
In 2005 Motorola Tried to Sue Me For Unlocking Phones - sinak
http://sina.is/unlocking-phones/
======
belorn
Today, now more than before, it is illegal to modify a device you have bought
with your own money.

Worse, even if you find a fault in your device that threatens your personal
safety, your are still not allowed to fix that fault. On top of that and thus
_even worse_ , if that fault actually causes a problem, the entity that is
active preventing your from fixing the problem is still not liable for any
damages caused by that fault. All risk is on the consumer who owns the device,
while all rights belonging to the company. The owner of the device is left
with no rights, and has no effective power over the device.

Its absurd.

~~~
stingraycharles
Playing the devil's advocate here, but who says you actually bought the
device, and not only the right to use it under certain circumstances?

~~~
chime
I wonder if paying Sales Tax makes it a sale of device instead of right-to-use
license.

~~~
nonamegiven
Hmm ... when you explicitly and specifically pay for a license, is there sales
tax? Like, seats for enterprise software?

------
sdoering
I really find the idea of our hardware not belonging to us to the fullest
extent somewhat revolting. And not only hardware, but a lot of other things as
well (looking at Monsanto for example).

Sorry, to say that, but imagine your car-maker of choice. Imagine during the
last 50 or more years nobody would have been allowed to tune, to bodykit, to
play with the car. What a interesting culture we would have lost.

Or imagine two guys named Steve would not have been allowed to tinker with
hardware in 1976 (because the makers of the parts would not allow "unlocking"
the hardware).

Where will we be, if our younglings will only see something with a display as
a device for consuming, not for creating? What would a world look like, if it
is ruled by "panem et circenses" (bread and circuses/games) like in ancient
rome?

Is this really a world, to be a maker? Do we really wanna give our basic
rights of possession and control (be it hardware or food) to some companies?

~~~
gilgoomesh
> Or imagine two guys named Steve would not have been allowed to tinker with
> hardware in 1976 (because the makers of the parts would not allow
> "unlocking" the hardware).

This example kinda goes against your argument since the Steves faced exactly
the situation you're claiming might have stopped them.

The Steves who later founded Apple got their start with phone phreaking which
was illegal at the time, despite being something you do with your own phone.
But making it illegal didn't stop them -- it was more of a motivating factor.

[http://www.uproxx.com/gammasquad/2010/09/jobs-and-woz-
were-p...](http://www.uproxx.com/gammasquad/2010/09/jobs-and-woz-were-
phreaks/)

<http://en.wikipedia.org/wiki/Blue_box>

~~~
DanBC
> _phone phreaking which was illegal at the time, despite being something you
> do with your own phone_

No. The important part of phone phreaking is the public telephone network.
(Although modifying a phone was probably not legal at that time).

------
RyanMcGreal
This isn't the first time we've had this debate. In the 20th century,
automakers tried to make it illegal for people to service their own cars (or
hire third party mechanics to do it). The "right to repair" movement had to
fight to have that right of ownership enshrined in law.

This time around, citizens/consumers are losing the computing device edition
of the right to repair campaign.

~~~
sdoering
Do you (or anyone else) have any links for me, as this might just be one more
egg in my argumentative basket?

Thanks a lot in advance...

~~~
dhimes
Going through something like it in MA now. Car dealers are locking out third
party repairs by obfuscating the diagnostics. People are attempting to make
them share.

I hope you guys can see this- not sure how the Boston Globe's paywall works

[http://www.bostonglobe.com/metro/2012/11/07/voters-
leaning-t...](http://www.bostonglobe.com/metro/2012/11/07/voters-leaning-
toward-passing-right-repair-ballot-question/MnQvUcjV5zgJ71AxGdZnZK/story.html)

~~~
youngerdryas
>Massachusetts voters ­resoundingly passed the “Right to Repair” ballot
question, meaning the new law requiring automakers to provide independent
repair shops as well as dealers with easy access to the computer codes needed
to diagnose complex car problems will need to be reconciled with compromise
legislation passed after the ballots were approved.

Legislators could also decide to reapprove the compromise. The regulations are
the first of their kind in the nation.

Under the ballot legislation, automakers are required to make diagnostic and
repair infor­mation available to independent shops and dealers through a
universal system by 2015. The compromise legislation, passed in July, gives
automakers until 2018 to comply with new regulations.

Following that compromise, voters were initially urged to skip Question 1. But
in recent weeks, AAA of Southern New England and other supporters began
encouraging residents to cast a yes vote to ensure that Massachusetts
consumers would have more choice when choosing who repairs their cars.

“We considered telling people to skip the question,” said Arthur Kinsman, a
spokesman for the Right to Repair Committee, which backed the original effort
to get the issue on Tuesday’s ballot. “The resounding response we got was that
people still wanted to vote for this.”

‘’

Still, he recognized that passage of the ballot question creates issues,
including what types of vehicles will be regulated by the law, what kind of
penalties manufacturers will face if they do not comply, and what the deadline
will be.

“We promised the Legislature we would work with them on any reconciliation
that may take place,” Kinsman said. Still he said, the margin of victory
proves similar bills should be passed in other states.

Opponents of the “Right to Repair” ballot question decried passage of the
issue, saying it “creates confusion and uncertainty for automakers,
­repairers, and consumers.”

They say that complying with the new regulation by 2015 would be too onerous
for most manufacturers and would probably result in higher sticker prices for
cars. On Tuesday night, Daniel Gage, a spokesman for the Alliance of
Automobile Manufacturers, one of the industry groups opposing the original
Right to Repair bill, said they would ask legislators to reapprove the
compromise.

“Automakers continue to support the negotiated Right to Repair compromise —
previously agreed to by all parties — that became law prior to the election,”
Gage said in a statement.

------
jackalope
_...a crime that’s punishable by up to 5 years in prison and half a million
dollars in fines per incident._

It's time for some common sense sentencing caps if this is a possibility for
merely tampering with an inanimate object. If it can't be proven that you
actually harmed someone (and physical harm should carry _far_ more weight than
financial harm), the threat of any jail time at all should be easy to laugh
off. Laws with such harsh potential sentences indicate an abuse of power by a
privileged class.

------
sinak
Hey everyone, author here.

The petition to the White House still needs 40k more signatures to get a
response. If you haven't done so, please sign it:

[https://petitions.whitehouse.gov/petition/make-unlocking-
cel...](https://petitions.whitehouse.gov/petition/make-unlocking-cell-phones-
legal/1g9KhZG7)

~~~
kunai
I signed it, and called my parents and asked them to, but unfortunately, they
said, "It doesn't affect me, why should I sign it? Besides, if it's illegal,
it should stay illegal."

This kind of apathy is exactly what got us here in the first place. Ridiculous
how everyone will simply bend over backwards to get their rights taken away
from them.

No wonder real reformers like Gary Johnson never get a chance.

~~~
dublinben
>if it's illegal, it should stay illegal

This is the worst kind of authoritarian-enabling apathy around. It's not even
a justification for the law, just an excuse to never question it.

------
spwestwood
If you are reading this and haven't signed the petition yet please do so:

[https://petitions.whitehouse.gov/petition/make-unlocking-
cel...](https://petitions.whitehouse.gov/petition/make-unlocking-cell-phones-
legal/1g9KhZG7)

At the current rate of signatures it's going to _just_ fail to get to the
100k. It's a really great petition because it's both popular with the public,
as well as being an easy thing for the administration to change. Has there
ever been a Whitehouse petition that was successful? Perhaps this could be the
first.

~~~
flyinRyan
So one the one side we have a bunch of people willing to... click a button on
a web site. On the other we have companies willing to spend millions of
dollars. Hard to decide who we should be listening to.

~~~
Retric
Assuming 100,000 signatures represents even 5,000 votes it's is not an obvious
choice.

~~~
flyinRyan
I think we have enough evidence at this point to conclude that simply spending
lots of money will produce an outcome. There's no need to really worry about
the small minority who will actually be clued in and care about the issue
because they won't be enough to overcome everyone else who will simply do what
the ads tell them to.

~~~
Retric
Money helps, but you hit diminishing returns so votes become really expensive
as in 100-1000+$ per vote.

------
zee007
I have DMCA, record companies and movie studios that make me feel like a
criminal despite having paid full price. I hate them with a passion. HATE
THEM!

However, in this case I can totally see Motorola's argument. Not sure in your
case, but most people don't pay full price for their phones, they buy it
subsidized. The reason you're locked on AT&T (in your example) is that you buy
a highly subsidized device in exchange for staying with them for x years.
That's precisely why I buy unlocked phones and never sign contracts. But if
you signed a contract then you should honour that contract.

~~~
homosaur
Irrelevant, the phone should not be in question. If you break the contract,
you will pay the contract breakage fee, the phone is not even considered. It
doesn't have anything to do with the contract, it's just yet another way for
the company to lock down the slaves.

------
trotsky
For what it's worth, the DMCA was definitely intended to include circumvention
protections well beyond what was needed for copyright protection. It was
commonly understood to extend into device locking, commsec and nontraditional
drm - this is why you have exceptions to the anti-circumvention elements for
security researchers for example. This doesn't make it right at all - but in
no way was motorola "misusing" the DMCA as far as the drafters (lobbyists)
were concerned.

~~~
kunai
Motorola may not have been misusing the DMCA, but the DMCA is a misuse of the
law and a bloody embarrassment to the tech enthusiasts, programmers, and power
users of the United States.

Remember that. The DMCA should be rewritten from the ground up, with new,
innovative laws that effectively combat piracy without restricting freedom.
And as far as I know, the only group qualified to do that, and who have the
proper knowledge to do that, are _us_. _All of us, in this forum._ We _know_
technology. And we _know_ how to revise it.

Not some old Librarian of Congress. You know, I go onto any specialized forum
for hobbying: car forums, technology forums, sports forums, to name a few, and
I invariably, ALWAYS see at least one post about how the government is trying
to prevent them from doing what they enjoy.

It's not right. And we shouldn't let law get abused by other laws, that get
abused by other people.

~~~
dublinben
It's not the federal government's job to "effectively combat piracy." Private
companies should not be able to outsource the protection of their archaic
business model to the government.

------
joelhaus
No doubt that carriers are behind Motorola's actions, even going back to 2005.
It is easy to imagine AT&T requiring that manufacturers prosecute end-users
who unlock phones to the full extent of the law, as a condition for certifying
a device on their network. This new dictum from the Library of Congress[1]
actually extends the law and most likely the obligations of device
manufacturers.

During the days of the Bell monopoly, consumers faced similar restrictions on
what they could connect to the network... I'm not that old, but I remember
being stunned as a kid when I saw what could be accomplished simply by
connecting my computer to the phone network.

At a time when the nation needs new engines of economic growth, it's a real
shame to see communications policy that continues to protect the entrenched
incumbents while shying away from promoting innovation.

P.S. There is also a White House petition to appoint Susan Crawford as chair
of the FCC and she seems to be very in touch with these issues.

[1] [http://www.businessweek.com/news/2013-01-25/unlocking-
phone-...](http://www.businessweek.com/news/2013-01-25/unlocking-phone-to-
change-wireless-carrier-curbed-by-u-dot-s-dot)

------
saurik
I would personally love to hear more about what the conclusion of this
situation with Motorola was, and whether it ended up going any further. It
honestly sounds from this description like Motorola decided to "reach" with
the law, and got stubbed quickly enough that it decided this kind of argument
wouldn't work.

I say that, because it simply isn't clear that the DMCA actually applies to
the case of unlocking cell phones. It wasn't clear six years ago, it wasn't
clear three years ago, and it is even less clear now after the exemption for
unlocking cell phones has expired. Yet, we have all of this rhetoric about
"legal vs. illegal".

To be clear, I find the DMCA really bothersome. I also run into it constantly
with the things that I do (which all involve jailbroken devices, specifically
such as the iPhone). However, I think we all need to be really careful as we
approach these matters to not be part of the misinformation about these laws.

In this case, what has happened is that after six years of having a specific
exemption for unlocking cell phones from the DMCA, the Copyright Office at the
Library of Congress did not see it fit to renew the exemption under the rules
that were established for them by Congress regarding what should be exempted.

Honestly, given those rules (which I, of course, disagree with! ;P), the
Library of Congress seems to have made a pretty good argument, and seems to
have given the situation a good deal of thought. Yet, there have now been
articles blaming, in specific, the guy in charge of the Library of Congress
for this, like it is somehow personally his fault. Shameful.

Now there's this petition. This petition is asking the White House to force
the Library of Congress to do something that they do not have the right to do
under the rules given them by Congress. Yes: they can reconsider the matter in
another three years, but they cannot just "rescind this decision".

Given that this simply isn't going to happen (and it would be a horrible
violation of our government's power separation if it somehow did), it then
asks for the White House to champion a bill to make unlocking "legal". This is
simply not going to help us against the DMCA, and is thereby a waste of time.

Why? Because the most efficient and "battle-tested" way of accomplishing that
goal is to enact something similar to the Cell Phone Freedom Act that they
have in Canada, and the way that is worded is "carriers must unlock devices if
asked", not "users are allowed to circumvent digital locks to unlock their own
handsets". This will be seen as "the same effect, but less conflict with our
beloved DMCA".

Thereby, if we actually go down this route, and attempt to get this law, a lot
of effort is going to be expended, a lot of lawmakers are going to feel like
they satisfied the goals of the people responding to this petition, a lot of
news will be printed about how they did just that, and in the end only one use
case will benefit. (Ironically, not even the company of the guy who made this
petition ;P.)

This petition also is based on some wording that has been going around which
confuses people about what actually happened: the DMCA exemption actually
still applies if you purchased your device before January 26th (or even if you
purchase a used device after January 26th that was originally purchased before
January 26th); it isn't the act of unlocking that is no longer exempt, it is
devices purchased (new) after that date that are not exempt.

I want to return, however, for a second to this "does the DMCA even apply in
this case" question, as I believe it to be of key important here. Four years
ago, when the EFF first attempted to get the exemption on "jailbreaking" (not
unlocking) cell phones, the opposition included Apple. Last year, for video
game consoles, the opposition included Sony.

Seven years ago, when the Wireless Alliance managed to win their requested
exemption on unlocking cell phones, there were no companies that had a stake
in the matter who bothered to take part. In fact, this was specifically
highlighted by the Library of Congress in their finalized recommendation.
Motorola? They really just didn't seem to care.

> Objections to the proposed exemption were expressed by owners of copyrighted
> works other than the firmware to which the proponents desired access: The
> Joint Reply Commenters expressed concern about the potential effect of an
> exemption on separate copyrighted works that are downloaded and stored on
> handsets, such as ringtones, games, applications, photos and videos.

Yes: the people who actually had a problem with this were concerned with
software piracy, not cell phone unlocking at all. These same "Joint Reply
Commenters" simply tend to argue against _all_ DMCA exemptions, and thereby
their arguments seem to always be taken with the proverbial "grain of salt" as
to whether their issues even apply in these matters.

These Join Reply Commenters did not lead with that argument, though; no: their
"killer argument" was that the DMCA didn't apply to these matters, and that
while they seemed to even agree that the business models of carriers was
troublesome, that the correct forum to address these issues was not the DMCA
exemption process, but maybe the FCC.

> At the outset, submitters have not demonstrated a causal link between §
> 1201(a)(1)(A) and the substantial adverse impact on access to copyrighted
> material which they allege. The threshold question, of course, is whether it
> would violate that provision for mobile phone users to do what the
> submitters advocate, and even whether anyone other than themselves has
> claimed that it is or might be a violation of § 1201(a)(1)(A). A close
> review of the submission itself does not dispel doubts on this issue, but
> rather reinforces them.

That's right: the only group in opposition of an exemption from the DMCA for
the unlocking of cell phones didn't believe that if you attempted to use the
DMCA in this matter, you would actually have an argument or be able to make a
case. And, in fact, according to the OP, Motorola tried this argument in 2005,
_and gave up_ when presented with minimal resistance.

Meanwhile, the argument is even less clear today. A couple years ago, there
was a case MGE vs. GE (yes, with General Electric as the defendant) wherein GE
had come to own a company that had been doing unauthorized field service on a
number of backup power units constructed by MGE, and in so doing was bypassing
the devices' software protections.

This seems to be one of the few really big cases to go remotely high up that
actually tests just how much power the DMCA has to keep you from doing things
that are quite largely unrelated to copyright, such as unlocking a cell phone,
and no less with GE as the defendant on "our side" (yay!). The Harvard Journal
of Law & Technology published a digest.

> The Fifth Circuit held that the DMCA’s provisions apply to protections
> designed to prevent infringement of copyrighted material and not protection
> from mere access to that material.

> In so holding, the court limits the DMCA to those cases where a defendant
> circumvents a protection that is designed to prevent infringement of
> copyrighted material.

(Note: I have yet to go through all of the actual court opinion from that
case; I have it on my todo list, but as I tend to have my hands full with
other things, I haven't had the time to do so yet. That is why I am citing the
Journal summary, rather than the actual opinion.)

Yes: this means that in this court's opinion, the DMCA couldn't actually apply
in this situation anyway, not that we really expected it to at this point ;P.
(Sadly, it is my understanding that the Fifth Circuit doesn't set a very far-
reaching precedent; it is still valuable to at least part of our country,
though. I would love to hear more about that from those "in the know".)

What I would really love to see, then, is a petition brought forward not by a
company (or generally any non-law-trained citizen), and worded in a way that
causes more confusion, but one brought forward by a law student, lawyer, etc..
I would love to see this petition ask for something the White House could
theoretically do, and which would actually have an effect on the DMCA ;P.

However, as it stands, while you are more than welcome to sign this petition,
I must maintain that it 1) overstates the facts of the situation, 2)
incorrectly states the ramifications of the situation, 3) directly asks the
White House to do something it doesn't have the power to do, and 4) falls back
to an ask that wouldn't help us if we got it :(.

(Also, and really this should just be assumed: I do know that these petitions
are mostly for show, and that it is unlikely for these petitions to actually
do anything even if they were well done. However, I feel it is appropriate to
analyze the potential results of these kinds of things given the assumption
"what if they mattered".)

~~~
ScottBurson
I'm not quite so cynical as to think these petitions couldn't possibly matter
-- though I admit, evidence that they do is rather hard to come by -- but I
think that if the Administration responds to one at all, they'll ask
themselves "what is this petition actually trying to accomplish, and what can
we do to further its goal?" I.e. even if they do feel prompted to do
something, they won't feel bound at all by the specific policy proposal. This
is Government 101; I don't think we need to worry about it.

The point of the petition, then, is simply to establish how many people care
about the issue in the first place, at least enough to click on a web page.

(Helpful analysis, though; thanks.)

~~~
saurik
Right; and in this case, I believe that "man, people really care about cell
phone unlocking, maybe we should as well!" is more likely to cause the
legislation similar the Canadian act ("carriers must unlock if asked",
"carriers must be very clear about unlocks", etc.) than anything related tithe
DMCA ;P. That's the problem with such a narrow focus: there are more direct
solutions to this particular problem that are more likely than DMCA changes
that seem to pacify the petition.

(You may have just been demonstrating the efficacy of a petition in the
abstract, though, and not about this one in particular. I will then just say
"noted", and point out that if this had been "dismantle the DMCA" or
something, I would have lent my support to it, despite it being a White House
petition ;P.)

------
KMag
Is it the "Don't Be Evil" Google that now owns Motorola Mobility, or am I
thinking of the wrong Google?

~~~
Kerrick
This was before Google bought them.

------
MechaJDI
While I agree that OWNERS of the hardware shouldn't be bound by arbitrary
rules laid out by the service providers, you can still get your phone
unlocked, but only from the carrier...At least with T-Mobile, it's free (to my
knowledge) as long as your account is in good standing. The law still sucks
though...

~~~
ceejayoz
I don't believe carriers are in any way required to do that. They could stop
doing it at any point.

~~~
MechaJDI
True, but the opportunity still exists at this point.

------
musashibaka
Another way people can fight this is to not buy locked phones with such
restrictions placed on them.

~~~
meaty
I was recently informed that it's not that easy to do this in the US.

~~~
dubcanada
Funny, it's extremely easy to do outside of US. I can walk into most cell
companies up here get a 3 year contract with a new phone, pay some fee ($10-75
or so depending on the carrier) and walk out with a fully unlocked phone on a
3 year contract.

~~~
meaty
Similar here in the UK. I bought an unlocked Nokia Lumia 710 for £99 new and
am on a £20 a month giffgaff pay as you go service. 800 mins to any number,
free calls to other giffgaff users, free texts to any network and unlimited
data.

------
talkingtab
How do these rules get enacted with no public discussion and no public debate.
The effect of this ruling is to make criminals of thousands or tens of
thousands of US citizens who purchased a phone. This should not happen without
transparency. Here is another petition asking for an investigation.

[https://petitions.whitehouse.gov/petition/investigate-
librar...](https://petitions.whitehouse.gov/petition/investigate-library-
congress-decison-remove-unlocking-cell-phones-exception-dmca/05gr5vQK)

------
at-fates-hands
Pretty sure the only real solution to this is going to be getting a
congressman to support an amendment to the bill which would allow for cases
where people would have the option of unlocking their phone. The other huge
hurdle would be to have the carriers on board so they would be responsible for
unlocking the phone.

