Know Your Rights: Is it illegal to unlock my iPhone?
By Nilay Patel 
posted August 24th 2007 6:52PM
posted August 24th 2007 6:52PM
We thought today would be, well, fitting to start our new technology law series Know Your Rights, written by Engadget's own totally punk ex-copyright attorney Nilay Patel. In it we'll try to answer some fundamental tech-law questions to help you stay out of trouble in this brave new world.
Disclaimer: Although this post was written by an attorney, it is not meant as legal advice or analysis and should not be taken as such.
There's only one legal question on everyone's mind this afternoon, and we're going to cut right to it, in Q and A format:
Is it illegal to unlock my iPhone?
No!
Really?
Well, no, but...
I knew it.
Look, there are a lot of legal issues surrounding unlocking, but the most applicable law in the US is everyone's favorite piece of legislation, the DMCA. Just like any other piece of code, the iPhone's firmware is protected by the Copyright Act, and circumventing the access controls in place to get at that code is a violation of the DMCA. However, the Copyright Office issued six exemptions to the DMCA last year, one of which allows consumers to unlock their cellphones "for the sole purpose of lawfully connecting to a wireless telephone communication network."
That's great! What's the "but?"
There are a lot of "buts," actually. For example, it's most likely not legal to unlock iPhones and sell them on eBay, because your "sole purpose" wouldn't be to connect to a cell network -- it would be to profit from the sale of unlocked phones. TracFone has been suing resellers that unlock its phones and getting settlements, even though this exemption exists. So you might want to put those dreams of being the exclusive iPhone supplier to the Saudi royal family to bed -- for now.
Well, that's not so bad.
There's more. Just because Apple and AT&T can't sue you for violating the DMCA, there's nothing saying they can't sue you under some other law. Remember, all the ruling says is that cellphone firmware isn't protected under the DMCA when you unlock to lawfully connect to a wireless network. That's a pretty narrow rule, and it's most certainly not the same as a rule saying it's legal to unlock your cellphone.
Wow, lame.
Still more. Under the DMCA, the Copyright Office is allowed to make these exemptions, but they only last for three years. Since the unlocking rule was published in November of last year, that means it'll expire in November of 2009. Of course, we'll probably be on the third generation of the iPhone by then, but it still doesn't bode well for that unlocking business you were about to start.
Wait, I thought you said this was legal?
Well, the truth of the matter is that unlocking your iPhone probably isn't going to get you in any trouble, as long you're only doing it for your personal benefit. If that's what you intend to do, go right ahead. Just be aware of the risks, and keep in mind that you've probably hosed your warranty, and that Apple might well stop supporting your phone.
Since when has Engadget cared about warranties?
(Whistles, walks away.)
Disclaimer: Although this post was written by an attorney, it is not meant as legal advice or analysis and should not be taken as such.There's only one legal question on everyone's mind this afternoon, and we're going to cut right to it, in Q and A format:
Is it illegal to unlock my iPhone?
No!
Really?
Well, no, but...
I knew it.
Look, there are a lot of legal issues surrounding unlocking, but the most applicable law in the US is everyone's favorite piece of legislation, the DMCA. Just like any other piece of code, the iPhone's firmware is protected by the Copyright Act, and circumventing the access controls in place to get at that code is a violation of the DMCA. However, the Copyright Office issued six exemptions to the DMCA last year, one of which allows consumers to unlock their cellphones "for the sole purpose of lawfully connecting to a wireless telephone communication network."
That's great! What's the "but?"
There are a lot of "buts," actually. For example, it's most likely not legal to unlock iPhones and sell them on eBay, because your "sole purpose" wouldn't be to connect to a cell network -- it would be to profit from the sale of unlocked phones. TracFone has been suing resellers that unlock its phones and getting settlements, even though this exemption exists. So you might want to put those dreams of being the exclusive iPhone supplier to the Saudi royal family to bed -- for now.
Well, that's not so bad.
There's more. Just because Apple and AT&T can't sue you for violating the DMCA, there's nothing saying they can't sue you under some other law. Remember, all the ruling says is that cellphone firmware isn't protected under the DMCA when you unlock to lawfully connect to a wireless network. That's a pretty narrow rule, and it's most certainly not the same as a rule saying it's legal to unlock your cellphone.
Wow, lame.
Still more. Under the DMCA, the Copyright Office is allowed to make these exemptions, but they only last for three years. Since the unlocking rule was published in November of last year, that means it'll expire in November of 2009. Of course, we'll probably be on the third generation of the iPhone by then, but it still doesn't bode well for that unlocking business you were about to start.
Wait, I thought you said this was legal?
Well, the truth of the matter is that unlocking your iPhone probably isn't going to get you in any trouble, as long you're only doing it for your personal benefit. If that's what you intend to do, go right ahead. Just be aware of the risks, and keep in mind that you've probably hosed your warranty, and that Apple might well stop supporting your phone.
Since when has Engadget cared about warranties?
(Whistles, walks away.)
In all of the comments - I have yet to see a comparison of the cost and features of service from ATT vs other GSM services in the US. (NOT SPRINT they are still CDM). Second, There are reconditioned iPhones available now for $100 less than retail. You end up with a phone $100 that has been hand built and tested instead of an assembly line version. Warrant is the same as new.
To backup g512 and straighten out everyone's fanboy ranting, here are laws you may want to consider:
DMCA = Legal to modify firmware (copyright)
FCC = The damn phone is (of course) FCC licensed and as such ANY modification must be FCC approved or the modification is illegal.
So there you have it, it IS illegal to mod your phone due to FCC laws even though the DMCA says you are not violatting copyright laws.
Yeah, that's what I'm looking for: an iPhone with a voided warranty and great likelihood not to work with a future firmware version that I will want, if not absolutely need. Of course, then I won't be able to sell the phone I don't want anymore. Sounds like a "great deal" to me.
Hey, if you're looking for a bargain basement price, check the products at the bottom of the digital food chain. Don't look at the top of the pyramid.* And if you can't afford it, surely you do not need it.
Besides, consumers need to wise up. Gone are the days in which the one with the most (or coolest) toys when he/she dies is the "winner". It's a false adage anyway. You'll be just as dead as the guy next to you who was giving you all that competition. And his iPhone won't be worth passing to the next generation either.
*Thanks for letting me mix metaphors. How many, would you guess, have even noticed?
~~~~~
From the movie Office Space:
Joanna: "So, you're stealing."
Peter: "Uh, no. No, you don't understand. It's uh-- it's very complicated. It's uh-- it's aggregate, so I'm talking about fractions of a penny here. And, uh, over time they add up to a lot."
Joanna: "Oh, okay. So, you're gonna make a lot of money, right?"
Peter: "Yeah."
Joanna: "Right? That's not yours?"
Peter: "Uh, well, it becomes ours."
Joanna: "How is that not stealing?"
What if someone OUTSIDE the US manage to unlock the iphones? The US law is not applicable across borders. So that'll be legal as long as the purchase/sale of such software doesn't take place in US soil?
Who cares why would anyone want to spend that much money on a phone that you really do not need nor does it provide everything that you want anyway. A phone is a phone not a toy. It is already outdated tech stuff. Apple should stick to making computers. Should be used to communicate with not to do everything in the world. And now all the news on how to unlock it-who cares!!! And then the battery issue, and then the provider issue--why would anyone in their right mind buy this phone?
I largely agree with Mr. Patel's analysis. However, one should not read his analysis as support for the proposition that modifying the iPhone's software to allow it to work on a network other than AT&T's is legal. The Digital Millennium Copy Right Act (DMCA) only prohibits defeating the security coding that protects a copyrighted work. It does not, however, invalidate that copyright or the laws that protect a copyrighted work against infringement. Thus, a person with standing (usually the copyright holder, an assignee, or licensee) could sue any person who allows the iPhone to work on a network other than AT&T's by modifying the iPhone's copyrighted software, unless there is an exception, such as the Fair Use exception, to copyright.
Unfortunately, the Fair Use exception--which has nothing to do with naive or colloquial notions of fairness, but is a complex legal doctrine that balances First Amendment considerations against the protections of copyright--would not apply to modifying the iPhone's software, where the party with standing would suffer significant economic injury from the infringing modification. Because it is unclear whether the methods for freeing the iPhone from AT&T's network involves an infringing use of the iPhone's software, it is unclear whether AT&T, Apple, or anyone would have right to seek damages or an injunction against any of the parties that claim to be able to modify the iPhone so that it will work on networks other than AT&T's.
In addition to copyright, as Mr. Patel noted, supra, there could be other legal actions such as breach of contract for users who try switch to another carrier without paying their liquidated damages to AT&T. And for non-U.S. citizens, this analysis is further complicated by jurisdictional issues that affect the enforcement of copyright and contract claims.
>it's most likely not legal to unlock iPhones and sell them on eBay<
And that's a likelihood not yet tested, of course, in any court of law. My contrary opinion (based upon years of studying and sometimes teaching Media Law - I'm currently Professor and Chair of Communication and Media Studies, at Fordham University - not an attorney): no one will ever be convicted of any "crime" for what George Hotz did. Certainly if he or someone were mass-marketing doctored iPhones, that would be one thing. But it's not at all clear that the re-selling of a single, "hand-opened" iPhone - tailored, moreover, to make it more useful - is in any legal let alone moral sense wrong. Indeed, I would argue that's a providing a benefit to the world. http://paullev.libsyn.com/index.php?post_id=249513
Instead of blindly talking about voiding warranties, have you even read it?
1) Software mods do not void the iPhone warranty, which is concerned with hardware and hardware mods only.
2) There is no software warranty to void. Heck, Apple doesn't warrant even its own code on the iPhone.
3) There is only a software license to violate, and it might not hold up in court.
Can someone help me?? I was holidaying in Hong Kong and wanted to buy an ipod and new mobile phone. The sales assistant-in a shop that is government approved, convinced me to buy an iphone. I was chuffed thinking I'd have the latest technology until I got home (Australia) and realised that no registered apple dealers would answer any questions I had. The basically said that it was illegal to purchase an iphone abroad and use it with your own network. The phone is working fine and I can make calls and send sms's but I'm concerned that if I try to upload songs onto my phone apple will lock it... Please help if you can. None of my mates have even seen an iphone before!