Unlocking your cell phone is now fully legal here in the
U.S.—at least for the next three years.
Last week, the Register of Copyrights released the latest
list of exemptions to 1998's Digital Millennium Copyright Act (DMCA),
and along with it, some welcome news for cell phone users.
Of the six proposed exemptions (the largest number to
date), the one that arguably affects U.S. consumers the most is
number five on the list, which covers:
"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."
In other words, it is now permissible for anyone to
"unlock" a phone tied to one network and use it with another; as
long as they own the phone.
Prior to this ruling, the act of taking a phone with you
after switching carriers was considered an infringement of the old
carrier's property rights. Consequently, customers were often forced
to either return or throw away their old phones—that, or pay
exorbitant fees to get a new phone along with their new plan.
According to the Copyright Office, this latest exemption
was passed because it was determined that the
software which restricts consumers from accessing their phone's
firmware has less to do with actual copyright law and more to do
with business models.
"The underlying activity sought to be performed by the
owner of the handset is to allow the handset to do what it was
manufactured to do—lawfully connect to any carrier," reads the
government explanation.
"The purpose of the software lock appears to be limited
to restricting the owner's use of the mobile handset to support a
business model, rather than to protect access to a copyrighted work
itself."
While this is certainly good news for consumers who want
to use the same phone even if they opt for a different service
provider, the cellular carriers will likely have a different
reaction.
While representatives from Cingular and T-Mobile did not
return PC Magazine's calls, both companies, as well as other
cellular providers, have previously argued that the software on
their phones should be considered a copyrighted work, despite the
recent decision. Anyone who tries to unlock it for use on another
network is breaking DRM and violating the statutory prohibition on
circumvention, or so the argument goes.
Typically, U.S. wireless carriers attract customers by
promising rebates and instant savings on new phones, but only if the
customer signs multi-year contracts that include heavy termination
fees. Furthermore, most new phones come with "handset activation
fees," which frequently cut into a large portion of the customers'
ultimate savings.
Unlocked phones, on the other hand, are not attached to
any carrier but are typically twice as expensive as they would be
with a new carrier contract.
While this has prevented some from purchasing unlocked
phones on sites like eBay, today there is still a growing "grey
market" for unlocked cell phones…much to the chagrin of the wireless
industry.
The CTIA—a group that represents and lobbies for wireless
carriers such as Verizon, Cingular, and Sprint—was among those who
submitted unsolicited statements against this new exemption, arguing
that unlocked phones directly result in infringement.
Joe Farren, a CTIA spokesman, would not comment directly
on the recent decision but said that the organization's attorneys
are still reviewing it.
"It's clear that the decision does not prohibit carriers
from locking phones," said Farren. "It essentially allows consumers
to unlock their phones without carriers being able to intervene."
While last week's decision does make unlocking legal here
in the U.S., it is not permanent. The DMCA exemption process repeats
every three years. According to the government, it is up to people
who want these exemptions to continue arguing for them. If that is
not done, exemptions can just as easily be overturned, as was the
case this year with a 2003 ruling that allowed an exemption for
researchers attempting to uncover the blacklists used by Internet
filtering software.
Among this year's rejected proposals were ones against
space-shifting, playing DVDs on Linux, bypassing regional coding on
DVDs, bypassing copy protection on legally purchased computer
software, audio books distributed by libraries, all works protected
by DRM that prevents backups, and all works protected by a broadcast
flag.
Supporters of the new exemptions are hoping that the new
Democratic Congress will eventually support legislation to reform
the DMCA and make these and future exemptions permanent.
Historically, the Democratic record for going against the
telecommunications industry is not much different from the GOP's,
however.
The DMCA, which was passed on October 8, 1998 and
ratified by President Clinton later that month, criminalizes "the
production and dissemination of technology whose primary purpose is
to circumvent measures taken to protect copyright, not merely
infringement of copyright itself." The act also increases the
penalties for copyright infringement on the Internet.
This latest exemption officially went into effect on
Monday.
DMCA Exemptions Allow You to Unlock Cell
Phones
