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.

Filed Under: copyright, dmca, jailbreaking, phones, unlocking
Companies: tracfone

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  1. identicon
    DogBreath, 30 Nov 2010 @ 6:28pm


    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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