So will Apple and AT&T’s legal action deter hackers? Hardly. Individual users are already allowed to unlock their own phones under an exemption to the Digital Millennium Copyright Act (DMCA) that the U.S. Copyright Office issued last November. The exemption, in force for three years, applies to “computer programs…that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.”
What’s less clear is whether companies and hackers can legally unlock the phones and then sell them to others, or sell unlocking software. “The law here is unclear,” says Jonathan Kramer, founder of Kramer Telecom Law Firm in Los Angeles. “There just isn’t any case law in this area for us to figure out how it plays out.”
Experts believe that AT&T and Apple will point to the DMCA’s section 1201, stating that “no person shall circumvent a technological measure that effectively controls access to a work protected under this title.” They will claim that a phone lock is just such a technological measure that protects copyrighted work: namely, cell-phone software.
Problem is, it could be argued that, in reality, the lock only protects access to a carrier’s communications network—and communications services aren’t copyrightable under the Act, explains Jane Ginsburg, professor of literary and artistic property law at Columbia Law School. “This law was written for DVDs and video games,” she explains. “What’s going on here is using the Copyright Act to achieve another objective.”
Indeed, this time, hackers may have the law on their side. Remember, decades ago, automakers built their instrument panels so that only authorized radios of their own manufacture would fit in. Eventually, U.S. courts ended that practice.