The murkiness of the legality of unlocking the iPhone was highlighted recently by an AppleInsider article which suggested that actions of the ‘iPhone Dev Team’, hackers who are offering the solution to unlocking the iPhone for free online, may be illegal.
The iPhone is locked to one service provider, AT&T, meaning another wireless carrier‘s SIM card cannot be used. Many agree that unlocking your own iPhone to connect to another network is probably legal, but unlocking it for anything else is potentially illegal. This is because of the Digital Millennium Copyright Act (DMCA) and a specific exemption made last year by
the Copyright Office. As Nilay Patel explains on engadget.com, the iPhone’s firmware is protected by the DMCA. To unlock the iPhone, access controls need to be bypassed in order to access the firmware which is a violation of the DMCA. Patel notes that the exemption allows an individual to unlock their cell phone for the purpose of connecting to a different network, but those who unlock and sell them probably do not fall under the exemption because their purpose is not to connect themselves to another network.
I believe it should be legal to unlock an iPhone, whether you unlocked it yourself, or someone else unlocked it for you. It comes down to the question that is present in most copyright issues: ‘whose rights should be promoted?’ Copyright law is supposed
to balance the interests of all stakeholders, however we usually focus on two groups: the right holder and the user. If unlocking the iPhone in any way causes legal issues, the interests of users will be shut out.
If user interests are to be promoted here, the reasoning of Michael Geist would be accepted. In his blog Geist discusses the absurdity of thinking that unlocking one’s phone may be illegal by comparing it to consumers tinkering with their car. Just like their car, the iPhone is the consumer’s property, they should be free to do what they want with it.
The exemption to the DMCA is advocating Geist’s reasoning. It is promoting user interests by allowing consumers to use their cell phones, their property, in a way that benefits them. But the process of unlocking an iPhone is difficult, and for the technologically challenged the only way to unlock it is to get help from others. Making it possibly illegal for others to help consumers unlock their phones by either offering their services for money or free, is thus squashing any attempt by the exemption to promote user interests.
Furthermore, if it is illegal for one to help others unlock their iPhones, then where is the line drawn for other property? There is no duplication occurring; an iPhone is just being altered so that it can be used the way a purchaser wants, which remember, is a legal alteration under the exemption if the consumer performs it themselves. Take the case of Theberge for comparison. The art gallery basically won because there was no duplication, they were just altering a purchased product in a way that benefited them (transferring a poster to canvas). Now, do you think that if the consumer (the gallery) was unable to make
this legal alteration themselves and hired a third party to do it that their actions would now be illegal? One can argue against this comparison because the DMCA is not at play, but I am using it to show that user interests are being sacrificed for no valid
reason by not including those who help consumers unlock their phones in the DMCA exemption. If it is a legal alteration, why does it matter how it’s achieved?
Allowing unlocking of the iPhone to be legal achieves the best balance of interests of all parties. For Apple, if the iPhone is unlocked their market will increase, even though their agreement with AT&T will be disturbed. AT&T will be losing potential customers as a result of unlocking, but why can’t they handle the competition? Their interests are not as promoted as Apple or user interests, but being in this business they should be expecting and prepared for such competition. As for the user, if providing the service of unlocking the iPhone is illegal and a consumer does not know how to unlock it, which is presumably the majority, then their interests are unfairly being obliterated. They have bought property and are now unable to use it in a way they desire. Far from the result intended, I believe, by the DMCA exemption.