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Jailtime For Jailbreaking
An anonymous reader writes "Remember how the Librarian of Congress announced that jailbreaking your phone was legal and not a violation of the DMCA? Yeah, well, tell that to Mohamad Majed, who has already spent over a year in jail and has now been pressured into pleading guilty to criminal DMCA violations for jailbreaking phones for use on other carriers."
I know this is a semantic issue but jailbreaking usually refers to installing apps on phones and not usually unlocking a phone from a particular carrier. Anyway, carry on with the discussion.
The convictions were all from people breaking phones (as in hundreds or thousands of phones) to use on different carriers. The iPhone jailbreaking (which the story summary was meant to make you think of even though no iPhones were involved in this story) does not unlock the phone for use by other carriers.
You may proceed jailbreaking as normally despite this FUD, just as many millions have already done...
"There is more worth loving than we have strength to love." - Brian Jay Stanley
It's legal to jailbreak your own "used" phone. This guy was jailbreaking phones by the thousands and selling them. It's still legal to jailbreak the phone you own and use, it's just illegal to unlock and sell in bulk.
I'm using all of my mod points to mod ancient memes down. Please join me.
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.
If they controlled the Internet you'd buy your computer from your ISP and it wouldn't work with any other ISP, your Internet bill would list every website you went to, out-of-state websites would be billed at a higher rate (except for nights and weekends). The current model for phone networks is an overpriced relic of the last century.
I read the article and some of the comments below the article and I was amazed that there are people that equate unlocking or jailbreaking a phone to stealing intellectual property. I'm not very familiar with the wording of the DMCA exlusion that allows you to carrier unlock a phone but I did believe that it applied to a phone that you own. I somebody is charging a fee to unlock phones that clearly this doesn't fall under the DMCA exclusion as I understand it. However, if somebody were to purchase a phone for X dollars, carrer unlock it and then re-sell it for X+Y dollars then that SHOULD fall under the DMCA exlusion although it would be exploiting a loophole.
I'm still not sure how this guy ended up doing jail time and what kind of precedent that sets.
Do what thou wilt shall be the whole of the Law - Aleister Crowley
From the link in TFA:
Majed shipped several thousand prepaid wireless phones to co-conspirators in Michigan and Hong Kong.
Majed didn't go to jail for jailbreaking his iPhone, or even a handful of them for friends. The jailbreaking exemption (http://www.copyright.gov/1201/) states that the exemption exists for the owner of the device in order for the owner to use an alternate cellular network. This guy was essentially running a business buying heavily subsidized Tracfones, unlocking them, and selling them by the thousands. One could argue that between the purchase and the resale that he was the owner of the device and thus was covered, but let's keep perspective - Majed wasn't convicted for rooting his Droid, he was running a business on a technicality, and a stretched one at that.
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.
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.
Is it illegal to jailbreak a phone if you haven't used it? Illegal to jailbreak more than one phone? Illegal to sell a phone after you jailbreak it? Illegal only if two or more of the above?
I think you have a case of the ole "illegal to profit from someone else's work" mindset.
as Steven Colbert would say.....
Jailbreak.... or...... Freedom Patch?
Breaking something out of jail is known to be bad... setting something free is much better....
>>>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
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.
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
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
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."
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.
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
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.
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
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.
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"