Jailbreaking is for fugitives: US Govt sanctions unlocking of cell phones

by Bharat Suneja

The U.S. government has ruled to defeat what many of us thought of as the high-handedness of Apple and its wireless carrier of choice, AT&T — you can now legally unlock your iPhones!

More than a million users have unlocked their iPhones, a practice that’s commonly known as jailbreaking. However, jailbreaking has negative connotations. One shouldn’t feel like an escaped convict for unlocking a cell phone. Millions of iPhone users would follow the unlocking path if it weren’t for the threat of Apple bricking their iPhones with the next firmware upgrade.

Luckily, the Copyright Office agrees, and has ruled on three new exemptions to the Digital Millennium Copyrights Act (DMCA), the more important for this audience being the ability to unlock your phones legally.

It has nothing to do with carriers subsidizing phones — it’s fair that if you purchase a phone subsidized by the carrier, you must agree to subscribe to the carrier’s service for a predetermined period. This allows the carrier to recoup its costs, and it allows you to own a new smartphone without having to pay the exorbitant price upfront. Also fair game is the early termination charge by the wireless carrier if you decide to terminate the service early, provided such charge is reasonable and disclosed at the time of signing the contract.

What has never made any sense is paying Apple and AT&T hundreds of dollars to purchase an iPhone and the monthly voice + data charges, and still be unable to use the phone on any other network, including on those trips to distant lands where such artificial barriers don’t exist and unlocked phones are not only legal, but the rule of the law

The Electronic Frontier Foundation (EFF) pushed these changes through at the Library of Congress, which reviews copyright laws every three years. Jennifer Stisa Granick, EFF’s civil liberties director, said the rules are based on an important principle: Consumers should be allowed to use and modify the devices that they purchase the way they want. “If you bought it, you own it,” she said.

In its reasoning in favor of EFF’s jailbreaking exemption, the Copyright Office rejected Apple’s claim that copyright law prevents people from installing unapproved programs on iPhones: “When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses.”

“Copyright law has long held that making programs interoperable is fair use,” confirmed Corynne McSherry, EFF’s Senior Staff Attorney. “It’s gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability.”

Apple’s stance on all apps being approved (or not) and sold (or not) only through its AppStore has been a source of major annoyance for many app developers, who not only need to pay the Apple toll to create and sell apps for the Apple family of mobile devices (the iPhone, the iPad and the iPod Touch), but also need to adhere to Apple’s whims and fancies on the kind of apps or content it wants to allow in its AppStore. Users have for long accepted it as destiny, since there’s no alternative to the AppStore if you want to use an iPhone. Finally, this may help you get around Apple’s walled garden.

However, it’s important to note that the ruling doesn’t prevent Apple from bricking your unlocked iPhones with a new iOS upgrade. It’s also a violation of the iPhone end-user license agreement (EULA), and it voids your iPhone warranty according to Apple.

Perhaps Apple should take a queue and get out of the locked phone business. It would earn it even more customer loyalty, and perhaps make up for some of the goodwill lost due to the iPhone 4 antenna flaw.

As to how Apple might actually react to this development, David Coldewey has more in How will Apple respond to the DMCA revision? They won’t. in TechCrunch:

Now that it’s been made official, however, one might reasonably expect a bit of give from Apple on this point, since they have taken such great measures to prevent such actions. But I’m pretty sure that apart from a little lip service, Apple will continue with the exact same policies, with the sort of blithe arrogance that simultaneously compels and repels consumers.

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Bharat Suneja July 27, 2010 at 8:01 am

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