What You Need To Know About Phone Unlocking

Now that unlocking a new phone is under many circumstances illegal in the U.S. (!), Digital Trends has collected a useful set of answers outlining just what that means. As they put it, a "quick guide to answer all your why, how, and WTF questions." Among them, some explanation of the rule-making process, the reasoning that led to the end to the unlocking exception to the DMCA (including the Ninth Circuit's 2010 Vernor v. Autodesk decision), and illustrations of situations in which it is not illegal to unlock your phone.

Comments

Isn't banning unlocking anti-competitive ?

[craznar]

I know it is in Australia (ACCC).... would have thought US had more protection.

Re:Isn't banning unlocking anti-competitive ?

[dkf]

Of course it is anti-competitive and anti-consumer. Why do you think the US carriers are so keen on it? They're consistently anti-consumer, and put a lot of effort into persuading the "regulators" (I use that word advisedly) remain sympathetic to their point of view.

Re:Isn't banning unlocking anti-competitive ?

[Anonymous Coward]

Why would they? USA needs to remove "land of the free" from their national anthem as they are plunging down the international listings of freedom.

And why? Because too many Americans don't give a shit because they lap up the "if you have nothing to hide" bullshit.

"nothing to see here, move along"

Re:Isn't banning unlocking anti-competitive ?

[Anonymous Coward]

It helps when they lobby, sorry bribe, the law makers to do exactly what they're told

Re:Isn't banning unlocking anti-competitive ?

[oodaloop]

I propose an alternative. See sig.

Re:Isn't banning unlocking anti-competitive ?

[AmiMoJo]

In the UK you can buy phones on contract unlocked, and usually cheaper too. If you buy directly from the phone company it might cost you £35/month and you get a locked phone. If you buy from an independent like the old fashioned sounding Carphone Warehouse or borderline illiterate Phones 4 U you get the same phone for £30/month and it will be unlocked.

Apparently the free market has failed in the US, because it was able to buy laws designed to distort it in the phone company's favour.

Re:Isn't banning unlocking anti-competitive ?

[AK Marc]

Citizens in the US have more freedom than anywhere else on the planet.

We note your wording applies to US citizens in the US, and not visitors, residents, or others (see GITMO). Also, the measuring was done by US citizens who want a specific outcome. I moved out of the US to a place with more freedom. But I could see how someone from the US that wants to carry guns could think otherwise. For whatever reason, the arguement always comes down to guns, or the particular way the US chose to balance rights.

You do realize no right is absolute, right? Other places officially recognize the right to privacy, one right you do not have in the US. And the balance between privacy and other rights makes a line where a liar from the US could arbitrarily assert that it proves the US is more free.

One specific example is name suppression. An accused person can have their name suppressed (in certain circumstances) because an accusation alone often triggers punishment. So they are free to live their lives as an innocent person until proven guilty. But in the US, the mere accusation has caused trouble for many people, especially celebrities and other public figures. Shouldn't you have the freedom to be free from punishment until proven guilty? You don't get that freedom in the US, instead, you get the freedom of speech, where people can try and convict you in the public forum before the first evidence is brought against you.

Which is more free? That's a matter of opinion, but every ignorant nationalistic myopic American is certain that freedom of speech overrides all else, especially when somewhere else may do it differently.

Re:Paying more for locked device

[JC61990]

Its called pre-paid. http://en.wikipedia.org/wiki/List_of_United_States_mobile_virtual_network_operators this is a list of every pre-paid carrier in the US, and what carrier they mooch off of. So if your so called "only" carrier in the area is on this list as an MVNO carrier, then you can take your unlocked phone to that provider and pay WAY WAY less than any on-contract carrier.

Because the firmware's copyright?

[xaxa]

FTA:

Why is it illegal to unlock a smartphone?
Because unlocking a phone requires making changes to its firmware – software that is copyrighted and owned by your carrier – which would be a violation of the Digital Millennium Copyright Act (DMCA).

I don't understand. If I buy a book, and make some edits (cross out some paragraphs, change some words) that's not illegal. Perhaps it would be if I distributed the book (or copies of it). Selling pens to make the edits isn't illegal either.

How is changing firmware different?

Re:Because the firmware's copyright?

[xaxa]

Ah, my question is answered in the next part of the article:

Furthermore, new court decisions have changed the interpretation of the law. In 2010, the Ninth Circuit court decided in Vernor v. Autodesk, Inc that we cell phone owners do not actually “own” the software running our phones. Instead, we are only “licensing” this software – a key difference – which means that we don’t have a right to alter that software. This also played a role in the Librarian’s decision.

Re:Because the firmware's copyright?

[Tom]

How is changing firmware different?

Because it's digital, and common sense has been thrown out for digital goods.

You see, copyright used to come into play when you copied something. As long as you only used it, it didn't matter. The book you bought, you could do with as you pleased, read or not, write comments into the margins, rip out pages and re-arrange them in an order you prefer, whatever.

Only when you made copies of your Romeo & Juliet where the death scene is at the beginning and the rest follows with the word "Zombie" inserted here and there would you be in violation of copyright (well, not really due to that one having expired, but you get the point).

You'd assume it would be the same for a digital book, but it's not. Someone who should be in an asylum instead of a court room decided that in order to read a digital, you have to load it from storage into memory, which is making a copy and thus copyright applies which means the author can dictate terms.

That's why you don't own the firmware, and you don't even own the copy of the firmware on your phone, but if the manufacturer were to, say, distribute the firmware as a print copy the way very very early computer magazines once included software you could transcribe into your computer, then you could do whatever you want with the paper copy, including changing it.

If you think that's crazy, conf. "asylum" above.

Re:Because the firmware's copyright?

[Cinder6]

Why is it illegal to unlock a smartphone?
Because unlocking a phone requires making changes to its firmware – software that is copyrighted and owned by your carrier – which would be a violation of the Digital Millennium Copyright Act (DMCA).

IANAL, but I'm confused. I thought the "point" of the DMCA was to crack down on copyright violations. Code modification would be a DMCA violation if it allowed you to violate copyright, such as bypassing DRM.

"Changing" the copyrighted carrier code doesn't seem to violate copyright, as I understand it, as you are not under legal obligation to use a particular carrier (there's even a clause that allows you to break contract, for a price). Also, what "changes" does the unlocking process commit? If it's simply code removal, then, simply uninstalling a game from your computer is a DMCA violation by extension.

Of course, I'm trying to make sense of something that is inherently illogical. Why is this a DMCA violation, and modding Skyrim isn't? Or is modding Skyrim a violation, and Bethesda simply allows it?

Re:Because the firmware's copyright?

[Kjella]

The crazy thing is who easily that passes, with that logic start thinking about how much of your "belongings" really aren't. You don't own your car, TV, stove, refrigerator, freezer, dish washer, washing machine and so on as I can guarantee they have micro-controllers with copyrighted software on them. The US has become the world leaders in hollowing out private ownership, not because it's really owned by the state like in communism but because it's really owned by the corporations, you just have a limited use license. Don't you dare tamper with that washing machine or the DMCA will come get you.

compatibility issues?

[metalmaster]

Unlocking devices isn't as relevant in the US as it is in other parts of the world. The big 4 in the US all use different technologies to provide service, so taking a device from carrier a to carrier b doesn't make sense in terms of being useful. Of course there is always the argument of "it's my device let me do what i please" and I agree more with that, but those people should pony up the full retail value of the product. If you buy a phone that is carrier subsidized you're essentially financing the phone over 2 years.

If the carriers want to move to an unsubsidized model they should give consumers an incentive to pay upfront costs. T-Mobile's "value plan" is a good example. The customer buy's the device at a discount and pays an additional fee of $20 until the device's retail value is paid off. The plan then becomes $20 cheaper. If carrier's want a BYOD to work they need to offer cheaper rates.

The carriers can offer their retail salespeople a rate plan of $20 at the cost of BYOD. Why can't they do this for consumers? The plan's dont even have to be that cheap, but a $40-50 plan is not out of the realm of possibility. When I worked retail I bought my own Galaxy S3 and paid $25 for my plan. For an upfront cost of ~$520 I saved about $1800 over the cost of a 2-year consumer rate plan

Do the right thing, unlock it.

[bcdonadio]

I'm not a USA citizen, but as a Brazilian (country which all kinds of operator locking were ruled *illegal* a few years ago), I seriously recommend you guys to unlock your phones, being it legal or not, you needing it or not. It's a simple matter of having your rights respected.

Not viable

[xenobyte]

The locked subsidized phone model is not viable, at least not here in Denmark.

A year or so ago all the major carriers here agreed that they would stop the subsidizing and thus the locking of new phones. The value of the phone simply did not match how much the forced subscription (6 months) would yield and as many customers simply switched phone and carrier every 6 months, they consistently lost money.

So now you either pay the full price for the new phone or in installments on your phone bill. If you end your subscription after the first 6 months but before the phone was paid for, you had to pay the remainder in order to end the contract. Simple and avoids the creation of stupid laws to fix a broken business model.