The iPhone Freedom Fighters

[David Farber <dfarber () cs cmu edu>]

Begin forwarded message:

From: dewayne () warpspeed com (Dewayne Hendricks)
Date: October 6, 2007 5:30:50 AM EDT
To: Dewayne-Net Technology List <xyzzy () warpspeed com>
Subject: [Dewayne-Net] The iPhone Freedom Fighters

The iPhone Freedom Fighters
Don't be afraid: Unlocking Apple's superphone is legal, ethical, and  
just plain fun.

By Tim Wu
Posted Thursday, Oct. 4, 2007, at 3:33 PM ET
<http://www.slate.com/id/2175304/>
Apple is not happy with its customers. Disobedient iPhone owners are  
unlocking their iPhones (modifying them to work with carriers other  
than AT&T) and installing "unauthorized" third-party apps. Last week  
the company struck back with a software update that acts much like a  
virus. It wrecks the operation of third-party applications and can  
turn unlocked iPhones into "bricks." Is Apple on the right side of  
this fight? Is it really wrong or illegal to unlock your iPhone?  
Well, I figured, there's only one way to find out.

Unlocking works, is doable, and improves the iPhone. But while  
unlocking can be fun, it's still a vaguely scary process, a little  
like installing your own car brakes. My project began at the giant  
Apple Store on New York's Fifth Avenue. I needed to buy the iPhone  
and figure out how to unlock it, and I had imagined that Apple's  
sales staff might be ambivalent or even helpful—"You really  
shouldn't, but …." I know that there's even discontent inside Apple  
headquarters, that some of the company's own employees have unlocked  
their phones and are complaining about Apple's Empire Strikes Back  
mentality.

My hopes were high as I approached a typically chipper Apple  
salesman, clad in black with spiked hair. "I'm purchasing an iPhone,"  
I began, "but I'm a T-Mobile customer, and so I was just wondering, I  
read that you can unlock the phone—"

"No," he cut me off.
"But I had read that it's possible to unlock the phone and use it—"
"You heard wrong," he said, his voice rising. "That's impossible."  
The tone was harsh; a few people looked over.

In the absence of friendly advice from Apple's employees, I handed  
over $432.42, took the phone home, and gave some thought to the legal  
questions. Part of the copyright code, Section 1201 of the famous  
Digital Millennium Copyright Act of 1998, makes it illegal to break  
digital locks to get at copyrighted works. But that doesn't make  
unlockers criminals. The reason is an explicit exemption for personal  
unlocking issued by the librarian of Congress in 2006. 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." If that's good enough for the librarian of  
Congress, that's good enough for me.

It's true that the library's rule doesn't say anything about people  
who help you unlock your phone or "traffic" in software to do so. But  
its logic tracks recent case law suggesting that unlocking for  
compatibility, as opposed to copyright infringement, is no crime. In  
one case, Lexmark, a printer company, tried to prevent the use of  
competitors' ink-jet cartridges in its printers. In another, the  
manufacturer of a garage-door opener sued to block a firm marketing a  
"universal" remote control. In both instances the federal courts  
said, roughly, that the lawsuits were about blocking competition, not  
piracy. Without going into a full legal analysis, that's probably  
what a court would say if Apple sued a distributor of unlocking  
software. In any event, none of this is an issue for personal unlocking.

Whether you've violated your terms of service, as Apple claims, is a  
closer question. When you begin to use an iPhone, you agree, via an  
on-screen contract, that "except as … permitted by applicable law you  
may not … reverse engineer, [or] disassemble … the iPhone Software."  
Copyright allows reverse engineering for compatibility as a "fair  
use," so Apple has tried to create an alternative ban using fine  
print. Dastardly, perhaps, but also probably irrelevant. When you  
unlock your phone, you don't "reverse engineer" anything in the  
normal sense of that phrase. The contract may cause problems for  
authors of programs for unlocking phones, but it just doesn't seem to  
address personal unlocking.

[snip]


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