backtop


Print 45 comment(s) - last by knutjb.. on Jul 27 at 4:03 PM

Somewhere Steve Jobs is screaming in frustration

With the advent of modern smartphones, many users have sought to jailbreak their phones to allow them to use unauthorized code (such as controversial apps or services not officially allowed by hardware or service providers).  Many also have sought unlock the SIM cards on phones, allowing them to be used on networks which the hardware providers do not officially have deals with.

Apple has long contended that unlocking and jailbreaking is illegal under the 1998 Digital Millennium Copyright Act [PDF].  Apple claims that it supports a vast variety of evils including gangs, drug dealing, and terrorism.  Other companies like Microsoft or Palm [now part of HP] have remained mum on the issue.  And yet others -- like Google -- have been mildly supportive/tolerant of unlockers, while stopping short of providing the tools to unlock phones themselves (which might endanger their valuable carrier contracts).

Some expected the U.S. Supreme Court or further legislation by Congress would eventually tackle the issue.  However, a surprising source appears to have, in essence, given unlockers and (phone) jailbreakers the legal green light -- the Library of Congress.

While not typically officially considered a part of the legislative branch, the Library of Congress is rather an independent research organization tasked with supporting Congress in a variety of ways, including legal research and preserving our nation's history.

The Library of Congress added the following passage to the DMCA, as a result of its research:

Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset. 

There are still some sticky legal issues, despite this seemingly liberal addition that opens the door to potentially legalizing unlocking/jailbreaking of smart phones in the U.S.  The DMCA still specifically forbids "technology, product, service, device, component, or part thereof" used in breaking underlying access protections.  That is thought to include unlocking efforts such as the George Hotz/iPhone Dev Team's donation-financed iPhone hacks that allow the phone to jump ship to T-Mobile's GSM network in the U.S.

Also significant, the Library of Congress has amended the use of video excerpts from commercial film -- such as movies or television -- to include "documentary and non-commercial applications" as well as educational ones.  That potentially legalizes video montages, the likes of which oft pop up on YouTube and elsewhere, which the MPAA and others have long contended is illegal.  With the new language Google and others may gain grounds to fight takedown notices.

The Library of Congress's tweaks to the DMCA certainly seem a progressive step forward.  With new legislation like ACTA pending, it may only be a temporary one.  It remains to be seen whether the U.S. will continue to step forward in terms of customer and artistic freedoms, or whether this is merely a brief advance before a subsequent retreat.



Comments     Threshold


This article is over a month old, voting and posting comments is disabled

They act like we are leasing our phones.
By sigmatau on 7/26/2010 2:46:15 PM , Rating: 5
Why do these companies act like we are leasing the phone from them and have to give it back to them after we are done with it? I bought the phone, it is mine, and I can do whatever I want with it.

Jailbreaking/rooting the phone opens up the phone to functions that for some reason these companies have no idea how to implement in a timely manner. Cut and paste, multitasking, and many other functions were available to jailbroken phones long before Apple could figure out how to do it. Not only that, but the jailbroken multitasking was true multitasking, not the half-try that Apple gave us.




RE: They act like we are leasing our phones.
By smackababy on 7/26/10, Rating: 0
RE: They act like we are leasing our phones.
By sigmatau on 7/26/2010 3:07:02 PM , Rating: 1
That's so untrue. So you are saying if you don't finish paying, or don't complete the contract, you have to give the phone back? They don't offer insurance on these phones anymore so they seem to want you to break the phone before your contract is up. Besides, many providers offer upgrades way before your contract is up at the same price of a new customer.


RE: They act like we are leasing our phones.
By smackababy on 7/26/10, Rating: 0
RE: They act like we are leasing our phones.
By sigmatau on 7/26/2010 3:43:25 PM , Rating: 4
NO, they end ownership of the phone when they sell it for the reduced price plus contract. That being said, how can they tell a difference between a phone that was sold at full price or one that was sold under contract?

Again, just because you are in a contract with a service provider, that does not mean you are leasing the phone. They cannot dictate how I use the phone unlike a car that is leased that needs to be returned undamaged and with so many miles per the contract that was signed. The only thing the contract with a wireless provider can claim is that you will be with said provider for the length of the contract. I can use the phone as a door stop if I wanted to do so.


RE: They act like we are leasing our phones.
By smackababy on 7/26/10, Rating: 0
RE: They act like we are leasing our phones.
By Iaiken on 7/26/2010 4:21:22 PM , Rating: 5
You might want to brush up on your consumer rights and retail law.

The service provider DOES NOT OWN THE PHONE no matter what the contract says. While they own the network, they cannot prevent you from using the phone of your choice on it unless it physically doesn't support their technology.

quote:
If they ended said ownership of the phone right after purchase, the ETF could not be used to recoup money paid for the phone. The phone companies claim this is so, except when you renew a contract and don't get a new phone, they do not suspend the ETF most of the time.


How far up your @$$ did you have to reach for that little diddy? The ETF is part of your contractual obligation to pay for the phone through contract financing (same as when you finance a car or anything else). There is only one difference in that used phones have no intrinsic value to the carrier and so they don't want to repo the phone, they want the remainder of the balance owing on the phone.

Read and understand your rights, read and understand your contract and most importantly; understand that no private contract can take away your rights, ANY OF THEM.


By rcc on 7/26/2010 5:14:18 PM , Rating: 2
quote:
they cannot prevent you from using the phone of your choice on it unless it physically doesn't support their technology.


Try not paying your bill and see how far that gets you.

But, by and large, they are so hungry for every account they'll take what they can get regardless of phone type, if it works. But I don't think there is a legal requirement that they let you sign up with a given phone.


RE: They act like we are leasing our phones.
By tastyratz on 7/26/10, Rating: 0
RE: They act like we are leasing our phones.
By sigmatau on 7/26/2010 3:50:31 PM , Rating: 4
"I don't blame wireless companies for being upset."

What exactly are they upset about? All they can claim is that you stay with them during the length of the contract. Exactly how does that change if you root or jailbreak your phone? Some functions are not availabe on a factory set phone and are also not available if you buy additional services.

I know the phone is not free, that's why you enter into a contract for a lenght of time to pay off the phone indirectly by using the provider's voice and data services. No where in the contract can it stipulate what else you can do with the phone. Are they going to spot check phones soon to see if you are using an approved case?


RE: They act like we are leasing our phones.
By tastyratz on 7/26/2010 4:14:03 PM , Rating: 2
I suppose I should clarify that then.
Jailbreaking for the purpose of using the phone with another provider.

better? You know what I meant.

Also just for purpose of debate as devils advocate here. The argument is that you can use applications to do things with your phone they want to charge you for. This is where it falls into moral middle ground.
Tethering a phone instead of paying for a computer data plan might be morally acceptable, but your using one product and service to obtain a service offered with which you are not paying for.
Breaking a phone into using applications and features only found on more premier expensive phones in their lineup means you don't have to buy the more expensive phone with the more expensive plan.
Cracking open the phone worst case could lead to other things too such as liability when the gps for 911 doesn't work or use of network technician utilities compromising a local tower. Who knows.

Do I think that's morally wrong? no. Should you be able to use your own apps or switch providers after your contract? I think absolutely - But for purpose of debate its logical from their perspective.


By sigmatau on 7/26/2010 4:33:04 PM , Rating: 2
Um no, I did not mention jailbreaking your phone to use fuctions that the service provider charges for the same functions. Tethering can be countered with data caps. Using pirated apps is using stolen software. No where did I mention using stolen software was ok. Only a fool would expect 100% compatibility with a rooted/jailbroken phone on a wireless network.

What I am speaking of, and made several examples, is the ability to do things with your phone that apparently the maker (for example Apple) is unable to implement or do so in a way you want it implemented. Multitasking was available on the iphone long before Apple figured out how to do it in their half-try way. Cut and paste was also available before Apple new how to do it. Using your own sounds (not ringtones) is available on a jailbroken phone... something Apple has yet to figure out. Folders were also available on jailbroken phones a long time ago too. All of these above examples do not require some paid app or service, and there is no other "premier" phone that can do said examples so that is a moot point.

Using unsupported functions should come with a disclosure that your phone may not work 100% as it normaly would. This is really a given.

Also, jailbreaking it or unlocking it to use with another carrier does not invalidate the contract. You simply either break the contract and pay the fee for doing so or you continue paying for the service until the contract is up.


By Alexstarfire on 7/26/2010 5:18:25 PM , Rating: 2
Jailbreaking has nothing to do with the cell phone service providers.


RE: They act like we are leasing our phones.
By omnicronx on 7/26/2010 4:51:03 PM , Rating: 2
quote:
That free blackberry isn't really free, its paid for by contract. I don't blame wireless companies for being upset.
Its not really paid for by contract either. You are not paying for the phone in any way or form. What you are doing is giving the phone company guaranteed business for X amount of years. The phone is 100% yours, which is the reason for Early Termination Fees to recoup the loss of the free phone if you were to terminate you contract early. The fact that their business model is to make cash from locking users in is irrelevant, the fact remains the consumer is never actually paying for the phone, unless time became a currency...

I also don't see why telcos would be upset. Jailbreaking != Unlocking which is still very much so illegal. Now of course there are a few things here and there like the ability to tether would could affect their bottom line, but the end result is negligence at best. i.e they are not losing money because people are jailbreaking.


By omnicronx on 7/26/2010 4:52:34 PM , Rating: 2
negligeable at best

gah.. no edit button..


By Alexstarfire on 7/26/2010 5:21:46 PM , Rating: 2
Unlocking is illegal? I guess AT&T and I should be sued then because they provided me with the code to unlock my AT&T phone. Neither are illegal, much as ripping a DVD to your HDD isn't illegal. The methods in which to do so might be illegal, however.


RE: They act like we are leasing our phones.
By PorreKaj on 7/26/2010 2:49:59 PM , Rating: 1
"Why do these companies act like we are leasing the phone from them and have to give it back to them after we are done with it? I bought the phone, it is mine, and I can do whatever I want with it."

Because they are the ones "you" call when your telephone selfdestructs.


RE: They act like we are leasing our phones.
By sigmatau on 7/26/2010 3:03:01 PM , Rating: 2
Nope, I would not call them. They have a right to not support jailbroken or rooted phones.


By MojoMan on 7/27/2010 9:54:35 AM , Rating: 2
I wouldn't call them either. I wouldn't expect any service from them at all in this situation. Let's be honest though... Most of us are adept at technology. We probably wouldn't call in any situation. :-) "What's that? You won't give me access to this on my phone!? Say I can't do it, eh? Gah! Bleh! Yuk! Goodbye!"


By Iaiken on 7/26/2010 2:56:45 PM , Rating: 5
In fact, the MPAA and RIAA won't be happy until they gain extraterritorial "angry god" status and can task governments to smite people on their behalf.

And lo did the RIAA sayeth: "Go forth my minions and smite the pirates and collect their gold, and fruit bats and breakfast cereals."




By Motoman on 7/26/2010 4:15:38 PM , Rating: 5
That's what Apple was trying to do. Apple wanted a legal ruling that would allow for punishment (including fines and jail time) for jailbreaking an iPhone.

They got the judicial punch in the face that they so richly deserved.


By Jaybus on 7/27/2010 12:38:45 PM , Rating: 2
Unfortunately, no, they did not get a judicial punch in the face. The Library of Congress consists neither of elected representatives empowered with the right to make laws nor duly appointed judges of a court tasked with interpreting the law. I'm all for having complete ownership of the devices we purchase, but not at the expense of subverting the due process of the law. Someone needs to put the Library of Congress in their place. Apple may very well make that their next move, and they will have a very good case.

Let's let a federal court interpret the law, rather than a bunch of bureaucrats at the Library of Congress, thank you very much.


By knutjb on 7/27/2010 4:03:57 PM , Rating: 2
I agree completely. When these clowns start making other decisions for "your benefit," that hurts you, think back to here. This has a far greater impact than just pissing on Jobs and Apple.

I don't like Jobs or Apple and do not use their products other than the Quick Time freebie. Its wrong for a bureaucrat to arbitrarily change the rules they, and many others, operate under. It can hurt your, friends or family's, retirement funds, investments, or dividends because if you have funds you don't always know what is in them or when the manager changes the make up.

We don't know if there's a conflict of interest, the bureaucrat has one or family members have one etc, to wrongfully influence rule making or go beyond what Congress stipulated/intended in the Law.

For any bureaucrat to change the rules part way through the game has a serious negative effect that ripples through this and an unknown number of other markets. I worked in the Fed system for over 20 years and one bureaucrat who rewrote a rule to make his life easier and caused serious problems for thousands down stream from him adding 10-30 hours of extra work each week to comply. It took two years to fix it and that was unusually quick.

As for ACTA it has to come up for a Senate vote to be ratified so start yelling at your Senate reps now. To be silent is the same as agreeing with it.


By TSS on 7/26/2010 4:45:19 PM , Rating: 5
If you think this is ridicolous, just wait untill they actually stop piracy. Then then'll have to start lobbying for laws that force people to buy xx amount of RIAA/MPAA supported entertainment a month because everybody just stopped buying their crap.

A part of me actually can't wait to hear them explain that in court.


By Jaybus on 7/27/2010 12:41:21 PM , Rating: 2
It won't go to court. Apparently the Library of Congress is now interpreting the law.


Don't get too excited...
By Motoman on 7/26/2010 4:13:44 PM , Rating: 3
...all this really does, from an iPhone standpoint, is to confirm that jailbreaking your phone isn't a crime.

That says nothing about whether or not you just voided your warranty. It doesn't force Apple to open up their App Store. It doesn't mean that Apple can't detect your hack and disable your iTunes account. It doesn't mean that Apple can't "inadvertantly" brick your jailbroken phone with an OS update.

All it means is that Apple can't have you arrested for hacking your phone. Period. All other bets are off.

From a DMCA standpoint, it's nice that they're extending the right to educators etc. to be able to break DRM - but it's a long ways away from solving the DRM problem for 99% of the world's population.

As long as DRM is legal, legitimate consumers are punished by it. And even if you're doing something with that content that is now protected (like a documentary), you still have to hack the DRM out of your content on your own anyway. Regular consumers still don't have Fair Use of the content they pay for.

Nothing will be right in the world of movies/music/software/etc. until DRM is made illegal. Until then, publishers will continue to persecute legitimate consumers with it, and it will continue to encourage piracy.




RE: Don't get too excited...
By omnicronx on 7/26/2010 4:34:47 PM , Rating: 2
quote:
It doesn't mean that Apple can't detect your hack and disable your iTunes account. It doesn't mean that Apple can't "inadvertantly" brick your jailbroken phone with an OS update.
Or does it? Unless Apple wants to see a class action suit of epic proportions, they will not be 'inadvertently' bricking anything anytime soon. Jailbreaking is merely finding a bug or exploit to get root access to iOs. I would find it hard to believe that even Apple could prove that any update could 'inadvertently' brick a phone that has merely been rooted. Now that jailbreaking has been deemed legal, Apple has absolutely no foot to stand on. Its not like bypassing itunes to allow other devices to sync, in this situation Apple can merely peg it on a software change (which could easily happen). There really is no such defense in this situation in which the issue is basic functionality for a unix based OS.


RE: Don't get too excited...
By Motoman on 7/26/2010 8:06:31 PM , Rating: 2
Sure there is. All they have to do is play the "testing & Q/A" bit about how they only certify that their updates will work correctly on un-hacked phones. Provide a disclaimer that hacking/jailbreaking your phone may cause current and/or future Apple software and updates to not work right, or cause your device to not work properly. BS legal disclaimer stuff that 99.99999999% of the Apple user base won't read.

...and then when they release a patch that bricks hacked/jailbroken phones..."oops, sorry about that."


RE: Don't get too excited...
By sviola on 7/26/2010 4:41:25 PM , Rating: 2
quote:
It doesn't mean that Apple can't "inadvertantly" brick your jailbroken phone with an OS update.


I'm not sure about how american law works, but I seems to me if the law allows you to jailbreak you cell phone, a private company does not have the right to brick your phone because of it, and, therefor, would be subject to legal action. What I understand is that by doing this, a user is no longer under warranty.


RE: Don't get too excited...
By Motoman on 7/26/2010 8:01:11 PM , Rating: 3
Well, here's the thing though...you jailbreak your phone, which fundamentally changes some software right then and there, and then maybe you install other 3rd party apps that aren't approved by Apple.

Then, Apple releases an OS patch. They only test the patch on non-hacked devices. You download the patch and it bricks your phone - Apple isn't going to care because your phone was hacked to start with, and they aren't going to be held liable for their good-faith efforts to keep your device up to date when you have hacked it.

They probably can't get away with creating an update with the sole purpose of bricking jailbroken phones...but if a regular OS update happens to brick hacked phones...ooops.


RE: Don't get too excited...
By raumkrieger on 7/27/2010 8:49:30 AM , Rating: 2
Apple wouldn't intentionally brick jailbroken iphones, it would just be a "bad side effect." That's what they'd spew when faced with legal confrontation.
Corporations know how to legally cover their asses in most regards, letting them get away with almost whatever they want. This is largely the reason why our legal system is broke beyond repair, no one can be held accountable if they pay enough lawyers.


So, does this mean...
By sviola on 7/26/2010 4:27:06 PM , Rating: 2
So, does this mean that Adobe can put a Flash App at their site for users to download and run flash in their iPhones?

(I would love to see Steve's face if this happens)




RE: So, does this mean...
By SlipDizzy on 7/26/2010 4:36:18 PM , Rating: 2
I didn't even think about Flash. If Adobe has a working version ready for the iPhone, then I assume they can do exactly what you said.

This is shaping up to be an amazing Monday.


RE: So, does this mean...
By Motoman on 7/26/2010 10:16:30 PM , Rating: 2
No. Well, not for un-jailbroken phones.

All this says is that it's not illegal to jailbreak your phone. Apple still controls what you do or don't put on your phone...unless you jailbreak it. At which point Apple no longer has to support you at all.


Mistakes as sual
By B3an on 7/26/2010 11:39:01 PM , Rating: 5
quote:
many users have sought to jailbreak their phones to allow them to use unauthorized code (such as controversial apps or services not officially allowed by hardware or service providers). Many also have sought unlock the SIM cards on phones


It's not called "jailbreaking" on anything but the iToy.
And you dont unlock the SIM card itself, you unlock the phone.

F-ing 'ell Mick.




???
By SuckRaven on 7/26/2010 4:15:18 PM , Rating: 2
This quotation does not seem to make any sense.

do what........? what are these programs supposed to do or not do?

This quotation is a grammatical fail.

quote:
Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.




RE: ???
By wetwareinterface on 7/26/2010 11:56:44 PM , Rating: 2
what's so hard to understand...

it says basically you can use a software approach (whether it's officially released/supported/allowed by the company in question or not) for the sole purpose of getting other legaly obtained software to run on your handset.

aka you can hack your phone to use software as long as the software you wish to use is leagly owned/licensed for use by you .

and yes this means adobe can release an app that installs flash if they wish.

and no the library of congress is not acting outside their legal boundaries but inside them. they have the legal ability to act on behalf of congress (as they are a part of the congressional branch) on any portions of law pertaining to their particular domain, copyright material.


Hopefully
By amanojaku on 7/26/2010 2:47:47 PM , Rating: 2
This is the first drop to rain on the copyright-abusers' parade.




So gadgets people buy...
By Marlonsm on 7/26/2010 2:49:37 PM , Rating: 2
...are closer to actually being theirs.




By TCW on 7/26/2010 5:19:51 PM , Rating: 2
While China and many other countries make it ILLEGAL to lock a phone, we here in the States, are made to feel like criminals to some degree to have to claw tooth and nail to make carriers unlock OUR property. I think Google has the right idea: pay full price for an unlocked phone, go wherever you want.

Yes, often, when you enter into a contract, the carrier subsidizes the cost of your phone for the term of the contract. What you may not know is that term is not often the 2 years you think you have to wait to be allowed to have your phone subsidy unlocked. Usually, it's 3 month. Also, it's part of the DMCA. By law, you are legally entitled to your subsidy unlock code from your carrier, IF they feel like giving it to you. You have James H. Billington to thank for that DMCA exemption.

While most GSM carriers have no problem giving you your unlock code, you can't do it (yet) for the iPhone because that's the way Apple wants it, not AT&T. No access to the subsidy unlock database for you! All of China's iPhones are subsidy unlocked out of the box.

AT&T has never once denied me my unlock code. But I can appreciate what the LoC has done to legitimize the fact that yes, it is in fact YOUR phone to do with as YOU see fit and without interference from the vendor, manufacturer, or other entity.

Somewhere along the way these companies just started treating property YOU purchased, contract or not, as if they still had some ownership of it after the money has changed hands and you walk out the door. That's nonsense. You own it. It's yours.

Now all we have to do is force the carriers give us the UN-subsidized rate plan when our contracts expire. I can hear the collective *gasp* already.




Jason Mick's Anti-U.S. Crusade Continues...
By xmichaelx on 7/26/10, Rating: -1
RE: Jason Mick's Anti-U.S. Crusade Continues...
By InvertMe on 7/26/2010 3:37:33 PM , Rating: 1
How is this Anti-U.S.? I am really curious what angle you are coming from.


By smackababy on 7/26/2010 3:42:01 PM , Rating: 2
He is one of those Anti-Mick Crusaders


By Motoman on 7/26/2010 3:42:48 PM , Rating: 4
No kidding. This guy is a remarkable idiot.

And frankly, if you're not "attacking" Steve Jobs and/or Apple, there's probably something seriously wrong with you by this point anyway.


"We shipped it on Saturday. Then on Sunday, we rested." -- Steve Jobs on the iPad launch














botimage
Copyright 2014 DailyTech LLC. - RSS Feed | Advertise | About Us | Ethics | FAQ | Terms, Conditions & Privacy Information | Kristopher Kubicki