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.
This is where things get a bit tricky. Even with good instructions, activating and unlocking your iPhone isn't very easy. It's a cinch for a supergeek, but for regular humans without technical superpowers, the experience is more like, say, scuba diving: If you do everything right, you'll be fine, but you really don't want to make a mistake. That, by the way, gives AT&T and Apple a degree of protection from a major unlocking wave—unlocking an iPhone is, by my guess, something that maybe one in 20 Americans will feel comfortable doing.
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