Hi, 3gwireless!
This is a little bit of a tricky question, because there's a little
bit of tricky legislation involved.
Unfortunately, in a nutshell, your answer is probably, "Try it and see
if you get arrested." While technically, you could legally unlock
phones as long as you haven't agreed not to, I'd hesitate to say that
this doesn't have the potential of getting you into hot water.
According to this page, it is illegal in some countries:
http://www.gsm-software.net/unlockinfaq.php
"Is unlocking legal?
In some country's it is illegal but luckly in my country it is still
legal :)
(The Netherlands)
Just make sure you check the laws in your country, for example I've
heard that some unlockers are already been arrested in UK."
I am not aware of any cases, nor could I find any in a search on the
topic, where a anyone providing an unlocking service in the US was
threatened or sued or charged with any crime in relation to doing so.
But there's a first time for everything, so you may want to study the
issue before you jump in. If you're still not sure, you may want to
talk to a lawyer to see if you could draw up a binding agreement
requiring the user to attest that he or she is not under any currently
binding user agreement that disallows unlocking.
There are, essentially, two things I'm aware of that you'd need to
watch out for:
1. The Digital Millenium Copyright Act. While 'copyright' doesn't seem
like something that would apply to cellular phones or service, this
legislation is very vague in parts, and has the potential to be used
in a case like yours if a provider could establish some sort of claim
that you were circumventing copy protection measures. It would seem,
to my non-lawyer thinking, that this would not apply, as removing a
provider lock only allows for legal access to other networks. (I've
appended a rather lengthy discussion of the DCMA below, in a separate
section.)
2. General user agreement provisions. Often, when a user purchases a
phone along with phone service, they are required to agree to certain
limitations on their usage, and with the advent of 'clickwrap' and
'shrinkwrap' licensing, they're often not even aware that they've
agreed. In these cases, the user may have agreed not to remove the
provider lock from the phone. This should not apply to you, of course,
unless you agreed to the license as well, but that doesn't mean that
they might not try anyway, as in the CUE:CAT case discussed in the
section below. See more information about shrinkwrap and clickwrap
licenses here:
http://www.cptech.org/ecom/ucita/licenses/
THE CUE:CAT CASE
The case most similar to what you're offering, I think, is the Digital
Convergence Cue:Cat controversy. Here's a summary of that case:
http://www.laweekly.com/ink/00/45/news-lewis.php
and the text of the original demand letter:
http://www.chillingeffects.org/patent/notice.cgi?NoticeID=9
While this case did not end up in court, Digital Convergence claimed
that the distribution of software that allows users to use their bar
code scanner was a violation of their intellectual property rights to
the hardware.
If you're interested in the whole story, it's archived here:
http://www.flyingbuttmonkeys.com/foocat/
Again, this case did not go to court, and the demand letters did not
specify much detail about what they felt the violation was, aside from
general references intellectual property issues.
THE DMCA
In 1998, the Digital Millenium Copyright Act was signed into law. This
is a sticky little piece of legislation that was intended to protect
copyrights and other intellectual property. One way it attempted to do
this was through restrictions on the circumvention of copyright
protection systems.
Here's the full text of the DMCA, H.R. 2281:
http://www.eff.org/IP/DMCA/hr2281_dmca_law_19981020_pl105-304.html
This page provides more information, some that may specifically relate
to your situation:
http://www.chillingeffects.org/anticircumvention/
From this page:
"Some activities affected by this law might include:
manipulating the computer code of a digital toy to make it perform new
functions;
disabling an access control device on the storage media of an
entertainment product;
creating a patch for a software program or electronics product
performing cryptanalysis on security systems that control access to
digital data;"
Here's a group that provides a great deal of information about the
DMCA, including recent cases:
http://www.anti-dmca.org/index.html
A search on findlaw.com results in a number of articles about the
DMCA, listed here:
http://lawcrawler.findlaw.com/scripts/lc.pl?entry=dmca&search=Search%21&sites=findlaw
The two sections most relevant to you are the copyright circumvention
prohibitions and the definitions of protected works.
From the text of the DMCA, as passed:
"`(2) No person shall manufacture, import, offer to the public,
provide, or otherwise traffic in any technology, product, service,
device, component, or part thereof, that--
`(A) is primarily designed or produced for the purpose of
circumventing a technological measure that effectively controls access
to a work protected under this title;
`(B) has only limited commercially significant purpose or use other
than to circumvent a technological measure that effectively controls
access to a work protected under this title; or
`(C) is marketed by that person or another acting in concert with that
person with that person's knowledge for use in circumventing a
technological measure that effectively controls access to a work
protected under this title.
`(3) As used in this subsection--
`(A) to `circumvent a technological measure' means to descramble a
scrambled work, to decrypt an encrypted work, or otherwise to avoid,
bypass, remove, deactivate, or impair a technological measure, without
the authority of the copyright owner; and
`(B) a technological measure `effectively controls access to a work'
if the measure, in the ordinary course of its operation, requires the
application of information, or a process or a treatment, with the
authority of the copyright owner, to gain access to the work."
So, according to this, it would be illegal to remove a provider lock
from a phone, if a provider locked cellphone service could be
considered a 'protected work.'
Here's the section that outlines what is and is not protected:
"Sec. 1301. Designs protected
`(a) DESIGNS PROTECTED-
`(1) IN GENERAL- The designer or other owner of an original design of
a useful article which makes the article attractive or distinctive in
appearance to the purchasing or using public may secure the protection
provided by this chapter upon complying with and subject to this
chapter.
[...]
`(b) DEFINITIONS- For the purpose of this chapter, the following terms
have the following meanings:
`(1) A design is `original' if it is the result of the designer's
creative endeavor that provides a distinguishable variation over prior
work pertaining to similar articles which is more than merely trivial
and has not been copied from another source.
[...]
`Sec. 1302. Designs not subject to protection
`Protection under this chapter shall not be available for a design
that is--
`(1) not original;
`(2) staple or commonplace, such as a standard geometric figure, a
familiar symbol, an emblem, or a motif, or another shape, pattern, or
configuration which has become standard, common, prevalent, or
ordinary;
`(3) different from a design excluded by paragraph (2) only in
insignificant details or in elements which are variants commonly used
in the relevant trades;
`(4) dictated solely by a utilitarian function of the article that
embodies it; or
`(5) embodied in a useful article that was made public by the designer
or owner in the United States or a foreign country more than 1 year
before the date of the application for registration under this
chapter."
According to this, a cell phone, which is manufactured by a company
other than the provider, should not be included; and it seems a bit of
a stretch to consider any aspect of the cell phone or its service
subject to copyright laws.
I hope this answers your question as far as it is answerable, but if
you'd like clarification on any of the issues (short of requiring me
to actually change the laws, of course), please feel free to ask, and
I'll see what else I can find for you.
Good luck,
Lisa.
SEARCH TERMS
UCITA
DCMA
unlock phones legal
cue:cat
shrinkwrap clickwrap license |
