your vacation home.
I have not yet seen any applicable law which would establish that firmware modifications for any other purposes would be exempted.
Personal use at common law allows for a wide variety of personal, noncommercial, private acts. Basically, anything you do without interfering with someone else's rights is fair game--when that act becomes public, or when it interferes with commercial interests, it is no longer personal use and no longer protected. This is a due process issue. You're not doing anything wrong if you modify your phone yourself. If you distribute those modifications for others, if you undermine or compete with Apple's ability to sell/control/profit from/uphold their own agreements, or if your modification causes damage, interruption, or otherwise acts strangely on a network, then there's the threshhold where you're in trouble.
it seems to me that maybe you didn't fully grasp what I had been saying either.
I understand what you're arguing (some of which is correct and some of which is arguable but impractical, and some of which is just wrong), but you don't understand that you're not actually saying what you mean. Be more precise when making a legal argument.
