As you may well have heard, on Saturday, the grace period offered by the DCMA following its heinous decision to outlaw smartphone unlocking ended. The law came into force on October 28 of last year, and its legislation made it illegal to unlock “newly purchased” smartphones. The grace period of 90 days gave confused consumers at least some time to make a decision over the future of their device, but now, that has ended. Unlocking your new smartphone is totally illegal. Wait… what?
The more I read into this legislation, the Digital Millennium Copyright Act (DMCA), the Register of Copyrights at the Library of Congress (RCLC), and the Digital Rights Management (DRM), the more I find myself becoming more and more bemused and perplexed. So let’s pick this apart a little… Every three years, the RCLC assesses the ways in which consumers can be allowed, or disallowed to circumvent the DRM of copyrighted products, which is covered under the DMCA. Essentially, it establishes what you can and cannot do in relation to your gadgets and media content, physical or digital. These guys usually take a look at the established rules, then make exceptions to the law, determining the legality of certain actions.
So, last week, after a few drinks, possibly more, the Register of Copyrights met to mull over any new legislation that might need to be enforced. Now, the DMCA outlaws the alteration of firmware, the combination of software and hardware issued by a manufacturer, i.e., the iPhone is Apple firmware. In 2006, the Register decided that phone unlocking should be exempted from this legislation, thereby making it legal to unlock your phone. Now, they have decided to alter that, along with a whole host of other rules, from the
sublime ridiculous, to the even more ridiculous. The unlocking legislation was changed because the Register claims that it’s now incredibly easy to buy a smartphone unlocked. Why do consumers need to unlock their phones if they are available readily unlocked? This however, is not a matter of law that has been reassessed, but a matter of convenience. The legal reason behind the move is the reinterpretation of the law. In 2010, the Ninth Circuit court ruled that cell phone owners don’t actually own the software in their phones, rather, they are merely licensing it, which means they do not have the right to alter it. The law doesn’t apply to smartphones you already own, simply phones purchased after January 26. If you buy a used phone, it’s fine to unlock that, and unlocked phones themselves are still legal. Confused? Yeah…
Unlocking your phone enables you to switch carriers, usually in pursuit of a better deal, or because you’ve moved. It was most valuable to world travellers, who could use an unlocked iPhone 5 from the U.S. in Europe on a pre-paid SIM.
This new law has several repercussions. If you’re on AT&T, a new phone you buy will be tied to that carrier for the duration of your contract. International travellers will be able to unlock their phones 5 times a year at the carrier’s discretion. If you want a new phone, and you want it unlocked, from now on you’re going to have to buy it unlocked, without the benefit of carrier subsidies. A 16GB iPhone 5 unlocked will now set you back $650. In other words, acquiring a legally unlocked phone is now an absolute nightmare, a very expensive nightmare.
Now it seems a little silly to be ranting and raving over a few legislation changes that – in reality – simply make buying an unlocked smartphone more inconvenient and more expensive. However, the whole situation is exacerbated by a huge number of factors. For one, unlocking phones has never been considered illegal before, and as far as anyone sensible seems to think, nothing significant has changed since the last time these laws where checked. Furthermore, the Register of Copyrights has garnered quite a reputation for implementing petty, inexplicable and frankly offensive legislation. For example, alongside, the unlocking smartphones legislation, the Register also deemed that Jailbreaking smartphones would remain legal, but jailbreaking tablets, would be considered illegal. Both acts involve the alteration of software, just like unlocking your smartphone, yet this remains legal. Even more inexplicably, the act is considered legal on a phone, but not on a tablet. It’s also illegal to rip DVDs that you legally own, in order to watch them on a tablet or similar device, its also illegal to rip CDs.
But wait, you haven’t heard the best bit yet. Today we learned that the punishment to be exacted on a criminal, for the monstrous crime of unlocking a smartphone will be… For a first time offender, a fine of up to $500,000 plus 5 years in prison, and for repeat offenders, double… Yeah… 10 years in prison for unlocking a smartphone twice… Way to go guys. The Register of Copyrights appears to be unfamiliar with something called “reality”. You see, the chances that anyone will ever be prosecuted for unlocking a smartphone are so unbelievably slim, that they might as well not exist, which just makes the whole fiasco even more outlandish. Imagine detective shows of the future: a whole episode of Columbo showing our brave detective using Find My iPhone to track down a man who bought his iPhone 5 on AT&T, but had decided to switch carriers… riveting.
This whole business really has ruffled the feathers of the tech community, and I really hope that it begins a movement against foolish and outdated copyright laws that restrict the rights of consumers unnecessarily. This law, and others like it, are a waste of everyone’s time, and government resources.
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