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
    Zenock, 2 Dec 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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