Is It Legal To Unlock The iPhone?

According to a Slate columnist, not only is it legal, but it’s ethical and fun. (Fun?) “I did just throw down more than $400 for this little toy,” he writes. “I’m no property-rights freak, but that iPhone is now my personal property, and that ought to stand for something.”

The two major issues in the unlocking restriction are:

  • The Digital Millennium Copyright Act of 1998, which “makes it illegal to break digital locks to get at copyrighted works.” But last year, the librarian of Congress issued an exemption for unlocking for personal use:

As the librarian wrote, the locks “are used by wireless carriers to limit the ability of subscribers to switch to other carriers, a business decision that has nothing whatsoever to do with the interests protected by copyright.”

  • Your terms of service, which Apple claims you violate if you unlock the phone. The columnist’s opinion here is a bit murkier—Apple has taken great pains to make their unlocking ban legally enforceable by lumping it under “reverse engineering,” but “copyright allows reverse engineering for compatibility as a ‘fair use,'” writes the author.

The conclusion is that Apple’s ban on unlocking is more about Apple (and AT&T?) unfairly controlling the market and preventing competition than it is about protecting copyrighted software and works—in which case, it’s not a defensible business practice. While it is possible that writing software that unlocks the phone could be illegal, there’s probably nothing illegal about you, as a consumer, unlocking the phone that you bought with your own money in order to use it on competing cellular networks.

As readers pointed out in this post, maybe it’s time we ban the practice of locking phones altogether, to prevent companies from engaging in anti-competitive behavior like this.

“The iPhone Freedom Fighters” [Slate]

RELATED
“Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies” [Library of Congress] (look at Section 5 on page 5)
(Photo: Getty)

Comments

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  1. howie_in_az says:

    There’s really nothing stopping Apple from lying (or distorting the truth, that doesn’t sound as accusatory) and saying that the unlocking somehow fundamentally alters their system software and makes the phone unstable and brickable via future software updates. Rumors are flying as to a real SDK being released along with OSX 10.5 aka Leopard, but this doesn’t address the unlocking issue — although it’d be nice to have a real SDK available.

    Personally, I wouldn’t mind an iPhone, but there’s no way I’m switching back to AT&T/Cingular/Whatever they’re calling themselves today for two years just to have one.

  2. tcm22 says:

    I don’t own an iPhone, but I do get a chuckle out of all the whinging and whining about them I see on this site.

    Copywrite aside, is there anything in the sales contract that mentions this issue, or is that not a relevant issue on this site?

  3. hypnotik_jello says:

    @howie_in_az: Actually isn’t it more than two years? Assuming that ATT has exclusivity for 5 years, after your contract is up in two years, you still won’t be able to get the phone unlocked or take the phone to another provider. So it’s really 2+ years, and who knows if after 2 years ATT/Apple will provide an unlock code for the phone.

  4. Anonymous says:

    apple can’t keep its name off of here. thats a sign that they need to change something.

  5. quail says:

    Hmm. If all phones were un-lockable and usable on any carrier, then wouldn’t our phone prices go up? The phone is subsidized by the contract agreement that you’ll use the company’s service.

    It makes me wonder though, if true economics were at play where you could buy any phone you wanted and use it with any carrier or any plan then wouldn’t market forces naturally lower the price of the phones and the plans? Isn’t that one of the merits of capitalism? Just asking…

  6. a few things to keep in mind:
    1) unlocking the iPhone by flashing the modem firmware (how it was done with iPhone SIM Free, anySIM, etc) does open up the device for potential damage, and fundamentally alters the software at such a low level, that yes, it can be bricked by updates, etc. No lying needed, howie_in_az.

    2) there’s no contract involved in just buying the phone. the contract starts when you sign up for service (incidentally, that’s when the warranty starts too). if you end up with pay-as-you-go, you’re not under contract (like me).

    3) the point about phone prices going up if all phones were unlocked is somewhat valid, but has a couple flaws. just becuase someone could take their phone to another carrier, doesn’t mean that they can’t be locked into a contract, which is how they make up the cost of the phone. also: the iPhone is not subsidized in the way most phones are. everyone pays full price.

    The other issue with mandating unlocked phones is limiting innovation. Not only for things like Apple and AT&T working together on Visual Voicemail, but things like Verizon and Sprint’s video services and things like that, none of which would be possible without a partnership between a specific carrier and handset manufacturer. If the handset makers had to shoot for general-purpose devices, and limit features to things that would work on any network, they’d be severely restricted.

    But it sure would be nice for all phones to be unlocked.

  7. Amy Alkon says:

    If all phones were un-lockable and usable on any carrier, then wouldn’t our phone prices go up?

    Phones are very cheap in Europe, the land of phone unlockage, and they have groovier phones than we do.

    I use my Cingular V3 Razor with my Orange/France SIM. I called them (now ATT) and said I have a phone in France, and wanted to use my ATT phone when I’m there. Probably only because I said I have a phone in France, they sent me the unlock code free. (The CSR I spoke to said they might or might not decide to give me one.) They sent it by e-mail in a few days. I inserted my European SIM card, pressed the numbers, and presto! 10 euros for a week of cell phone calls instead of using ATT internationally (ouch!)

  8. @ars_workerbee: I agree with your three points but disagree about the “limiting innovation” argument. In my experience, unlocked phones tend to have more features and capabilities than locked phones. For example, the Nokia N95 offers VOIP, navigation w/gps, video downloads and podcasts, and so on—basically, it’s an example of a handset moving to an “anything-goes” approach similar to computers. (It’s also way too expensive for the general market, but a probably a good sign of features to come in the next couple of years.)

    I think what you’d really lose is, as you mentioned, carrier-specific features like Visual Voicemail. But these could be used as differentiators between carriers to attract customers, which means the carriers would want to continue to innovate. Want Visual Voicemail? Sign up with AT&T. Want V Cast? Sign up with Verizon.

  9. teqsundotcom says:

    @Chris Walters:
    except that the n95 costs $800

  10. hypnotik_jello says:

    @teqsundotcom: It costs $650

  11. babaki says:

    if anything. the locking of the device stifles innovation. think of all the 3rd party apps developed that now cant be used on the new firmware.

    how many people have a locked phone from a provider and features built into that phone are no longer usable because the provider doesn’t want you to use them. its nonsense.

  12. It’s bloody $400. If you have that kind of money, couldn’t you theoretically afford a phone with a plan that is NOT meant to lock you into technological slavery for 2 years?

  13. Usermanual says:

    I was really excited to unlock my iPhone and I am even more happy that it still works. There was no contract that I signed that said I wouldn’t unlock it, I just bought it and went home and broke it. I know what I did to the warranty, but the joy of using the phone eclipsed the fear of having a shiny paperweight.

    With my old phone, Sony Ericsson K800i, I purchased it from a chap in the UK and got a great deal on it. I called T-mobile UK and had them send me the unlock code for the phone. It cost me $15.00us and I had it in about a week. They love unlocking phones in Europe because the service makes nearly zilch off the handsets, the money is in the service.

  14. mammalpants says:

    the whole thing, no matter what its outcome, tarnishes (slightly) the shiny apple brand. steve jobs SHOULD be concerned about this, and given his pursuit of DRM-free music, should unlock the iphone to those who want the freedom to use a quality apple product with a less-than-completely-evil carrier. the whole thing has prevented me from buying one.

    i would rather own something knowing that i have the freedom to do what i please with it.

  15. I have to wonder how much more the apple fanboys are going to let themselves be slapped around by Jobs and Co. before they realize how unbelievably fascist Apple is and always was (at least ever since Jobs returned).

    The repricing. The third party apps lockout. The bricking. The re-selling songs you already own to you for a ringtone.

    This is what Apple does. Lock you in to them, and only them. In some ways they’re worse the Microsoft. Proprietary designs, proprietary software, hell even the headphone jack is proprietary on that stupid thing.

  16. WraithSama says:

    Apple can always include an update that could disable an unlocked iPhone, but they have no legal means to prevent anyone from unlocking it in the first place.

    Think of it like buying a car. Once you buy a new car, there’s no obligation to keep all the factory parts. So you throw on an enhanced air intake, supercharge the engine, and screw with the ECU. No one can stop you. The corollary to this is that if something does fail and it’s determined that your modifications caused the failure, you’ve just lost warranty coverage on that repair. I imagine it’s a similar situation with the iPhone.

  17. WraithSama says:

    Submitted one line too early. Anyhow, like any consumer product, once you buy it, it’s yours. You can do whatever you want to it.

  18. Steel_Pelican says:

    @Electoral College Dropout: Fascist? Apple considers the needs of the individual beneath the needs of the state? Hmm. Maybe you were looking for another term, like “capitalist,” because it seems to me like they’re trying to make money in a free, competitive market.

    “The repricing.”- Apple apologized and issued gift cards for 50% of the price cut, which many iPhone purchasers felt was fair. Manufacturers (especially in CE) drop prices all the time. Apple’s was a little early for most people, but Jobs did a good job of making amends.

    “The third party apps lockout.”- No one bitches about the lockout of third party apps on their Xbox 360. Or the thousands of other cell handsets with closed OS’s.

    “The bricking”- Modifying your product outside of the manufacturer’s recommendations might result in inoperability? FACISM! If you open up your vacuum cleaner and start mucking around, only to find it doesn’t work when you put it back together, can you go crying to Hoover?

    “The re-selling songs you already own”- Like every other cell provider does? And how Apple does it cheaper than most other providers? And Heaven forbid I go without the new Nickelback song as my ringtone.

    You don’t like Apple, that’s fine, they’re not perfect. But the complaints you list aren’t exclusive to the iPhone, they’re pretty representative of the cell market as a whole.

  19. FLConsumer says:

    Illegal to unlock the phone? No
    Violation of contract (if you’re in one)? yes
    Is violating the contract illegal? No

  20. hypnotik_jello says:

    @Steel_Pelican: What are you talking about “cell market as a whole”

    I have a phone, it’s unlocked, it allows me to use any aac or mp3 file as ring tone. It runs 3rd party applications – freeware & commercial. Maybe you meant to say the cell market as it applies to phones such as the RAZR sold for mass market through carriers such as Verizon. Heck, even the ATT Tilt allows 3rd party apps and using mp3s as ring-tones.

  21. Steel_Pelican says:

    @hypnotik_jello: Exactly, the “mass consumption” phones, which are the majority of the phones sold today. They’re carrier locked, ringtone-crippled, and without 3rd party apps.

  22. Dear god I’ve hooked myself a fanboy argument. I should have known better than to say anything. Okay I’m going to attempt to respond point by point.

    First, fascist is the word I want. I wasn’t describing an economic system I was describing a mentality of “dictatorial or has extreme right-wing views.” There is nothing wrong with making money. I do it myself, but I’m not dictatorial about my products. I design software and I don’t say to my customers, “I’m going to give you this software, but I won’t tell you how it works and I’m going to lock you out of the system so you can’t ever have anyone work on it but me.” Some programmers do that, and it is sleezy.

    As for the repricing, if it satisfied you then fine. Imagine however that you bought a 4GB phone, not only did the price drop, but for what you spent on the 4GB you could have bought the 8GB. That kind of sudden pricing change is of course up to Apple to do if they want, but most consumers recognize it as gouging first adopters. As for the compensation, that’s irrelevant. If you slap me, but “make it better” by buying me an ice cream cone it doesn’t make me feel any better about the essential fact that you slapped me.

    As for third party apps, the XBox360 is a console. The iPhone is a “smartphone”. What other smartphone keeps you from installing apps? Apple has had pathological need to decide what is and is not fit for their platform since the days when all Apple software was developed in house.

    The bricking is about the modem controls. Apple restricted dialing on any non-ATT SIM. The “breakage” of removing this is ludicrous. It was the Apple update that killed the phone. It is as if my car were called in for a recall and they decided to flatten my tires because I bought them from someone other than the dealer. It’s petty and vindictive.

    Reselling songs, while not solely limited to Apple, doesn’t mitigate Apple’s behavior. Just because other people mug me steal doesn’t make it okay for me to.

    I never said I didn’t like Apple. Their products are by far more innovative than many of their competitors. For instance I’d give 3 Zunes for an iPod shuffle any day. I just find their business practices to be abhorrent.

    These issues aren’t limited to their phones. Their hardware, their music player, their DRM, their web hosting. All of it is built on the concept that the user will be told how they will use their product.

  23. Steel_Pelican says:

    @Electoral College Dropout: The iPhone isn’t just a software product, though, it’s also a hardware product. I think a manufacturer has a certain right to indicate the intended use of a product, and if you want to use it for something else, YMMV. Apple’s software offerings are much more open than the iPhone, as are their hardware offerings. When the two are combined, however, things get more complicated.

    Also, Apple, like most companies, relies greatly on it’s reputation. Apple’s reputation (among other things) is for stability and usability, so I would think they’d want to protect that reputation on their flagship product by controlling it very tightly.

    3rd party apps – Just about any smartphone you buy that’s carrier-locked, I’d wager. Again, this is a case of the iPhone catching flak for practices that are systemic throughout the market.

    To the repricing – I did buy a 4GB iPhone, and I was disappointed with the price drop. But I understood that it’s how the early adoption game works. I felt that Jobs’s letter was a sincere apology, and the gift card program a great gesture to make amends.

    Bricking – To use your car example. Let’s say you modify your car, and it’s recalled. As a result of your mods interfering with the repairs, your brakes no longer work. Is that petty and vindictive? The fact is, Apple (or any manufacturer) has no obligation to support hackers and modders.

    The benefits of Apple design (stability, usability), come with a cost. That cost is the user’s minimized access to “what’s under the hood.” Some of us are willing to accept that trade-off. If we compare PC gaming to console gaming, we see a similar tradeoff. PC gaming gives you great customization, but often at the cost of stability and support. Console gaming gives you a “just press play” ease of use, but you lose out on the ability to fine-tune your machine.

    My point is, for Apple to market the products that it does, and to maintain it’s differentiation, it’s platforms have to be more closed, or else it becomes MS with a different coat of paint.

    I’m not a fanboy, I just feel that the iPhone gets singled out for a lot of criticism that is equally deserved by any other carrier-locked phone on the market.

  24. ornj says:

    @STEEL_PELICAN
    “Just about any smart phone you buy that’s carrier-locked…”
    My Moto-Q is free as a bird. I can install what I want, upload and download what I want, and should it tickle me, I can plug it into my computer, select all delete.

    Apple should be very careful about how they handle 3rd party applications. I know for myself and almost every one i know who bought one it’s the main attention getter. I get the inkling that their policy towards 3rd party applications is being heavily influenced by AT&T but of course that’s just my feeling, not necessarily fact.

  25. IRSistherootofallevil says:

    I don’t see anybody chewing out Microsoft for putting all sorts of DRM and other crap on Vista. But I guess they’re MS, that’s expected.

  26. Buran says:

    @Electoral College Dropout: Fascist?! For dropping the price on something that has been out for a while!? That’s very capitalist. If that’s fascist, then why isn’t this the Soviet States of America? Give me a break.

  27. Buran says:

    @IRSistherootofallevil: Oh, there’s plenty of that. But this thread is about Apple, not Microsoft.

  28. RvLeshrac says:

    @mammalpants:
    @IRSistherootofallevil:

    Steve Jobs is against DRM? My ass. If Apple was truly working against DRM, everything on ITMS would be DRM-free. At the very LEAST, we’d have cross-player compatibility. Do I need to point out the hypocrisy of the “Steve Jobs is against DRM” statement vs. Apple’s conduct in France when the regulators told them to remove the DRM or allow others to produce competing devices?

    You’re locked into using an iPod if you want to buy anything from ITMS.

    Last I checked, Microsoft wasn’t locking you into the Zune. Sure, there’s DRM on the device – but the net result is that the Zune is crippled, not other devices. If the manufacturer wants to cripple their OWN product, that’s one thing – but if another company cripples it for them, that’s an entirely different matter.

    Not that I’m saying Microsoft’s overall position is good – Vista has some terrible copy-protection built in, which prevents you from duplicating or reinstalling the OS in a manner that you choose – but Microsoft has always been fairly open in their real DRM. Which is shocking until you realise (like the console manufacturers) that there is far more money in hardware and software licensing than there is in the actual hardware and content.

  29. RvLeshrac says:

    @Steel_Pelican:

    Actually, car manufacturers *ARE* required by law to support your mods, so long as they aren’t illegal (a JATO strapped to the trunk, etc). They can’t void your warranty because you replaced the spark plugs or exhaust, or example, though they can (obviously) refuse to warrant those specific parts or their directly related subsystems (they can’t be responsible if your aftermarket exhaust explodes, for example.)

  30. mikecolione says:

    What everyone fails to realize is this:

    Apple never said you can’t unlock the phone. What they said is; “if you update using the newest firmware, your phone may be bricked”.

    That is not the same as saying you can’t unlock it, it means if you choose to update to the newest firmware, you may have a bricked phone. This is totally acceptable legally because you have to agree to the terms of service accompanying the firmware update.

    If you have an unlocked phone, don’t do the update, it’s that simple.

    Same as with Blackberry. No one is sueing them even though their phones are locked to the carrier. If you try to switch the phone to a different carrier, you will 99% of the time have a problem using the internet functions on the new carrier.

    I’m really sick of people crying like little babies because they can’t use the phone on another carrier. If you don’t like AT&T then don’t get the damn iPhone, there are any number of phones out there that do the same thing and more…

    As far as pricing, every piece of electronics that comes out drops in price after the initial glaze wears off. This is how the market place works.

  31. As readers pointed out in this post, maybe it’s time we ban the practice of locking phones altogether, to prevent companies from engaging in anti-competitive behavior like this.

    Problem solved.

  32. cde says:

    @RvLeshrac: Right, about Apple in France, ever figure that the record companies wouldn’t allow non-drm songs being sold back then? Apple removes the DRM, record companies back out. No DRM but no Music either.

    But thats not the issue now. You are NOT locked into an ipod if you use the ITMS. Not before, not now. Sure, before you were locked into iTunes unless you used hymn, but now, drm free mp3 on itms means you can use it on anything without resorting to Hymn.

  33. STrRedWolf says:

    This is an area we need to follow France with this time. They have two laws on the books there that say:

    * Carriers and phone makers must allow phones to be unlocked, period.

    * Vendors must sell both locked and unlocked phones.

    The cellular network providers (including Orange and O2) have fought the law, but the law won.

  34. STrRedWolf says:

    Sorry to chain posts here, but due to the reasons of my post above, Apple’s iPhone is delayed in France and I believe Belgium.

  35. RvLeshrac says:

    @cde:

    Doesn’t mater. At all.

    If Jobs was truly against DRM, he would tell the legal team to bow to the EU regulators. Then the ball is in the recording industry’s court.

    As for the “DRM-free” MP3s on ITMS… they’re lower-quality than the DRM’d-up versions, and are filled with your ITMS account info. What are you going to do when you drop your MP3 player on the subway and the tracks find their way onto a given P2P service? The “Well, I didn’t share them” defense won’t fly when they all contain your name, address, ITMS account name, and email.

  36. RvLeshrac says:

    @RvLeshrac:
    *matter

    Doh.