Is Unlocking Your Phone Really Illegal?

Legal protection for Americans who unlock their mobile phones to use them on other networks expired last weekend. According to the claims of major US wireless carriers, unlocking a phone bought after January 26 without your carrier's permission violates the Digital Millennium Copyright Act (DMCA) whether the phone is under contract or not. In a way, this is not as bad as it sounds. In other ways, it's even worse.

Giz AU editor's note: This post describes a legal situation that only applies in the US. Fortunately.

What changed? The DMCA prohibits "circumventing" digital locks that "control access" to copyrighted works like movies, music, books, games and software. It's a fantastically overbroad law that bans a lot of legal, useful and important activities. In what's supposed to be a safety valve, the US Copyright Office and the Library of Congress in the US have the power to create exemptions for important activities that would otherwise be banned by the DMCA. In 2012, EFF asked for — and won — exemptions for jailbreaking or rooting mobile phones to run unapproved software, and for using clips from DVDs and internet video in noncommercial vids. Consumers Union and several smaller wireless carriers asked for an exemption for unlocking phones. The Copyright Office granted their exemption too — but sharply limited the window to just a few months.

First, the good news. The legal shield for jailbreaking and rooting your phone remains up — it will protect us at least through 2015. The shield for unlocking your phone is down, but carriers probably aren't going to start suing customers en masse, RIAA-style. And the US Copyright Office's decision, contrary to what some sensational headlines have said, doesn't necessarily make unlocking illegal.

Unlocking is in a legal grey area under the DMCA. The law was supposed to protect creative works, but it's often been misused by electronics makers to block competition and kill markets for used goods. The courts have pushed back, ruling that the DMCA doesn't protect digital locks that keep digital devices from talking to each other when creative work isn't involved. And no creative work is involved here: Carriers aren't worried about "piracy" of the software on their phones, they're worried about people reselling subsidised phones at a profit. So if the matter ever reached a court, it might well decide that the DMCA does not forbid unlocking a phone.

Now, the bad news. While we don't expect mass lawsuits anytime soon, the threat still looms. More likely, carriers, or even federal prosecutors, will be emboldened to sue not individuals, but rather businesses that unlock and resell phones. If a court rules in favour of the carriers, penalties can be stiff — up to $US2500 per unlocked phone in a civil suit, and $US500,000 or five years in prison in a criminal case where the unlocking is done for "commercial advantage". And this could happen even for phones that are no longer under contract. So we're really not free to do as we want with devices that we own.

Phones are, of course, the tip of the iceberg of problems the DMCA has created. It kills aftermarkets, interferes with legitimate research, and squelches creativity in new media. The exemptions created by the Copyright Office can be helpful but, as this episode shows, they are too narrow and too brief. They also turn a small, specialised federal office into a sort of Technology Regulation Bureau. It's absurd that this small group of copyright lawyers and librarians is tasked with making decisions about the future of electronics markets.

So what can we do? Creating and defending the next round of exemptions will start in late 2014. If lawsuits happen, the courts should recognise that the DMCA is being misused, and refuse to apply it to anti-competitive software locks. Ultimately, what we really need is to either fix the exemption process or reboot the anti-circumvention provisions of the DMCA, or both.

Republished from the Electronic Frontier Foundation.



    anarchy isnt that bad after all : )

      America - Fu*k yea!

      There are two Americans in the office, who have hung their heads at this story. Thank the heavens i was not born there.

    If a bear sh!ts in the woods... does anyone really care?

    how would they even know you unlocked

      This is why they wouldn't target the end users, rather the businesses doing this for money. Stop them, and you stop the unlocking.

      But yes, they might not be able to detect if this has been done, however they can detect when you want end your payments (because I assume that you wont want to pay for two carriers worth of bills). If you want to pay for 2 bills, that's your choice, but I would recommend buying a carrier unlocked phone from a retailer

    And this is why I buy an unlocked phones from retailers not carriers. Typically the reason why carriers want to stop you from unlock your phone is that they quite often sell them subsidized, in the hope that your bill spending will offset the difference.

    By unlocking your phone, you are in fact in breach of the contract you signed. The "carrier lock" is basically a software lock designed to enforce this contract to ensure that you are true to your contract.

    If being able to switch between carriers is a concern, buy from a retailer selling unlocked phones for a slightly higher price but more flexible price.

    Wow. Even though this isn't applicable in Australia, it seems like we're starting to see the 'lockdown' of the internet and technology in general. If this kind of thing is allowed to happen, we can truly kiss goodbye the days of an open and free internet.

    I am not a lawyer, but...

    Regarding the applicableness of this article to Australia, since 2005 the Australia/USA Free Trade Agreement has had portions that read very similar to the DMCA. Compare 17.4.7 of the Australia/USA FTA [search for "In order to provide adequate legal"] (for some reason, the heading of 17.4 does not stand out like the rest on that page) with subsection (a)(2) of section 1201 the DMCA [search for "No person shall manufacture, import"].

    I believe the DMCA exemptions that get decided on every three years in the USA (like the "wireless telephone handsets" one) have no bearing on Australia/USA FTA.

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