Ok, You can Unlock ’em Again

If you want, you can unlock your cellphone in the US again

When the Digital Millennium Copyright Act (DMCA) came into play a few years ago, it changed the way many people looked at not only their websites, computers, books, etc., it changed the way they looked at their digital phones, too.  While it was ok to unlock cell and smartphones that were tied to one specific carrier, before its implementation, afterwards, you had to get specific permissions.  That was fine until about 18 months ago. After a January 2013 decision by the Librarian of Congress, it became a violation of copyright, and therefore the DMCA to unlock your phone.

unlockcell

Recently, with the passing of the Unlocking Consumer Choice and Wireless Competition Act in both the House and the Senate, President Obama signed the rapidly passed law which reverses that decision, until January 2016, that is.

The Librarian of Congress will again at that time review the DMCA, its previous decision to ban the unlocking, the law recently put into place by Congress and signed by the President and rule again if cell phone unlocking should be banned.

This effectively gives you an 18 month hiatus on unlocking your phone. If you want to do it, now is the time.  After that, it could become illegal again.

Congress wasn’t prepared to deal with the underlying issue of copyright that makes it otherwise illegal to unlock your cell or smartphone.  The issue is largely who owns the hardware and how owns the license to the software that runs on that hardware.  The problem stems from the way that cellphones are sold here in the US.

With subsidized phones, argument can be made that until the contract term is up and the phone is “off contract,” that the phone carrier really owns the hardware and holds the license to the software that runs the device.  In that case, making any kind of modification to any subsidized phone would be considered illegal until title for the device passed to the account holder.

With contract-less, financed phones (like those sold by T-Mobile USA), the issue isn’t any clearer.  There’s no clear sense of who actually holds the title to the device while it’s being paid off.  Like a car or any other financed property, the account holder may physically hold the device, but the title to the property is held by the lien holder until the note is paid in full and the lien holder relinquishes title to the property.  While the user may cancel service at any time, in order to do so, they must first pay off the remaining balance to the phone.  After that, the account holder can do what it wants to with the device, as the license for the software running the hardware passes to the account holder. At least, that’s the popular thought…

The problem here is that there’s no clear definition of who holds that title or when it is relinquished and by whom.  If those terms exist in anyone’s wireless contract, no one has brought them to light at this point.  And then there’s the possibility that the wireless carrier could maintain the license to that software even if ownership of the device passes to the account holder. Since the licensee can assert specific rights to protect their license (and therefore have some kind of hold over the condition of the hardware), they could theoretically prevent the account holder and owner of the device from making modifications to the hardware.  At that point, you have to consider who’s rights are more enforceable – the software licensee’s or the device owner’s; and that’s the rabbit hole that Congress doesn’t want to debate and get caught up in.

While the Librarian of Congress can reverse his earlier decision and allow cell and smartphone during the next DMCA review, I’d be surprised of that happened.  The review – as I understand what he does per the DMCA – is review the law, his previous decision(s), and if anything in the law has changed. Since there have been NO changes to the actual DMCA; and this temporary override expires before the January 2016 review takes place, I see no reason why the Librarian of Congress would reverse that decision, leaving us where we were before President Obama signed this temporary exemption.

For any permanent change to the process to come about, Congress would have to change the DMCA. If they did not do that here, then I see little chance of that changing.

This may be an interim election year where some Congressional seats change hands, but I don’t see this becoming a big issue.  While it might be a blip on the 2016 Presidential Campaign Trail, I don’t see this issue gaining enough steam to become big enough to be a huge campaign issue.

How big of an issues is this to you?  Are you a chronic iOS jail breaker or Android rooter?  Is unlocking your phone something that you need to do due to travel or are you just trying to figure out what carrier is the best deal for you without having to buy another cell phone? How important is this to you?  Why don’t you join me in the Discussion area below and give me your thoughts on this as well as the DMCA?  I’d love to hear what you have to say. If it’s compelling enough, I’ll expound more on the issue in a separate column and get your name up in lights.

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Unlocked Phones and the DMCA

The DMCA

There’s a lot of hub-bub around the whole unlocked phone issue and the DMCA in the States. I’ve broken it down for you here.

There’s a lot of confusion around unlocked phones right now. Recently, the Library of Congress Librarian, who has jurisdiction over expectations in the DMCA removed an exemption related to removing a carrier lock on a cell phone; but I’m getting ahead of myself.

Here are a few important factoids around the Digital Millennium Copyright Act, or DMCA.

  • Put into effect 12-Oct-1998
  • Portions adopted by the EU in the Electronic Commerce Directive 2000. The Copyright Directive 2001 implemented the 1996 WIPO Copyright Treaty in the EU.
  • Amends Title 17 Copyright Laws in the States and criminalizes the circumvention of DRM protecting copyrighted works.
  • It also criminalizes the act of circumventing of DRM or other controls regardless of  whether or not copyright is actually infringed.
  • Heightens the penalties for copyright infringement on the Internet[citation needed].

When you think of the DMCA, think MP3’s and digital music. That’s what legislators had in their heads when they wrote the law. The whole Napster fiasco had the RIAA spitting nails and they were a powerful enough lobby to get Congress to pull together modifications to copyright law that addressed pirating digital music Well, that and software, which is where the whole locked phone thing comes into play.

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Previously in 2006 and again in 2010, the Librarian of Congress exempted the circumvention of methods around removing the carrier lock in a cell phone’s firmware.  This lock is nothing more than software preventing the use of that phone on a competing wireless network.  As of 27-Jan-2013, it is now illegal to unlock any cellphone purchased after that date without the expressed permission of the device manufacturer, the wireless carrier, or both.

Jailbreaking a device, or removing the lock preventing sandboxing of applications is still permitted.  So, you don’t have to worry about your rooted Android phone/tablet or jailbroken iDevice violating the law. You can still do that for now.

Come back next time and I’ll dive into some of the details around what you can and cannot do, and what many – myself included – recommend you do.

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