What the DMCA cell phone unlock ban means to you (FAQ)?
Get the lowdown on how the antipiracy Digital Millennium Copyright Act is being applied to phone-unlocking tech and what a recent update to the law means to consumers who want to unlock their phones.
There has been a lot of talk lately about about how it's now considered illegal to unlock your smartphone without your carrier's permission.
The change comes as part of a three-year cycle for renewing the Digital Millennium Copyright Act (PDF). And in this cycle the Library of Congress, which has the job of approving exemptions to the law, decided not to exempt the software locks that carriers put on devices that prevent them from being used on other carrier networks.
The change has caused quite a stir in the wireless community since it took effect in January. An online petition was started, which has garnered some 114,322 signatures. And now President Obama's administration has chimed in offering support for a change.
I've heard all kinds of hub-bub lately about the ban on unauthorized cell phone unlocking. But I am confused, what exactly has changed?
The wireless industry claims that the Digital Millennium Copyright Act, which is supposed to prevent people from pirating digital content by making it illegal to disable digital rights management, or DRM, software, applies to the device locks that carriers put on cell phones to prevent those devices from being used on other carrier networks.
As part of the statute, the Library of Congress is tasked with reviewing the DMCA every three years. During this process, it spells out explicit exemptions. In previous review processes, the Librarian of Congress, who heads up the Library of Congress, exempted cell phone unlocking, which meant that the portion of the law that may have been interpreted to prevent cell phone users from unlocking their devices without permission from their wireless carriers was not a violation of the DMCA.
But this year when the law was up for review, the Librarian of Congress rejected petitions from the Electronic Freedom Foundation and other interested parties requesting exemption (PDF), noting that the exemption was no longer necessary since consumers now have a long list of devices they can buy that are unlocked, such as the Google Android Nexus 4 and some versions of the Apple iPhone.
The [Register of Copyrights] concluded after a review of the statutory factors that an exemption to the prohibition on circumvention of mobile phone computer programs to permit users to unlock "legacy" phones is both warranted and unlikely to harm the market for such programs. At the same time, in light of carriers' current unlocking policies and the ready availability of new unlocked phones in the marketplace, the record did not support an exemption for newly purchased phones.
So does this mean that it's illegal to unlock a smartphone?
The law does not preclude you from getting your smartphone unlocked. What it does potentially prevent is you being able to get your phone unlocked without your carrier's permission.
The way most people get their cell phones unlocked today is that they call their wireless provider and ask for an unlock code. If certain criteria are met, the carrier provides the unlock code. The consumer then enters the code and goes through the unlocking steps and voila the phone is unlocked.
That said, the wireless industry would argue that unlocking a phone without a carrier's permission is a violation of the DMCA. But the EFF and Public Knowledge, a consumer advocacy group, would argue it's not breaking the law, since they don't see these locks as DRM software, which is supposed to protect copyrighted digital content from piracy. In other words, the software lock is not being used to prevent others from stealing the OS software and using it on other devices. Instead it's meant to prevent the device from being used on another carrier's network, which consumer advocates argue is clearly trying to limit consumer choice and competition and not preventing piracy.
The only way to test whose interpretation of the law is correct is to test the law in court. But getting a lawsuit filed that will test this statute is not easy. And it's potentially a long and arduous process. This is why in the past, the EFF has asked for an exemption in the law. And until this year, it was granted that exemption.
Could a group of wireless subscribers get together and sue the carriers to test whether the law will hold up in the courts?
Unfortunately, this would be very difficult for several reasons including the fact that wireless subscribers are no longer allowed to sue their carriers as part of a class lawsuit.
The problem is the U.S. Supreme Court's 2011 decision in Concepcion v. AT&T Mobility, in which the Court upheld the validity of class action waivers and arbitration clauses in consumer contracts, according to Michael Ashenbrener of Aschenbrener Law, a consumer advocacy law firm based in Chicago.
"As a result of the Concepcion case, it is essentially impossible to sue a U.S. cell phone carrier in a class action," Aschenbrener explained in an e-mail. "Consequently, there is no effective check on the power of U.S. wireless companies."
Aschenbrenner speculates that had it not been for the Concepcion decision, consumers could potentially invoke a variety of laws against Apple and the U.S. wireless carriers, including antitrust law and other consumer protection laws. But as it stands, consumers are out of luck unless they wish to pursue individual small claims cases or arbitration.
Am I still able to jailbreak my smartphone?
Yes, the Librarian of Congress renewed the exemption that will allow consumers to jailbreak or root their devices so that they can add additional software and apps to those devices. But it would not renew the exemption for unlocking phones that would allow people to use their phone on another carrier's network.
Will I get in trouble if I unlock a phone myself without authorization from my carrier?
Technically, a carrier or manufacturer could sue you for violating the DMCA. According to the CTIA, the wireless industry's trade association, the penalties can be pretty stiff:
The penalties for unlocking a subsidized wireless phone without carrier consent can be severe. Civil penalties are based on the carrier's actual damages and any additional profits of the violator, or a court can award statutory damages of not less than $200 or more than $2,500 per individual act. Criminal penalties are even more severe: any person convicted of violating section 1201 willfully and for purposes of commercial advantage or private financial gain (1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and (2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.
But that doesn't mean that an alarm goes off at AT&T headquarters if you unlock your phone without permission. And the reality is that you generally need your carrier to provide the unlock code and the step-by-step process in order to unlock the device.
Are there other ways to unlock my phone without getting the code from my carrier?
All it takes is a quick search on the Internet to pull up sites that claim to offer unlock codes for various devices on just about every carrier. You could get your phone unlocked this way. I looked online and prices for unlock code availability vary depending on devices. You could be asked to pay anywhere from $1.29 to $10 for an unlock code and instructions from one of these third parties.
Are these alternatives for unlocking legal?
Again according to people in legal circles that's debatable. Some people would argue that the DMCA restrictions don't apply to cell phones, period, which means a carrier wouldn't prevail in their claim against you, even if they chose to sue you. Of course, the industry would argue otherwise.
In all honestly, the carriers would likely sue the company providing the code instead of suing you individually. And according to Public Knowledge's Siy, the way the DMCA statute is worded if someone else does the unlocking for you, they are subject to violating the copyright instead of you. So you may not be liable anyway.
To be clear, I am not advocating that people go out and test the legal waters by potentially violating the DMCA. I am only pointing out that he legality of how this statute is applied to cell phone locks is very much up for debate. And until the law is actually tested in court or until Congress amends it to make it more clear, it's difficult to say whose interpretation is correct.
The change comes as part of a three-year cycle for renewing the Digital Millennium Copyright Act (PDF). And in this cycle the Library of Congress, which has the job of approving exemptions to the law, decided not to exempt the software locks that carriers put on devices that prevent them from being used on other carrier networks.
The change has caused quite a stir in the wireless community since it took effect in January. An online petition was started, which has garnered some 114,322 signatures. And now President Obama's administration has chimed in offering support for a change.
I've heard all kinds of hub-bub lately about the ban on unauthorized cell phone unlocking. But I am confused, what exactly has changed?
The wireless industry claims that the Digital Millennium Copyright Act, which is supposed to prevent people from pirating digital content by making it illegal to disable digital rights management, or DRM, software, applies to the device locks that carriers put on cell phones to prevent those devices from being used on other carrier networks.
As part of the statute, the Library of Congress is tasked with reviewing the DMCA every three years. During this process, it spells out explicit exemptions. In previous review processes, the Librarian of Congress, who heads up the Library of Congress, exempted cell phone unlocking, which meant that the portion of the law that may have been interpreted to prevent cell phone users from unlocking their devices without permission from their wireless carriers was not a violation of the DMCA.
But this year when the law was up for review, the Librarian of Congress rejected petitions from the Electronic Freedom Foundation and other interested parties requesting exemption (PDF), noting that the exemption was no longer necessary since consumers now have a long list of devices they can buy that are unlocked, such as the Google Android Nexus 4 and some versions of the Apple iPhone.
The [Register of Copyrights] concluded after a review of the statutory factors that an exemption to the prohibition on circumvention of mobile phone computer programs to permit users to unlock "legacy" phones is both warranted and unlikely to harm the market for such programs. At the same time, in light of carriers' current unlocking policies and the ready availability of new unlocked phones in the marketplace, the record did not support an exemption for newly purchased phones.
So does this mean that it's illegal to unlock a smartphone?
The law does not preclude you from getting your smartphone unlocked. What it does potentially prevent is you being able to get your phone unlocked without your carrier's permission.
The way most people get their cell phones unlocked today is that they call their wireless provider and ask for an unlock code. If certain criteria are met, the carrier provides the unlock code. The consumer then enters the code and goes through the unlocking steps and voila the phone is unlocked.
That said, the wireless industry would argue that unlocking a phone without a carrier's permission is a violation of the DMCA. But the EFF and Public Knowledge, a consumer advocacy group, would argue it's not breaking the law, since they don't see these locks as DRM software, which is supposed to protect copyrighted digital content from piracy. In other words, the software lock is not being used to prevent others from stealing the OS software and using it on other devices. Instead it's meant to prevent the device from being used on another carrier's network, which consumer advocates argue is clearly trying to limit consumer choice and competition and not preventing piracy.
The only way to test whose interpretation of the law is correct is to test the law in court. But getting a lawsuit filed that will test this statute is not easy. And it's potentially a long and arduous process. This is why in the past, the EFF has asked for an exemption in the law. And until this year, it was granted that exemption.
Could a group of wireless subscribers get together and sue the carriers to test whether the law will hold up in the courts?
Unfortunately, this would be very difficult for several reasons including the fact that wireless subscribers are no longer allowed to sue their carriers as part of a class lawsuit.
The problem is the U.S. Supreme Court's 2011 decision in Concepcion v. AT&T Mobility, in which the Court upheld the validity of class action waivers and arbitration clauses in consumer contracts, according to Michael Ashenbrener of Aschenbrener Law, a consumer advocacy law firm based in Chicago.
"As a result of the Concepcion case, it is essentially impossible to sue a U.S. cell phone carrier in a class action," Aschenbrener explained in an e-mail. "Consequently, there is no effective check on the power of U.S. wireless companies."
Aschenbrenner speculates that had it not been for the Concepcion decision, consumers could potentially invoke a variety of laws against Apple and the U.S. wireless carriers, including antitrust law and other consumer protection laws. But as it stands, consumers are out of luck unless they wish to pursue individual small claims cases or arbitration.
Am I still able to jailbreak my smartphone?
Yes, the Librarian of Congress renewed the exemption that will allow consumers to jailbreak or root their devices so that they can add additional software and apps to those devices. But it would not renew the exemption for unlocking phones that would allow people to use their phone on another carrier's network.
Will I get in trouble if I unlock a phone myself without authorization from my carrier?
Technically, a carrier or manufacturer could sue you for violating the DMCA. According to the CTIA, the wireless industry's trade association, the penalties can be pretty stiff:
The penalties for unlocking a subsidized wireless phone without carrier consent can be severe. Civil penalties are based on the carrier's actual damages and any additional profits of the violator, or a court can award statutory damages of not less than $200 or more than $2,500 per individual act. Criminal penalties are even more severe: any person convicted of violating section 1201 willfully and for purposes of commercial advantage or private financial gain (1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and (2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.
But that doesn't mean that an alarm goes off at AT&T headquarters if you unlock your phone without permission. And the reality is that you generally need your carrier to provide the unlock code and the step-by-step process in order to unlock the device.
Are there other ways to unlock my phone without getting the code from my carrier?
All it takes is a quick search on the Internet to pull up sites that claim to offer unlock codes for various devices on just about every carrier. You could get your phone unlocked this way. I looked online and prices for unlock code availability vary depending on devices. You could be asked to pay anywhere from $1.29 to $10 for an unlock code and instructions from one of these third parties.
Are these alternatives for unlocking legal?
Again according to people in legal circles that's debatable. Some people would argue that the DMCA restrictions don't apply to cell phones, period, which means a carrier wouldn't prevail in their claim against you, even if they chose to sue you. Of course, the industry would argue otherwise.
In all honestly, the carriers would likely sue the company providing the code instead of suing you individually. And according to Public Knowledge's Siy, the way the DMCA statute is worded if someone else does the unlocking for you, they are subject to violating the copyright instead of you. So you may not be liable anyway.
To be clear, I am not advocating that people go out and test the legal waters by potentially violating the DMCA. I am only pointing out that he legality of how this statute is applied to cell phone locks is very much up for debate. And until the law is actually tested in court or until Congress amends it to make it more clear, it's difficult to say whose interpretation is correct.