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The Legalities of Unlocking an iPhone

Monday, August 27th, 2007 at 1:35 PM - by

Unlocking an iPhone for your own benefit with the sole purpose to lawfully connect to a cell phone network, with no financial gain, is probably not illegal, according to an informal opinion by an attorney at Engadget.

The Engadget attorey, Nilay Patel, warned that his Q&A article is not meant to be legal advice. Even so, he shed some light on the process of unlocking an iPhone and what the Digital Millenium Copyright Act (DMCA) has to say about it.

"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'," Mr Patel wrote.

And therein lies the rub. Just how that is interpreted, especially with respect to profit making venntures, is the key. Anyone can sue anyone at any time.

The entire missive bears reading, however, the final words are worth noting: "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," Mr. Patel concluded.

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Tiger said:

member since 17 Jun 2003 with 1018 posts, unranked, send him a message or view his profile

Mon Aug 27, 2007 5:29 pm

Not to mention AT&T will vigorously protect their exclusive deal as the phone isn't subsidized and they depend on that revenue. If anyone thinks they won't sue users who do this (and probably any other cell company who knowingly allows an iPhone to be connected to their network via the unique device IDs), they're mistaken. We're talking AT&T here folks. They don't take loss of revenue lightly. One might even think they'd go after people who did this using various state statutes in addition to federal ones.

What the thieves see as "consumer rights", they see as the rights of the company to protect an exclusive deal signed in good faith. If you steal from them, they're gonna go after you. The companies go after people who steal satelllite services through the "cards".

Theft is theft.

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A guest said: (hide)

Mon Aug 27, 2007 5:55 pm

Since I can buy an iPhone directly from Apple I see no grounds for ATT to come after me. They might go after Apple, on the grounds that Apple failed to make the iPhone secure enough to prevent it being used on other networks. Similarly, I see no basis for ATT to go after t-Mobile if I start to use an iPhone on either an existing contract or a new one on the t-Mobile network.

I really can see no way ATT can claim they are having either product or services stolen. Jeff

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Terrin said:

member since 29 Jan 2006 with 414 posts, unranked, send him a message or view his profile

Mon Aug 27, 2007 6:28 pm

Tiger, I say bring it on. First, the DMCA clearly protects me the user for unlocking the SIM (as it should). Second, the DMCA doesn't prohibit a company from making money on offering an unlock, nor should it. Third, AT&T cannot sue me for hacking the iPhone code because AT&T doesn't own the code, Apple does. Fourth, AT&T will not sue consumers because that is bad publicity, and a group like the EFF will jump all over that case because it is essentially a slam dunk. Fifth, AT&T didn't sign a exclusivity deal with consumers, it signed an exclusivity deal with Apple. As such, if I buy an iPhone, I should be able to use it where I can. That is not to say Apple or AT&T should help me do this. It also is not to say Apple should have to honor the warranty. However, I bought the device and did not sign any contract with Apple to do so. The device is mine free and clear.

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gslusher said:

member since 13 Nov 2002 with 2088 posts, unranked, send him a message or view his profile

Mon Aug 27, 2007 7:51 pm

Terrin wrote:
Second, the DMCA doesn't prohibit a company from making money on offering an unlock, nor should it.

Could you provide a reference for that? Did the DMCA, itself, allow unlocking a cell phone? I thought that was an exception issued by the Copyright Office.

Here's the confusion. Nilay Patel (a copyright attorney) wrote in the Endgadget article:

"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."

Might that extend to companies offering to sell the methodology or software for unlocking?

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