Jailtime For Jailbreaking

No ex post facto laws by Anonymous Coward · 2010-12-02 05:04 · Score: 2, Insightful

And? The clause about no ex post facto laws swings both ways.

Re:No ex post facto laws by CheshireCatCO · 2010-12-02 05:08 · Score: 1

It's not clear to me how this shakes out, though. The Library of Congress doesn't make laws, they just interpret (some of) them. I believe that when the judiciary re-interpret a law, people charged with violating it previously can benefit from the change.
Re:No ex post facto laws by Anonymous Coward · 2010-12-02 05:18 · Score: 3, Funny

Yea, except the case was brought after the exemption, since this is about jailbreaking to port to a different carrier, not jailbreaking to run other software. The latter exemption wasn't until this year, but the former was back in 2006. However, the shitty slashdot summary leaves out a key point, this idiot pleaded guilty, so you can't really blame anyone but him.
Re:No ex post facto laws by StikyPad · 2010-12-02 05:23 · Score: 1

Yes and no. Just like you can't charge someone for committing a crime before it was a crime, you can't continue to incarcerate someone for a crime that is no longer a crime. Depending on the why the law is no longer applicable, they may even be entitled to damages for wrongful imprisonment (and of course, anyone can try to sue the state for just about anything).
All of this assumes that they haven't done anything in jail that's earned them a longer sentence, which they'd likely still have to serve, as messed up as that is. "True, you shouldn't have been here in the first place, but since you were, and you were involved in a fight that you didn't start, you still have 2 more years."

--
https://www.eff.org/https-everywhere
Re:No ex post facto laws by Monkeedude1212 · 2010-12-02 05:28 · Score: 1

The Librarian of Congress has actual power in regards to laws?
I thought they spent most of their time archiving certain twitter feeds.
Re:No ex post facto laws by commodore64_love · 2010-12-02 05:28 · Score: 4, Insightful

>>>this idiot pleaded guilty, so you can't really blame anyone but him.
The Supreme Court has ruled that your Fifth Amendment right to remain silent is still a protected right, if it can be demonstrated that the person was never informed of that right. They also stated that oftentimes completely-innocent people will plead guilty to a crime they never committed, so that alone is not enough evidence to convict.
Bottom Line:
Keep your mouth shut. I've had people tell me, "Oh well if you were innocent why wouldn't you cooperate with the police and let them see inside your trunk, or home?" Answer: Because innocent people have been sent to prison. Better to not volunteer anything.

--
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Re:No ex post facto laws by hedwards · 2010-12-02 05:33 · Score: 3, Insightful

You're being dense. Nullification is the whole reason why we have an independent judicial branch.

Nullification is what happens when SCOTUS rules a law to be unconstitutional. Unless of course I've missed the cases where SCOTUS rules something to be unconstitutional and the law stays legally binding. What you're arguing is semantics as any law that's ruled to be unconstitutional is unconstitutional unless SCOTUS issues a new precedent or test that indicates otherwise.
Re:No ex post facto laws by s73v3r · 2010-12-02 05:34 · Score: 1

That's just stupid. Without the power to nullify laws that are unconstitutional, how is the Judiciary supposed to serve as a check on the Legislative branch?
Re:No ex post facto laws by msauve · 2010-12-02 05:36 · Score: 4, Informative

In the same way that regulatory agencies make regulations (regulatory "law"), Congress has also transferred authority (unconstitutionally in both cases, IMHO) to the LoC with regard to exceptions to the DMCA. They're doing more than interpretation, they're effectively changing the law. See Section 1201(a)(1) title 17, United States Code. Seems the exceptions only go for 3 years, and begin when the determination is made.

Following the links in the article, "Majed... was arrested by FBI agents on November 22, 2009." If one goes back to the determination in effect at that time, from 2006 (These exemptions went into effect upon publication in the Federal Register on November 27, 2006, the 3 year term was later extended), one finds this exemption:

5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.
That sure sounds like exactly what he was doing.

Here's the section of the DMCA which grants authority to the LoC:

The Librarian shall publish any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking conducted under subparagraph (C), that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected, and the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period.

--
"National Security is the chief cause of national insecurity." - Celine's First Law
Re:No ex post facto laws by mweather · 2010-12-02 05:37 · Score: 1

No, it doesn't. If it did, the telecoms wouldn't be immune to lawsuits for assisting in illegal wiretapping.
Re:No ex post facto laws by dreemernj · 2010-12-02 05:41 · Score: 1

The government believes differently. The supreme court can nullify laws as a way to balance the legislative branch. Check out Marbury v. Madison.

--
1 (short ton / firkin) = 89.1432354 slugs / keg
Re:No ex post facto laws by Anonymous Coward · 2010-12-02 05:42 · Score: 1

Yes and no. Just like you can't charge someone for committing a crime before it was a crime, you can't continue to incarcerate someone for a crime that is no longer a crime.

Why not? If it was illegal when they did it why should they get out of their punishment just because the law changed?
The reason ex-post facto laws are uncostitutional is because you can't avoid breaking a law that doesn't exist at the time of your action, and the obvious (ab)use of an ex-post facto law is to retroactively ilegalize something because you want a perticular person(s) to be guilty so you find something they did and illegalize it knowing they can't undo their past actions.
However if you break an existing law you're not being a victum of unkowable future actions. And if there's a reason to end the sentances of everyone curently being punished for having broken it the government could simply have them pardoned.
Re:No ex post facto laws by msauve · 2010-12-02 05:58 · Score: 2

I'll just add to this, since many posts show that people are confusing the action at issue here with what's allowed by the most recent LoC findings. As I referenced, there was an exemption going back to 1996 for "jailbreaking" in order to move a phone to a different network. The more recent exemption (for "jailbreaking" in order to run other software) was added this past July. It doesn't appear to apply to this case at all (it is neither appropos or timely). This is from the current finding:

(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.

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

--
"National Security is the chief cause of national insecurity." - Celine's First Law
Re:No ex post facto laws by drinkypoo · 2010-12-02 06:00 · Score: 2

However if you break an existing law you're not being a victum of unkowable future actions. And if there's a reason to end the sentances of everyone curently being punished for having broken it the government could simply have them pardoned.
You are attempting to create a problem that does not exist. If I were as dumb as you I wouldn't log in either. If the law is bad it should be repealed, and if someone was convicted under a bad law they should be pardoned. It's just that simple because anything else creates opportunities for abuse (i.e. selective enforcement.) You pass a law, you convict everyone, you eliminate the law, you pardon only some of them? Now there's people imprisoned for something which should never have been illegal.

--
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Re:No ex post facto laws by Adrian+Lopez · 2010-12-02 06:16 · Score: 3, Informative

"Certainly there's not a word in the Constitution that gives them power to negate what the Legislature duly-passed and the Executive signed."
Nonsense. Here are some relevant words for you:
"Congress shall make no law..."
and
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

--
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
Re:No ex post facto laws by similar_name · 2010-12-02 06:23 · Score: 1

If I understand you correctly, you're saying that Congress has the right to make laws that go against or change the constitution without an amendment. So if Congress passed a law that banned guns completely and the President signed it then it's law and the SCOTUS can't nullify it based on the 2cnd amendment. You're saying I could take my case to the SCOTUS that I can carry a gun based on the 2cnd amendment, then SCOTUS could say yes I can have a gun, but allow the law to remain in effect and only let people have guns on a case by case basis. That doesn't seem like much of checks and balances and to me it doesn't make any sense.
Re:No ex post facto laws by Sulphur · 2010-12-02 06:25 · Score: 1

http://video.google.com/videoplay?docid=-4097602514885833865#
Re:No ex post facto laws by jank1887 · 2010-12-02 06:29 · Score: 1

but, if the judiciary issues a judgment that a party is not guilty due to a law being in violation of the constitution, I don't think they really un-made the law. they just said that in this case, and for whatever reasons that they lay out, the law cannot be applied. But, then they set precedent, and other courts throughout the land follow the precedent of the supreme court. they also would be unable to use that law on a similar case with similar circumstances to find someone guilty. hence, they have not unmade the law. it's still on the books until the legislature does something else to change it. but you won't find a DA in the country who will bring a case to court based on someone breaking a law that SCOTUS has just said can't be enforced. They didn't repeal the law. they just made it unenforceable.
Re:No ex post facto laws by AK+Marc · 2010-12-02 06:30 · Score: 1

I don't believe the SCOTUS has the right to nullify laws.

People have the right to do everything, unless it's illegal. Laws never grant power to the people, that's already there. They can only take it away. (that's not necessarily strictly true, but a simplification sufficient for this explanation)

So, the legislature must decide there is some compelling reason to reduce our freedom. They pass a law. That law is on the books if signed by the Executive (or if lack of signature/veto doesn't prevent it from being made law from the rules regarding such). At that point, the balance of power is such that all three can cancel the law to restore the power to the people.

The legislature can repeal the law through the same process that put it on the books. The executive can order the non-enforcement of that law. The judicial can dismiss cases brought before it regarding that law. That's the point of checks and balances. If any one of the three doesn't think the law is best for the people, they can invalidate it. It works that way to protect the people.

I'm surprised a libertarian nutjob like you is against things that increase freedom of the people and don't even understand how the American government is supposed to work. Why are you against freedom and checks and balances?

--
Learn to love Alaska
Re:No ex post facto laws by HungryHobo · 2010-12-02 06:33 · Score: 1

This needs more love:
http://www.youtube.com/watch?v=6wXkI4t7nuc
Re:No ex post facto laws by cayenne8 · 2010-12-02 06:50 · Score: 1

"he executive can order the non-enforcement of that law."
Are you sure about that one? I mean, saying this means, the president could issue an executive order saying not to enforce rape laws, and this would have the force of law around the country???
I thought one of the few things the president was charged with doing, what enforcing the laws of the land....but, he can't make or remove laws...only congress (and state and local levels) can.
Just curious on that one...I agree with your other points!

--
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
Re:No ex post facto laws by Attila+Dimedici · 2010-12-02 07:06 · Score: 3, Informative

You're being dense. Nullification is the whole reason why we have an independent judicial branch.
There is nothing in the Constitution about judicial nullification. The idea that the Supreme Court gets to decide whether a law is constitutional or not was the result of a Supreme Court decision where they basically said that was their place. However, since the ruling was made while the Framers of the Constitution were still among those running the country, it does not seem that they found this to be an unreasonable reach. Of course at the time the understanding was that members of Congress would not vote for bills they believed to violate the Constitution and that Presidents would not sign such bills into law (since all such persons take an oath to uphold the Constitution). We now know that to not necessarily be the case since George W. Bush signed a bill into law that he explicitly said he expected the Supreme Court to overturn at least parts of.

--
The truth is that all men having power ought to be mistrusted. James Madison
Re:No ex post facto laws by AK+Marc · 2010-12-02 07:32 · Score: 1

You chose an emotionally charged issue that wouldn't ever be issued. So to comment on that would stir up issues unrelated to the one I mentioned.

If you had asked the question about, say, possession of drugs, I'd answer that it has already been done. You are questioning something that has been done already like it's a novel idea. It is neither new nor novel. It has been done for hundreds of years. It's being done now. Whether "signing statements" or Executive Orders or giving direct orders to subordinates on how to do their jobs, this is commonly done and not something I just made up.

Also, you are confusing jurisdiction. The President can't order a cop what to do. They are both part of the executive branch, but the executive branch of separate governments. You are implying that the president can give an order that is binding on all cops in the US. That's not the way it works. Perhaps rather than giving a purposefully emotionally charged example that's completely unrealistic, followed by a misapplication across jurisdictions you could have just skipped straight to the questions.

Can the President invalidate California's laws against rape? Nope. He can't invalidate their laws about anything because his employees are the FBI, who wouldn't be enforcing California law. He has the same right to do that as he does to tell England how to enforce their laws.

Can the president make or remove laws? Nope. The law is still there. Just like when a judge invalidates a law. The law is still on the books, but no one can be convicted of violating it. When a law is overturned by the courts, the words are still there in the lawbooks until removed by the legislature. They don't magically disappear because a judge says they shouldn't be enforced. The same is true when the executive invalidates the law.

--
Learn to love Alaska
Re:No ex post facto laws by AusIV · 2010-12-02 07:39 · Score: 1

No, it doesn't. People can be pardoned and sentences commuted more or less arbitrarily. The ex-post facto clause exists to prevent people from being facing consequences they couldn't possibly have anticipated when they committed an action. Letting people off easy doesn't have the same downside that ex-post facto laws do.
Re:No ex post facto laws by AK+Marc · 2010-12-02 07:46 · Score: 1

What delegated to the SCOTUS in the Constitution was the right to determine if a law passed by Congress was constitutional.

I'd like you to point out that clause to me. After all, if you assert I'm wrong because what I state isn't in the Constitution and what you state is in the Constitution, I'd at least like to see what you say in there. Go ahead and look.

P.S. Our system is based on Common Law, and there's a lot of baggage that came along with that. Sometimes the "power" comes not from the laws, but from the assumed system of law.

--
Learn to love Alaska
Re:No ex post facto laws by shentino · 2010-12-02 07:54 · Score: 1

In other words, the passage of a law that proves to be unconstitutional is an ultra vires act by the legislation that passed it, and is thus null and void from its inception.
Re:No ex post facto laws by Faylone · 2010-12-02 08:24 · Score: 1

for the sole purpose of lawfully connecting to a wireless telephone communication network.
That sure sounds like exactly what he was doing.
He wasn't, he was doing it to sell them for profit.
Re:No ex post facto laws by Red+Flayer · 2010-12-02 08:24 · Score: 1

I believe the proper term for people who say such things is: liberals.
Horseshit. Stop spreading false equivalencies.

I'm a fucking bleeding-heart liberal, and yet I ALSO believe the opposite of what you say liberals believe.

It is my contention that it usually those on the right who say those things... since they are the most likely to be perfectly fine with an authoritarian government.

--
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
Re:No ex post facto laws by cayenne8 · 2010-12-02 09:10 · Score: 1

"Perhaps rather than giving a purposefully emotionally charged example that's completely unrealistic.."
Geez, I just pulled out the first law I could think of that popped into my head...what is so emotionally charged about that?
Are you saying rape is worse or more emotionally *charged* than say...murder, or torture, or arson??
I mean, I'd rather be raped than killed, at least in the former, I'd still be breathing...and not at room temperature?
Seriously, I just pulled the first law I could think of out and it happened to be rape...no big deal on that one, I could have asked about jaywalking if I'd thought of it first.

--
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
Re:No ex post facto laws by BitZtream · 2010-12-02 09:16 · Score: 1

Yea, except all definitions of lawful require him to have not been doing it with stolen phones. Stolen phones which he had been buying from an FBI agent ...
The guy wasn't hacking his phone to use it on T-Mobile, he was trafficking in stolen merchandise and 'jailbreaking' those.
This has pretty much 0 to do with jailbreaking and 100% to do with the fact that the guy was a fence.

--
Persistent Volume manager for Kubernetes - https://github.com/dwimsey/openshift-pvmanager
Re:No ex post facto laws by msauve · 2010-12-02 09:31 · Score: 3, Insightful

You obviously didn't read, or didn't understand, the article. He was buying (heavily subsidized) pre-paid phones, then modifying them so they could be used on other carriers. No theft mentioned in the article at all. The carriers (TracFone, in this case) don't like that, because it costs them the money they spent subsidizing the price of the phone, which they hoped to make back on service.

You might notice that the wording was slightly changed in the most recent version of the exclusion, it now applies to "used" phones, and must be done by "the owner," which changes the rules, and makes what he was doing illegal now. The government clearly recognized that the exclusion covered his actions, and consequently changed it.

To Faylone: making a profit isn't illegal.

--
"National Security is the chief cause of national insecurity." - Celine's First Law
Re:No ex post facto laws by commodore64_love · 2010-12-02 10:21 · Score: 1, Interesting

>>>You're being dense
Well at least I'm in good company. Thomas Jefferson was no dummy, with an estimated IQ of 160, and he agreed with what I said in my post. So do you think Mr. Jefferson was "dense" too, Mr. Insulter???
"Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson, 1815. "The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." --Thomas Jefferson, 1804.
"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." --Thomas Jefferson, 1820.
"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt." --Thomas Jefferson, 1825
In other words, The Supreme Court has NO authority to overrule a law duly passed by the Congress, and signed by the Executive. "But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs." --Thomas Jefferson to William Johnson, 1823.
Jefferson also advocated using the Tenth Amendment to nullify unconstitutional laws.

--
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Re:No ex post facto laws by saxoholic · 2010-12-02 12:34 · Score: 1

Marbury vs. Madison, 5 US 137 (1803), was the first case in which the Supreme Court declared an Act of Congress unconstitutional. The Court, under the leadership of Chief Justice John Marshall, ruled that Congress overstepped its authority by giving the Court authority to issue writs of mandamus for US government officials, a power not specifically enumerated by Article III of the Constitution. The decision invalidated Section 13 of the Judiciary Act of 1789.
In fact, I specifically remember reading in a textbook that John Marshall was waiting for a member of congress to challenge this power of the judiciary, but that didn't happen. And as another poster said, this is 1803. The framers of the constitution were still in office at this time. If they didn't agree with this power of the SCOTUS they would have challenged it.
Re:No ex post facto laws by mhollis · 2010-12-02 13:26 · Score: 1

I think he is confusing "Judicial Review" which was affirmed in Marbury v Madison In 1803, where the Supreme Court decided it had the power to declare laws unconstitutional through the process of adjudication, with "nullification," an unconstitutional exercise of "States Rights" that was settled by the end of the Civil War.
Readers of Slashdot would do well to remember the Reconstruction era, which settled this issue of "nullification" upon admitting those States "then in rebellion" back into the Union, extracting a promise that there would be no such unconstitutional nullification of federal law and federal powers and territory in the future United States. I note that today, there is a lot of rhetoric, mostly from Republicans (the party who once claimed federal power supreme in the US) and also Libertarian and "TEA Party" wing nuts that the States should exercise their "power" to "nullify" federal laws they do not like.
When Antebellum States did "nullify," it was generally done through the exercise of legislative power within those States and not judicial. States' legislatures passed laws to countermand federal laws not on the premise that those laws were unconstitutional, but on the premise that they were disliked. Disliking a law does not give states a legal leg to stand on.
This is why there is this confusion between Judicial Review (which adheres to the US Constitution) and "nullification" (which does not), Republicans are proposing it because, while a Minority power, they did not like what was happening and decided that the Constitution no longer needed to be adhered to (despite swearing to adhere to it and protect it) when they don't like what the Majority decides.
Let us be clear here: When Republicans hold a majority, they do not talk of nullification and even fight wars to affirm it's unconstitutionality. Whey they don't, they suddenly think it's a viable option and start telling everyone that it's an option worth exercising.

--
Gods don't kill people, people with gods kill people.
Re:No ex post facto laws by AK+Marc · 2010-12-02 13:32 · Score: 1

what is so emotionally charged about that?

Rape is generally used on this site (and others) like the "think of the children" claims turn everything into a question of child molestation.

Are you saying rape is worse or more emotionally *charged* than say...murder, or torture, or arson??

Yes.

I could have asked about jaywalking if I'd thought of it first.

Someone who defends rapist gets called all sorts of names. Stating that the President could make rape legal with a word would come close to that. Not to mention that rape (well, 99% of rape) isn't a federal crime.

The president can't make jaywalking legal because, as far as he's concerned, it already is legal. That's right, the FBI can't arrest someone in Miami for jaywalking, so jaywalking is not against federal law.

Declaring "The president could make rape legal just by giving a single order" would be correct if rape was against federal law and not against any state laws. But saying that would get people thinking about whether he would, not whether he could. And the president has (this one and most, if not all before him) declared something against the written law to be legal and it was so. So using an emotionally charged crime as an example could be a distraction to the point that would not help clarify. I was merely pointing that out and changing the example.

--
Learn to love Alaska
Re:No ex post facto laws by Attila+Dimedici · 2010-12-02 14:53 · Score: 1

Now you are confusing "nullification" with "secession". Actually, Republicans (or at least proto-Republicans) used the theory of nullification to resist the federal fugitive slave laws. Considering that James Madison (the author of the Constitution) considered "interposition" (which is closely related to "nullification") to be a valid idea, it seems like there is some basis to the idea. Additionally, the arguments for "nullification" are not that the states dislike the law but that the law is unconstitutional, no matter what the Supreme Court has ruled.

--
The truth is that all men having power ought to be mistrusted. James Madison
Re:No ex post facto laws by Xaositecte · 2010-12-02 15:49 · Score: 1

I can remember this being explained to you before.
commodore64_love personally.
When the Supreme Court decides a case due to the law involved being unconstitutional, every lower court is bound to accept that ruling, making the law completely unenforceable.
Furthermore, upon appeal of anyone already convicted under a law declared unconstitutional, the defense can point out that the law in question has been declared unconstitutional, binding the appeals court to accept that ruling, and set the defendant free.
Calling the law "Nullified" is simply a more streamlined realization of this fact.
Re:No ex post facto laws by fishexe · 2010-12-02 17:14 · Score: 1

I don't believe the SCOTUS has the right to nullify laws. Certainly there's not a word in the Constitution that gives them power to negate what the Legislature duly-passed and the Executive signed. They can decide CASES but never were they given power to unmake laws.
Nullification is a reserved power of the Member States.
Ok genius, you tell me how the supreme court should rule when looking at a piece of legislation and a piece of the Constitution which directly contradict one another. Should they decide the piece of legislation, which after all was much easier to pass than a constitutional amendment, overrides the Constitution itself, or just call it a wash and declare that nobody knows what the law is?

--
"I don't care about the Constitution!" --Bill O'Reilly, November 17, 2009
Re:No ex post facto laws by fishexe · 2010-12-02 17:23 · Score: 1

"he executive can order the non-enforcement of that law."
Are you sure about that one? I mean, saying this means, the president could issue an executive order saying not to enforce rape laws, and this would have the force of law around the country???
No, rape laws are state laws and we have a federal system, wherein the president is only the executive at the national level. If the governor of a particular state ordered the rape laws not to be enforced, then yes, that would have the force of law throughout that state.

--
"I don't care about the Constitution!" --Bill O'Reilly, November 17, 2009
Re:No ex post facto laws by Adrian+Lopez · 2010-12-02 17:30 · Score: 1

Jefferson is dead, and, in any case, none of the words you've cited appear in the US Constitution. I, for one, am glad the Supreme Court has the right to overturn and make void such laws as the Constitution prohibits.

--
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
Re:No ex post facto laws by Fallen+Kell · 2010-12-02 17:36 · Score: 3, Insightful

Actually, I would argue that the second the phone is removed from the box, it is now "used" and as he was the "owner" at the time of performing the service, he had every right to jailbreak it. And as there is no current law forbidding the sale of phones between people, he had every right to sell this own used phone to someone else, and if he can do it and make a profit at the same time, more power to him.

--
We were all warned a long time ago that MS products sucked, remember the Magic 8 Ball said, "Outlook not so good"
Re:No ex post facto laws by Eskarel · 2010-12-02 18:12 · Score: 1

The supreme court doesn't need the power to nullify laws. What they need is the power to determine that there is a conflict between a law and the constitution. The constitution is the ultimate domestic law so any law which contradicts it loses. It's pretty clear the SCOTUS does have the ability to decide conflicts in federal law, and this gives them the right to determine whether such conflicts actually exist. Yes it grants them an awful lot of power, but there's really no way to frame their role which actually functions and doesn't grant them that right. The moment a conflict occurs between the constitution and a domestic law occurs the domestic law loses.
Re:No ex post facto laws by mhollis · 2010-12-08 09:44 · Score: 1

Atilla, secession was the action that the states took well after the "nullification crisis." "Nullification" came into vogue during the Buchanan Presidency and the states that seceded did so as soon as they saw that Lincoln has been elected and they did not have the power to reverse gains in Congress made by the then-new Republican Party. James Madison was long dead by the time this was hashed out.
Your comment seems to have the father of our modern Constitution alive after the Civil War and then, what -- writing the Constitution and delivering it to the prior time line? Also, you confuse the Republicans or "Proto-Republicans," as you call them, whatever that is, with the Dred Scott decision, which says that property, once owned, remains property no matter what state it remains in or is taken to, the solution to which was proposed by Abolitionists (not Republicans) in emancipating all human property and outlawing the existence of slavery.
Republicans were created as a northern splinter of the Whig Party, which favored business and commerce and trade over the rights of individuals. Whigs splintered over the idea of secession as well as the idea at the federal government was the supreme law and that states had no right of "nullification." The new Republic-an party believed that the Republic should not be split between north and south and that any attempts to create such a split should not be allowed (hence the choice of name). The party was made up of former Whigs as well as Abolitionists, Free-Soilers and "Know-nothings," who had decided that the Union needed to be preserved. It was a pretty big tent, and Lincoln's rather fractious Cabinet reflected that.

--
Gods don't kill people, people with gods kill people.

Not really jailbreaking by dogmatixpsych · 2010-12-02 05:05 · Score: 4, Informative

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.

Re:Not really jailbreaking by godrik · 2010-12-02 05:21 · Score: 1

it might be much easier to unlock once it is jailbroken...
Re:Not really jailbreaking by Zed+Pobre · 2010-12-02 05:21 · Score: 5, Informative

Quoting the text of the relevant exemption, with some added emphasis:

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

The man doing the unlocking wasn't using any of those phones to connect to a network. He was unlocking phones for resale overseas, making a profit by violating the terms of a subsidy. The exemption doesn't cover this, 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. If you find a story where someone is convicted under the DMCA for unlocking his or her own phone for personal use, then there's a story. This isn't one.
Re:Not really jailbreaking by beakerMeep · 2010-12-02 05:31 · Score: 1

Reminds me of the old Hacker/Cracker debate. I think "jailbreaking" has entered into the popular lexicon. Laymen (and hence journalists) now use it in place of rooting/unlocking despite it being.....imprecise.
Since Apple's particularly restrictive measures to lock down their phones are responsible for this particular term, I'm not sure it's entirely uncalled for that they are catching a bit of collateral damage on this one.
Still, this is pretty similar to any type of unlocking such as PS3s being opened up to a different Linux distro. And, I find jail time to be excessive for DMCA violations, though I don't agree with the DMCA to begin with.

--
meep
Re:Not really jailbreaking by MoonBuggy · 2010-12-02 05:34 · Score: 4, Insightful

He was unlocking phones for resale overseas, making a profit by violating the terms of a subsidy.
There were no terms - it's a prepaid phone, no contract was signed. The worst that could happen is they declare him in violation of their terms of service (and thus stop providing said service), but I really don't think that'd be an issue to him...

The exemption doesn't cover this, 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.
It makes little difference if the end user can still legally unlock their phone - the carriers can't rely on the law to back up their technical measures, and that's the way it should be. If you want to enforce terms after the initial sale, do so with a contract (as the pay monthly services already do).
Re:Not really jailbreaking by erroneus · 2010-12-02 05:36 · Score: 1

True... it is a semantic issue... I might also say this is a semitic issue give his name.
Unlocking a phone for use on another carrier cannot be a copyright issue. At least not on the surface. Unlocking a phone for use on another carrier, I thought, was established as a right of the consumer long ago... perhaps I'm wrong but I don't think so. By unlocking a phone, what copyright protection measure is being circumvented? None as far as I can tell.
On the surface, it sounds like he is being charged with a crime he didn't commit.
Re:Not really jailbreaking by Zed+Pobre · 2010-12-02 05:50 · Score: 2

Because you bought it below cost and the company that was selling it will go out of business if you are allowed to do so.
Let me continue that Lego analogy:
If you purchased a high end Lego Mindstorms kit at half market price from a company that did so on the condition that you were doing so for personal use and for the next two years any generic buckets of legos you bought for use with your Mindstorms kit would be purchased from them at their normal rates, and then turned around and resold that kit without even using it, you are effectively stealing from that company. Literal stealing this time, not the 'copying is theft' kind of stealing. A physical piece of merchandise has been removed without honoring the purchase agreement, which happened to have some contractual terms in addition to a nominal initial exchange of funds.
Now, if the company added a high tech marker to the Mindstorms kit that would shut it off when used with generic lego pieces to prevent exactly this kind of theft, and you went out of your way to disable that marker not even so you could personally violate your agreement and use generic buckets of legos bought from other people, but instead so you could run around taking advantage of the fact that the company in question couldn't keep track of how many of these kits you were buying at different outlets to start your own business in competition with theirs, using their own subsidy to undercut them, you are in violation of the DMCA.
The exception as written is a good and necessary thing, because that kind of marker tends to have a major flaw: the restriction tech doesn't self-destruct at the end of the contract, leaving people who have actually completed their agreements unable to make full use of what they purchased. To protect that ability, it was written loosely enough that you can even shaft the company you bought it from as long as you are doing it for personal use.
It was not written so loosely, and should not be written so loosely, that a purchaser can drive a company out of business by bulk subsidy abuse, unless you're of the opinion that no phones should ever be subsidized by contracts.
Re:Not really jailbreaking by Trufagus · 2010-12-02 06:04 · Score: 1

Actually, this is a very important distinction.
Jailbreaking, SIM unlocking, and rooting are quite different things and I have been surprised at how many people don't know the difference. Now, however, seeing that even the editors of /. don't know the difference I begin to understand why there is so much confusion.
Re:Not really jailbreaking by Y2KDragon · 2010-12-02 06:11 · Score: 1

Actually, he was. And he was doing it for profit. And it seems he's linked to some "unsavory" characters. The DMCA violation was correct in this case.
Re:Not really jailbreaking by Spykk · 2010-12-02 06:18 · Score: 1

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
On the contrary, I would much rather pay full market price for a phone than be forced to pay for one through over-priced subscription fees. Then I would be able to buy a phone from anywhere without paying for it a second time with my phone bill.
Re:Not really jailbreaking by shadowfaxcrx · 2010-12-02 06:34 · Score: 1

Well, if the allegations that the guy bought *stolen* phones are true, then that doesn't really apply. No business model can survive against a large enough competitor who's selling the products he stole from the business.

--
"I disagree with you" does not equal "flamebait."
Re:Not really jailbreaking by DavidTC · 2010-12-02 06:58 · Score: 2

Indeed, I'm all for jailbreaking, but unlocking so you can run out on the contract you signed and keep the phone is not something we want to allow.
I mean, I'm all for freedom, but running off with a phone that you signed a contract to pay off over the next two years is theft. I can see some argument that the law should require the cell phone company to let you pay off the phone at some pro-rated rate or something, but just walking off with it is stealing.
Whether or not not letting people unlock phones is the best way to stop that theft is unknown. Perhaps a better method might simply to require people to put up a deposit or something.
Regardless, this guy wasn't unlocking those phones, he was unlocking actual stolen from the store phones. Again, I don't know if the best way to solve this problem is via restricting unlocking...I though they could report the IDs as stolen and the second anyone tried using them, they'd be caught, but maybe not.

--
If corporations are people, aren't stockholders guilty of slavery?
Re:Not really jailbreaking by TheRaven64 · 2010-12-02 07:12 · Score: 1

Then the crime is handling stolen goods or whatever the local equivalent is. What he did with them afterwards is completely irrelevant.

--
I am TheRaven on Soylent News
Re:Not really jailbreaking by shadowfaxcrx · 2010-12-02 07:23 · Score: 1

I agree, to a point. Just unlocking a phone should not be illegal. Unlocking a phone with intent to sell stolen merchandise should be.
There are plenty of things that you can do as long as you're doing them without criminal intent:
You can cross state lines all you want, but if you do it during or preparatory to the commission of a crime, the crossing of state lines becomes criminal.
Buying Sudafed is perfectly legal, unless you're buying it to make meth, and so on.

--
"I disagree with you" does not equal "flamebait."
Re:Not really jailbreaking by Homburg · 2010-12-02 07:48 · Score: 1

Because you bought it below cost and the company that was selling it will go out of business if you are allowed to do so.
So, you sign up for a two year contract and get a subsidized phone, then you unlock the phone and use it on a different network; because you've signed a contract, you continue to have to pay monthly fees to the original network, even though you're no longer using their services. And this puts them out of business how, exactly?
Re:Not really jailbreaking by swb · 2010-12-02 08:02 · Score: 1

I mean, I'm all for freedom, but running off with a phone that you signed a contract to pay off over the next two years is theft.
No, it's a breach of contract for which the carriers have manifold legal remedies, including civil court, collections and so on. Essentially you are in debt to the carrier and your contract with them is basically an agreement to repay them. You owe them money, more or less.
It's incorrect to criminalize this debt, since it basically asks the police to be the enforcers of whatever poor contracts the seller originally used.
There are cases where you could claim fraud or other misrepresentation, but if you're just buying packages at retail and the seller *hopes* their existing technical configuration is limitation enough to enforce their contract it's not really fraud or misrepresentation as the "promise" to use your service to repay their equipment subsidy is implied, not agreed.
Re:Not really jailbreaking by shentino · 2010-12-02 08:05 · Score: 1

They were his to resell.
They should have had him nailed for racketeering for dealing in stolen property.
The DMCA charge is bullshit.
Re:Not really jailbreaking by wolrahnaes · 2010-12-02 08:54 · Score: 1

How is unlocking a phone ever theft? So what if you unlock it to work on another carrier while still in contract with your first? You still have to pay your contracted plan regardless of if you're using it or not, so whether the phone is unlocked is entirely irrelevant.
I've unlocked every GSM phone I've ever owned that wasn't factory unlocked, yet I've never skipped out on a contract. Funny that, sometimes it's nice to be able to swap in a prepaid SIM on another carrier for testing or travel.
Anyone trying to make any form of unlocking illegal ever should jump off a bridge, and those who build their business models on locked phones without contracts are setting themselves up to get fucked when an unlock method is eventually discovered.

--
I used to get high on life, but I developed a tolerance. Now I need something stronger.
Re:Not really jailbreaking by loshwomp · 2010-12-02 08:59 · Score: 1

Because you bought it below cost and the company that was selling it will go out of business if you are allowed to do so.
It's not my job to make sure your business of selling things (at below market cost) remains solvent.
Re:Not really jailbreaking by DavidTC · 2010-12-02 09:08 · Score: 1

No, it's a breach of contract for which the carriers have manifold legal remedies, including civil court, collections and so on. Essentially you are in debt to the carrier and your contract with them is basically an agreement to repay them. You owe them money, more or less.
That depends on the wording of the contract, whether or not you've actually bought the phone or just leased it.
However, I stating a moral argument, and not a legal one.
It's morally equivalent to renting a video with no intent to return it.
And if you sell the phone, knowing you contractually have to return it, it could, indeed, be actual theft by conversion.
It's incorrect to criminalize this debt, since it basically asks the police to be the enforcers of whatever poor contracts the seller originally used.
I actually agree with you.
What should be happening is this entire business model is just way too risky and expensive. It's making collateral-free loans.
If the businesses had to assume the risk, I suspect the rather stupid and annoying business model would change.
Almost all 'pay over times' services for items under $500 serve no help societal purpose at all. None whatsoever.
While I'm not going to run around outlawing them, I won't shed a tear if their business model does not work.
There are cases where you could claim fraud or other misrepresentation, but if you're just buying packages at retail and the seller *hopes* their existing technical configuration is limitation enough to enforce their contract it's not really fraud or misrepresentation as the "promise" to use your service to repay their equipment subsidy is implied, not agreed.
I've heard several explanations of what this actually was, and one of them agree with you. (Although it also says he was then funneling the money to terrorists. Which is also why he got everything thrown at him.)
Which doesn't even make this a contract breach, and he can do whatever the hell he wants with the phone. I have no sympathy for corporations selling stuff that actually doesn't work and requires you to buy an additional service to make it usable when someone discovers you don't have to buy the service from them.
Another said that he was modifying actual stolen-from-store phones. If that's the case, I think we agree that 'helping make usable and disguise the origin of stolen stuff' should be, and probably is, illegal. (And we don't need any specific laws about cellphones.)

--
If corporations are people, aren't stockholders guilty of slavery?
Re:Not really jailbreaking by Homburg · 2010-12-02 09:11 · Score: 1

I mean, I'm all for freedom, but running off with a phone that you signed a contract to pay off over the next two years is theft
It's not theft, it's breach of contract (unless the phone company actually leased you the phone, which I don't think any of them do). The company should pursue you for breach of contract to collect what you owe them. We have a perfectly good legal mechanism for enforcing this, we don't need an additional technological restriction.
Re:Not really jailbreaking by swb · 2010-12-02 10:24 · Score: 1

And if you sell the phone, knowing you contractually have to return it, it could, indeed, be actual theft by conversion.
I don't think anyone "rents" cell phones with the expectation that they will be returned. I think car rental places used to do it when roaming was expensive and many people didn't already have a mobile phone, but generally speaking I think phones are "sold" in the sense that the physical item is never actually expected to be returned for all the practical reasons one would assume about a cell phone (inexpensive, fragile, rapid obsolescence, etc).
If there is some kind of *legal* language about cell phone rental/leasing, its probably more about a gotcha clause or some other legalism, and not because the lessor has a real intent to make that phone available again for rent.
But if it is an honest-to-goodness rental/lease arrangement where the hardware is returned and honestly re-sold or re-purposed by the lessor in some legitimate way (not thrown in a bin and kept for tax/business purposes until the bin is full) and you're selling it off, well, that probably is fraudulent.
Re:Not really jailbreaking by DavidTC · 2010-12-02 10:35 · Score: 1

You still have to pay your contracted plan regardless of if you're using it or not, so whether the phone is unlocked is entirely irrelevant.
Except that people have started just giving bogus information and walking off with phones.
That may not be legally 'theft', but it is morally theft. (And not like 'pretend morally theft', like copyright violation. Someone actually took some physical thing of theirs.)
Anyone trying to make any form of unlocking illegal ever should jump off a bridge, and those who build their business models on locked phones without contracts are setting themselves up to get fucked when an unlock method is eventually discovered.
I agree completely.

--
If corporations are people, aren't stockholders guilty of slavery?
Re:Not really jailbreaking by DavidTC · 2010-12-02 10:46 · Score: 1

The company should pursue you for breach of contract to collect what you owe them.
What the phone company should really do is stop giving damn unsecured loans to people, which is essentially what it's doing. It's a damn stupid business model.
As I said elsewhere, any 'rent to own' plan for items under $500(1) is inherently a scam. That's what they're doing here.
While I'll stop short of calling for those business practices be illegal, I'm hardly going to help enable them do it automatically.
There's a good reason for society to having a system where companies can easily loan people a car or a house and have them pay it off over time. There is fuck-all a reason to have an easy system like that for phones.
Of course, that doesn't make people who sign up for deals like this, break them, and keep the phone ethical.
1) $500 is actually too low. I'd generalize it to 'one month's income'. There is absolutely no way that having people make a purchase less than a their month's income over time benefits society. People who cannot save enough for that purpose either either entirely broke or entirely incompetent with money, and it does not help anyone for them to go into debt.

--
If corporations are people, aren't stockholders guilty of slavery?
Re:Not really jailbreaking by enrevanche · 2010-12-02 10:47 · Score: 1

Probably because they did not have enough evidence. Since they spent years on the investigation they had to justify the astronomical costs of the investigation, They may have created "crimes" that would never have really happened without their intervention.
Re:Not really jailbreaking by DavidTC · 2010-12-02 10:49 · Score: 1

I agree about criminal penalties. For some reason, corporations seem able to make everything actually illegal, which saves them time and money and uses police resources.
Meanwhile, no individual torts, not even deliberate ones, are illegal.
So something like unlocking a phone is illegal, but selling you a product they know is defective and unsuited for the purpose sold, you have to sue them over.
If anything, it should be the other way around.

--
If corporations are people, aren't stockholders guilty of slavery?
Re:Not really jailbreaking by DavidTC · 2010-12-02 11:04 · Score: 1

Well, if you're talking about 'fraudulent', simply signing up for a service for the phone with the intent to cancel immediately and keep the phone certainly fits the definition of 'fraud'. If you intend a breach of contract while you're signing the contract...yeah, that's fraud. ;)
But probably not theft, and you're right that any attempt to make it theft would just be the provider trying to manipulate the law...they do not actually want the phone back. But, like I said, it's the moral equivalent of not returning video rentals. Whether or not it's legally theft, it certainly is ethically.
Which is why I get annoyed when people call it 'jailbreaking'. No, what I did to my entirely legal and still under contract iPhone is 'jailbreaking'. Someone who signed a contract and then skipped out with the phone without paying for it probably 'unlocked' it, which is different.
Although the problem is the 'skipping out without paying for it' part, not the 'unlocking' part. But that's 'hard' for companies to deal with (Yes, dealing with people who skipped out on unsecured loans you made to them is, indeed, rather annoying, which is why most companies don't do that. Duh.), whereas laws about 'unlocking' are easy in our corporately-owned government.

--
If corporations are people, aren't stockholders guilty of slavery?
Re:Not really jailbreaking by marka63 · 2010-12-02 14:48 · Score: 1

You still have to pay your contracted plan regardless of if you're using it or not, so whether the phone is unlocked is entirely irrelevant.
Except that people have started just giving bogus information and walking off with phones.
That may not be legally 'theft', but it is morally theft. (And not like 'pretend morally theft', like copyright violation. Someone actually took some physical thing of theirs.)
It's fraud, obtaining goods by deception, and is illegal independent of whether the phone is locked or not.

Anyone trying to make any form of unlocking illegal ever should jump off a bridge, and those who build their business models on locked phones without contracts are setting themselves up to get fucked when an unlock method is eventually discovered.
I agree completely.
Re:Not really jailbreaking by DavidTC · 2010-12-03 04:59 · Score: 1

It's fraud, obtaining goods by deception, and is illegal independent of whether the phone is locked or not.
Technically, yeah, but it's near impossible to prove they signed the loan in bad faith, unless there was some sort of pattern there.
The problem is that, at that point, the phone company has an unsecured loan and no way to get their goods back or the money owed for their goods.
Which is why, apparently, we need laws and technological solutions and laws to protect those solutions and bribes to protect those laws, etc, etc. Instead of them just not having a fucking business model that results in them making unsecured loans to people who can then run off with their stuff.
The rules never apply to large corporations. If I was stupid enough to do what phone companies do, I'd have to hire a lawyer and sue. Hell, I work for a very small company, and we have people defraud us. We don't have the time or money to hire lawyers to prove they really get their package or whatever, so they win. We just try to minimize the risk and the damages.
But despite the fact the phone company already has lawyers, and could functionally do these lawsuits 'in bulk' with near identical documents, that's apparently too much work for them. Heaven forbid a large corporations needs to sue anyone, or change their business practices so they don't have to sue people. They should be able to make collateral free loans and have the damn government enforce them.

--
If corporations are people, aren't stockholders guilty of slavery?

Jailbreaking is not unlocking by SuperKendall · 2010-12-02 05:07 · Score: 5, Informative

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

Re:Jailbreaking is not unlocking by hedwards · 2010-12-02 05:12 · Score: 1

And how precisely is that a violation of the DMCA? I'm serious, people bought the phones and there is no copyright involved with that.
Re:Jailbreaking is not unlocking by runningman24 · 2010-12-02 05:17 · Score: 1

Hmm.

(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.
(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.
It seems to me that jailbreaking was specifically authorized both to run applications and to connect to a different network.
Source: http://www.copyright.gov/1201/

Really bad summary by secretcurse · 2010-12-02 05:08 · Score: 4, Informative

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.

Re:Really bad summary by StikyPad · 2010-12-02 05:13 · Score: 2, Insightful

[citation needed]

--
https://www.eff.org/https-everywhere
Re:Really bad summary by MoonBuggy · 2010-12-02 05:14 · Score: 1

Great. Why?
Re:Really bad summary by delinear · 2010-12-02 05:23 · Score: 1

So if you have the technical know-how to do this yourself, it's fine, if you share that skill with people who don't have the know-how, it's suddenly a crime? I can't believe for a second that that is what the LoC intended with its reading of the law. It would be like saying locksmith skills that help you break into your own house when you lose your keys are fine, but selling that servive to people who have lost their keys and don't know how to get into their homes is illegal. Either the breaking is legal or not, the selling of services should have no bearing without a specific law ruling it out.
Re:Really bad summary by puto · 2010-12-02 05:27 · Score: 1

http://philadelphia.fbi.gov/dojpressrel/pressrel09/ph112309a.htm

--
The Revolution Will Not Be Televised
Re:Really bad summary by phantomfive · 2010-12-02 05:27 · Score: 1

Uh, did you even read the article? It talks about it there. Pretty clear that the courts have interpreted mass-unlocking to be illegal. Might also want to read this.

--
Qxe4
Re:Really bad summary by EricWright · 2010-12-02 05:30 · Score: 1

Not only that, but a tiny bit of googling will show you that he is suspected of funneling these phones to Hezbollah. As they have been classified a terrorist organization by the USA, they're going to throw everything they can at him. The precedent set is unfortunate, but when someone is suspected of providing aid to a terrorist group, what do you expect the government to do? Issue a mild warning not to do it again?
Re:Really bad summary by Yetihehe · 2010-12-02 05:31 · Score: 1

In Europe it's perfectly legal. In many shops with mobile phones they will unlock it for you (of course not in carrier's shops ;) )

--
Extreme Programming - Redundant Array of Inexpensive Developers
Re:Really bad summary by godrik · 2010-12-02 05:31 · Score: 1

which article ? We post links to actual articles on slashdot ? I thought the posts were just random thought!
Re:Really bad summary by rtfa-troll · 2010-12-02 05:32 · Score: 1

In this case; no comment. I don't know the man and don't know the truth of what his lawyers and the other side say.
Generally; because you sign a contract. The contract says you will stay with a network and pay for it. The amount you pay for the contract covers the cost (though maybe not the price) of the phone you get. In order to get "thousands" of phones you have to fill in the contract information fraudulently in some way or other otherwise the company wouldn't let you get so many phones.

--
=~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
Re:Really bad summary by MoonBuggy · 2010-12-02 05:37 · Score: 1

These are prepaid phones. No contract signed, no fraud.
Re:Really bad summary by The13thSin · 2010-12-02 05:39 · Score: 2

Exacty, and I don't understand why more people aren't asking the same question. How is this not outrages?
Why is it illegal to legally purchase items, do something with them, then resell? (If the car industry worked this way, I know at least a couple of car companies that would go out of business.) And even more ridiculous: why is this a criminal offence opposed to a civil matter?
I know some people have a weird idea about ownership, but the *only* reason I see for this is to keep a broken businessmodel working... and without any good reason too. If the phone is subsidized, there should a legally binding contract attached that forces the buyer to (for instance) also have subscription X for Y months. That's it.
Can someone please tell me why jailbreaking / unlocking phones (even for commercial gain) should be a criminal offence?

--
"This should be fun, and by fun, I mean a wholly depressing insight into the cognitive ability of some grown adults."
Re:Really bad summary by s73v3r · 2010-12-02 05:39 · Score: 1

It is, apparently. Part of the DMCA is against distributing tools which can be used to circumvent the DMCA. When the LoC declares exemptions for doing things like decrypting DVDs or jailbreaking phones, unless they specifically mention distributing the tools is ok, then the exemption has not been granted for the tools.
Of course, I'd love to see that try to stand up in court, that distributing a tool which performs an action made legal by the LoC is still illegal.
Re:Really bad summary by Schadrach · 2010-12-02 05:43 · Score: 1

Right, so it's legal to take your tools and pick the lock to get into your house, but selling that service to someone else should be illegal? Or are you saying it would be OK if he had people ship him phones, charge to jailbreak/unlock them and ship them back?
Essentially, is the crime that he bought the phones, unlocked and sold them, or that he was selling the capability to unlock phones? How is there any meaningful difference between the two?
Re:Really bad summary by Opportunist · 2010-12-02 05:45 · Score: 1

So, it's ok to break for fun but not for profit?

--
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Re:Really bad summary by jellomizer · 2010-12-02 05:46 · Score: 1

You cross the line when you do such things for profit vs. for yourself. Buy doing this for profit and in bulk he is abusing one companies business model to create his own.
Jail Breaking your iPhone which you paid for either full price or after paying a termination fee, to go on a different network is up to you. But selling that phone is the problem.

--
If something is so important that you feel the need to post it on the internet... It probably isn't that important.
Re:Really bad summary by Opportunist · 2010-12-02 05:48 · Score: 1

But it's legal to let a guy come to me and I unlock it for him for a fee? Where's the logic in that?
Oh, we're discussing the law, ignore the question please.

--
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Re:Really bad summary by StikyPad · 2010-12-02 05:50 · Score: 1

I did in fact RTFA, and it doesn't say anything about that. There's a similar comment in TFA, but why is a comment on that page any more reliable than a comment on this one? Oh right, it's not.

--
https://www.eff.org/https-everywhere
Re:Really bad summary by The13thSin · 2010-12-02 05:52 · Score: 1

I'd like to redirect you to a great question asked earlier: Great, why?
When the Telco's found out that prepaid phones could be unlocked, they should've said: damn, the businessmodel of subsidizing prepaid phones isn't going to work. Instead, laws were put in place to protect their failing businessmodel and people are not just responsible for damages (as this should clearly be a civil matter), but actually land in jail. I'm amazed this kind of thing doesn't cause much more of an outrage than it does. (Especially because you can legally get simple unlocked feature phones for cheap anyway, but even if you couldn't it's the wrong way around of how law should work.)

--
"This should be fun, and by fun, I mean a wholly depressing insight into the cognitive ability of some grown adults."
Re:Really bad summary by MoonBuggy · 2010-12-02 05:52 · Score: 1

You cross the line when you do such things for profit vs. for yourself. Buy doing this for profit and in bulk he is abusing one companies business model to create his own.
Last I checked it wasn't the court's job to prop up business models. He was unlocking phones that he owned. If Tracfone didn't want him to do so, they should've made him sign a contract - as they didn't, their business model was nothing more than a gamble, and he called them on it.

Jail Breaking your iPhone which you paid for either full price or after paying a termination fee, to go on a different network is up to you. But selling that phone is the problem.
Again, why? Even the carriers don't mind this - that's what the contract's there for in the first place, to ensure the subsidy is paid. Once that's done you can resell it, keep using it, or bury it under a small mound in the garden for all they care. The reason Tracfone is getting so pissy is that they didn't bother with a contract, and now they're trying to leverage the law into protecting their subsidy instead.
Re:Really bad summary by StikyPad · 2010-12-02 05:55 · Score: 1

Again you fail reading comprehension. As per your link:
(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network. (Emphasis mine)
As long as he owned the program to unlock the phones, it's exempt. There's nothing in there about owning the phone whatsoever, although presumably the seller would also own the phone while it's in his possession, unless you think there was some sort of consignment-based arrangement, which seems unlikely. In any case, it's irrelevant whether or not he owned the phones.
(Sorry to double post; I should have read his link before posting my first reply and consolidated the rebuttal.)

--
https://www.eff.org/https-everywhere
Re:Really bad summary by russotto · 2010-12-02 05:56 · Score: 1

The precedent set is unfortunate
Fortunately, no precedent is set by a guilty plea.
And if he was really funneling these phones to terrorists, arresting him was the last thing we should have done. Having the DHS/CIA/WhatHaveYou intercept all the phones either before or after he got them, record all the EMEIs and other identifying information, and then passing them through would have been the smart thing. Then intercept and pay special attention to all calls made on those phones. What's the point of having all these shadowy Orwellian agencies if they can't think of that?
Re:Really bad summary by StikyPad · 2010-12-02 06:00 · Score: 1

Yes of course it's illegal to traffic stolen and counterfeit goods, but WTF does that have to do with the OP's claim that "[i]t's legal to jailbreak the phone you own and use, it's just illegal to unlock and sell in bulk."
I have yet to see a source for this claim.

--
https://www.eff.org/https-everywhere
Re:Really bad summary by drinkypoo · 2010-12-02 06:03 · Score: 2

Jail Breaking your iPhone which you paid for either full price or after paying a termination fee, to go on a different network is up to you. But selling that phone is the problem.
No, it is not a problem. The law says the owner may jailbreak the phone. First Sale law says the owner may resell the device. If you acquire the phone legally and completely (e.g. not a lease) then you have the legal right to modify it in this fashion and subsequently resell it as the law is written today. There are ways in which you're not allowed to modify it at all, but none of them preclude selling it.

--
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Re:Really bad summary by gnasher719 · 2010-12-02 06:14 · Score: 1

Why is it illegal to legally purchase items, do something with them, then resell? (If the car industry worked this way, I know at least a couple of car companies that would go out of business.) And even more ridiculous: why is this a criminal offence opposed to a civil matter?
Let's say Ford offered you a contract where you can buy a brand new car at half the normal price, but you have to sign that you can only fill up the car at a Ford garage with special and expensive Ford fuel. And there is something on the fuel tank that serves to enforce this. You are in no way forced to accept this contract, you can buy a Ford at normal price with no such contract, or any other car.

All in all it is good if such a contract is possible, and if Ford offers you that kind of contract, because it gives you more choice. Now if people can buy cars at half price and somehow get around these obligations, then Ford will stop selling these cars which is bad all around. So we can see that laws that make this contract enforceable are a good thing (all under the assumption that nobody forces you into such a contract).

In this case, the article claims tthat the phone company had a bad business model, and laws shouldn't enforce bad business models. But the business model is in fact good and beneficial for everyone provided that the law enforces the terms. That's what laws are for, to set rules that are ultimately beneficial for everyone. So a contract that would be good if protected by the law, but bad if not enforceable, is a good contract.
Re:Really bad summary by TheRaven64 · 2010-12-02 06:19 · Score: 1

The carrier is legally obliged to provide you with the unlock code in the UK when the contract expires. They may charge a nominal fee - not sure what the limit is, T-Mobile charged me £10, which was very irritating because I managed to lose the phone before I got around to entering the unlock code. I believe most other EU countries have similar provisions. A few carriers don't bother locking phones anymore: they just lock you in with the contract.

--
I am TheRaven on Soylent News
Re:Really bad summary by MoonBuggy · 2010-12-02 06:23 · Score: 1

You miss the key point: there was no contract, these were prepaid handsets from Tracfone. If he'd signed anything saying that he would use only their service, or would pay them a certain amount per month, or whatever, then this would be a simple breach of contract case and there wouldn't be a problem.
I agree that the law should enforce your hypothetical contract, and that's how most carriers do it, but do you really think the law should protect the subsidising company when nothing was signed and no agreement was made?
Re:Really bad summary by The13thSin · 2010-12-02 06:58 · Score: 1

I would agree if these laws are in fact "[...] to set rules that are ultimately beneficial to everyone. [...]"... but they obviously aren't, at the very least to the convicted and his previous customers. So you probably meant "to everyone" *not breaking those laws*... which is a very dangerous line of thinking.
Let's first take this line of thinking to the extreme. We all know enough exercise is beneficial, so why not make a law making it 1 hour a day mandatory? (Though physically disabled can file for an exemption of course.) We all know alcohol is bad, so why not make a law making drinking more than 1 glass a day illegal?
Of course, you could (rightfully) argue, that "beneficial" is relative... which is kind of my point. And more importantly, *no* business model should get protection from the state in my opinion... they're not called *business* models for nothing -> they should abide by the law, never the other way around.
Even if there really was a business model that really does benefit everyone, any *break of contract* should be a civil matter, never a criminal matter. Criminal offences should be limited to matters that dangerous to society, not because you have to settle for a 20 dollar noname phone instead of a 20 dollar Samsung phone (but actually made by the same Chinese production company). You do realize that people are landing in jail for our need to get a 50 dollar discount on a phone right?
If Ford offered me a contract to buy a car at half the price running only on Ford-fuel and I "jailbrake" it to run on regular fuel, it should be seen as a break of contract that should go before a civil court. If Ford sells me a car at half price without a contract that only runs on Ford-fuel and I'm able to "jailbrake" it to run on regular fuel, they shouldn't have sold it to me in the first place. Criminal laws are not something that should be created for convenience.

--
"This should be fun, and by fun, I mean a wholly depressing insight into the cognitive ability of some grown adults."
Re:Really bad summary by sjames · 2010-12-02 07:27 · Score: 1

If he's supporting terrorists, then nail him for that, not felony jaywalking.
Re:Really bad summary by Wicked+Zen · 2010-12-02 08:10 · Score: 1

Your analogy fails.

Corrected, you analogy would be:

Let's say Ford offered to sell you a brand new car at half the normal price, but the car has software installed on it that causes it to only accept gas at a Ford garage with special and expensive Ford fuel.

No contract is involved. The only question is whether you have the right to alter or disable the software. The Librarian of Congress has stated that -- in the case of phones -- you do.

There is some question over the interpretations of "owner" and "sole purpose" in this case, but there is no concern over contracts.
Re:Really bad summary by UpUpDownDown · 2010-12-02 08:44 · Score: 1

Maybe I'm misreading TFA, but weren't these phones stolen, not purchased? I realize it was from a federal agent, so all the usual arguments as far as entrapment would ensue, but wasn't he actually jailed BECAUSE HE PLEAD GUILTY and was a foreign national who intended to flee the country upon his release? God, can't we just post article summaries that accurately portray the articles? Oh wait, I forgot where I am... Nevermind.

Notes by blueg3 · 2010-12-02 05:09 · Score: 1

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.

Re:Well naturally... by tysonedwards · 2010-12-02 05:10 · Score: 3, Interesting

Seems more likely that Mr. Majed was already in custody for previous offenses prior to the exception being enacted. As such, as far as the law is concerned, the agency holding Mr. Majed is in the right.
As far as I see the situation, as soon as the acts that 'did not cause harm to others' (quote from article) ceased to be a crime, he should have been released as he was simply being held on those charges, and prosecution had not yet commenced.

--
Thirty four characters live here.

Lawsuit Phishing by digitaldc · 2010-12-02 05:10 · Score: 1, Insightful

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

Re:Lawsuit Phishing by Desler · 2010-12-02 05:14 · Score: 5, Insightful

Except that what he was doing does not fall under the exemption. The exemption was that you can jailbreak YOUR OWN phone. This is the same reason why it's legal to break CSS encyption on DVD to use copyrighted clips in fair use works but it is not legal for someone to run a business where by they are stripping CSS off of ripped DVDs and then selling those unencrypted discs.
Both Techdirt and the submitter seem to have reading comprehension problems.
Re:Lawsuit Phishing by Stregano · 2010-12-02 05:16 · Score: 1

I think you misunderstood what is happening. It would be like if I bought up a bunch of new cars, installed a bunch of after market parts, and then sold them as new. Or if I was selling a bunch of softmodded consoles in bulk.

--
The world is how you make it
Re:Lawsuit Phishing by digitaldc · 2010-12-02 05:18 · Score: 1

Yes, I should have read the article.
Mod me to oblivion

--
He who knows best knows how little he knows. - Thomas Jefferson
Re:Lawsuit Phishing by boristdog · 2010-12-02 05:19 · Score: 1

It would be like if I bought up a bunch of new cars, installed a bunch of after market parts, and then sold them as new.
Still legal.
See "conversion van"
Re:Lawsuit Phishing by delinear · 2010-12-02 05:25 · Score: 1

He buys the phones. At that point they are his phones. He modifies them and then sells them second-hand (it's just that, in this case, second-hand happens to be better than new).
Re:Lawsuit Phishing by delinear · 2010-12-02 05:27 · Score: 1

I don't think he ever claimed to be selling them as "new" (maybe "unused", which is a fair claim under the circumstances). As far as I know there's no law to prevent me buying a bunch of cars, fitting my own parts and selling them as second-hand.
Re:Lawsuit Phishing by Desler · 2010-12-02 05:50 · Score: 1

If he was jailbreaking these phones for his own use it would be covered. The exemption doesn't cover when you do this and then try to sell those phones (or DVDs as in the second example I provided).
Re:Lawsuit Phishing by Desler · 2010-12-02 05:52 · Score: 1

The notion of whether he claimed it was new or not is irrelevant. The point is that the exemption only covers jailbreaking phones for your own use. It doesn't cover jailbreaking phones and then reselling them as part of a business. This seems to be the point that Techdirt nor the rest of the whining idiots seem to realize.
Re:Lawsuit Phishing by Hatta · 2010-12-02 07:09 · Score: 1

Citation Needed.
I believe the exemption in question was enacted in 2006. This is the relevant exeception, right?

The Librarian of Congress, on the recommendation of the Register of Copyrights, has announced the classes of works subject to the exemption from the prohibition against circumvention of technological measures that control access to copyrighted works. Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. 1201(a)(1)) during the next three years.
-snip-
5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.
Exactly what part of that exemption do you read to imply that you cannot sell a device legally unlocked?

--
Give me Classic Slashdot or give me death!
Re:Lawsuit Phishing by Attila+Dimedici · 2010-12-02 07:12 · Score: 1

Yeah, except that the phones he was buying were stolen phones and the reason he was modifying them was so that the police would not be able to trace them (that is find out who had stolen them). As long as they were tied to the original carrier, it would be possible for the police to track them down if someone used them.
This is the point a lot of people here are missing. He was not jailbreaking the phones so that his customers could use them on whatever carrier they wanted. He was jailbreaking the phones so that he would not get caught selling stolen phones.

--
The truth is that all men having power ought to be mistrusted. James Madison
Re:Lawsuit Phishing by sjames · 2010-12-02 07:30 · Score: 2

Unless you allege that he stole the phones, they were his own phones when he jailbroke them. He then chose to sell his phones.
Re:Lawsuit Phishing by jgtg32a · 2010-12-02 07:33 · Score: 1

You are forgetting the part where these cars have a lock on the motor access, and you have to break the lock to access the motor and breaking the lock is illegal. Something like that.
Re:Lawsuit Phishing by AK+Marc · 2010-12-02 08:42 · Score: 1

Saleen buys Ford cars. Saleen modifies Ford cars for the intent of resale at a higher price. Saleen then sells those cars.

The analogy is correct. He's doing what's legal now. In fact, software changes are one explicit area where Saleen does make changes. But do that for a phone and it's suddenly a crime.

--
Learn to love Alaska
Re:Lawsuit Phishing by AK+Marc · 2010-12-02 08:45 · Score: 1

The only whining idiot I see here is you. The claim that buying a car, modifying the car, then selling the car is legal. Doing the same with a phone is illegal. And that disconnect is where the objections are being raised. We have broken laws where anything invented recently is treated unlike everything else. That's simply silly. If I can run a car modification business, why can't I run a phone modification business?

--
Learn to love Alaska
Re:Lawsuit Phishing by langelgjm · 2010-12-02 14:34 · Score: 1

It is also worth noting that the CSS exemption only applies in three specific circumstances: " 1. Educational uses by college and university professors and by college and university film and media studies students; 2. Documentary filmmaking; 3. Noncommercial videos." This is in addition to the requirement the use be believed to be fair. The exemption isn't a blanket permission for a person to break CSS on DVDs he/she legally owns.

--
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
Re:Lawsuit Phishing by master_p · 2010-12-03 00:46 · Score: 1

The exemption was that you can jailbreak YOUR OWN phone.
And if you have a few thousand phones that you own, what then?

Phone companies are evil by troll+-1 · 2010-12-02 05:12 · Score: 5, Insightful

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.

Re:Phone companies are evil by dkf · 2010-12-02 06:16 · Score: 1

out-of-state websites would be billed at a higher rate (except for nights and weekends).
What makes you think that they'd lower their rates for any reason?

--
"Little does he know, but there is no 'I' in 'Idiot'!"

A Lot of Confusion by cob666 · 2010-12-02 05:12 · Score: 4, Interesting

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

Re:A Lot of Confusion by puto · 2010-12-02 05:41 · Score: 2

The article is FUD, because the guy was busted doing a ton of other shit. For Immediate Release November 23, 2009 United States Attorney's Office Eastern District of Pennsylvania Contact: (215) 861-8200 Eight Charged in Conspiracy to Traffic Counterfeit and Stolen Goods PHILADELPHIA—United States Attorney Michael L. Levy, together with Special Agent-in-Charge of the Federal Bureau of Investigation Janice K. Fedarcyk, Special Agent-in-Charge of Immigration and Customs Enforcement John P. Kelleghan, Special Agent-in-Charge of the Internal Revenue Service Don Fort, and Superintendent of the New Jersey State Police Colonel Joseph R. Fuentes, today announced the unsealing of a 33-count indictment charging Sadek Mohamad Koumaiha, Mohamad Kassem Sibai, Hassan Mahmoud Koumaiha, Ali-Ibrahim El Sayed Abdallah, Mohamad Majed, Bilal Hussein Hamden, a/k/a “Billy,” Shady Anis Ghadban, a/k/a “Danny,”and Ali Kassem El-Sibai with multiple counts of conspiracy, trafficking-in stolen goods, trafficking-in counterfeit goods, false statements to government officials, and conducting an illegal money transmitting business. According to the indictment, Sadek and Hassan Koumaiha, Mohamad Kassem Sibai, Ali-Ibrahim El Sayed Abdallah, and Majed purchased stolen merchandise, including Sony PlayStation 2 systems, laptop computers, and cellular telephones, purportedly worth hundreds of thousands of dollars, from an undercover law enforcement officer. The indictment further alleges that defendants Sibai, the Koumaihas, and Shady Anis Ghadban, purchased thousands of dollars worth of counterfeit goods, namely Nike shoes and a variety of brands of cellular telephones, from an undercover law enforcement officer.

--
The Revolution Will Not Be Televised
Re:A Lot of Confusion by mcgrew · 2010-12-02 06:30 · Score: 2

I was amazed that there are people that equate unlocking or jailbreaking a phone to stealing intellectual property.
You can't steal intellectual property any more than you can steal rainwater or air. The writer doesn't own his work, it belongs to everyone. He merely has a limited time monopoly on its publication.
That's not pedantry, it's a distinction with a difference. Please stop saying "stealing IP" because IP can't be stolen.

--
Free Martian Whores!
Re:A Lot of Confusion by Wicked+Zen · 2010-12-02 08:14 · Score: 1

Very well. Punish for the actual crimes he committed, not for the non-crime.

Beyond the Scope by Voyager529 · 2010-12-02 05:13 · Score: 3, Insightful

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.

Re:Beyond the Scope by Bert64 · 2010-12-02 05:25 · Score: 2

So basically the courts are propping up a flawed business model operated by a large telco...
Most telcos tie subsidised phones to a long contract to recoup the cost, this model just doesn't work with prepaid phones which is why telcos usually offer massively inferior phones on prepaid plans.

--
http://spamdecoy.net - free throwaway anonymous email - avoid spam!
Re:Beyond the Scope by l0ungeb0y · 2010-12-02 05:28 · Score: 2

Well, look at it as a service for those who wish to OWN an unlocked phone but lack the know-how. Stretching the law or not, he was within his rights.
Re:Beyond the Scope by tlhIngan · 2010-12-02 05:39 · Score: 2

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.
He's also accused of funnelling his profits from selling the phones to terrorist organizations, which is the real charge. They're throwing every possible crime he's doing as well in the hopes that maybe one charge will stick. Selling unlocked phones en masse is one charge he can do, but the real reason is the funding terrorist organizations.
It's the sort of link you wish people wouldn't make, because it means unlocked phones can get tainted with the "supporting Al Qaeda" and "causing 9/11" crap. "Only terrorists need unlocked phones".
Re:Beyond the Scope by MoonBuggy · 2010-12-02 05:43 · Score: 4, Insightful

He was running his business to the letter of the law. Tracfone was running theirs on a gamble that the subsidised phones would pay for themselves. Majed owned the phones and was well within his rights to do what he liked with them - dump them in the ocean, if he wanted - with no regard to repaying Tracfone's subsidy; if they'd wanted the terms to be different, a simple contract at the time of sale would've solved all their problems (and made Majed's business immediately untenable by virtue of breaching that contract).
Re:Beyond the Scope by puto · 2010-12-02 05:52 · Score: 2

Actually he pled down to a lesser charge,DMCA violation. He was trafficking in stolen and counterfit goods and money laundering as well and his buddies got caught by an undercover agent in a sting. Those are the real reasons he was busted.

--
The Revolution Will Not Be Televised
Re:Beyond the Scope by AigariusDebian · 2010-12-02 05:54 · Score: 1

So, can anyone explain to me why do the carriers actually sell these devices without signing a contract with the person? That would full eliminate this situation - sure, you can buy a thousand cheap phones, unlock them and sell them on, but you will still have to pay monthly fees on the thousand 2 year contracts or pay the ETF.
Re:Beyond the Scope by Desler · 2010-12-02 05:55 · Score: 1

He was running his business to the letter of the law.
No, he wasn't. He wasn't running his business anymore to the letter of the law than if I try to claim that reselling a bunch of unencrypted backup copies of my DVDs is running a business according to the letter of the law. These exemptions cover when you do these actions for your own personal use, not so that you can do so in order to make a commercial business selling unlocked phones and unencrypted DVDs.
Re:Beyond the Scope by MoonBuggy · 2010-12-02 05:56 · Score: 1

Interesting. Any chance of a link?
Re:Beyond the Scope by drinkypoo · 2010-12-02 06:09 · Score: 1

Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network. Explain which part of that he violated. He is the owner. If he personally does the unlocking (manually or with a device) then the owner is making the modification. The purpose is solely in order to connect to a wireless communications network with permission, and the law does not say that the connection will be made by the owner. That is the likely intent of the law, but it's still a possible defense.
There is also the defense that it doesn't really matter who does it, because the purpose of the unlocking is for the purpose of interoperability. If you don't have the skill to unlock a device, you pay someone to do it for you. What's the damn difference? The intent is to permit the eventual owner of the device to use the device in a way explicitly permitted by law. As [the] sibling comment(s?) say(s), the courts are not obligated to prop up a failing business model, even if individuals within them who have accepted bribes are.

--
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Re:Beyond the Scope by MoonBuggy · 2010-12-02 06:17 · Score: 1

Actually it's much more akin to selling your unencrypted backup alongside the original disc. Selling the backup without the original disc would be a clear violation because you're selling a copy while retaining the original, at which point the copy ceases to be defined as a backup.
As a separate issue, it seems to me dubious whether this should come under copyright law at all. The 'anti-circumvention' measures here aren't to prevent you from copying the software, but to prevent you from using it in a particular way. Whether that is a legitimate use of the DMCA can very reasonably be brought into question.
Re:Beyond the Scope by puto · 2010-12-02 06:20 · Score: 3, Informative

Court doc. Seems all the phones were sold to them by an undercover agent as stolen goods. http://www.investigativeproject.org/documents/case_docs/1136.pdf

--
The Revolution Will Not Be Televised
Re:Beyond the Scope by MoonBuggy · 2010-12-02 06:32 · Score: 2

*facepalm*
Neither the article or the one subsequently linked from there mentions that, but I guess I stand corrected. Looks like everybody's trying to spin it a as a victory for the DMCA, with their own bias one way or the other, and more or less ignoring the actual case.
I suppose most of what I said is still generally applicable, but this case is not the place to argue it.
Re:Beyond the Scope by Attila+Dimedici · 2010-12-02 07:24 · Score: 1

The guy was running a business buying, jailbreaking and then selling stolen cellphones. He wasn't even convicted of running a business on a technicality. He was arrested as part of a terrorism sting operation that was investigating people who were, at the very least, raising money for Hamas.

--
The truth is that all men having power ought to be mistrusted. James Madison
Re:Beyond the Scope by Anonymous Coward · 2010-12-02 07:39 · Score: 1

Please mod parent to +5 Informative.
This is HUGE - the guy was acting as a fence and rightly got boned for it. Had he walked into the local 7-11 and purchased "835" phones (not to mention PS2 and other goods) and modded them as he saw fit and resold them there would be NO ISSUE.
I know puto's earlier post got modded up, but this one could use it too as it's higher up the page. The better to stop people looking like idiots who didn't RTFA ;).
Re:Beyond the Scope by loshwomp · 2010-12-02 09:01 · Score: 1

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.
Well, did he or did he not own them at the time. If not, who did?
Re:Beyond the Scope by anethema · 2010-12-02 13:16 · Score: 1

All of these analogies are stupid because you'd be busted for illegally distributing copyright work for a profit, not for breaking the encryption.

Also, fair use specifically says for personal use or commercial use will factor into a court decision on whether it would constitute fair use, where I couldn't find any such limitation in the LoC exemption.

--

It's easier to fight for one's principles than to live up to them.

Disgraceful waste of public resources by Fast+Thick+Pants · 2010-12-02 05:14 · Score: 2

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.)

Re:Disgraceful waste of public resources by AarghVark · 2010-12-02 05:38 · Score: 1

Its all about return on investment. You get much more bang for your buck in buying a Senator of Congressman and then having the full weight of the US government behind you than trying to hire a private army of thugs and lawyers to do it yourself.
Makes perfect business sense. What doesn't make sense is why we don't call out our politicians for this behavior.
Re:Disgraceful waste of public resources by Attila+Dimedici · 2010-12-02 07:25 · Score: 1

This was a guy who was buying stolen cellphones, then jailbreaking them so that he could sell them to someone else.

--
The truth is that all men having power ought to be mistrusted. James Madison
Re:Disgraceful waste of public resources by Zontar_Thing_From_Ve · 2010-12-02 07:32 · Score: 1

I think the argument for having the government (police, courts, and in some cases even government employees) do this to help businesses works like this:

We're losing revenue by this illegal stuff going on. If you (the government) don't stop it, we'll pay less in taxes because we have less money coming in. And to cut costs to make up for the losses, we'll ship American jobs overseas. Basically these crooks aren't stealing from us. They're stealing your tax revenues.

Now of course this overlooks the fact that the companies will still ship jobs overseas anyway and that they probably don't pay their fair share of taxes either thanks to various loopholes, but the government believes this argument and acts accordingly. It explains why the US is so actively involved in protecting the RIAA and MPAA from "piracy".
Re:Disgraceful waste of public resources by Wicked+Zen · 2010-12-02 08:20 · Score: 1

Yes, yes, but he pled to something that is apparently not a crime. That's the crux of the argument. His plea should be invalidated along with the plea agreement. Then, he should be prosecuted for his actual crimes.

Primitive heathens by countertrolling · 2010-12-02 05:14 · Score: 2, Insightful

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

Re:Primitive heathens by astar · 2010-12-02 08:09 · Score: 1

I hear we again have debtor's prison in the USA. I hear that in some places, if you owe money, the creditor goes to court and when you fail to show gets a default judgment. Somewhere in there the judge puts you in jail and levies a fine...that is exactly what you owe. So you end up paying.... and the fine is turned over to the creditor. Maybe this needs a cite.
http://www.schr.org/poor
http://mostlywater.org/us_debtors_prisons
ah, here it is: http://www.larouchepac.com/node/15243
and it reference a newspaper article which is in turn referenced by many articles, but the *original* is simply not showing up in google. However, playing through the links, we get this,
http://www.walletpop.com/blog/2010/07/15/americas-new-debtor-prison-jail-time-being-given-to-those-who/
and this seems to directly quote the article and is in direct support of the larouche cite.
Sort of peculiar how the original article is not there and almost all the references to the article do not mention the turning over of the fines to the creditor. I think what is happening here is that the original is getting updated, has a new update date, and has dropped the really nasty parts of the original.

Librarians don't pass laws by l0ungeb0y · 2010-12-02 05:14 · Score: 1

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.

Re:Librarians don't pass laws by BBTaeKwonDo · 2010-12-02 05:27 · Score: 1

It's not just an opinion - the statute requires the Librarian to provide a list of exemptions to the anti-circumvention provisions. These exemptions have the force of law, because the law says they do. From http://www.copyright.gov/1201/2010/Librarian-of-Congress-1201-Statement.html :

Section 1201(a)(1) of the copyright law requires that every three years I am to determine whether there are any classes of works that will be subject to exemptions from the statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work.

Well I cant complain too much by OverlordQ · 2010-12-02 05:14 · Score: 1

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.

Re:Well I cant complain too much by jspayne · 2010-12-02 05:49 · Score: 1

And this is why the jailbreaking provision is not relevant. Unlocking is a different exercise, and it is addressed in the very next point of the same ruling:

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

This FUD may create a business niche by mlts · 2010-12-02 05:21 · Score: 1

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.

Re:This FUD may create a business niche by mlts · 2010-12-02 05:26 · Score: 1

Grr, hate replying to myself... meant "create a niche". Darn typos.
One clarification: The nice thing about Android, it can be made into a decent balance between a UNIX environment and a place to run mainstream commercial apps. So, a phone can run the balance of being tweakable with nmap and other tools a command window away, as well as handling Exchange and other communications.
Re:This FUD may create a business niche by AltairDusk · 2010-12-02 05:35 · Score: 1

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.
The Nexus One fits all of those criteria and it's still available to developers.

Illegal uless used? by grimJester · 2010-12-02 05:25 · Score: 5, Insightful

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.

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.

Jailbreak? by russ1337 · 2010-12-02 05:27 · Score: 3, Funny

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....

Outlawing the car to protect the horse and cart by Anonymous Coward · 2010-12-02 05:30 · Score: 1

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.

Person circumventing vs. person connecting by tepples · 2010-12-02 05:34 · Score: 1

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.

Re:Person circumventing vs. person connecting by Zed+Pobre · 2010-12-02 06:01 · Score: 1

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.
Then you need better reading comprehension, because you skipped over the important bit: "... 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.

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.
Then you should be happy, as T-Mobile also will send you an unlock code if you buy a phone from them unsubsidized, so you can get around this problem legally with perfect ease. They'll even send you an unlock code if you've been on a plan with them for two months even if you bought it subsidized. If you're buying mobile phone or data service from a major carrier in the U.S., I do recommend T-Mobile (or one of their affiliates such as SimpleMobile) for exactly this reason, even though their network is much smaller than Verizon's.
Unless you're arguing that nobody should be allowed to offer or accept that subsidy, however, it's irrelevant to the discussion. (I can see a way to potentially make that argument in a sane fashion, actually, on market distortion grounds, though I don't expect to see anyone actually do so here.)
Re:Person circumventing vs. person connecting by DavidTC · 2010-12-02 08:31 · Score: 1

Then you should be happy, as T-Mobile also will send you an unlock code if you buy a phone from them unsubsidized, so you can get around this problem legally with perfect ease. They'll even send you an unlock code if you've been on a plan with them for two months even if you bought it subsidized. If you're buying mobile phone or data service from a major carrier in the U.S., I do recommend T-Mobile (or one of their affiliates such as SimpleMobile) for exactly this reason, even though their network is much smaller than Verizon's.
While I agree with you that phone companies should be required to break out the subsidy on the bill, and further agree that people should not expect to be able to run off with the phones...
...there is the issue of, what if you want to use the phone for something else and yet keep paying for it. Perhaps you upgraded your phone, and wish to give a phone to a sibling...but he's on a different network? Or perhaps you personally have two cell phone services, and wish to use the new phone for the other service?
That is something that should be legal, and should be contractual possible, but right now is up to the largess of the phone company.
Likewise, if you wish to cancel the contract, but keep the phone, it's hard to actually do this without paying large fees that are undisclosed at startup. Requiring them to list the fees separate on the bill is a start, but it should be possible to actually get a breakdown, like 'The phone is 240 dollars, we will charge you 10 dollars a month which will reduce the amount you owe us for the phone 20 dollars a month, and if you leave you have to pay for the rest of the phone.'
Importantly, the law should require the total be a) pro-rated of actual proportion paid, and b) the actual price that the company is selling the phone for without service. (It doesn't, and shouldn't, require that they actually charge you the entire full price for the phone, just that if you had a two year contract, and were with them one year, you can now buy the phone for half original list price.)
With this law, it would be hard to justify any other charges for early cancellation, and I think any additional charges should be capped at the price of one month of service.

--
If corporations are people, aren't stockholders guilty of slavery?

Technicality? by grimJester · 2010-12-02 05:37 · Score: 2

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.

Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

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?

Re:Technicality? by Wicked+Zen · 2010-12-02 08:16 · Score: 1

Prostitution also should not be be illegal, but that's a whole 'nother can o' worms.

Clarification by Mr_Silver · 2010-12-02 05:39 · Score: 1

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.

Re:Clarification by drinkypoo · 2010-12-02 06:11 · Score: 2

It's worth noting that the FBI can allege anything it wants against this poor fucker without facing any real repercussions, and that it's totally irrelevant to this issue.

--
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Re:Clarification by Mr_Silver · 2010-12-02 09:34 · Score: 1

It's worth noting that the FBI can allege anything it wants against this poor fucker without facing any real repercussions, and that it's totally irrelevant to this issue.
Well if you're going to get snotty about it, the DMCA exemption doesn't cover unlocking phones for selling overseas. So in this case I'd say yes, it is pretty relevant.

--
Avantslash - View Slashdot cleanly on your mobile phone.

Because the exception is personal use by SuperKendall · 2010-12-02 05:40 · Score: 1

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

Re:Because the exception is personal use by MoonBuggy · 2010-12-02 05:47 · Score: 1

Why?
He owned the phones. He chose to unlock them. He then sold the phones. Sure, Tracfone got screwed over in the process, but if they'd wanted to retain control over the phones after the sale then a simple contract would do the job quite easily - just a little 'sign here' after a few lines about only using the handset to access Tracfone approved services.
Re:Because the exception is personal use by hedwards · 2010-12-02 06:10 · Score: 1

There's no requirement that you do it on a small scale. Which was always one of the complaints. There's little to no difference in the DMCA between commercial and non-profit violations. But this isn't a violation of any part of the DMCA that I'm aware of. You still need the SIM card in order to access the network and unlocking the phone isn't going to change that. This just allows you to use a SIM card from a different carrier.

There is a way to do it even ignoring First Sale by Evardsson · 2010-12-02 05:40 · Score: 1

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

To everyone claiming this is unjust by VGPowerlord · 2010-12-02 06:04 · Score: 1

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

Re:To everyone claiming this is unjust by Arker · 2010-12-02 06:10 · Score: 1

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?
I would expect perhaps some governors and/or attorneys-general and/or the fbi etc., were there any that were for real, would start investigating just how someone is so pressured that they plead guilty to bogus charges?

--
=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Friends don't let friends enable ecmascript.

Re:Well naturally... by XnavxeMiyyep · 2010-12-02 06:07 · Score: 1

he pleaded guilty because he was too dumb to know his rights.

So the uneducated deserve to suffer?

--
I put the 't' in electrical engineering.

Re:Well naturally... by puto · 2010-12-02 06:13 · Score: 5, Informative

Yes, and you can read the original filing. The guy and his buddy bought thousands of stolen phones, and playstations, and laptops, that he knew were stolen from an undercover FBI guy over the course of few years. He and his pals are no angels. No heros. But then again, they could have posted a link to it. http://www.investigativeproject.org/documents/case_docs/1136.pdf

--
The Revolution Will Not Be Televised

Unlocking your daughter's phone by tepples · 2010-12-02 06:16 · Score: 1

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.

Jailbreaking Unlocking by RapmasterT · 2010-12-02 06:22 · Score: 1

Please for the love of christ, stop saying "jailbreaking" when the term you're looking for is "unlocking".

Re:Well naturally... by DJRumpy · 2010-12-02 06:26 · Score: 4, Informative

Exactly. This wasn't some poor cell user trying to get his phone working on another network which is the specific use case allowed under the exception, but rather he was specifically prosecuted for breaking DMCA for the explicit purposes of trafficking that same hardware for a profit.

Hardly innocent.

Wrong crime... by joeyblades · 2010-12-02 06:29 · Score: 1

"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...

Re:Well naturally... by shadowfaxcrx · 2010-12-02 06:30 · Score: 1, Redundant

Miranda v. Arizona would tend to disagree with that notion as applied here. . .

--
"I disagree with you" does not equal "flamebait."

Simple Solution by rally2xs · 2010-12-02 06:32 · Score: 1

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.

Re:Well naturally... by cayenne8 · 2010-12-02 06:42 · Score: 2

"Miranda v. Arizona would tend to disagree with that notion as applied here. . ."

I'm pretty sure they read him his Miranda rights upon arrest...

--
Light travels faster than sound. This is why some people appear bright until you hear them speak.........

Re:Well naturally... by SleazyRidr · 2010-12-02 06:51 · Score: 2

How does that quote go?

It's hard to defend freedom because you always find yourself defending scoundrels, as these are the first people whose freedoms get taken away.

I've butchered that quote terribly. The point is, slapping a bunch of DCMA charges on this guy sets some dangerous precedents that can be used against the rest of us. Punish him for what he did wrong, trafficking the stolen goods, but leave it at that. Jailbreaking the phones isn't a crime in itself, so he shouldn't be charged for it.

--
Is 1563649 a prime number?

Re:Well naturally... by DJRumpy · 2010-12-02 06:57 · Score: 2

It does nothing of the sort. The law is very clear. Jailbreaking is legal if used for the purpose to allow someone to move a phone from one provider to another. it does not remove any legal consequence for doing so strictly to traffic hardware for profit. This person violated DCMA for the purpose of profit, not portability.

Re:Well naturally... by eaglemonkey · 2010-12-02 07:06 · Score: 1

Lawl.

in canada in the mall you see stores all over the by Joe+The+Dragon · 2010-12-02 07:08 · Score: 1

in canada in the mall you see stores all over the place that say we can unlock your phone.

and the cable make you rent there hardware at high by Joe+The+Dragon · 2010-12-02 07:15 · Score: 1

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.

Re:Well naturally... by shadowfaxcrx · 2010-12-02 07:16 · Score: 2

Doubtless. The point was that Miranda decided that being ignorant of your rights, in that case your right to an attorney, was, in fact, an excuse and that the state was responsible for informing you of your rights.

In this case, if he pled guilty without realizing he was pleading guilty to a nonexistent crime, I think it could be argued that it was the state's responsibility to admit that what he did isn't illegal.

--
"I disagree with you" does not equal "flamebait."

Librarian of Congress? by arshadk · 2010-12-02 07:19 · Score: 1

How did librarians suddenly get so powerful?

I've said it before by Zontar_Thing_From_Ve · 2010-12-02 07:40 · Score: 1

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.

Doesn't matter if he profits or not by mykos · 2010-12-02 07:46 · Score: 1

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.

Re:Well naturally... by shentino · 2010-12-02 07:52 · Score: 1

Using a bullshit charge on a real criminal only makes bad precedent for it to be abused. Which is probably exactly what the powers that be are preparing to do.

If they're not able to make the real charges stick then they have no business holding him anyway. If they can, then they need to. If they simply won't, that points to them having dirty tricks up their sleeves.

Re:Well naturally... by DJRumpy · 2010-12-02 08:01 · Score: 1

How is this a bullshit charge? If the vendor had put out a phone with no DCMA, and this guy came along, bought a truck full, and sold them for a profit, there would be no crime. That isn't the case.

He bought these phones, with restrictions built into them specifically to prevent people like him from hacking them to make them transferrable, and then reselling them for a profit.

He cracked the protection with the intent to profit from someone else's work. He was caught, and he plead guilty.

This is no different than the charges brought against Psystar, who broke Apples protections to allow the OS to install on other hardware. They essentially tried to profit off of another's IP without license from the owner. This is no different.

Re:You forgot to mention the terrorist angle! by Wicked+Zen · 2010-12-02 08:26 · Score: 1

Allegedly.

Not that that's relevant to whether one can plead guilty to something that is not a crime.

you misunderstood by commodoresloat · 2010-12-02 08:27 · Score: 1

"Jailbreaking" refers to what the suspect plans to do after they throw him in prison

Re:Well naturally... by Yvanhoe · 2010-12-02 09:11 · Score: 3, Insightful

It is really astounding that government organizations in US can bait people by being accomplices of make-up crimes. How far do they go to convince the guy to cross the line ? "Hey man, this cheap shit is stolen anyway, you won't help giving it back by being stupid and saying no to it. I will find someone to buy them anyway. You know what ? You may even do a social act in the grand tradition of free market by selling cheap phones to the poor. I mean these were stolen in the rich part of town. Sell them back in the ghetto and you become a good man..." I have once seen on TV a documentary, can't tell how much it was fake, about US policewomen who tried to arrest prostitutes clients by posing as some. One even went as far as proposing free service to convince the "suspect", who got arrested.

--
The Wise adapts himself to the world. The Fool adapts the world to himself. Therefore, all progress depends on the Fool.

Re:Well naturally... by Magada · 2010-12-02 09:49 · Score: 1

It's a piece of hardware. What you do with it after you bought it should be your business alone (including re-programming it to serve cookies, if you so wish). The Psystar thing was about software and has no relevance here.

--
Something bad is coming when people are suddenly anxious to tell the truth.

Re:Well naturally... by DJRumpy · 2010-12-02 09:51 · Score: 1

No, it was about software with IP attached to it, that was hacked so that it would run on other hardware and sold for profit.

In this case, the phone has software with IP attached to it, that was hacked to run on another cell providers network and sold for profit.

Re:Well naturally... by hairyfeet · 2010-12-02 10:26 · Score: 4, Insightful

Sorry but I gotta call bullshit. You think the average Joe is gonna have the skills to jailbreak? Nope, they'd have to bring it to someone like me, just like they bring their desktops and laptops, and I ain't doing jack for free.

This is just an end run around the "jailbreaking is okay" exception, by making sure those that have the skills have no reason to share those skills. Imagine what a shitfit everyone would have if they said only yourself or authorized licensed laptop centers were allowed to work on your laptop? The average Joe is scared to go into Windows Control Panel, he sure as hell ain't doing root hacking. This is just a way to make sure nobody can actually use that exception, and considering how "corporation yay!" our government has become this really doesn't surprise me.

--
ACs don't waste your time replying, your posts are never seen by me.

Re:Well naturally... by enrevanche · 2010-12-02 10:31 · Score: 1

It's BS because if he owned the phones he had every right to do whatever he wanted to them. Why should Apple (or anyone) have the right to prevent someone they do not have a contract with from modifying a device they do not have ownership of? This lessens the rights of all owners of the devices because it means they cannot get the price the market will pay. His right to jail break a phone is not limited to a single phone. His right is not eliminated just because it may hurt Apple's business model.

If he knowingly received stolen property then that is already a crime. If they cannot prove it then they should not charge him.

He may have been railroaded into pleading guilty because he may not have been able to pay the legal expenses to fight it.

In any case this is not a legal precedent because it is just a plea.

Re:Well naturally... by h4rr4r · 2010-12-02 10:40 · Score: 1

I agree, what pystar did should have been perfectly legal. They never deprived apple of profit from their ip, they just found a way to install it on other hardware.

Re:Well naturally... by sumdumass · 2010-12-02 11:08 · Score: 1

Actually it was both and both of what you say apply within their own context.

Once a consumer purchases the phone, they are able to break the encryption and move it to any network. But when the op was buying them in bulk with the intention to resell as new, he wasn't the owner as far as the law/rule allowing the DMCA jailbreak, His use was commercial in nature which was outside the exception rule.

Re:Well naturally... by kevorkian · 2010-12-02 11:42 · Score: 1

DCMA ??

50 lashes for your typo

http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act

Re:Well naturally... by kevorkian · 2010-12-02 11:44 · Score: 1

Ok .. who is the idiot mod that modded you up ??

DMCA .. http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act

What is DCMA ??

Re:Well naturally... by Anonymous Coward · 2010-12-02 11:48 · Score: 1

A new class of troll? The Abbreviation Police?

Re:Well naturally... by kevorkian · 2010-12-02 11:56 · Score: 1

phone with no dcma ?? First off its the DMCA .. You just blindly copy the parent post ??

second ,The DMCA its not a vendor thing , Its the law that makes it legal for the goons to take your first born son for simply doing what you wish with your property. The vendor uses "DRM"
And ..

yes you are right , it is no different.. This case does have the real illagle part of the stolen hardware .. But the unlocking / jailbreaking shoudl not have been part of the charges.

Pystar bought each copy of the OS from apple , at the price apple was selling it to the general public.

The company sells you something , and you get to do with it as you wish.

Which includes selling it to someone else.

But for a dollar , sell for two. Its the basis for the capitalistic system.

How dare you tell me what the fuck I can do with your product once you sell it to me. If you dont want me doing what I wish with it , DONT SELL IT TO ME!!!

Re:Well naturally... by kevorkian · 2010-12-02 11:58 · Score: 1

YEAH !!! the first one in this thread to correct the dcma typo !!!

+ 10 geek points for you ...

Re:Well naturally... by index0 · 2010-12-02 12:10 · Score: 1

Yes, we know breaking the DMCA is illegal, but should it be illegal?

Re:Well naturally... by kevorkian · 2010-12-02 12:54 · Score: 1

Whyfor you going as AC ?? Dont have the balls to put your name to the comment ??

And no ..
they walked into the store and gave the man money .. and walked out with a box .. That is buying.

They then proceded to install the stuf in the box for someone.

They did the same thing that everyone else did ..Apple got the money that apple was asking for.

Not there fault apple had some fraud scheme where they hide the real price of the item in the cost of the apple hardware.

Re: H.L. Mencken quote by bobv-pillars-net · 2010-12-02 13:02 · Score: 2

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.

Re:Well naturally... by kevorkian · 2010-12-02 13:39 · Score: 1

Can you give any examples of software without IP attached to it ??

Re: H.L. Mencken quote by SleazyRidr · 2010-12-02 15:33 · Score: 1

Thanks for sorting that out.

--
Is 1563649 a prime number?

Re:Well naturally... by SleazyRidr · 2010-12-02 15:35 · Score: 1

So you're telling me this isn't all about the Digital Century Method of Aerobics?

--
Is 1563649 a prime number?

Re:Well naturally... by kevorkian · 2010-12-02 15:50 · Score: 1

nor is it the Defense Contract Management Agency

http://www.dcma.mil/ :-D

Re:Well naturally... by fishexe · 2010-12-02 17:09 · Score: 1

The point is, slapping a bunch of DCMA charges on this guy sets some dangerous precedents that can be used against the rest of us...

I think you have your laws confused. He was charged under the DMCA, or "Digital Millennium Copyright Act". The DCMA, or "Digital Cock-Mongering Act" is what they used to go after Chatroullette.

--
"I don't care about the Constitution!" --Bill O'Reilly, November 17, 2009

I don't get it... by fishexe · 2010-12-02 17:34 · Score: 1

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

Re:Well naturally... by SleazyRidr · 2010-12-03 04:25 · Score: 1

Oh, I see. I thought this guy was jailbreaking the phones with his cock. What was he using then?

--
Is 1563649 a prime number?

Re:Well naturally... by nametaken · 2010-12-03 07:41 · Score: 1

Yes, the average joe has the "skills" to jailbreak. These processes are often absurdly simple nowadays.

A couple weeks ago the young lady receptionist at work had a handful of phones at work. I asked what she was doing, and it turned out her friends and family were having her jailbreak their phones while she was on the clock. I should point out that she is not what anyone here would call tech savvy. Our mechanics both jailbroke their phones too (without anyones help). This is just one small business.

If I were the receptionists manager, I probably would have been a little peeved. But as the IT guy, it was an interesting demonstration that jailbreaking is a common thing that regular end users can (and do) tackle themselves.

Re:Well naturally... by Magada · 2010-12-03 23:08 · Score: 1

He was the owner. There is no stated exception to the exception that says you can only move one phone you own to another network. How can selling stuff you legally own to a person that is legally able to buy and own it be illegal?

--
Something bad is coming when people are suddenly anxious to tell the truth.

Re:Well naturally... by sumdumass · 2010-12-04 10:21 · Score: 1

The library of congress exception to the DMCA clause only allows personal use. It otherwise does not exist. It's pretty clear that his attemps were for commercial use so the exception does not apply.

You have to remember, it's illegal to tamper with devices designed to lock down and protect copyright. The law allows for some exceptions to this illegality to be made. In this case, the exception was made for consumers taking their existing phone to another network. While this exception can be construed to be extended to you buying a phone and automatically moving it to another network, I don't see any language that allows a proprietor or anyone to purchase phones for resale within the bounds of this exception.

Now don't take this as my endorsement of the law, I find all sorts of fault with it. But the law still stands with the exceptions in place and if you do not follow those rules, you would/might be in violation of it.

226 of 281 comments (clear)