Jailbreaking Phones Lands A Guy In... Jail!

from the dmca-exemptions-be-damned dept

You may remember, back in 2006, one of the DMCA "exemptions" granted by the Librarian of Congress was for jailbreaking or unlocking mobile phones, for the purpose of moving them to a different carrier. This move was most seriously fought by one company: Tracfone, which offers prepaid phones at a steep discount. Its business model only works if you can't jailbreak phones -- but copyright law was never about protecting one company's bad business model. Tracfone has even claimed that allowing such jailbreaking is a matter of national security. What they really mean is that it's a matter of protecting their business model.

Tracfone actually sued the Librarian of Congress for allowing jailbreaking but, in 2007, quietly dropped the lawsuit because it found that courts were simply ignoring the exemption. Instead, Tracfone just kept suing people for jailbreaking and many caved and settled. What was really troubling though, was that people were being put in jail for this. Now, in the first trial involving such a case, a guy (who has already spent over a year in jail for unlocking phones) has been found guilty of violating the DMCA.

This is according to a press release put out by the lawyers representing Tracfone and they sort of bury the key point: the guy pled guilty. So it's not as if a court judged the overall situation on the merits. But what's scary is that this seems to clearly go against the very exemption the Librarian of Congress made for jailbreaking phones. And we're not even talking about a civil copyright complaint here, but a criminal one... for doing something that the Librarian of Congress has already said is legal.


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  1.  
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    Anonymous Coward, Nov 30th, 2010 @ 1:51pm

    Putting people in jail helps artists get paid.

     

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  2.  
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    Joseph Beck, Nov 30th, 2010 @ 2:13pm

    It is my understanding that the exemption is for your own phone. The exemption does not apply to those who jailbreak a phone for financial gain.

    This guy didn't jailbreak one phone for his own use. He altered thousnds of phones and sold them for a profit.

     

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  3.  
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    Anonymous Coward, Nov 30th, 2010 @ 2:19pm

    Jailbreaking ≠ Unlocking

    Jailbreaking and unlocking are two different things. They have both been protected by (separate) DMCA exemptions in the past but your headline is misleading. This guy unlocked phones, which allows them to operate on other carriers. That is different than jailbreaking, which allows for root access and the ability to run unauthorized applications.

    The terms have been confused since unlocking is an older term and on newer smartphones (particularly the iPhone) jailbreaking leads to unlocking (it is often reqiured to get to the level of the OS so that an unlock hack can be applied to the modem firmware).

     

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  4.  
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    Anonymous Coward, Nov 30th, 2010 @ 2:30pm

    What the..?

    How? What? I sure hope there are more details than this, or his attorney and the prosecuting attorney needs to be disbarred and sent to jail in his place.

    I'm just grasping at straws but maybe he was convicted for doing it before the exemption was made ? (although the exemptions ought to be retroactive).

     

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  5.  
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    Steven (profile), Nov 30th, 2010 @ 2:31pm

    That does it. I'm going to start suing random people for not giving me money. Because... ya know... I need money.

     

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  6.  
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    :Lobo Santo (profile), Nov 30th, 2010 @ 2:34pm

    Re:

    Yeah, me too. Seems to be a good easy method of generating revenue, if today's headlines are even 30% truthful.

    /sarc

     

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  7.  
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    interval (profile), Nov 30th, 2010 @ 3:00pm

    Re: Jailbreak what?

    Sayeth Joe "Two turn tables and an iPhone" Beck: Jailbreak your phone

     

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  8.  
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    shannon, Nov 30th, 2010 @ 3:26pm

    Re:

    are you fucking stupid mate?

     

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  9.  
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    Anonymous Coward, Nov 30th, 2010 @ 3:30pm

    Re: Re:

    Being fucking stupid helps artists get paid.

     

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  10.  
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    Marcus Carab (profile), Nov 30th, 2010 @ 3:36pm

    Re: Re:

    I'm pretty sure he's fucking joking, actually ;)

     

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  11.  
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    Marcus Carab (profile), Nov 30th, 2010 @ 3:39pm

    Re: Jailbreaking ≠ Unlocking

    Hmm... good point. I admit I had forgotten all about that distinction until you mentioned it.

    But then... does that really make a difference? Or should it, anyway? In both cases we are talking about modifying the software on a legally purchased device to change the capabilities of that software and, by extension, that device.

    If the Librarian or the courts were to say "jailbreaking is okay but unlocking isn't", wouldn't that basically be a blatant admission that this is all about protecting business models, not about determining the actual rights of consumers?

     

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  12.  
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    Anonymous Coward, Nov 30th, 2010 @ 3:59pm

    Re: Re:

    your sarcasm detector is broken

     

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  13.  
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    Eugene (profile), Nov 30th, 2010 @ 3:59pm

    I was wondering about the "pleading guilty" thing. On the one hand he's guilty because he really did what they accused him of. On the other hand he's innocent because what they accused him of isn't illegal. Honestly, he shouldn't have had to plead anything; the case should have been thrown out, right?

     

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  14.  
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    darryl, Nov 30th, 2010 @ 4:12pm

    From the 'im sure he had lots of fun there' dept..

    Breaks the law, goes to jail,

    Headline:

    Jailbreaker goes to jail, but fails to break out.

    As for pleading guilty, what choice did he have, he pled guilty to jailbeaking the phone..

    Are you contending Mike, that he should of pled innocent, and claimed that he did not jailbreak the phone.

    Obviouly it is clear that is what he did, and it was done with intent.

    A guilty plea, will generally give you a lighter sentence, he did not plee out either.

    So the prosocution had a very strong case against him..

    And again, he broke the rules, he admitted that he broke the law, he went to jail, and im sure he had lots of fun while there too..

    Maybe, in the future, some (only smart) people will think before they jailbreak a phone, steal copyright etc that if they do that they can end up on jail, or paying huge fines.

    It's happening all the time, it just has not happend to you yet.

    Clearly the authorities, are gaining ground, every day you are saying how you are losing the battle, (you lost the war).

    Yet, everyday, you continue to claim some form of victory.

    If you think illegal filesharing, hacking, jailbreaking is becoming more popular and not less so.. I think you are wrong.

    Mike how would you feel, if by what you say here on techdirt, you 'incited' someone to start file sharing, or jailbreaking phones, or breaking the law..

    And that person was convicted, and put in prison, How would you feel Mike if he did that based on your statements saying it is allright to do these things. and to break the law. ?

    Its ok for you I guess, but he is in prison, and he is probably learning a few new things, he was not expecting.

    Yes, the US prison system, now that is somewhere you really want to spend some time.. LOL..

     

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  15.  
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    Mike Masnick (profile), Nov 30th, 2010 @ 4:17pm

    Re: From the 'im sure he had lots of fun there' dept..

    As for pleading guilty, what choice did he have, he pled guilty to jailbeaking the phone..

    Are you contending Mike, that he should of pled innocent, and claimed that he did not jailbreak the phone.

    Obviouly it is clear that is what he did, and it was done with intent.


    Do you not even read the posts you respond to? As stated clearly in the post, jailbreaking phones is *explicitly* stated by the Librarian of Congress to not be infringement.

     

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  16.  
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    Michial Thompson, Nov 30th, 2010 @ 4:35pm

    Re: Re: From the 'im sure he had lots of fun there' dept..

    little mikee, and you were doing so good too...

    Do you not even have a clue either???? To point out, the Librarian says it is LEGAL to jailbreak YOUR OWN PHONE for your use, NOT BREAK and SELL them...

    BUT the funny thing is your just as clueless about the terms too. JAIL BREAKING is to allow you to run unauthorized SOFTWARE, not run the phone on different networks...

    So maybe you should read and educate yourself too, but then that would require you to finally admit that you intentionally mislead people with your columns too.... So maybe it's better that you remain ignorant of the truth and that way you can't be accused of being decietful, but rather just stupid.

     

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  17.  
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    Mike Masnick (profile), Nov 30th, 2010 @ 4:53pm

    Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    BUT the funny thing is your just as clueless about the terms too. JAIL BREAKING is to allow you to run unauthorized SOFTWARE, not run the phone on different networks...


    As was already pointed out above, that's not true:

    http://news.yahoo.com/s/ytech_wguy/ytech_wguy_tc3236

    "Jailbreaking — the practice of unlocking a phone (and particularly an iPhone) so it can be used on another network and/or run other applications than those approved by Apple"

    Thanks for playing.

     

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  18.  
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    Ccomp5950 (profile), Nov 30th, 2010 @ 4:55pm

    Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    You clearly don't understand that when I purchase a phone I OWN IT (and can therefore jailbreak it). That's all the law cares about. What I do with it afterwards has no bearing on the DMCA, and first sale doctrine should be fine covering the rest.

    Fly away little troll, fly away!

     

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  19.  
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    Anonymous Coward, Nov 30th, 2010 @ 4:57pm

    Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    "JAIL BREAKING is to allow you to run unauthorized SOFTWARE, not run the phone on different networks..."

    Really, would you want to run unauthorized SOFTWARE on your car or house, microwave, fridge or whatever.

    I don't think you fully grasp the far reaching consequences of this type of thinking dude.

    Can the U.S. army be sued for JailBreaking the SOFTWARE for their drones? or they need to rebuy the billion dollar bomber-drones all over again to comply with the law?

    If your smartlock starts malfunctioning and you find another way to disable it and open the door or gate are you breaking the law?

    So maybe you should read and educate yourself too, but then that would require you to finally admit that you intentionally mislead people with your columns too.... So maybe it's better that you remain ignorant of the truth and that way you can't be accused of being decietful, but rather just stupid.

     

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  20.  
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    Jesse, Nov 30th, 2010 @ 5:05pm

    Maybe this is the reason. From:

    http://www.copyright.gov/1201/
    (2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.


    Maybe you can't jailbreak it for any other reason (allowing the phones to work on other networks?? Not sure how that is a copyright violation...networks are copyrighted now?)

    Also, I love how the guy representing them has a website title StopCellphoneTrafficking...as though it were as serious as human trafficking or something. "Those poor cellphones, those poor, poor cellphones."

     

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  21.  
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    Andrew (profile), Nov 30th, 2010 @ 5:43pm

    Re:

    Also, I love how the guy representing them has a website title StopCellphoneTrafficking...as though it were as serious as human trafficking or something. "Those poor cellphones, those poor, poor cellphones."

    I was really confused by this at first - what do they mean by cellphone trafficking? Are Tracfone worried that their phones will be tightly packed into a lorry (maybe even without proper sanitation facilities) and taken to be sold abroad? Are they concerned that their products will be brutally jailbroken without anyone asking the phones what *they* want?

    Maybe Tracfone should instigate a proper 6 month vetting procedure before selling anyone a new phone, checking applicants' health, marital status and family circumstances. That way they can ensure, as much as possible, that their phones only end up in loving families that will cherish them for years to come.

     

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  22.  
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    Kevin, Nov 30th, 2010 @ 5:43pm

    Jailbreaking/unlocking

    Seems to me that if you buy a Tracphone, Jailbreak/unlock it, then make a personal call (just one will do)then you are free to sell it as you wish. No matter how many times you do it.

     

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  23.  
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    abc gum, Nov 30th, 2010 @ 5:58pm

    Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    I see you have slipped back into your typical condescending attitude.

     

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  24.  
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    abc gum, Nov 30th, 2010 @ 6:02pm

    Tracfone does not have very good reviews, wonder why ...

     

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  25.  
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    Hephaestus (profile), Nov 30th, 2010 @ 6:24pm

    Re: Re: Re:

    Mine has been out at the shop since monday and I still caught that.

     

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  26.  
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    DogBreath, Nov 30th, 2010 @ 6:28pm

    Re:

    Actually, it's part 3 of the exemptions that allow you to unlock a phone to switch wireless carriers:

    (3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

    and based on this excerpt from the Federal Register / Vol 75, No.143 / Tuesday, July 27, 2010 / Rules and Regulations from pages 43831-43832:

    It seems clear that the primary purpose of the locks is to keep consumers bound to their existing networks, rather than to protect the rights of copyright owners in their capacity as copyright owners. This observation is not a criticism of the mobile phone industry’s business plans and practices, which may well be justified for reasons having nothing to do with copyright law and policy, but simply a recognition of existing circumstances. Because there appear to be no copyright–based reasons why circumvention under these circumstances should not be permitted, the Register recommends that the Librarian designate a class of works similar to the class designated in 2006. The Register notes that the 2006 class, and the new one designated herein, are both narrow, apply only to claims under Section 1201(a)(1), and do not establish a general federal policy of ensuring that customers have the freedom to switch wireless communications service providers. The designated classes, both new and old, simply reflect a conclusion that unlocking a mobile phone to be used on another wireless network does not ordinarily constitute copyright infringement and that Section 1201(a)(1), a statute intended to protect copyright interests, should not be used to prevent mobile phone owners from engaging in such noninfringing activity. NTIA supported designation of a class similar to the class designated in 2006, but proposed that while non–profit entities should be permitted to take advantage of the exemption, commercial users should not. The Register’s recommendation, in contrast, would permit some commercial activity, so long as it (1) involves only used handsets, (2) is done by the owner of the copy of the computer program, and (3) is done ‘‘solely in order to access such a wireless telecommunications network and access to the network is authorized by the operator of the network.’’ The Register believes that these limitations ensure that the designation of this class will not benefit those who engage in the type of commercial activity that is at the heart of the objections of opponents of the proposed class: the ‘‘bulk resellers’’ who purchase new mobile phone handsets at subsidized prices and, without actually using them on the networks of the carriers who market those handsets, resell them for profit. The type of commercial activity that would be permitted would be the resale of used handsets after the owners of the handsets have used them and then given or sold them to somebody else, who then resells them just as a used bookstore sells used books. The Register acknowledges that NTIA’s general view that the class should not extend to any commercial activity is inconsistent with aspects of the Register’s recommendation, but believes that to the extent her recommendation goes beyond what NTIA was willing to endorse, it does so in a way that, in NTIA’s words, ‘‘prevents unlawful use by those that would misuse the exemption for commercial purposes.’’

    it does appear that an individual owner of a cellphone can unlock without violating the DMCA, but not a reseller. Unless, as others have pointed out, it's a used phone.

     

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  27.  
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    RandomGuy (profile), Nov 30th, 2010 @ 6:36pm

    I hope he fired his lawyer.

    By the way, feel free to come to Australia guys, where carriers are legally obligated to unlock your cellphone if asked, free of charge, 6 months after purchase.

     

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  28.  
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    Rich, Nov 30th, 2010 @ 7:14pm

    Re: What the..?

    My understanding is it is always retroactive, at least in the US. If you are jailed for breaking a law, and the law is later repealed, you must be immediately released.

     

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  29.  
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    Rich, Nov 30th, 2010 @ 7:18pm

    Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    Yeah, because when you insult people and use a lot of capital letters, you are always right. Oh wait, no, that's wrong. It just makes you childish.

     

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  30.  
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    Anonymous Coward, Nov 30th, 2010 @ 10:40pm

    Gee i never have this problem with my android phone :P

    Seriously who do they think they are to stop me doing anything i want with something ive purchased? I could shove it up my arse for all they should care.

    Disclaimer
    I would not perform the above action, as with my current phone its bloody huge!

     

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  31.  
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    TCat, Nov 30th, 2010 @ 10:57pm

    Re:

    That is the smartest thing I have seen written on this high school level whiners site!

     

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  32.  
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    Darryl, Dec 1st, 2010 @ 5:24am

    Re: Re: From the 'im sure he had lots of fun there' dept..

    What the librarian of congress stated makes no difference to his plea.

    His plea is guilty, not of breaking the law, but of jailbreaking a phone..

    Obviously it was clearly established that he did in fact jailbreak a phone.

    His defense should (and probably was), that "yes, I broke the phne, but that is not an illegal act".

    Or he could of pled innocent, and when he got on the stand, under oath, prosecution would prove he jailbroke the phones, and find him guilty (of the charge).

    So yes, Mike, I did read it, but I also understood it..

    Perhaps you would like to explain what your defense case would be assuming he pleaded innocent.

    If you plead innocent, and prosecution proves your guilt you are in contempt of court, and you will be punished more...

    So what dont I understand about this again Mike ?

    Because ifyou can show me something here that you appear to understand better than I just explained, please feel free to enlighten us.

     

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  33.  
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    Darryl, Dec 1st, 2010 @ 5:32am

    Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    The only difference between an innocent plea and a guilty plea is determined by if you want the prosecution to prove your guilt.

    But if your guilt is not in doubt, the court takes a dim view of waisting time.

    So it was clear the prosecution had iron clad proof of his guilt.
    Therefore, to save the court some time, you plead guilty, its probably better than to bring evidence, and things that prove it, and its saves time, and lots of money.

    And maybe ifyou are found guilty you might also have to pay court costs, lawyers and things.. If you can afford an expensive lawyer to defend you on a lost case you plead innocent.

    If you did it, but feel that law said that is ok, then you HAVE to say "yes, I did it, but that is ok, but some librarian said it was. (is that a law, you say "state" people state lots of things. That does not mean it is automatically enshrinded as law does it ?

    I hope he checked that..

     

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  34.  
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    Anonymous Coward, Dec 1st, 2010 @ 5:41am

    Arguing with trolls is a waste of time. They've partaken of the "kool-aid", and can no longer admit to being capable of rational, independent thought. They can only endlessly spout the terms and phrases of that days' talking points memo.

    I hate to say it, but the only way to deal with these zombies is to shoot 'em.

     

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  35.  
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    darryl, Dec 1st, 2010 @ 5:42am

    Re: Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    Sure you own the but own the network that it connects too, and you do not own the rights (obviously) to user selectivey do certain things with that phone that you own..

    Just because you own something does not give you the right to do anything you want with that thing you own.

    You might be able to own a gun, but if it is against the law to do certain things with that gun, even though you own it its use is restricted to you.

    Same applies to copyright, you can buy a song, but you do not own copyright to that song, there are restriction on what you are allowed to do with that thing you own.

    In the case of a song, you can listen to it all you want, but you cannot make copies for your friends or people you dont even know..

    In fact, there are few things, IF ANY that you can own and do what you like with it.. Legally, ethically, or morally.

    Name some..

     

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  36.  
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    darryl, Dec 1st, 2010 @ 5:57am

    Re: Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    some people would call it unbiased, upfrong, and honest.

    Call a spade a spade, that kind of thing..

    If you see a wrong, try to right it, if you see a right try to praise it.

    It also goes to show i am not anti-mike at all, I just disagree with most of what he say's.

    But if he does say something I agree with, so be it, good for him..

    Im also not a straight line anti-file sharing, I have torrented files, but never hit movies, or the latest thing, that is still trying to make money 'the old way" according to mike.

    But bittorrent, and PTB used to be great sources of books, and information, documentries, that are just not available here. or that have been out of recent media.. Or something I watched on TV, and wanted to have a 'clean version'..

    So instead of turning on the video recorder, I downloaded it on a torrent.

    But when the system gets abused, when people go crazy and download movies still at the cinama, or still on the top 10 hits. Then those trying to make that time limited money, (wile it is still 'hot'), see the 20,000 leachers at any one time on PTB, and start to worry.

    If you guys could just cool it a bit, reduce the greed, allow the content creators to make a buck. Then once its not a massive hit. Then ease it into torrents.


    Its the hurt lockers, and those that what the latest and greatest for free, that is screwing it up for everyone else.

    Accept it cost money to make a song or movie, except there is risk involved, that it will not make profit.

    Accept those deciding if it will be profitable to make that movie, will take into consideration THEIR opinion of the losses involved.

    So no matter what you say, or what studies you quote, if the movie industry things the problem is a certain size..

    That is all that matters, they are the ones who create the content.. or not create the content depending on the perceived risk Vs possible future earnings.

    Its all about money, its all about there really is not such thing as a free lunch, if someone is getting something for free, that just means someone else is paying for you.

    It does not mean what you have is free, or what you have has no value. it means someone else picked up the tab for you.

    If you felt it had no value, you would not want it, right.

    But you feel it does have value, and you feel as you have to ability to gain it for 'free' (on someone elses tab), then you have a right to do so.

     

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  37.  
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    Anonymous Coward, Dec 1st, 2010 @ 6:45am

    Re: Re: Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    Do you think you own your IP property?
    Do you think you have the right to do anything you want with it?

     

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  38.  
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    Anonymous Coward, Dec 1st, 2010 @ 6:52am

    Re: Re: Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    Don't create the content, I don't care and billions don't care either.

    I'm not giving money to you and your kind ever, did you hear me? never, ever.

    LoLCats is fine by me.

    You think I will pay you?

    LoL

     

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  39.  
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    Matthew (profile), Dec 1st, 2010 @ 7:05am

    I'm torn...

    On the one hand, it's ridiculous for anyone to go to jail for fiddling with an electronic device that they own.

    On the other hand, i'm really not comfortable with the Chief Librarian being the one in charge of making laws and cases like this one can only help bring attention to this perversion of our legal and political systems.

     

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  40.  
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    Mike Masnick (profile), Dec 1st, 2010 @ 8:34am

    Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    What the librarian of congress stated makes no difference to his plea.


    Wrong.

    His plea is guilty, not of breaking the law, but of jailbreaking a phone..


    Wrong. You get charged with breaking the law. You plead guilty to breaking the law.

    Talking to you is like talking to a brick wall.

    Or he could of pled innocent, and when he got on the stand, under oath, prosecution would prove he jailbroke the phones, and find him guilty (of the charge).

    You can't charge someone with something that is legal.

    So yes, Mike, I did read it, but I also understood it..


    You make me laugh.

    If you plead innocent, and prosecution proves your guilt you are in contempt of court, and you will be punished more...

    You make me laugh. You seriously think that anyone who pleads innocent and is later found guilty also gets a contempt charge tossed in? That's hilarious.

    Because ifyou can show me something here that you appear to understand better than I just explained, please feel free to enlighten us.

    Almost every thing you typed in that comment was flat out wrong.

     

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  41.  
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    darryl, Dec 1st, 2010 @ 9:08am

    Re: Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    No not for a plea, but as I said, your plea can be either innocent or guilty. If you plea innocent, it is up to the prosecution to prove you're guilt.

    He is not pleading to the crime, but to the act.

    Obviously it has been clearly shown that he commeted an act, for him to be sent to court, the prosecutors would of had to convince a judge that they had a viable case.

    Once they do that, the court issues the warrent, not the procecuters.

    He is most certainly not pleading guilty of commiting a crime. He is pleading guilty of commiting an act.

    And act that the prosecuters, that the prosecuting judge feel is a viable case to be heard.

    He is innocent, until proven otherwise in court, he has a presumption on inasence.

    It is up to the prosecution to prove that a crime has in fact been commited.
    The the act he committed constitutes a crime under the prosent law and statutes.

    If you go to court, and it is not in question whether you commited the act. you accept you commited the act, and plead guilty to commiting that act, but your defense is that allthough you commited that act. That act is not an illegal act.

    When he gets 'busted' he is told 'you are under arrest for commiting the ACT of whatever you did wrong.

    If you can prove you did not commit that act, you plead innocent, and you defend your case, and prosecution usuall government for laws. Will try to prove your guilt, your defense will try to prove your innocense.

    Now if you know that it is a no brainer for the prosecution to prove you commited the act. All you can do is prove that act is not illegal.. But you usually do that by pleading guilty (you'll be found guilty of commiting the act anyway), then you will spend more time in the determination of that act is a legal act or is an illegal act.

    Thats what happens in court, they try to discover if you are guilty, and what you are guilty of.

    If it is allready clear you are guilty, trying to prove your innocence or lying on the stand (thats the contempt bit), will only result in more trouble for you.

    He did the right thing, he pled guilty, saved the courts some time proving his guilt, he did not try to hide that fact that he did what he did. He believed that based on what he understood, (because of Lib of congress) that his act of jailbreaking the phone was a legal act..

    Then the court can spend their time not trying to prove that he is guilty or not. Or to establish if he commited that act.

    But to determine if that act is illegal, and if so what level of punitive measures should be taken.

    What in that can you find that is wrong ?

     

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  42.  
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    Derek Kerton (profile), Dec 1st, 2010 @ 11:30am

    Re: Re: Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    So, let me get this right...

    Tracfone (or AT&T or Verizon) buys a hundred thousand phones from Nokia. While the phones are in their possession, Tracfone puts a software SIM lock on the phone, which locks them to a specific network. Tracfone then sells the phones in 7-11 stores.

    Then, this defendant goes around and buys up a few thousand Tracfone phones. While in his legal possession, he de-activates the software lock that Tracfone had installed. He then sells the phones through eBay and other legal channels.

    Tell me again why it's illegal for the defendant to alter the phones while he owns them, thus making them more useful to consumers, yet it's perfectly legal for Tracfone to alter the phones while they own them and install a lock that limits consumers. I'm having a hard time seeing those acts as very different, other than the fact that one benefits consumers and the other doesn't.

    Facts of the case are that the defendant stole no phones, bought them legally, and while he owned them, he altered his OWN PHONES, just as the DMCA exemption allows him to do.

     

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  43.  
    icon
    Derek Kerton (profile), Dec 1st, 2010 @ 11:42am

    Re: Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    I can't make out most of your post, because your flow of logic is convoluted (usually a consequence of a bad argument). But I did pick up your second para:

    "Really, would you want to run unauthorized SOFTWARE on your car..."

    Car enthusiasts have been doing just that for years. It's called "chipping" and basically they insert a hack memory chip or processor in their cars which alters the original programming, changing a variety of factors such as fuel mix, shifting points, compression, spark retardation, etc. In so doing, they are able to extract greater performance, or better fuel economy, etc. (often, one at the cost of the other).

    The mod chips (modification) are either self-designed by serious geeks, or they are bought from companies that legally sell them. The practice is completely legal. People are customizing THEIR own property. Others are selling custom chips and solutions. Free market and liberty and all that jazz.

    Here's one example of the hundreds of thousands out there:
    http://www.corvetteperformancechips.com/

    I guess I'll just stop here with the point: You're wrong.

     

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  44.  
    icon
    Derek Kerton (profile), Dec 1st, 2010 @ 11:52am

    Re: Re: Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    Just a quick refresh: Value and price are not the same.

    I liked the Hurt Locker. There are a lot of things I value much more than a viewing of the Hurt Locker, for example, a hug from my kids. And yet, the price I pay for the hug is zero.

    Are you saying I'm ripping off my kids? It seems like you're arguing that if I get value from something, I should pay for it. That there will be no more hugs if I don't, and that I'm getting hugs on someone else's tab. Hugs are free, though. Are you starting to understand how value and price are not the same? Do you value air? How much are you paying to breathe right now? Value of air is very high, price is free.

    Basically, things in abundant supply become free. This is the economics law of supply and demand. With digital copies a technical reality, the supply of the content is abundant. In a free market, price drops to zero. Value does not. This economic reality offers challenges to the existing media business models. So in this battle between economics and 100 year old business models, which do you think will eventually prevail?

    The laws of economics or the business models for media?

     

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  45.  
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    Derek Kerton (profile), Dec 1st, 2010 @ 11:58am

    Re:

    Forget that. Go to Belgium where the carriers are prohibited from locking your cellphone to their network in any way.

    ...and they have waffles!

     

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  46.  
    icon
    Derek Kerton (profile), Dec 1st, 2010 @ 12:04pm

    Re:

    For the record, the OS of the phone is irrelevant. Android phones are SIM locked just as often as any phone. If you're on Verizon or Sprint with your Android, then they don't use SIM cards, but you can't switch your phone to another network anyway because the carrier's don't accept "unapproved" CDMA phones on their network.

    If you bought your phone unsubsidized, or you hacked it, or rooted/unlocked it, or you never intend to change carriers, then of course you'll have no such problem with your Android phone. The same could be said of an iPhone or any non-smartphone. Thank you for the irrelevant comment.

     

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  47.  
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    Thomas (profile), Dec 1st, 2010 @ 12:20pm

    Goes to show

    that the government is far more concerned with protecting businesses than individuals. The government is no longer a democracy, it is a plutocracy. Constitutional/Bill of Rights doesn't really matter to the government; they do what they damn well please.

     

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  48.  
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    Derek Kerton (profile), Dec 1st, 2010 @ 5:00pm

    Re: I'm torn...

    To be fair, the Librarian of Congress is not "some librarian" as another poster wrote, or "making laws" as you wrote. There is a reason why this particular librarian has a voice in the Copyright debate. This Librarian was designated in the DMCA law as having the important responsibility of creating exemptions where it could be shown that the DMCA did not serve the public interest.

    For more, see this site:
    http://www.copyright.gov/1201/

    "The Copyright Office is conducting this rulemaking proceeding mandated by the Digital Millennium Copyright Act, which provides that the Librarian of Congress may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works."

     

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  49.  
    identicon
    Graham j, Dec 2nd, 2010 @ 9:22am

    Yay for the US

    You throw people in jail for unlocking their phones then wonder why your country is fucked. I'm so glad to not be an American.

     

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  50.  
    identicon
    Larry Bingham, Dec 2nd, 2010 @ 9:42am

    unlocking only pertains to iPhone

    I think some people are confusing the whole unlocking vs. jailbraking because we all assume that the guy was jailbraking iPhones. While there is a clear distinction between JB and unlocking on an iPhone, there is no difference on the phones this guy was jailbraking. In fact, these phones probably do not even run applications where "jailbraking" would apply to software installation. This guy was clearly modifying the modem firmware to work with other carriers.

    That being said, I'm having a hard time seeing where this guy broke the rules. These phones come with a pre-paid amount of minutes; whether you even use those minutes or not doesn't matter. Basically, you purchase the phone and once you run out of minutes, you have to buy more minutes from Tracfone. If you don't, you can shitcan the phone for all they care. They just don't want you to buy the minutes from somewhere else. Therein lying the Achilles heel of their business model.

    Set this guy free. It's not his fault that Tracfone failed.

     

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  51.  
    identicon
    Anonymous Coward, Dec 2nd, 2010 @ 9:49am

    Jailbreaking and/or unlocking phones?

    Legal.



    Defrauding TracFone by purchasing thousands of subsidized phones and reselling them, thereby violating their terms of service on a massive scale?

    Illegal.

     

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  52.  
    identicon
    Meh, Dec 2nd, 2010 @ 10:15am

    Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    "To point out, the Librarian says it is LEGAL to jailbreak YOUR OWN PHONE for your use, NOT BREAK and SELL them..."

    I'm quite sure this guy owned the phones before selling them, so he jailbroke his OWN phones. Then he sold them.
    I'm also sure the law does not say it's illegal to sell a phone after jailbreaking it - or are we now supposed to assume it's illegal to sell something unless the law says otherwise?

     

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  53.  
    identicon
    sam, Dec 2nd, 2010 @ 10:16am

    Re:

    Except he wasn't charged with a violating a contract - the thing you claim is illegal. He was charged under the DMCA with circumventing an technological protections of copyrighted material - the thing you claim is legal.

     

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  54.  
    identicon
    P Crowley, Dec 2nd, 2010 @ 10:49am

    Theft is pretty damn popular

    These days if it isn't nailed, screwed or otherwise fastened down to be impervious to being stolen, it is going to be stolen. Period.

    Some of this comes from the economy. No jobs and no prospect of jobs anytime soon. The "welfare system" was dismantled. But that isn't the only reason. There are plenty of people stealing because it is both easy and fun.

    This guy evidently built a business and income stream by buying cheap phones and unlocking them so they could be resold at a huge profit. The phones were locked for a reason - a greedy corporation thought they could make money by offering cheap phones. Well, too bad. When someone with a brain comes along and figures out how to make a quick buck by defeating their locks.

    Same thing goes for walking out of Best Buy with a DVD under your shirt. Why can't you do that 10 times a week and make $100?

    The short answers is that when you figure out a way to circumvent some kind of security measure you are stealing or at least taking rights from someone else. Can you do it? Sure. Are you going to get caught? Probably not. If this guy had been quiet about what he was doing he probably would have gotten away with it as well.

    Absolutely all forms of theft are growing by leaps and bounds today. When you walk in a store the store assumes you are one of the 10% of the people walking in there to steal, which is why they want to search you on the way out. Anything that can be stolen probably will these days. The lesson is to not brag about it and not rub it in too many people's faces. If you make a big deal out of how rich you are getting from it you will be taken down.

     

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  55.  
    identicon
    Dave, Dec 2nd, 2010 @ 11:08am

    Re:

    Unless the person in jail was himself an artist.

     

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  56.  
    identicon
    Zenock, Dec 2nd, 2010 @ 12:20pm

    I don't usually comment on things I read, but in this case I'm making an exception.

    I'm astounded by the people that believe this man got what he deserved.

    For all the people talking about copyrights... I'm confused. He unlocked a phone so that it could be used on another network. Truly how are copyrights even involved. I need to go back and read the clause of the DCMA. But although he did absolutely circumvent a protection mechanism, that mechanism is not protecting any copy rights. So how can the the DCMA be used against him?

    If I pick the lock to my house, am I violating the DCMA because I circumvented a protection mechanism? I don't think so. It is my understanding that the DCMA only applies when such mechanism is protecting copyrighted materials.

    As for the following statement...
    "Defrauding TracFone by purchasing thousands of subsidized phones and reselling them, thereby violating their terms of service on a massive scale? "

    You are wrong. If this man signed a contract as a condition of getting the phone, then I would agree with you. But I've bought TracFones, you walk into the store and buy the phone. No contract to sign. You can't enforce a contract on me after the fact as a condition of buying the phone.

    As for the the terms of service, I suppose he would be violating them if he was using them, if he ever used their service but he did not and even if he had, that would be a civil action not a criminal one.

    Finally, there was no deceit on his part, so I don't see how you can claim fraud. There was no contract, so no fraud could exist.

    The problem here is that Tracfone has a business model whereby they give away phones so that people will buy their service. They lock the phones down so they can only be used with their service to further encourage people to use their service. If someone bought thousands of their phones and threw them away without using the service it would effect TracPhone the same way. Would this also be "defrauding" tracphone?

    Their are printer companies that essentially do the same thing by basically giving away their printers so that people will buy their ink. Some even add measures to prevent you from using third party ink in their printer. Are the third party companies selling modifications that allow you to use their ink in these printers also breaking the DCMA? Are they also defrauding the companies selling printers?

    It's a business model, it will work or it won't and you drop it. It is atrocious that these companies would try to brand people criminal for something that amounts to a BAD business model on their part.

    What next, will you arrest me because I mute the commercials while watching TV? These commercials subsidize the TV program. I'm getting around their business model by muting. I must be defrauding the television companies.

    Oh and arrest the makers of TIVO. Cause it allows you to skip commercials altogether, there by defrauding the companies broadcasting the programs.

    This is ridiculous.

    Z.

     

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  57.  
    identicon
    Jesse, Dec 2nd, 2010 @ 12:37pm

    Re: Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    So you know, (and double cause you were smug about it) He's right. 100%. You Jailbreak to gain root access to the phone. Unlocking is another cookie.

    For example, my iPhone 4, is jailbroken, however it's not unlocked. I can run software requiring root access (file managers, the ability to modify every part of the UI etc) However i can't put in a t-mobile sim and have it function on that network.

    Get it? Cause that's how it works.

     

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  58.  
    identicon
    Maurice Hilarius, Dec 2nd, 2010 @ 1:01pm

    Re: From the 'im sure he had lots of fun there' dept..

    Oh Darryl, you really are a nasty little troll, aren't you?

    If I pay someone to unlock my phone so I can use it on another carrier, he is not harming anyone, stealing anything or doing anything wrong.

    Now please just piss off and go away, OK?

     

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  59.  
    identicon
    Jsa, Dec 2nd, 2010 @ 3:44pm

    Funny

    Please don't troll.

     

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  60.  
    identicon
    Darren, Dec 2nd, 2010 @ 4:06pm

    shhhhh Random Guy

    stop inviting these people over, they'll just make a mess in our new kitchen.

     

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  61.  
    identicon
    Jared H, Dec 2nd, 2010 @ 7:52pm

    Re:

    I don't see what the problem is. He bought the phone, he does something to HIS phone, he sells HIS phone. How is this even worthy of being discussed?

     

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  62.  
    icon
    D_K_night (profile), Dec 3rd, 2010 @ 12:37am

    sorry, disagree.

    When you buy a Tracphone, what comes with the phone? There should be a little piece of paper or something that says "terms and conditions". OK? Do we have that out of the way?

    Now. Some of you are saying "so what, nothing in that legalese applies to me, it's not enforceable".

    If you champion that above statement, then surely you believe that our favorite unlocker should not have went to jail, and he has done nothing wrong. Right?

    Let's take that a step further. Think about just about every product you've ever bought. Come on guys, don't be cute here. I'm not talking about food here. Think on the straight and narrow. Especially software. It's plainly stated you may not reverse engineer it.

    But wait - "oh you can't enforce that on me AFTER I've already bought the software".

    This type of thinking is what worries me. That you're so above the rules that you can get away with literally anything, because it suits you.

    Back to that little piece of paper that came with the Tracphone. Read it again and see it for yourself. It plainly states you may not resell the phone. It plainly states that you may not modify this product. Or they'll sue you. They've made their point clear, have they not? If you don't agree, and haven't used a second of the phone, what's stopping you from getting a refund, and/or not buying anything from Tracphone?

    Is taking advantage of a company all you guys care about? Knowingly scoffing at a "bad" business model, and then saying it's not your fault they suck? How is this different from me taking some of your work, modifying it, then reselling it for a profit? How would you feel?

    If you say "I wouldn't care", you're lying.

     

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  63.  
    icon
    Greevar (profile), Dec 3rd, 2010 @ 6:46am

    Re: Jailbreaking ≠ Unlocking

    I don't really care either way. People purchase a device with the reasonable expectation that they can do as they please with it. If I want to modify my phone so that I can use it on a different carrier, I should have every right to. Also, if I want to give my phone the ability to run applications that the manufacturer doesn't approve of, they can go piss in the wind. That's how great discoveries are made, by doing things that were never intended with things that were never made to do it. We'd never have had half the things we do if nobody bothered to see what they can make things do outside of their designed function. I paid for it, it's mine to do with as I please. Copyright be damned. Nobody is going to tell me what I can't do with my personal property.

     

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  64.  
    identicon
    J Doe, Dec 3rd, 2010 @ 10:14am

    Re: Jailbreaking/unlocking

    This is by far the most sensible thought made on this entire page. Well done, Kevin. You're my hero.

     

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  65.  
    identicon
    J Doe, Dec 3rd, 2010 @ 10:23am

    Re: Re:

    Oh! Snap, AC! You didn't listen! Thanks for listening first, thinking, and speaking something worth saying,sam.

     

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  66.  
    identicon
    J Doe, Dec 3rd, 2010 @ 10:59am

    Re: sorry, disagree.

    What gives them the right to "plainly state[] you may not resell the phone. It plainly states that you may not modify this product." Who cares what they say. That is the point here. You are free to take advantage of a bad business model. You should and must be free to take advantage of a bad business model.

    You can say anything you want. But it only has teeth if it is backed up by some authority.

    In this case the authority has stated customers may do what they want with their phones concerning altering the software after purchase.

    Besides, again, as sam pointed out above, this is not a contractual law case. It is a DMCA case.

    On note only related indirectly to the case in this post:

    In my opinion there is already too much protection for bad business models. Everything must return to equilibrium. A market force (any force, any system)can only be kept at bay for so long. Either companies ebb and flow to the demands of their customers, or they are rigid and unchanging in the face of progress. The later hinders progress, and ultimately hinders the profits that could be made by said companies. The later will eventually return to the former, either little by little day by day keeping the balance close, or violently and all at once after being pent up and manipulated by some perversion, thrown so far out of balance that unpredictable things happen.

     

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  67.  
    identicon
    Anonymous Coward, Dec 3rd, 2010 @ 1:19pm

    Re: Re: Re:

    Lady Gaga
    'nuff said

     

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  68.  
    identicon
    Anonymous Coward, Dec 3rd, 2010 @ 1:22pm

    Re: Re: Jailbreaking ≠ Unlocking

    State power will tell you what to do, and they'll back it up with force. Your rhetoric won't free you when they throw you in jail anyway.

    We DO deserve these rights, this is how devices should work, so the DMCA is wrong and should be torn up.

     

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  69.  
    identicon
    Anonymous Coward, Dec 3rd, 2010 @ 1:25pm

    Re: Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    >defines a neologism (an invented word with a fluid definition often not recognized by any real dictionaries) and then gets snobby about it

    Uh, no, that doesn't work. Thanks for playing.

     

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  70.  
    identicon
    Anonymous Coward, Dec 3rd, 2010 @ 1:27pm

    Re: Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    That's NOT what the law says. That's what common sense says, but we all know the law has little to do with that.

    The DMCA criminalizes any circumvention of a copy-protection system, and doesn't even give exceptions for fair use. The Librarian of Congress has to specifically grant new exceptions every few years.

     

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  71.  
    icon
    Ccomp5950 (profile), Dec 3rd, 2010 @ 7:22pm

    Re: Re: Re: Re: Re: From the 'im sure he had lots of fun there' dept..

    have a look at the exceptions.

    The part copyright is concerned about is the initial jailbreaking. I jailbreak it while I own it, I am within the bounds of the exception and am legal.

    Afterwards I can sale it if I like, the DMCA does not concern this, it is how the first sale doctrine kicks in.

     

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  72.  
    icon
    Matthew (profile), Dec 8th, 2010 @ 11:13am

    Re: Re: I'm torn...

    I understand who this is and how they got this power. I just don't like Congress leaving itself loopholes like that. Assign the duty to a regulatory agency under control of the executive branch. That's how things are supposed to work.

     

    reply to this | link to this | view in thread ]

  73.  
    icon
    HenryJillton (profile), Dec 14th, 2010 @ 12:16pm

    When companies open themselves up

    It's sad how there are always a few that will view a cheap service, or product as a chance to take the piss, at the expense of the consumer. Tracfone is the only company right now not besotted with the idea of selling major unlimited plans to as many people as possible, Quite the contrary, tracfone sells small, affordable plans, and cheap phones. Maybe if they didn't protect them selves from phonesmiths, then they wouldn't be able to provide the cheapness.

     

    reply to this | link to this | view in thread ]


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