The legal issues behind unlocking the iPhone

So the iPhone has been unlocked, and there was much rejoicing. However, that feeling of glee has subsided in the days subsequent to George Hotz’s act. You see, telecoms don’t like unlocked phones; they subsidize them, and if they’re unlocked and used on another network, the original telecom loses out — so they say. With both Apple and AT&T fearing a loss of profits from service, they’ve send their legal teams out to quash any other potential iPhone hackers. The question is, do they have any ground to stand on? On the hackers’ side is the Digital Millennium Copyright Act, or DCMA. As we’ve mentioned before, there was an exemption made to the act this past November that made it explicitly legal to unlock a cell phone, provided it was for the purposes of legally connecting to another network. Well, that’s exactly what unlocking the iPhone does, right? So you can connect it to T-Mobile or a foreign carrier. AT&T has a trick up its sleeve, though:

Experts believe that AT&T and Apple will point to the DMCA’s section 1201, stating that “no person shall circumvent a technological measure that effectively controls access to a work protected under this title.” They will claim that a phone lock is just such a technological measure that protects copyrighted work: namely, cell-phone software.

However, that might not be enough. The key word in there is “copyrighted,” and communications services simply aren’t copyrightable.

“This law was written for DVDs and video games,” [Jane Ginsburg, professor of literary and artistic property law at Columbia Law School] explains. “What’s going on here is using the Copyright Act to achieve another objective.”

A software unlock hack for the iPhone was supposed to be released last Friday, which coincidentally was the day after George Hotz completed his hardware/software hack. However, when the developer was contacted by AT&T’s legal team, he held back temporarily. He then apparently contacted his own lawyer, and after consulting seems ready to introduce the software anyway, AT&T be damned. Given the sue-happy nature of corporations, we expect this one to end up in court. That could be a good thing in this case, though, because if the developers win, it’s a victory for all consumers. We’re sick of being locked into not only frivolous two-year contracts, but being stuck with a phone that is nothing more than a paperweight if we switch carriers. [Businessweek]]]>