Mod Your iPhone – For Fun or Profit?, 2007-09-04
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If the Copyright Office and Library of Congress wanted to restrict it to personal use, they would have written that the exemption ONLY applies where the SOLE PURPOSE of the unlock is to allow an individual user to unlock his or her own phone, and not to assist anyone else in unlocking their cell phone, or providing software, tools, or advice in how to circumvent… yada, yada, yada.
This is the approach taken in Article 6 of the EU Cybercrime Treaty and the new German law that implements it, which punishes not only hacking, but intentionally providing TOOLS to assist others in hacking. Clearly not what the Library of Congress did or what had in mind. What if I write the code to get a brand new Nissan 350Z and someone else gives it away? Applying the “sole purpose” language broadly would result in a potential DMCA violation if, for example, I wrote and installed software code to unlock my own phone, so I could switch networks, save money, get better reception, use additional services, and make myself happy. My “purpose” would be, say to save money, but the method would be to unlock my phone. Is this no longer the “sole” purpose? The silliness abounds.
It’s also important to note that the Library of Congress NEVER thought that unlocking phones in any way violated the terms of the copyright law. The only case they cited was TracFone Wireless v. Sol Wireless Group, No. 05-23279-CIV S.D. Fla., February 28, 2006). TracFone, a prepaid wireless company, claimed that the defendants "avoided, bypassed, removed, disabled, deactivated, or impaired a technological measure for effectively controlling access to the proprietary software within the TracFone Prepaid Software without TracFone's authority." That is, that Sol Wireless unlocked the TracFone phones, and sold them. TracFone won an injunction, and it was precisely this case that the Library of Congress intended to reverse.
Don’t Interfere
Okay, so the DMCA exemption may apply and allow the unlock to go forward (commercially or not), and the “no reverse engineering unless allowed by law” provision may be read the way the Library of Congress apparently read it (that there is NO copyright violation, and thus its “allowed by law”). There are still a few other theories that AT&T can use to sue.
Let’s face it, the entire business model between the customer, AT&T, and Apple is based on the idea that you will buy your iPhone, use Apple software and AT&T service for at least two years (and then buy the next one.) Thus, the two-year contract between you and AT&T is intended to create a stream of revenue to AT&T for both domestic and international calls. (Sure, you could NOT activate the phone, or activate it and not use it.) The contract between AT&T and Apple gives AT&T an exclusive right to provide service for the iPhone, and provides both parties (probably) with a stream of revenue.
In the TracFone case, the company also sued the company selling the unlocked phones for “tortuous interference with a business relationship.” Effectively, AT&T, using this model, would sue the unlockers for interfering with their business model by allowing users to do something that they have a right to do. Moreover, this is complicated by the fact that you can buy an iPhone from Apple WITHOUT EVER ACTIVATING IT, or ever entering into any contract or relationship with AT&T. Thus, there is no contract for you to interfere with.
So, is it legal?
My conclusion remains the same: Probably. But then again, who wants to fight with the death star? May the force be with you, young Padawan…
