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Jailtime For Jailbreaking
An anonymous reader writes "Remember how the Librarian of Congress announced that jailbreaking your phone was legal and not a violation of the DMCA? Yeah, well, tell that to Mohamad Majed, who has already spent over a year in jail and has now been pressured into pleading guilty to criminal DMCA violations for jailbreaking phones for use on other carriers."
In the US the tone of the punishment has to fit the tone of the skin. It's the American Way.
And? The clause about no ex post facto laws swings both ways.
I know this is a semantic issue but jailbreaking usually refers to installing apps on phones and not usually unlocking a phone from a particular carrier. Anyway, carry on with the discussion.
The convictions were all from people breaking phones (as in hundreds or thousands of phones) to use on different carriers. The iPhone jailbreaking (which the story summary was meant to make you think of even though no iPhones were involved in this story) does not unlock the phone for use by other carriers.
You may proceed jailbreaking as normally despite this FUD, just as many millions have already done...
"There is more worth loving than we have strength to love." - Brian Jay Stanley
It's legal to jailbreak your own "used" phone. This guy was jailbreaking phones by the thousands and selling them. It's still legal to jailbreak the phone you own and use, it's just illegal to unlock and sell in bulk.
I'm using all of my mod points to mod ancient memes down. Please join me.
Note that he didn't just jailbreak his own phone. He was purchasing discounted prepaid phones from a company, jailbreaking them, and then selling them.
I don't know if this falls under the text of the exemption:
"(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset."
Regardless, he apparently pled guilty, so there was no decision on the matter by a jury.
So if you own a car, you can mod it to run on ethanol, remove the factory stereo and logos with no problem. But, if you do a similar thing with a cheap phone or gaming system you are instantly a CRIMINAL!
The new business model in the media/tech industry seems to be 'Lawsuit Phishing' where you sue everybody and hope that a few suckers actually pay you.
He who knows best knows how little he knows. - Thomas Jefferson
If they controlled the Internet you'd buy your computer from your ISP and it wouldn't work with any other ISP, your Internet bill would list every website you went to, out-of-state websites would be billed at a higher rate (except for nights and weekends). The current model for phone networks is an overpriced relic of the last century.
I read the article and some of the comments below the article and I was amazed that there are people that equate unlocking or jailbreaking a phone to stealing intellectual property. I'm not very familiar with the wording of the DMCA exlusion that allows you to carrier unlock a phone but I did believe that it applied to a phone that you own. I somebody is charging a fee to unlock phones that clearly this doesn't fall under the DMCA exclusion as I understand it. However, if somebody were to purchase a phone for X dollars, carrer unlock it and then re-sell it for X+Y dollars then that SHOULD fall under the DMCA exlusion although it would be exploiting a loophole.
I'm still not sure how this guy ended up doing jail time and what kind of precedent that sets.
Do what thou wilt shall be the whole of the Law - Aleister Crowley
From the link in TFA:
Majed shipped several thousand prepaid wireless phones to co-conspirators in Michigan and Hong Kong.
Majed didn't go to jail for jailbreaking his iPhone, or even a handful of them for friends. The jailbreaking exemption (http://www.copyright.gov/1201/) states that the exemption exists for the owner of the device in order for the owner to use an alternate cellular network. This guy was essentially running a business buying heavily subsidized Tracfones, unlocking them, and selling them by the thousands. One could argue that between the purchase and the resale that he was the owner of the device and thus was covered, but let's keep perspective - Majed wasn't convicted for rooting his Droid, he was running a business on a technicality, and a stretched one at that.
It's pretty appalling that our police, courts, and jails are being used this way -- basically as a favor to the well-connected telecom oligopolies and their sleazy lobbyists. Sure, the law is the law -- but the corporations really ought to be footing the bill for this themselves. AT&T and Verizon should create and maintain their own police force and prisons.
(Also, the Irish should eat their children.)
Putting people in the stockade for stealing a loaf of bread... No not even... for not renting the baker's knife to cut his own bread...
For justice, we must go to Don Corleone
Correct me if I'm wrong here, but the the statement by the Librarian of Congress is merely an opinion of the interpretation of the DMCA, and as such, is meant only to be used by judges as precedent in deciding cases and does not in itself establish any legal statute.
Remember how the Librarian of Congress announced that jailbreaking your phone was legal
Yes, do you?
Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.
I'm pretty sure jailbreaking for other networks doesn't fall under application interoperability.
Your hair look like poop, Bob! - Wanker.
Maybe all this FUD about jailbreaking/unlocking may create niche -- a cellphone for people wanting open access to their device, where the only limit on them is the hardware limitations. I'm sure there are people out there who wouldn't mind paying for an Android phone that ships with su available, stock Android UI (no MotoBlur or any other vendor/cellular carrier stuff), and with the source code available for all parts of the OS so custom builds are more of spending time making cool features, not trying to fight one's way around manufacturer created obstacles like signed kernels, eFuses, or the like.
If it wasn't so close to the end of the model's production cycle, I'd consider a N900 just on principles alone, although it really would be nice to have Google make an ADP with up to date hardware specs for running Android apps.
Is it illegal to jailbreak a phone if you haven't used it? Illegal to jailbreak more than one phone? Illegal to sell a phone after you jailbreak it? Illegal only if two or more of the above?
I think you have a case of the ole "illegal to profit from someone else's work" mindset.
as Steven Colbert would say.....
Jailbreak.... or...... Freedom Patch?
Breaking something out of jail is known to be bad... setting something free is much better....
Seems like Tracfone's business model can't survive their users unlocking their phones. In a capitalist country, they should just go out of business.
when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network
He was unlocking phones for resale overseas, making a profit by violating the terms of a subsidy. The exemption doesn't cover this
The circumvention is initiated solely in order to connect to the overseas wireless telecommunications network. I don't see anything in this exemption stating that the same person must be doing both the circumventing and the connecting.
and you probably don't want it to cover this, assuming you still want to be able to buy phones at less than full market price.
I don't want the "subsidy". If I'm paying $70 a month to AT&T for iPhone service, I want to see "Phone installment payment: $20; service: $50" on the bill. Among U.S. postpaid carriers, T-Mobile comes closest to this ideal, with the "Even More Plus" SIM-only offers that take $10 off voice and $20 off voice+data for a plan without a new phone.
Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works
I don't see how the fact that he was the owner of the phones is a technicality or a stretch in any way. He wasn't hacking someone else's phone; he was hacking phones he owned so they could connect to another network. Would it be legal in your opinion if he resold the phones as-is and the end user "initiated the circumvention" by asking him to do it? Is it illegal in the US to make a business out of doing something you're legally allowed to do?
Worth noting that the FBI allege that Majed was reselling the phones and funneling the profits to Hezbollah.
I'm not sure how that makes convicting someone (for something which has already been deemed legal) any more valid (and quite frankly, I don't know enough about the DMCA or US laws to even begin to form an opinion) but I do think it would have been nice if the story included this fairly important bit of information.
Avantslash - View Slashdot cleanly on your mobile phone.
Because you jailbreaking or even unlocking a phone is not illegal, when you do it to thousands of phones you don't own just to sell that's where the issues come up.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
The best I can tell from the wording of the exemption to the DMCA for unlocking cell phones to use on a different carrier, is that it must be done by the owner of the phone using software they legally obtained. So, ignoring First Sale, if he had sold these phones along with a legal copy of the unlocking software and a step-by-step instruction manual, that would have been fine (assuming he could legally re-sell the software).
The question comes, in my mind, where the principal of First Sale applies in this case. Since he (presumably) legally obtained the unlocking software, he was legally unlocking the phones. I would think that First Sale would come into play at the point where he purchased the phones and any resale after the fact would be unencumbered. Of course, IANAL and I don't speak legalese.
Any chance an IP lawyer with DMCA knowledge/experience could enlighten us?
Death looks every man in the face. All any man can do is look back and smile. - Marcus Aurelius
If that's the "real charge" why then do him for the false ones? Is the penalty for aiding terrorists less than that for jailbreaking a phone???
The jailbreaking/unlocking seems to be a technicality of the charges to stick him with. The real issue seems to be him defrauding the telco.
He bought subsidized phones then resold them.
Subsidized phone are paid for largely by the telco. When you buy one at that discount you agree to the terms of a contract. You can't buy a subsidized phone without a contract.
His actions violate those terms regardless of the breaking/unlocking or whether he owned them and was allowed to alter them.
We've already learned that the United States will kidnap foreign nationals and torture them for months because they have the same name as someone suspected of terrorism.
Pro tip: if your name looks or sounds anything like Mohammed, change it.
And also, if you have light brown skin and a hooked nose, consult your doctor.
To everyone claiming this is unjust: RTFA.
The guy was found guilty because... he pleaded guilty. What's the court supposed to do, argue the defense's case for them when they've already said they did it?
GLaDOS for President 2016! "Well here we are again. It's always such a pleasure." -- GLaDOS, 2011
Then you need better reading comprehension
It's a close call, and resolving close calls in reading comprehension is a judge's job.
initiated by the owner of the copy solely in order
The owner of the copy at time of circumvention was not doing so in order to connect. He was doing to in order to resell, undercutting his supplier.
Under your interpretation, it would be illegal to unlock a phone that another family member would use, or even to let someone else make a call with your unlocked phone.
Unless you're arguing that nobody should be allowed to offer or accept that subsidy
I see tying the phone to the service without making them available a la carte as a possible Clayton Antitrust Act violation, though feel free to prove me wrong. Requiring phone companies to disclose how much goes to the phone and how much to the service, as cable companies already do with equipment rental, would be a good step.
however, it's irrelevant to the discussion.
If buying the phone and service a la carte were the rule and not the exception in the United States, this discussion wouldn't even need to have happened.
Please for the love of christ, stop saying "jailbreaking" when the term you're looking for is "unlocking".
"Jailtime for jailbreaking" makes a clever headline, but this is not what the guy was accused of nor what he pleaded guilty to. Thanks for wasting my time...
There's a simple solution to this nonsense: NEVER buy any electronics that REQUIRES jailbreaking to use it the way you want to use it. If everyone did that, they wouldn't sell any of that crap, and would change their tune in a hurry.
He was sending the profits to Hezbollah, (recognized by the USA as a terrorist group):
http://www.theregister.co.uk/2010/12/01/dmca_unlocking/
http://gizmodo.com/5702752/how-a-suspected-terrorist-led-to-the-first-unlocked-phone-dmca-violation
http://iplextra.indiatimes.com/article/08OA5Nj4tzeWa
First, I am not a lawyer. Just someone who can read the United States Constitution.
The US Constitution directs that there shall be one supreme court and as many inferior courts as congress shall establish. It sets out the purpose of the judiciary as:
To answer your question: courts serve as a check on the other two branches of government by being the interpreters of what the law is, especially in the case of the constitution. The judiciary has the right to craft relief based on the interpretation of what the law is - they can bar other branches of government from doing things (yet they have no enforcement arm: see Worchester v. Georgia for an example of this).
By declaring a law unconstitutional, the supreme court sets an opinion as stare decisis, which is generally binding on lower courts. So if the supreme court rules that a law is unconstitutional and cannot be enforced, it generally binds lower courts.
In the case of a law being found unconstitutional after it is enacted, however, the people convicted of violating that law do not automatically receive a "get out of jail free card". They have to litigate their case to secure a release, generally by filing a writ of habeus corpus.
in canada in the mall you see stores all over the place that say we can unlock your phone.
and the cable co's make you rent there hardware at high prices.
and the software on them sucks. What so bad about hacking a DVR to put in a bigger HDD? Hacking in a better looking GUI? comcasts old 4:3 guide is so 90's.
How did librarians suddenly get so powerful?
And I'll say it again. If Slashdot was to go back in time and report on serial killer Ted Bundy's trial and conviction that led to his eventual execution, the post would talk about how he was going to be executed for daring to defend himself instead of hiring an attorney to do it and that was the only reason he got the death penalty. For those who don't know, Bundy was a rather infamous serial killer of women in the USA. He killed at least 20 women, possibly more. His convictions were never in doubt. We know he did it. He even admitted to it (finally). He spent the last days of his life in desperation trying to trade more confessions and information on other killings for life imprisonment instead of the death penalty, but failed. Yet I have no doubt that if Slashdot reported this, all they would conclude is that he was "wrongfully" executed to make him an example to others about how you'll be punished if you act as your own attorney in court.
People hired him to do a job that they didn't know how to do himself. If anyone is committing a criminal act, it's the companies who make jailbreaking necessary and are infringing on our fair use rights.
Jailbreaking is perfectly legal, but if you pay someone to do it for you, it makes them a felon? Something doesn't seem right here.
Receiving stolen goods does not magically make them yours.
This guy was buying *stolen* phones, so he was NOT the owner of the phones, so the DMCA exemption does not apply to him. It's simple.
"Jailbreaking" refers to what the suspect plans to do after they throw him in prison
Unlocking isn't jailbreaking, way different. I've never got why people unlock anyways, just use the carrier that is offering the phone you want in the first place, they're all equally horrible and evil. This is akin to people trying to install flash on their iphone so they can watch youtube videos, you're just trying to make extra work for yourself so you can do something you can already do in the first place.
The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.
The Web is like Usenet, but
the elephants are untrained.
Thanks for sorting that out.
Is 1563649 a prime number?
If he can jailbreak a phone so easily, why can't he just jailbreak himself?
"I don't care about the Constitution!" --Bill O'Reilly, November 17, 2009