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Unlocking Legal Issues

RubberShoes

RubberShoes

macrumors regular
Original poster
Jun 30, 2007
174
60
I've looked far and wide and done much research on my own into the unlocking subject on the iphone. Even to go as far as unlocking my friends just to see what problems I might encounter. In the end I have solved every problem and learned a great deal about pretty much everything. There's just one last problem I have and that is my parents...I currently own a 16GB touch where I have done every modification/program/skinning/jailbreaking/etc..... and my parents don't seem to care about that, however when it comes to unlocking an iphone to use on our t-mobile plan, they get a little paranoid. We use to have ATT and after charging us hundreds on texting bills (that was my fault, damn girls...) and cancellation fees, we have a mutual hatred towards anything related to the company.

So...I was wondering, what legal charges could ATT bring to my doorstep by unlocking an US iphone to work with T-Mobile USA?
 
Luis said:
None, unlocking in the US is perfectly legal as long as you don't profit from it.
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At least until October 27, 2009 (which is when the exemption next comes up for review), the act of circumventing technical barriers as defined under the DMCA for the sole purpose of achieving network interoperability (AKA SIM unlock) is not prohibited.

However, by jailbreaking the iPhone ("circumvention") and doing all that *other* stuff to it (not for the "sole purpose" of interoperability), you've already violated the DMCA in ways that have not received any such exemptions.

In other words, you had already exposed yourself to risks of criminal charges or lawsuits because of all the other modifications you've done. If, in your own judgement, the risk you assumed by modifying the phone in the first place was acceptable, then I see no reason why you should hesitate before doing this act, which doesn't carry any additional legal risk in itself.

On the other hand, most of the simple customizations you can achieve using jailbreaks can be easily undone without leaving any trace that you'd done anything in the first place - it's very difficult to brick an iPhone just by jailbreaking it. Depending on things that might go wrong during the act of SIM-unlocking the iPhone, you might accidentally brick it, and in that case, you'll have no guaranteed recourse to have the thing brought back to a functional state.
 
goosnarrggh said:
At least until October 27, 2009 (which is when the exemption next comes up for review), the act of circumventing technical barriers as defined under the DMCA for the sole purpose of achieving network interoperability (AKA SIM unlock) is not prohibited.
.
Click to expand...

what you are saying that in the US it could be a criminal offence to unlock a phone that you have bought?

hmmm, the system of the way companys can ballet senators really needs changing, govt should be for the people not companies.
 
spook said:
what you are saying that in the US it could be a criminal offence to unlock a phone that you have bought?
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If it weren't for that exemption, if you were to go through anybody other than the the device manufacturer or an authorized agent to do it, then yes, it would be a criminal offence.

To the OP:
Of course you realize, even if you were to unlock your iPhone and start using your T-Mobile SIM card, you'd still have an account with AT&T and you'd still have to make your monthly payments to that account (even if you never use it). You'd likely face an early termination fee in order to get out of that contract.
 
I think this is uneccessary paranoia.

If you never used your iPhone on the official network or activated it officially then that network will never know who you are anyway and if you do have a contract on that network but use a different SIM they are still getting your money so they won't care!

The network your using instead won't care as they are getting your money for their contract - and thats IF they even notice you have an iPhone and IF they do notice IF they care which I can't see them doing as they have your business.

The worst thing likely to happen if you unlock is that your phone breaks and/or apple won't fix it because you invalidated the warranty by hacking it.
 
goosnarrggh said:
To the OP:
Of course you realize, even if you were to unlock your iPhone and start using your T-Mobile SIM card, you'd still have an account with AT&T and you'd still have to make your monthly payments to that account (even if you never use it). You'd likely face an early termination fee in order to get out of that contract.
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And why would you need an ATT account???
 
VoodooDaddy said:
And why would you need an ATT account???
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Because the OP has described all the things he's done with his iPhone up to this point; I made the assumption that during this time he has been using its phone functionality. If that is the case, and given the fact that we know it hasn't yet been SIM unlocked, it follows that the iPhone has been activated with an AT&T service plan.

Unlocking the iPhone doesn't magically make that service plan disappear; it would have to be terminated, probably for a fee.
 
I got the impression from the OP that they had an ATT account, and paid the termination fee. Is that the case?

This would bring up an interesting point- that you have fulfilled your obligation to ATT. If you play by the rules, to the letter of the law (and keep in mind I am NOT a lawyer!), you have to activate with ATT, and have a two year contract. Now it seems to me if you terminate that 2 year contract according to the terms of that contract, you have fulfilled your complete obligation. If that is the case, ATT has NOTHING to say in the matter after the contract is legally terminated.

Now this begs the question whether, at this point, Apple is obligated to provide warrantee service. After all, you have activated with ATT...

Something to think about, at least!
 
to clarify I did all that stuff to my iPod touch and not an iPhone. I did borrow a kids just to try unlocking it and gave it back. At this point I have no affilitation with ATT in anyway. So now I just have to convince my parents that there is no legal obligation or lawsuit that can be filed by unlocking an iphone...
 
All the other discussion aside, yes, unlocking your phone and using it in an unlocked state in the US is legal, even when it involves controverting some protection system designed to prevent you from doing so.
 
Luis said:
None, unlocking in the US is perfectly legal as long as you don't profit from it.
Click to expand...

Too big a financial hassle to prosecute individual customers, much better to nail the big fish and scare the little guy at the same time.
 
RubberShoes said:
So now I just have to convince my parents that there is no legal obligation or lawsuit that can be filed by unlocking an iphone...
Click to expand...

Unlocking your phone to use with another carrier is currently protected by law. It is not illegal in any way do so to use an iPhone on another provider, but Apple has every right to refuse service to you if something goes wrong after you have unlocked it.
 
I don't know who you are goosnarrggh but IF you are an attorney then so state. Otherwise, I think you are scaring this kid for no good reason.

If he had had a legal agreement with ATT then yes, there is an obligation to that agreement (contract) until it is fulfilled one way or the other but otherwise there is no criminal offense committed here.

As stated, it is NOT illegal to put a T-Mobile sim in the iPhone. However, T-Mobile does state that (when buying JUST the sim at least) that it is to be used only in a T-Mobile authorized phone. There is NO criminal offense but it would seem that T-Mobile could certainly kick you off there network if they so desired.

The question then is: why the hell would they kick you off and lose a customer, especially one taken (or supposedly taken) from an arch rival, ATT?

In regards to Apple, there is NO criminal offense committed by jailbreaking, unlocking or any other thing done to an iPhone as long as you purchased it (was not stolen, etc) BUT that action if proved by Apple will certainly void your warranty.

I AM NOT AN ATTORNEY!
 
oldimac said:
I don't know who you are goosnarrggh but IF you are an attorney then so state. Otherwise, I think you are scaring this kid for no good reason.
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I am most definitely not an attorney. And it wasn't my intention to scare anyone.

If he had had a legal agreement with ATT then yes, there is an obligation to that agreement (contract) until it is fulfilled one way or the other but otherwise there is no criminal offense committed here.
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I didn't think I had said anything to the contrary -- on the specific topic of SIM unlocking.

As stated, it is NOT illegal to put a T-Mobile sim in the iPhone. However, T-Mobile does state that (when buying JUST the sim at least) that it is to be used only in a T-Mobile authorized phone. There is NO criminal offense but it would seem that T-Mobile could certainly kick you off there network if they so desired.
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I honestly hadn't considered that possibility at all.

The question then is: why the hell would they kick you off and lose a customer, especially one taken (or supposedly taken) from an arch rival, ATT?
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I agree, T-Mobile probably wouldn't feel inclined to take any action against you.

In regards to Apple, there is NO criminal offense committed by jailbreaking, unlocking or any other thing done to an iPhone as long as you purchased it (was not stolen, etc) BUT that action if proved by Apple will certainly void your warranty.
Click to expand...
Here I disagree. Jailbreaking your iPhone, in general, might be interpreted as circumventing a technological means of protecting access to a copyrighted work of software. Under the DMCA, this would constitute a criminal offence in the USA. The Library of Congress has published a specific list of conditions under which such circumvention is NOT considered a violation; SIM unlocking is one such case. IMO none of the other potential applications of jailbreaking fall under any of the current list of exemptions.

On the other hand, as I hoped I had implied, most of the other potential applications of jailbreaking are very unlikely to catch raise anybody's attention, or even to cause significant harm to the relevant stakeholders; the odds of getting in trouble for doing them are so small that the risk is negligible. Personally, even if I lived in he USA, I wouldn't hesitate in jailbreaking my iPod Touch if I felt so inclined, except I don't currently need any of the things I could get out of it.

In a nutshell, you should look at the criminal risk you're assuming by jailbreaking your iPhone for non-SIM-related activities, as equivalent to the risk you assume when you rip a DVD without any intention of sharing the output with others.

In addition, most other applications of the jailbreak can be extremely easily reversed to remove any evidence that they had been used in the first place, thus reducing the risk even further.

I AM NOT AN ATTORNEY!
Click to expand...
For posterity, neither am I
 
2. (c) Except as and only to the extent permitted by applicable law, or by licensing terms governing use of open-sourced components included with the iPhone Software or iPhone
Software Updates, you may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the iPhone
Software, iPhone Software Updates, or any part thereof. Any attempt to do so is a violation of the rights of Apple and its licensors of the iPhone Software and iPhone Software
Updates. If you breach this restriction, you may be subject to prosecution and damages.

Para 2 (c) of the iPhone agreement on Apples website (www.apple.com/legal/sla) is the only thing I could find that is, IMO, anywhere close to a problem for any iPhone user.

I think it would be quite a stretch on Apple's part to take an iPhone user to court and attempt prosecution if all the user did was unlock, jailbreak or attempt to load 3rd party software of any kind onto their iPhone. Para 2(c) above IMO is meant for someone on the order of the dev teams and Apple has had almost a full year to prosecute them and I have not heard of any attempt by Apple to do so.

It just could be that Apple REALLY DOESN'T CARE to do that. It would seem fool hardy on Apple's part to do so seeing how much free R&D they are getting from these folks trying to break into the iPhone and re-engineer, modify, etc., THEIR (Apple's) iPhone. You can be assured that WE are not the only ones logging on to macrumors to see what is going on with the iPhone and what is new out "there" being done by these brainiacs in the dev teams. I would be very surprised if one of the members of this forum is not Steve Jobs himself. If not, he surely has someone(s) doing it for him and the iPhone team.

I would like to think because of the dev teams (Ziphone, iLiberty, pwnage, etc) we are getting more from Apple than perhaps Apple had orginally saw fit to give us. As someone has already said on this forum, the iPhone is NOT just a phone and my belief is that Apple is seeing that, has responded to that with the SDK and the new version 2.0 (software). It would really be interesting to be a mouse in the corner of their board room during one of their board meetings of late to hear what the board's remarks are concerning what the iPhone has done sales wise and to user's psyche all over the world.

"Sh*t, do you all REALLY realize what we have here people?" might be one utterance heard from that little corner.:p

So, to the OP, IMO you have more to worry about by getting hit by lightning for the fourth or fifth time than worrying about Apple. And far as ATT is concerned, their agreement is with Apple not you (assuming IF you had an agreement with them you satisfied that agreement - in other words, you honored your agreement with ATT). By some figures there are close to 500,000 people in the same boat you would be and I am. I have an iPhone and have a T-Mobile sim in it. BTW, it works flawlessly except of course for the visual voicemail thing and I am living without that quite nicely.
 
oldimac said:
I think it would be quite a stretch on Apple's part to take an iPhone user to court and attempt prosecution if all the user did was unlock, jailbreak or attempt to load 3rd party software of any kind onto their iPhone. Para 2(c) above IMO is meant for someone on the order of the dev teams and Apple has had almost a full year to prosecute them and I have not heard of any attempt by Apple to do so.
Click to expand...
BTW, the EULA is not the only thing that is relevant to jailbreaking. The DMCA is what I'm referring to. Specifically, this portion of it:
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00001201----000-.html

Violating the EULA is a breach of contract - there's not much Apple can do beyond voiding your software warranty. Violating the DMCA is a criminal matter.

But on the whole, I agree with you. As I said several times now, it is extremely unlikely that Apple is actually interested in taking regular users to court for doing something harmless like modifying the wallpaper on their iPhone. But they could.

On the other hand, it is entirely possible that ATT and/or Apple might *want* to take you to court for SIM-unlocking your iPhone for use on another network. (Apple might want to do it because it means they might stop getting their revenue share; ATT might want to do it because they are looking for every possible way to prevent you from jumping ship to a competitor.) But all other things (such as amicably terminating your service agreement) set aside for the moment, they cannot do that, because SIM-unlocking for personal use is specifically exempted from the DMCA.

So, to the OP, IMO you have more to worry about by getting hit by lightning for the fourth or fifth time than worrying about Apple. And far as ATT is concerned, their agreement is with Apple not you (assuming IF you had an agreement with them you satisfied that agreement - in other words, you honored your agreement with ATT). By some figures there are close to 500,000 people in the same boat you would be and I am. I have an iPhone and have a T-Mobile sim in it. BTW, it works flawlessly except of course for the visual voicemail thing and I am living without that quite nicely.
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Agreed. I don't think I ever disagreed about the legal dangers of SIM unlocking.
 
Nipz said:
Anyone know the law in the UK for it?
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AIUI Ofcom "expects" networks to unlock customers phones at the end of a contract for a "reasonable" sum (typically less than £30 plus vat) but this has as yet to be made formal.
It may well that when the first UK iphones reach the end of their 18 month contract that O2 will be pressurised into providing unlock codes by Ofcom.
As regards unlocking by the end user AFAIK there are no legal obstacles to doing so.
 
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