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Mashable article titled "Unlocking Cellphones Becomes Illegal Saturday in the U.S."

Quote from Britta in the comments:

The vagueness of this article seems to be confusing people. I'm not a lawyer, just a random person interested in DRM law, but this is my understanding:

The context is that unofficial carrier unlocks (such as ultrasn0w for iPhones) alter protected software on the device, which may be a DMCA violation in the US, since the DMCA prohibits tampering with digital locks. In 2009, the copyright office approved a three-year exemption to the DMCA for unofficial unlocking, and in 2012, the copyright office decided to renew the unofficial unlocking exemption but limit it to only apply to devices purchased before January 26, 2013.

So, if you buy a new iPhone next week and later decide to install unofficial unlocking software, your action will be in a legal grey area instead of being protected by an exemption. It's not clearly illegal, since there are no court cases testing whether the DMCA actually prohibits this, but it's also not clearly legal since it seems like the DMCA might prohibit it.

Official unlocks from your carrier are not affected. It's unclear to me whether third-party IMEI unlocks are affected, since they don't alter any software on the device - but they're probably in a legal grey area anyway, since they probably involve violating carrier policies in various ways. I also think that Gevey SIM interposer unlocks were already grey area, since they involve making calls to emergency numbers (and then quickly cancelling them before they connect).

I imagine that the effects of this will just be that no developers will want to release any ultrasn0w-style tools compatible with newer devices, and I imagine that the providers of SIM interposers and third-party IMEI unlocks will get worried.

asked 24 Jan '13, 22:00

shimmer's gravatar image

shimmer
23010419

edited 29 Jan '13, 17:50

britta's gravatar image

britta ♦♦
21.5k94733

Someone in China will probably come up with something. :D

(24 Jan '13, 22:05) spockers ♦ spockers's gravatar image

Will this affect ultrasn0w?

(25 Jan '13, 07:47) iAdam1n ♦ iAdam1n's gravatar image

Probably not. ultrasn0w isn't compatible with any devices purchasable from Apple after January 26, so all potential uses of ultrasn0w are on exempted devices. I imagine that it won't be updated to unlock newer devices, but it hasn't been updated to do that for a long time anyway. (Note that this is just me guessing; I haven't asked MuscleNerd or anyone.)

(25 Jan '13, 18:44) britta ♦♦ britta's gravatar image

It doesn't matter if someone in China comes up with something. This law affects American citizens who wish to unlock their phones purchased within the United States locked to American carriers. It does not affect foreign nationals or phones purchased and/or locked to carriers outside the United States. The current understanding is that if the phone was purchased in the United States prior to 26 January 2013, it is exempt. It seems to be agreed that it is illegal to unlock an iPhone purchased in the USA after 26 January 2013. All other situations are not applicable to the new law.

(29 Jan '13, 20:13) JuergenWest ♦ JuergenWest's gravatar image

I'm pretty sure it would affect foreign nationals who are within the United States who wish to unlock their phones purchased within the United States locked to American carriers, even though they aren't citizens. It's also not a new law, merely a newly-enforced, previously exempt provision of existing law.

(29 Jan '13, 20:25) spockers ♦ spockers's gravatar image

Didn't fully read all the comments but if it's legal why did factory unlocks jump up so much? Around the time the 5S came out I paid 99 cents for a factory unlock on eBay. Since I usually sell my old phone when a new iPhone comes out and unlock it right before. We'll anyway a week after I unlocked the phone I wasn't able to find an unlock under $30. From 99 cents to $30+ in a matter of a week?

(04 Feb, 17:34) Noodles46 Noodles46's gravatar image

@Noodles46 It is a somewhat long story. The short answer is supply/demand curve. Let me know if you want the long answer.

(04 Feb, 18:22) JuergenWest ♦ JuergenWest's gravatar image

In short, are carrier unlocks illegal now? It's not that simple. Official carrier unlocks are fine. Unofficial software-based unlocks like ultrasn0w are exempt from the DMCA for older devices (purchased before January 26, 2013) and not exempt for newer devices, which makes applying them to newer devices into a legal grey area (their legality is unclear). The legality of third-party IMEI unlocks is probably not affected by the DMCA or its exemptions, but it could be dubious under other laws.

Here are quotes from the EFF's article clarifying the situation, "Is It Illegal To Unlock a Phone? The Situation is Better - and Worse - Than You Think":

The legal shield for jailbreaking and rooting your phone remains up - it'll protect us at least through 2015. The shield for unlocking your phone is down, but carriers probably aren't going to start suing customers en masse, RIAA-style. And the Copyright Office's decision, contrary to what some sensational headlines have said, doesn't necessarily make unlocking illegal.

Unlocking is in a legal grey area under the DMCA. The law was supposed to protect creative works, but it's often been misused by electronics makers to block competition and kill markets for used goods. The courts have pushed back, ruling that the DMCA doesn't protect digital locks that keep digital devices from talking to each other when creative work isn't involved. And no creative work is involved here: Wireless carriers aren't worried about "piracy" of the software on their phones, they're worried about people reselling subsidized phones at a profit. So if the matter ever reached a court, it might well decide that the DMCA does not forbid unlocking a phone.

...So what can we do? Creating and defending the next round of exemptions will start in late 2014. If lawsuits happen, the courts should recognize that the DMCA is being misused, and refuse to apply it to anti-competitive software locks. Ultimately, what we really need is to either fix the exemption process or reboot the anti-circumvention provisions of the DMCA, or both.

And here's a comment from saurik correcting a misleading article on this topic by The Atlantic:

This article states that "until recently it was illegal to jailbreak your own iPhone" and links to an article about the 2012 DMCA exemption; however, this was a renewal of the existing exemption which was granted in 2009, so the word "recently" is confusing.

Also, this article in numerous places uses "crime" and "illegal" to describe the state "doesn't have an exemption from the DMCA". It is not clear whether these activities, whether unlocking or jailbreaking, are even covered by the DMCA: the fifth circuit appeals court in a recent ruling against GE seems to believe the DMCA only applies to cases of copyright infringement (although this is a rarer opinion); it would take a real court case to decide legality.

In fact, for the notion of "jailbreaking" (as opposed to unlocking), one of the reasons the opposition gives against granting an explicit exemption is that we don't need one: that the law already allows this use case, and that an exemption is both overkill and useless ruling that would cause citizen confusion. (Note: the argument for doing similar things to game consoles, as George Hotz was tried for, is less direct, due to the larger piracy issue.)

This article also makes a serious mistake in its one of its key points, claiming that the Library of Congress is somehow adding new laws to the books that could put people in jail, something that only Congress should be able to do. In fact, Congress is where this law came from, in 1998: the Library of Congress only has the right to, only when deemed necessary and only for three-year terms, grant temporary exemptions to the 1998 law.

In particular, this article makes the Library of Congress sound evil, and Congress sound good, going so far as to say "if Congress truly wants to rein in the power of unelected bureaucrats, then they must first write laws in a narrow manner and avoid the need for intervention by the Librarian of Congress to avoid draconian consequences like making iPhone jail breakers and smartphone un-lockers criminals, or taking away readable books for the blind".

In fact, Congress is the party that believed that this law should have no exemptions at all, and only after arguments that that was an insane degradation of existing fair use rights did they decide to grant the Library of Congress the ability to make these limited exemptions. As it stands, the Library of Congress seems to be doing a more open and more reasonable job of this than Congress.

link

answered 29 Jan '13, 17:53

britta's gravatar image

britta ♦♦
21.5k94733

edited 29 Jan '13, 18:28

Make Unlocking Cell Phones Legal.

https://petitions.whitehouse.gov/petition/make-unlocking-cell-phones-legal/1g9KhZG7?utm_source=wh.gov&utm_medium=shorturl&utm_campaign=shorturl

link

answered 28 Jan '13, 18:08

thunder_downunder's gravatar image

thunder_downunder
1114

The real question, how likely are they to prosecute people that are not violating their contracts? What real proof can someone say you unlocked your phone if you did so anyway? I dropped AT&T once mid contract. I paid a pretty penny for my early cancelation fee. After that point, I consider the phone out of their control. I can understand someone pirating a movie/game and getting fined/prosecuted, that's clearly stealing. No carrier is just going to let you walk away without a fee mid contract. Your contract usually is for two years. If you unlock your phone, chances are you're trying to switch carriers. Then as I said before, if you're out of contract all is fine, if you're still under contract you pay the fee to get out of it. Then the phone is none of that carriers concern anymore anyway.

Sometimes I think the Government sticks it's nose in things that it doesn't need to.

link

answered 29 Jan '13, 18:46

haincha's gravatar image

haincha
111

Here's what the EFF article says:

More likely, wireless carriers, or even federal prosecutors, will be emboldened to sue not individuals, but rather businesses that unlock and resell phones.

It's not likely that anyone will prosecute individuals - there's not much reason to do that, and there are reasons not to. The RIAA has sued individual torrenters to make scary examples out of them, but those were pretty clear cases of copyright infringement, so there was no risk of an unwanted legal precedent. In this situation, there's a risk that the court wouldn't rule in their favor - the EFF says "if the matter ever reached a court, it might well decide that the DMCA does not forbid unlocking a phone" - which would be a legal precedent that carriers really, really wouldn't enjoy.

Regarding your situation, note that AT&T is now willing to provide official unlocks for out-of-contract phones. That's actually part of why the copyright office decided to limit this exemption - it tries to only provide exemptions that are absolutely necessary, and it decided that since most US carriers have started to provide official unlocks under reasonable circumstances, the exemption has become less necessary. The copyright office's official statement on its 2012 DMCA exemption rulings is definitely worth reading for anyone interested in these laws - see pages 16-20 for the unlocking exemption explanation.

(29 Jan '13, 18:54) britta ♦♦ britta's gravatar image

Well that is a little better. But, it just seems then that Wireless Carriers are annoyed that someone is making money when the carrier thinks it is entitled to it. No unlocks are free. Businesses / people working on the unlocks want compensation. If these people are getting money, I can see a Carrier getting jealous it isn't taking in any extra cash.

(29 Jan '13, 19:00) haincha haincha's gravatar image

Here's what the carriers say:

CTIA, the wireless industry trade group, had also pushed for the exemption to be removed. Michael Altschul, senior vice president of CTIA, said in an interview that prohibiting people from unlocking their cellphones helped protect carriers’ investments in the subsidies that they provide for handsets. If a customer bought an iPhone on contract for a carrier-discounted price of $200, for example, he could use third-party software to unlock the device and sell it at a higher price. Disallowing that helps to prevent this kind of abuse, which makes carrier subsidies a sustainable practice, Mr. Altschul said.

It's true that unofficial unlocks can unfairly cause carriers to lose money, but the DMCA is the wrong stick for whacking that problem - it's a copyright law. As that article goes on to say:

Mitch Stoltz, a lawyer at the Electronic Frontier Foundation, a digital rights nonprofit company, said the copyright act, which was designed to make it illegal to circumvent protections for copyrighted works, had repeatedly been misused by technology companies to protect their businesses. He said the removal of the exemption for unlocking cellphones might discourage people from wanting to sell their own phone to another person after they have bought a new one.

(29 Jan '13, 19:09) britta ♦♦ britta's gravatar image

I don't think the carrier is losing money if such a case like that happened. Yes, you could purchase an expensive phone on contract, unlock it, sell it. But, you're still going to be paying your bill for that contract. You won't be able to buy another subsidized phone for two years. I think if someone is willing to lose out on a newer phone for two years at the ability to make a couple hundred dollars. More power to them. It's not the route I would go. I enjoy keeping current with technology.

Unless of course, they are claiming that said device was stolen or some type of fraud is going on and getting reimbursed or a replacement.

What I am gathering is, this is a very ambiguous in terms of what it's saying. For every case I present, you have a counter point. I am no expert, these are merely my thoughts on the issue. I do know that carriers try to nickel and dime their customers in every way possible. Tiered data packages, wifi tethering, overage fees. If I am paying for my data plan and not going over on my phone, there is no reason to charge customers an extra $30 to use the SAME data on your computer.

I don't think carriers are losing money, I think they are mad they are not making it as extra revenue. Since these carriers have deep pockets, they are able to influence the laws in their favor. Unfairly, I might add.

(29 Jan '13, 19:20) haincha haincha's gravatar image
1

I believe the carriers are concerned about fraud where people intentionally buy subsidized phones, resell them, and skip out on the contract. I agree that it's a complicated situation; my goal here is just to help inform people about the complexity instead of letting it get simplified to "unlocking is illegal now". :)

(29 Jan '13, 19:31) britta ♦♦ britta's gravatar image

Then yes, fraud is bad. I agree. I don't think every person is innocent in the reasons why they are after these laws. I just think it is wrong that a handful of bad apples is getting everyone thrown into one barrel. Go the similar RIAA route, find a perpetrator and make an example out of them. I don't think it is hard to track IMEI's and on most phones they are not easy to change. Should be pretty easy to track people who are conducting the illegal activities.

(29 Jan '13, 19:38) haincha haincha's gravatar image

I can't help think that At&t put a large amount of $$ in either the DMCA or law makers.. This law is clearly going after iphones from At&t.. AT&T was one of the top contributor of President Obama's campaign and I don't think AT&T threw all that money for the hell of it. not like tmobile had problems customers taking an htc or Samsung and bringing it to AT&T.

link

answered 30 Jan '13, 08:55

shimmer's gravatar image

shimmer
23010419

DMCA exemptions don't have much to do with who the president is. Instead, there's a process where the Copyright Office asks for comments from the public and runs hearings. During this process, the carrier industry association (CTIA) had lawyers argue against the exemption, and the EFF had lawyers argue for it.

(30 Jan '13, 21:57) britta ♦♦ britta's gravatar image
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Asked: 24 Jan '13, 22:00

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Last updated: 04 Feb, 18:22

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