But unlocking a phone has nothing to do with copyright infringement, and using the DMCA to prosecute unlocking cell phones is not what the law was intended for. If Motorola's interpretation of the DMCA were valid, companies would be able to create simple software security mechanisms that legally prevent a customer from using a device in any way except that in which the manufacturer intended.
Jennifer helped me respond to Motorola by disputing their interpretation of the DMCA; thanks to her efforts, eventually Motorola decided that a college student wasn't worth pursuing. I was very lucky that they didn't decide to take the case to court.
THE BIGGEST PROBLEM WITH THE UNLOCKING LAW
In the year after helping me with my case, Jennifer Granick fought for an exemption from the DMCA for unlocking phones, and in November 2006 it was granted. That exemption was in place for 6 years, until the Library of Congress and the Copyright Office decided to remove it. As of January 26th, anyone unlocking a new cell phone or providing unlocking services unlocking phones once again risks up to five years in jail for each offense.
For consumers, the consequences of this are fewer choices and increased restrictions to freedoms we currently take for granted. If you're traveling abroad and want to use your current cell phone, you'll need to pay exorbitant roaming charges. As an example, AT&T charges customers $1.50 per minute for calls and $19.50 per megabyte consumed while traveling in Europe. Compare that with the $0.30 per minute and $0.20 per megabyte that you'd be charged in the UK with a prepaid SIM card and an unlocked phone, and it amounts to extortion.
Locking cell phones also prevents consumers from freely choosing their cell carrier. If you decide to change your network, say from AT&T to T-Mobile, the DMCA regulations mean that unless your carrier agrees to unlock your phone, you'll need to buy a new device. As a result, manufacturers like Motorola and Apple are keen to keep their devices locked so that they can sell more phones.
The CTIA, the trade association that represents the wireless industry, claims that the illegality of phone unlocking prevents "large scale phone trafficking operations" that involve unlocking carrier-subsidized phones and selling them abroad. But consumers who buy subsidized phones commit to two-year contracts with hefty early-termination fees (up to $350 for most carriers). The carrier's subsidies are already contractually protected.
The decision to remove the exemption for unlocking phones is bad for consumers, and it's up to our elected officials to help defend consumer rights. Unfortunately, the Library of Congress and the Copyright Office are staffed by unelected officials who aren't directly beholden to voters.
I was fortunate that Motorola weren't more motivated and didn't take my case further. The company I started still exists, now run by my brother. With the unlocking exemption removed, it's only a matter of time before entrepreneurs and consumers are once again bullied by carriers and manufacturers seeking to protect their profits by constraining consumer choice. Next time around, a Verizon, AT&T, or Apple will likely take the case to court, and it's possible that someone will end up in jail."