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Freeing The iPhone The Legal Way

Publication Date: 
July 18, 2007
Farhad Manjoo's Machinist blog discusses whether the unlocking of an iPhone is a copyright infringement. Director of the Center for Internet and Society and Lecturer in Law Jennifer Stisa Granick is featured:

Last year, Jennifer Granick, an attorney who directs Stanford Law School's Center for Internet and Society, petitioned the U.S. Copyright Office -- the arm of the Library of Congress responsible for administering the copyright system -- to exempt people from DMCA penalties when they try to unlock their phones. She won. The Copyright Office ruled that it's legal for people to unlock their own cellphones. It's also legal to sell or buy a phone that has already been unlocked.

But there's a complication, Granick told me: The Copyright Office only exempted the act of unlocking your phone, not the act of providing tools to unlock all such phones. Thus you may violate the if you provide software, hardware and perhaps even instructions to help other people unlock their cellphones.

This is the potential danger for iPhone hackers. If a hacker does find a way to free the Apple phone from AT&T's network, she can use that method to unlock her own iPhone. She can also sell that phone to other people. But if she posts an unlocking program online, she might run afoul of the law.

A generous interpretation of the DMCA, then, leaves the iPhone pretty strictly locked up: The only way to safely use the phone on another network is to unlock it all by yourself, or to buy a phone from someone who has unlocked it. If you choose to unlock it on your own, you can use software you find online -- but the person who posted that software might suffer harsh criminal penalties under the DMCA for making such tools available.

The exemption Granick won from the Copyright Office frees people from copyright penalties when tinkering with their handsets, but phones are also protected by business contracts that impose a fee for parting with a wireless carrier. The contracts, mobile companies say, keep down the cost of your service. The theory is that in exchange for a contract, the company can offer you a phone and cell minutes at a reduced price. For instance, if you sign a contract with Wireless Giant Inc., the company might give you a $200 phone for free -- but the firm will turn on software locks and impose an early-termination fee to keep you from ditching the company and using the free phone on some other network.