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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Companies: tracfone

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Comments on “Jailbreaking Phones Lands A Guy In… Jail!”

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73 Comments
Anonymous Coward says:

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).

Marcus Carab (profile) says:

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?

Greevar (profile) says:

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.

Anonymous Coward says:

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).

darryl says:

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..

Jesse says:

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.”

Andrew (profile) says:

Re: 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.

DogBreath says:

Re: 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.

Derek Kerton (profile) says:

Re: 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.

Matthew (profile) says:

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.

Derek Kerton (profile) says:

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.”

Larry Bingham says:

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.

P Crowley says:

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.

Zenock says:

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.

D_K_night (profile) says:

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.

J Doe says:

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.

HenryJillton (profile) says:

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.

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