Know Your Rights: Is it illegal to unlock my iPhone?

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.)

[Bryan Ward @ Aug 24th 2007 6:59PM]

Best. Post. Ever.

[mike @ Aug 24th 2007 8:15PM]

should be able to use in another country as my iPhone picked up roger wireless as a network when I went to Canada

[bombastinator @ Aug 25th 2007 12:49AM]

Dude! You rock!

[kludge @ Aug 25th 2007 2:25AM]

Oh NO! Geohot is on trouble! He does that (unlocking using solder) to make some profits (by selling his unlocked iphone to ebay!).

Geohot, pack your stuff and move to Europe! Go dude! before too late.

[Thirrouard @ Aug 24th 2007 7:00PM]

Thanks for the clarification ;)
But what about unlocking it to use it in foreign country? :P

[ssuk @ Aug 25th 2007 2:43AM]

Since the iPhone is yet to launch in another country than North America, I don't think that's a big concern. But you can always find this information yourself by looking up online legal documentation regarding similar laws discussed in this topic. Your country's copyright law should be one to read or get a lawyer to read for you and check if there are any specific laws for mobile technology in general.

Quick sites for you:
www.lawcom.gov.uk/ - UK Law Commision
www.iuscomp.org/gla/ - German law archive (English)
www.loc.gov/law/guide/spain.html - Guide to law online: Spain (English)
www.google.co.uk/search?hl=en&q=__+law&btnG=Google+Search&meta=
(replace "__" with your country)

Hope that helps!

[shocker38 @ Aug 24th 2007 7:01PM]

Im not usre really about the whole leagal procedure, in the US but in Scotland phone unlocking is widly advertise in shops, how will this effect the progression of homebrew across the web since 'Apple' cant control the web (that Microsofts job).

[Daniel @ Aug 24th 2007 7:00PM]

humorous.

[A A A ASIAN @ Aug 24th 2007 7:02PM]

so now we just need to figure out how to replace the batteries.

[Craig @ Aug 24th 2007 7:03PM]

i'd be pretty nervous about having a $600 v1.0 anything (especially one that i carry around in my jeans pocket) without any warranty

[Anthony @ Aug 24th 2007 8:06PM]

I've bought numerous imports/unlockeds & whenever there's an issue (i.e. Nokia phone breaks- again) I just just send it in as is. Sometimes the phone comes back locked again (new phone, new firmware) sometimes it hasn't.

While we certainly won't know till some one tries, I imagine that:

A) they won't look long enough to notice anything's different if you do decide to risk it.

B) it can't be too hard to do (firmware over-ride & all).

[Matt @ Aug 24th 2007 7:04PM]

Too bad unlocking it doesn't magically add a CDMA radio. Still an awesome hack, but my personal experience I'd take AT&T over T-Mobile any day. I just seem to have bad luck with them. Danged Sacramento and it's lousy coverage!!

[Xavier Gill @ Aug 24th 2007 7:04PM]

The title reminded me of this sketch http://www.youtube.com/watch?v=SjxY9rZwNGU

[A A A ASIAN @ Aug 24th 2007 7:05PM]

so now we just need to figure out how to replace the batteries.

[brett @ Aug 24th 2007 9:06PM]

it wasn't funny the first time...

[Error404 @ Aug 24th 2007 7:06PM]

OK... so according to this little Q&A, it's "not illegal" for an end user to unlock the cellphone, assuming the primary purpose is to connect to another cell network... *BUT*, whoever is providing the unlocking mechanism/software/service is in trouble, because their primary objective is to gain profit from said service (similar to eBay flippper comment).

So unless the end user is a hacking ninja, the unlocking of each iPhone will most likely cause at least 1 party in legal trouble.

[Nilay Patel @ Aug 24th 2007 7:23PM]

No, because the providers of the unlocking service aren't selling the phones -- they're selling the service. Again, this is a gray area, so we'll have to see how it plays out, but the Copyright Office probably doesn't expect everyone to know how to unlock their phones.

[johnzilla @ Aug 25th 2007 7:41PM]

@Error404: Absolutely, completely, 100% wrong. I'm surprised someone could read such a clearly written post and still not understand it.

It is not illegal to sell information/materials on how to unlock your cell phone.

It is not illegal to unlock your cell phone as long you intend to be the one using it for lawfully connecting to a network (lawfully = paying for the service according to carrier requirements).

It (probably) is illegal to buy a phone, unlock it, and sell it as unlocked with the intent of making a profit and with no intent of using it for personal use.

[Ouchthathurt @ Aug 24th 2007 7:25PM]

Here is the issue no one has talked about. The iPhone battery.

Want a replacement, but you illegally unlocked your phone? No replacement for you!

[Karan @ Aug 24th 2007 8:42PM]

This entirely depends on the replacement process. It shouldn't need your SIM card to be sent in, or for anyone try connect the phone up to any kind of diagnostic that looks at whether it's unlocked or not. Apple could refuse replacing the battery only if that's part of the service agreement legalese - someone want to check the fine print?

[MARSHAK @ Aug 25th 2007 12:41AM]

the iphone hasn't been out long enough for there to be a massive demand for replacement batteries yet. If (when) that demand arises, expect detailed youtube videos teaching you how to install 3rd party batteries that you can get at best buy. for those of us still paying the ungodly price apple asks, you can do that for your ipod.

[Patrick @ Aug 25th 2007 5:03AM]

Geez, where to these worriers come from? All these fears about things that MIGHT happen.

Reality check: third-party iPhone batteries have already been announced. It appears to be hard but something that most DIYers could handle, and there will surely be plenty of non-Apple shops happy to do the work for cheap.

Anyway, the iPhone has been on sale for two months. NOBODY has yet worn out their first battery unless it was defective from the start. It should be a couple of years or more before average users need a new battery and by then they'll be out of contract with ATT and probably just want to buy a whole new phone instead of worrying about the battery.

So quit worrying about the battery and go play in traffic or something that might actually be cause for concern.

If you can't let go of fear of something bad happening with warranty service, then you shouldn't be hacking around with your iPhone. Hacking is not for people who keep receipts and boxes and the packaging material and leave those factory installed plastic antiscratch protectors on everything.

[g512 @ Aug 24th 2007 7:25PM]

actually, this is how the law is interpreted:

It is completely legal to Unlock a Phone to use it for Wireless communication purposes.
Remember, most unlocks are done simply by punching in an unlock code for your phone.

Having said that,
It is illegal to unlock a phone using
- hardware modifications
- software mods using an external source, i.e. computers
- firmware hacks on the phone itself

So there you go. With the current ways to unlock an iPhone, sadly it is illegal and you could get into trouble for it, especially if you plan to make money off it.
-g-

[morcheeba @ Aug 24th 2007 7:43PM]

firmware hacks were specifically listed as the only thing allowed -- see http://www.copyright.gov/1201/

[Jamar @ Aug 25th 2007 1:10AM]

If that scares you, remember that places like Hong Kong and China aren't bound by US law- go get one there if you're so afraid of getting sued or arrested.

[Patrick @ Aug 25th 2007 5:14AM]

Well, if you own the phone, you can physically DO anything you want to it. Even blend it. Or get it painted some other color. Apple can't stop you. The FCC can stop you if you do something to the radio to violate the type cert. But I digress.

The interpretation of the copyright office decision has to be wrong. Saying it's legal to unlock a phone -but you can't use any tools to do it, is like saying it's legal to open a padlock you own but you can't use the key or any tools or even touch it. Apparently you are expected to open it with mind powers? Wishful thinking?

This is unreasonable and would never stand up in court.

BTW, as noted in the original post, the copyright office decision is up for review again in 2009. What was not mentioned above is that the cell carriers have been raising holy hell (also known as lobbyists) since the decision came down to either repeal it or make damn sure it doesn't get renewed. So that's WHY 2009 is a concern. Verizon and the others are going to pay a lot of congressmen a lot of money in 2008 to make sure some laws get passed in their favor.

[steveey @ Aug 24th 2007 7:25PM]

Steve to his lawyers : iThought iLocked the iPhone, what do i(we) do now ?
Lawyers : We'll make it appear iLLegal

[Josh @ Aug 24th 2007 7:45PM]

Genius dude. lol

[Tim Ficke @ Aug 24th 2007 7:26PM]

So will an unlocked iPhone work on Verizon?

[dan @ Aug 24th 2007 7:31PM]

no, Verizon is CDMA technology, iPhones use GSM (like everyone else in the world)

[ethana2 @ Aug 24th 2007 10:08PM]

Just went to a verizon store. All CDMA, as stated earlier. They need to get off their high horse. Same with apple, by the way. OSX on a beige box. If they wait too long, Linux will, with my help, have taken their market share already.

[Tim Ficke @ Aug 24th 2007 10:52PM]

So right now theres no way to get an iPhone on verizon?

[madd_matt @ Aug 25th 2007 1:46AM]

There's no way to get an iPhone on verizon. Period. Either the iPhone has to have a new radio added, or verizon needs to roll out a GSM network.

[Brian @ Aug 27th 2007 12:37AM]

@Dan

That's not true. Japan and either Korea or Vietnam don't use GSM, they use CDMA. :-P

[Hatuxka @ Aug 28th 2007 9:53AM]

re CDMA in other countries: Vietnam is like here and has both GSM and CDMA, with GSM clearly ahead, since it started earlier. Other CDMA countries may be the same in this regard.

[ali @ Aug 24th 2007 7:32PM]

great post, but the jock about saudi arabia was not funny.

yes... there is fan of Engadget in saudi arabia :)

[Thirrouard @ Aug 24th 2007 7:38PM]

They were not talking about saudi arabian, but about the Saudi Royal Familly ;)
And nothing bad, just that they got a lot of money and would probably pay a lot to use the iPhone anywhere else than in the US...
The thing is, they probably don't care paying the AT&T fees :P

[Carbonize @ Aug 25th 2007 3:21AM]

With the sort of money they have I doubt they'd bother getting one and then getting it unlocked anyway. they just phone Jobs and tell him to send them one unlocked and probably made to their specifications. Thing is he'd probably send them the phones for free.

But then it was just a joke.

[jerrt @ Aug 24th 2007 7:36PM]

Great post, very funny, plus lots of good info.

right now i see at&t and apple lobbyists making deals over the bodies of dead hookers getting new laws created that will get a iphone unlocker.... how do i get this math right...... carry the 2.... adjust for solar winds...... ah, about 2000% times the sentence of lindsay lohan and nichole richie combined. [:

[Blake @ Aug 24th 2007 7:41PM]

I want to see Apple and anyone who wishes to unlock the iPhone have a complete battle.. Can Apple defeat them with this update? Or will the hackers prevail?

[ethana2 @ Aug 24th 2007 10:15PM]

Or will the openmoko hit the ground running in 6 months and own their poor butts?

Yes, I like that one.

[Michael @ Aug 24th 2007 7:40PM]

What about this article from the past?

http://www.engadget.com/2006/11/23/copyright-office-rules-that-consumers-can-legally-unlock-cellpho/

I thought it was legal.

[Amber @ Aug 25th 2007 5:45PM]

Did you really not read the post?
It's LEGAL to unlock.
It's ILLEGAL to unlock and sell for profit.

[morcheeba @ Aug 24th 2007 7:41PM]

What? No one linked to the law?!! Here it is: http://www.copyright.gov/1201/
and the exemption recommendation: http://www.copyright.gov/1201/docs/1201_recommendation.pdf

Of interest is this:
5. 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.
Note that it says _firmware_ -- programs that run on a PC to download said firmware (and any other non-firmware access device) would be illegal. At least, that's my interpretation until it's challenged.

[Karan @ Aug 24th 2007 8:44PM]

And are you a lawyer then?

(I'm assuming here that Engadget have run this past the AOL TimeWarner legal team)

[morcheeba @ Aug 24th 2007 9:32PM]

Nope, not a lawyer -- just a hacker who has had reason to keep keep close tabs on the DMCA. And, with that ethos, I like to point people to the source code, uhm, actual law. It isn't the lawyers job to interpret the law; it's the judge's.

[gojeda @ Aug 25th 2007 6:16AM]

"Note that it says _firmware_ -- programs that run on a PC to download said firmware (and any other non-firmware access device) would be illegal. At least, that's my interpretation until it's challenged."

I do not see that at all. You will need to provide a proper citation here.

[Lucas @ Aug 27th 2007 7:29AM]

i though that was the exemption to the violation ?

[Jon @ Aug 24th 2007 7:54PM]

Here's the sad fact of this whole SIM unlock story:
AT&T will of course hear about this and instantly think, "we better stop this! People will switch carriers"!
When they should be thinking, "uhhh maybe we should look at improving our crappy network, overpriced plans and poor customer service"....

By the way, I have an iPhone and LOVE it.

[nickroz @ Aug 24th 2007 8:17PM]

Sadly, legal action is much more frugal than network improvements...