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.

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RE: They act like we are leasing our phones.
By smackababy on 7/26/2010 2:48:43 PM , Rating: 0
Because most people don't "buy" their phone. They enter a contract for a large subsidized price, if they remain the entirety of said contract. The company can act however they'd like if it says in the contract you don't own the phone until your contract is up, or you break and pay the ETF (which is supposed to recoup the company for the full price of the phone).

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.

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
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
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.

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