The iPhone's fantastic user interface is inspiring another consumer-electronics revolution: making people care about cell-phone unlocking. After my clients' long, successful battle before the U.S. Copyright Office to exempt phone unlocking from the anti-circumvention provisions of the Digital Millennium Copyright Act, have iPhone customers won the freedom to tinker with their cool new handsets? The answer, unfortunately, is that we still don't know.
In the past week, New Jersey teenager George Hotz published instructions for unlocking the iPhone. Meanwhile an anonymous group called iPhoneSimFree plans to sell its software-only solution, and a company called UniquePhones is set to sell a remote unlocking service. These offers generated buzz from iPhone owners, who are restricted -- by technological locks built into the GSM-based handset -- to using the AT&T wireless network. On Monday, some buzz circulated from AT&T lawyers trying to shut down the distribution of unlocking software. Does AT&T have a leg to stand on?
The DMCA anti-circumvention provisions prohibit you from circumventing technological locks that control access to copyrighted works without the authority of the copyright owner. While the law was intended to protect music and movie owners who want to distribute their works digitally, but are afraid of infringement, wireless companies started using the law to sue people who purchased and unlocked cell phones.
Since unlocking a cell phone has nothing to do with copyright infringement, I applied for an exemption from the DMCA on behalf of two clients: one a business traveler and the other a phone refurbisher, reseller and recycler.
We won an exemption in November of 2006 that allows you to circumvent digital locks (.pdf) in order to access "computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network."
Despite this success, the exemption does not offer blanket protection for phone unlocking, though the practice might be legal for other reasons. The problem is that the exemption protects unlockers, but it doesn't apply to those entities that distribute unlocking tools or provide unlocking services to others. Even when the Copyright Office grants exemptions for non-infringing or fair uses, customers usually still suffer because in most cases, including unlocking, only the small number of persons who have the technical know-how to circumvent can do so.
Individuals or companies that might help them are still prohibited from doing so. Thus, in many ways, the rule-making is an empty promise: giving a legal right to circumvent, without protecting access to the tools necessary to make that right a reality.
So, post-exemption, it remains for tool distributors to argue that their product is not covered by the DMCA in the first place, and I don't know how influential the existence of the exemption will be on a court considering this question. Probably the strongest argument for distributors of unlocking software is that the customer for whom they are unlocking the phone has the firmware owner's permission to operate that software by virtue of purchasing the phone. This argument was successful in two previous DMCA cases, one involving garage-door openers, and the other aftermarket printer cartridges.
A complicating factor is the terms of service that come with either the iPhone or the AT&T service. If the documents purport to limit the customer's right to operate the phone on another network, the companies have two separate legal arguments.
The first is that the customer's authority to access the phone's firmware is limited by the TOS. Customers who unlock their phones would still be in the clear, because the exemption protects them. But purveyors of unlocking services are not covered by the exemption, and may be violating the DMCA by distributing their unlocking tools or services. Another complicating factor is that a valid contract with AT&T not to unlock should not affect the consumers' authority to access Apple's iPhone firmware.
Still, if the DMCA applies, it is a pretty serious deterrent, carrying heavy penalties including -- in some cases -- criminal sanctions. Of course, distributors could move overseas, and once the software is out there, it's difficult to stem the tide.
The second potential legal argument is that customers are breaching their contracts with AT&T. Even iPhone owners operating on their own could be subject to this claim -- assuming they activated service. That's because the exemption only protects circumventors from liability under the DMCA, not all legal claims across the board.
However, defenses against terms-of-service enforceability could be brought to bear here, and penalties for terms-of-service violations are usually set forth in the document, and are far less than statutory damages. Additionally, the tool or service distributor would weather this claim well, because it did not enter into any contract at all.
I have some hope that the iPhone is just one incentive for consumers to clarify and expand our rights in this legal morass. The legal interaction of the DMCA and end-user licensing agreements affects our freedom to tinker with the devices we own, our access to information, the availability of competitively priced goods and services, the security of our computer systems, and our ability to make fair use of copyright materials.
History shows that, particularly where telephones are concerned, competition is good for consumers. Consumers used to be forced to obtain their phones from AT&T. In 1968, the Federal Communications Commission broke AT&T's monopoly over which devices could be attached to the network, and as a result we have cheaper phones with more features, answering and fax machines, and modems.
Today, cell-phone companies use the Bell System's old arguments about quality of service and compatibility in order to lock customers to a particular network and ensure call and roaming fees. The same excuses justify disabling Bluetooth functionality, thus preventing customers from selecting their choice of ringtone or photo-service provider, as well as thwarting the development of Wi-Fi cell phones out of fear that people would make calls over the internet and avoid paying cellular fees.
Perhaps the iPhone will awaken a consumer revolution, though not necessarily the one envisioned by Apple or AT&T.
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Jennifer Granick is executive director of the Stanford Law School Center for Internet and Society, and teaches the Cyberlaw Clinic.
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