by Mike Masnick
Tue, Feb 12th 2013 7:47pm
by Mike Masnick
Mon, Feb 11th 2013 1:44pm
White House Petition On Legalizing Unlocking Of Mobile Phones Tries To Pass 100,000 Signature Threshold
from the getting-closer... dept
While the reasoning for not renewing the exemption was that many carriers now allow unlocking anyway, that's not true across the board, and there are plenty of limitations. Just the fact that you need to ask permission to do what you want with a device you legally purchased and own should be troubling enough. Lots of people were reasonably angered by this story, and a petition sprung up on the White House site, urging the President to reinstate the exemption:
We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.The petition itself was actually set up by Sina Khanifar, who used to run a business around unlocking phones, and was threatened by Motorola back in 2005. It was that experience that led to the original attempt to convince the Librarian of Congress to establish the unlocking exemption from the DMCA. He has explained why the exemption is important, and how this simple change not only makes something perfectly reasonable against the law, but how it effectively kills off the business he had built around unlocking phones and helping consumers actually use what they want. And, contrary to what some claim about the need to keep phones locked, he points out that there are already contractual ways to incentivize people to keep their phones locked. Lots of carriers have long term contracts with large early termination fees. They don't need the threat of copyright penalties on top of that as well.
Motorola's cease and desist letter didn't claim that I was illegally distributing their copyrighted software. Instead, it claimed that I was "distributing software ... for the purpose of circumventing the protection measures" associated with their copyrighted software. There is a subtle but meaningful difference.As we've noted time and time again, the DMCA anti-circumvention clause has little to do with basic copyright, and everything to do with big companies trying to control what you thought you had purchased.
The DMCA includes anti-circumvention provisions that are intended to protect music and movie owners who want to distribute their work digitally, but are afraid of piracy. The provisions prohibit anyone from circumventing the locks that control access to copyrighted works. For example, DVDs are protected by a Digital Rights Management (DRM) system that attempts to prevent anyone from easily making copies of movies. The DMCA prohibits circumventing that type of protection system.
But unlocking a phone has nothing to do with copyright infringement, and using the DMCA to prosecute unlocking cell phones is not what the law was intended for. If Motorola's interpretation of the DMCA were valid, companies would be able to create simple software security mechanisms that legally prevent a customer from using a device in any way except that in which the manufacturer intended.
The petition needs to get to 100,000 signatures by February 23rd, and is currently sitting at about 62,000. It's possible, but it may be difficult. And, of course, it's not even clear what (if anything) the administration can really do. The DMCA exemption rulemaking only comes around every three years. Having them jump in with an "off-year" change would be unprecedented -- and could potentially lead to legal challenges. Congress, however, could step in and fix things with a bit of regulation, but it's unclear if they have the appetite to do that. Still, having people speak out and show that they think this bit of copyright law is crazy and restrictive seems like a good thing.
by Mike Masnick
Mon, Jan 28th 2013 10:40am
from the broken-copyright-laws dept
However, given how we've seen prosecutorial overreach on a variety of cases lately, including in the copyright realm, Khanna presents compelling evidence that unlocking a phone could trigger criminal charges. Specifically, he points to 17 USC 1204, which establishes what qualifies for criminal offenses for circumventing technical protection measures:
Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain...In case you don't know, 1201 is the anti-circumvention part of the DMCA/Copyright Act.
Now, I can already hear people complaining that unlocking your phone for personal use isn't "willfully and for purposes of commercial advantage or private financial gain." Except, well, it is. Khanna explains how easy it would be for a prosecutor on a mission to "send a message" to make this argument:
Given copyright laws broad interpretation by the courts, it could be argued that merely unlocking your own smartphone takes a device of one value and converts it into a device of double that value (the resale market for unlocked phones is significantly higher) and therefore unlocking is inherently providing a commercial advantage or a private financial gain - even if the gain hasn't been realized. In other words, unlocking doubles or triples the resale value of your own device and replaces the need to procure the unlocked device from the carrier at steep costs, which may be by definition a private financial gain. Alternatively, one can argue that a customer buying a cheaper version of a product, the locked version vs. the unlocked version, and then unlocking it themselves in violation of the DMCA, is denying the provider of revenue which also qualifies. There are several cases that have established similar precedents where stealing coaxial cable for personal use has been held to be for "purposes of commercial advantage or private financial gain." (See Cablevision Sys. New York City Corp. v. Lokshin, 980 F. Supp. 107, 109 (E.D.N.Y. 1997)); (Cablevision Sys. Dev. Co. v. Cherrywood Pizza, 133 Misc. 2d 879, 881, 508 N.Y.S.2d 382, 383 (Sup. Ct. 1986)).Oh, so given all that, what kind of punishment could you get? It's a lot worse than the statutory maximum of $150,000 for willful infringement of a copyright work. No, now that we're talking circumvention and criminal penalties, a single offense can basically destroy your life:
(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; andKhanna is right that it's unlikely that a prosecutor would choose to go this far, but just the fact that it's possible is absurd:
(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.
If people see this and respond, well no one is really going to get those types of penalties, my response is: Why is that acceptable? While people's worst fears may be a bit unfounded, why do we accept a system where we allow such discretionary authority? If you or your child were arrested for this, would it comfort you to know that the prosecutor and judge could technically throw the book at you? Would you relax assuming that they probably wouldn't make an example out of you or your kid? When as a society did we learn to accept the federal government having such Orwellian power?And, while I doubt that prosecutors would straight up charge someone for merely unlocking their phone, if they're looking to pile on (or threaten to pile on) more charges against some "hacker" for a variety of other actions, it's not hard to see scenarios where this would be lumped in with other threats or charges.
by Mike Masnick
Tue, Nov 30th 2010 1:45pm
from the dmca-exemptions-be-damned dept
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.
Thu, Mar 12th 2009 10:52am
from the the-only-confused-people-here-are-us dept
by Mike Masnick
Mon, Jul 14th 2008 8:11am
from the bad-news-all-around dept
What's happened, of course, is that people figured out a huge arbitrage opportunity. They buy TracFone phones on the cheap, unlock them, and then resell them for a higher price (often outside the country). The problem here is TracFone's choice of a business model. It decided to subsidize the phones and it set up a business model that doesn't require people to sign a long term contract or ever agree to buy more minutes. However, if you listen to TracFone tell the story, this is a case of felony interference of a business model, and anyone unlocking those phones must be stopped.
For a while it was abusing the DMCA for this purpose -- using it to claim that the unlocking was circumvention of copy protection. Of course, that's exactly how the DMCA is not supposed to be used -- and that was made even more clear when the Library of Congress explicitly carved out an exemption for mobile phone unlocking, making it quite clear that this is perfectly legal. TracFone has whined about this, but it still doesn't amount to much more than that the company just picked a bad business model.
However, the situation keeps getting more bizarre. Some folks involved in one of these arbitrage opportunities were eventually arrested for terrorism, after US officials assumed that anyone buying so many prepaid phones must be planning some sort of attack (don't ask). This had companies in the space suddenly claiming that this action of unlocking prepaid phones was a national security threat (seriously). What's scary is that some officials seem to believe it.
It turns out that TracFone actually is winning a bunch of the lawsuits it's filing, using both questionable copyright and trademark claims. However, the real kicker is that one man is actually facing jailtime for this. It's a little unclear from the wording in the article, as the jailtime may actually be as a result of him ignoring a judge's order to stop the practice of reselling unlocked TracFones -- but it's still not clear why it's illegal to unlock these phones that were legally purchased. The DMCA exemptions say that unlocking a phone is perfectly legal, and as long as the phone was legally purchased, it's now the possession of the buyer, who should be allowed to tinker with the software and resell it without having to worry about lawsuits or (worse) jailtime. Yes, TracFone is upset that it wipes out their business model, but the law isn't designed to protect their own poor choice of business models.
by Mike Masnick
Tue, Jul 1st 2008 7:16pm
from the hey,-that-sounds-familiar dept
by Mike Masnick
Tue, Jun 10th 2008 12:07pm
from the can't-play-that-game-any-more dept
Either way, though, the deal works out fine for Apple. It still gets the full price it needs to get on the iPhones and doesn't have to worry about recouping service fees from folks who unlock iPhones. AT&T, on the other hand, now becomes a lot more reliant on service fees, first to make up for the loss on the device sale, and then to show growth in its 3G network usage. To that end, it appears that AT&T has totally ditched the old model where you could buy an iPhone and "activate" it on your own. No more. Now you have to both buy and activate the phone in stores. You can't order the phones online and have them delivered to be self-activated. In Engadget's post, the writer seems confused by this, and quotes AT&T's bogus claim that it did away with self-activation because the company "found that many others wanted to complete purchase and activation in one step so they could walk out of the AT&T store with their iPhone up and running." If that were the case, they could have just added in-store activation, without removing the option for self-activation.
The real reason seems pretty obvious: if you have to both buy and activate the phones at the same time and they require a two year contract, it's a lot trickier to get your hands on an iPhone for unlocking purposes. Since the full process is supposed to happen at once, it seems unlikely that stores will be letting people walk out the door with an iPhone that doesn't also have a contract. Those hundreds of thousands of unactivated iPhones that disappeared into China? Not so easy this time around (of course, you'll also note that the new iPhone will be available in 70 countries, so they're trying to stamp out the issue from the supply side too). Yes, there will still be 3G iPhones out there that can be unlocked, but that market is going to dry up significantly and cost a lot more.
by Mike Masnick
Thu, Feb 7th 2008 6:26pm
from the this-is-a-trademark-violation? dept
by Mike Masnick
Mon, Oct 29th 2007 5:04am
from the cash-not-wanted-here dept
A bigger question, though, is why Apple would bother? The resellers are likely to figure out ways around these limitations anyway, and it just seems more likely to cause problems for legitimate purchasers (especially younger ones who might not have a credit card yet). And, while it is true that Apple makes money from every iPhone with AT&T service, it's silly to completely shut off unlockers, who still are giving Apple plenty of money that they might not hand over if they were forced to go with AT&T service (especially those from foreign countries where iPhone service is not offered). This really seems like an unnecessary restriction that isn't likely to help Apple very much.