Unlocking Your iPhone is Legal; Distributing the Hack, Maybe Not
By David Kravets EmailAugust 27, 2007 | 3:40:09 PMCategories: Copyrights and Patents 

Iphone

Here's the Catch 22 for iPhone owners looking to switch carriers: Unlocking your iPhone is perfectly legal under a 2006 exemption to the Digital Millennium Copyright Act. But it may be that nobody can give you the software to do it.

That's because a key component was left out when the librarian of Congress adopted the DMCA exemption in November.  The exemption allows consumer unlocking,  but doesn't affect the language in the DMCA that generally makes it illegal to provide circumventing technology, products, services or components.

That tension became more pertinent after AT&T, the bundled phone provider for the new iPhone, threatened legal action over the weekend against a Belfast-based company that claims it has developed software to circumvent the locks that prevent the iPhone from being used on networks other than AT&T's.

Phone owners with the technological wherewithal could do it themselves and be protected under the DMCA, and even be protected if they pay the company, Uniquephones, to unlock it for them. But Uniquephones and another company claiming to have developed iPhone unlocking software, iPhonesimfree.com, might be in breach of the DMCA if they distribute their code, or provide software unlocking services.

"The exemption says you can unlock it so that you can use it on another network," says Jennifer Granick, director of the Stanford Center for Internet and Society.

"But that exemption," Granick adds "does not apply to software or software tool distributors. The legal question remains is whether a software tools distributor used for unlocking are illegal under the DMCA."

She analogized last year's change in the DMCA to decriminalizing the possession of marijuana, yet "keeping it as a crime to sell it."

Uniquephones posted on its subsidiary's Web site, iphoneunlocking.com, that AT&T lawyers over the weekend "presented issues such as copyright infringement and illegal software dissemination."

"Uniquephones," the posting added, "is taking legal advice to ascertain whether AT&T was sending a warning shot or directly threatening legal action."

The Belfast firm and its subsidiary did not return e-mails and phone messages. An AT&T spokesman declined comment.

The AT&T service agreement, which users okay when signing up for the company's official iPhone telephone service, forbids customers to unlock phones, though you can purchase an iPhone without signing up for the service. Subscribers also agree to a two-year deal, with  $175 early-termination fee.

But could AT&T successfully sue somebody for unlocking the iPhone?