Cell Phone Lockdown: No More Copyright Exemptions for Unlocking Cell Phones

Tuesday, January 29, 2013, by Virginia Wooten

As of this past Sunday, it became illegal to unlock your cell phone.  In essence, this means if you bought a cell phone with one company’s network, then you cannot unlock your phone so that it will work on another company’s network.  This new policy is not retroactive, meaning phones purchased before January 26, 2013 may still be unlocked for use with another provider.  In the past, individuals could purchase a phone from one service provider and then unlock the phone in order to pick up service from another provider.  Now, individuals will not be able to unlock their cell phone without the threat of fines and/or punishment.

This ban falls under the Digital Millenium Copyright Act (DMCA), which was enacted by Congress 15 years ago to combat piracy problems.  In the past, the Library of Congress has provided an exception for cell phones, but this decision marks a change in that policy.  This does not necessarily mean police will be arresting offenders who have unlocked their individual phones, but this does mean cell phone providers will warn customers about unlocking their phones.  For some companies that specialize in reselling cell phones, this could potentially inhibit their business.  Companies and individuals will risk being sued by a plaintiff for $2,500, or being prosecuted for up to $500,000 and 5 years imprisonment if caught with an unlocked phone.

Companies and individuals will risk being sued by a plaintiff for $2,500, or being prosecuted for up to $500,000 and 5 years imprisonment, if caught with an unlocked phone.

Many skeptics, such as some attorneys at Public Knowledge, find it hard to believe that the DMCA copyright laws are being used to “prevent people from switching between different phone providers easily.”  One of the Public Knowledge attorneys has compared this lockdown to someone taking your stuff, locking it in a closet, and then charging you for access to it.  The portion of the DMCA that is being used to justify the phone lockdown is the same portion that prevents the illegal ripping of software on a DVDs or other media.  Because the phones contain software they will qualify, whereas, an audio CD that does not contain software will not.  Furthermore, this policy seems to support the creation of a cell phone junkyard considering these phones will not be re-used with a new provider.

On the other side, cell phone carriers and CTIA have fought to make this unlocking a copyright violation.  Cell phone carriers claim this lockdown will prevent customers from abusing the subsidies the carriers provide for new phone purchases.  After buying a new phone at a discount, the customer will be unable to leave the network and sell the new phone at a higher cost.  Additionally, carriers claim this will also make it harder for criminals to steal and resell cell phones since unlocking would be illegal.  Although the carriers argue this lockdown will prevent abuses and theft, many opponents contend this lockdown is yet another example of tech companies misapplying copyright law for a gain.