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Mobile phone unlocking software violates DMCA?

4 October 2005 22:20 by James "Dela" Delahunty | 5 comments

Wired has a very interesting article about how a major mobile phone and service provider in the United States has sent a cease and desist letter to a company that specializes in the sale of mobile phone unlocking software demanding that the sale of the software stops. The article simply calls the provider "CellPhoneCo" and the software company "Unlocko". So here are the details.

As many of you know (or should know), you can pick up a phone relatively cheap as long as you sign a contract with a mobile phone service provider and pay your monthly fees and bills for the service. To ensure you use your phone only with that service, the provider places a provider lock on the phone, meaning attempted use of the phone with another service will just give you a disabled handset.

However, more and more people are realizing that it is possible to unlock your phone and use it with any provider, which is very useful. For example, somebody who travels to several countries frequently might want to use networks in those countries instead of paying extra "roaming" charges with the provider that sold them the phone. Also another more common reason is the difference in call costs and coverage quality varying in different areas.

Well, CellPhoneCo is unhappy that Unlocko can sell software to their customers allowing them to bypass the "secret handshake" and use the phone with any provider. So CellPhoneCo has turned to a provision of the Digital Millennium Copyright Act (DMCA) that is designed to protect content by making it illegal to disable technology that protects the content. It says that you can't distribute tools that break or circumvent measures that control access to copyright works.

Therefore CellPhoneCo's argument is that Unlocko's software breaks the DMCA by reprogramming a customers phone so it bypasses the provider lock and can now be used with any service provider because the phone now runs software on the internal chip, just like a phone that is brand new that never had a provider lock mechanism installed on it. CellPhoneCo thinks this is a breach of DMCA because it unlawfully circumvents a technological measure controlling access to the phone's copyright-protected software.

While looking at the writing of the DMCA and thinking about this, you do realize where CellPhoneCo is coming from, however it is most likely that the company would lose this case. Lexmark had to learn the hard way after it tried to force customers to buy Lexmark brand ink cartridges instead of generic ones by adding its own "secret handshake" required before the printer would use the ink.

The company sued after competitors figured out how to make their cartridges work in the printer anyway, and originally won the case. That was of course until the Chamberlain Group, a garage door company sued a competitor that sold universal garage door openers and lost. That seemed to be all the influence the 6th U.S. Circuit Court of Appeals needed to reverse the lower court decision of the Lexmark case.

The outcome should be no different for CellPhoneCo's argument. The phone was sold to the customer, who can use it as he or she pleases (unless the customer signs a contract that says otherwise) and CellPhoneCo should have no legal right to control how customers use their phones.

Source:
Wired

Permalink to this article | Topic: Lawsuits & Legislation

DRM chip could lock mobile phones to networks and content providers (5 October 2005)

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Discuss this article!
evilh0ly (Senior Member) 4 October 2005 22:34
omg give me a break when i pay about 300 dollar for a cellphone god dawn it it's my will to do whatever i want with it. when i'm done with cinguare phone i expect my phone to work with t mobile. [ + quote]
dufas (Member) 6 October 2005 12:59
Since most new cars use computer chips, can the automobile manufactures sue to make one use only the fuel brand that they approve....? Will Microsoft start telling everyone which programs that can be run on peoples machines under Windows ?? Intel will only allow Windows to be run on their chips.. AMD will become so protective that they won't allow any OS to be run on their chips.... Apple will allow only certain types of music on their Ipods... Isn't freedom wonderfulllllllllll........... [ + quote]
f00dl3 (Inactive) 6 October 2005 15:50
"As many of you know (or should know), you can pick up a phone relatively cheap as long as you sign a contract with a mobile phone service provider and pay your monthly fees and bills for the service." Answered your own question. [ + quote]
2ndclass (Newbie) 6 October 2005 17:45
in australia, most pre paid packages say in the fine print that your phone remains locked to the network you bought it off for 6 months usually, and if you want to unlock before that you have to pay a fee. If you're on a contract, you haven't paid for the phone until the contract, however long that is for 12 24 whatever months is up, so you don't own it. The phone company does. So if you unlock before your contract is up, you are mucking around with their property. So if you want to be changing SIM cards and networks all the time, go and just buy the phone you want, without a SIM or contract or plan. This CellPhoneCo people can't do anything to "Unlocko", but they can get the people who have their phones on contract [ + quote]
haszona (Newbie) 14 April 2006 22:01
Hi, This Hassan from norway , I'm new here. I need to unlock a Sony erission K700i, Telenor network The IMEI is 359204003960080. Please send me the unlock code , this would help me to use in norway. Thanks in advance for your help. [ + quote]