Belfast-based UniquePhones sells unlocking solutions for
hundreds of mobile phone models, so that any SIM card will operate
in any mobile phone. US telco AT&T has a two year agreement
with Apple to act as the exclusive network for iPhone users and
UniquePhones' solution threatens that deal.
According to UniquePhones, it received a telephone call from a
California law firm "at approximately 2:54am" on the day that it
planned to make the iPhone solution available for sale.
"After saying they were phoning on behalf of AT&T, the law
firm presented issues such as copyright infringement and illegal
software dissemination," says a statement on its site.
"Uniquephones is taking legal advice to ascertain whether AT&T
was sending a warning shot or directly threatening legal action.
"
Uniquephones sells unlocking solutions for numerous handsets at
prices from $1.99. Some phones can be unlocked using a
software-generated code that is keyed into the handset. Others
require their firmware to be updated or overwritten. According to
its site, its iPhone solution involves "remote software unlocking
services."
Meanwhile, a New Jersey teenager claims to have another solution
to unlocking the iPhone. George Hotz, 17, says his method takes
about two hours and requires some soldering. He has posted his
10-step solution on his blog.
Neither AT&T nor Apple has commented publicly on the reports
and the legal position is not clear-cut. To bring action under US
law, Apple or AT&T might seek to rely on the Digital Millennium
Copyright Act. That law states that "No person shall circumvent a
technological measure that effectively controls access to a work
protected under this title."
The DMCA also states that no person shall "offer to the public,
provide, or otherwise traffic in any technology, product, service,
device, component … [that] is primarily designed or produced for
the purpose of circumventing protection afforded by a technological
measure".
To base an action on the DMCA, Apple or AT&T would have to
convince a court that a protected work is being accessed by the
unlocking solution. They would also have to show that a
recently-introduced exception did not apply. That exception was
passed by the US Copyright Office late last year.
The exception states that persons making non-infringing uses of
certain works will not be subject to the DMCA prohibition. These
works include "Computer programs in the form of firmware 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."
A court could interpret this provision in different ways. It
could take the view that unlocking your own iPhone is lawful, but
that selling a solution to others, or even posting the instructions
on a blog, without commercial gain, ceases to be an act carried out
"for the sole purpose" of connecting to another network.
John Salmon, a technology lawyer with Pinsent Masons, the law
firm behind OUT-LAW.COM, said that unlocking your own iPhone is
likely to be lawful under European law, but that sharing the
solution with others is probably not. "The legality depends in part
on whether or not the interface is protected by copyright," he
said. "The interface codes being accessed will need to be detailed
enough to be copyright works themselves. If they don't qualify,
Apple might still argue that there's a leak of confidential
information by sharing the codes with others and consequently a
court might order a website to remove that information. It may also
have patents to protect its technology."
Under UK copyright legislation it is a criminal offence to
provide "a service the purpose of which is to enable or facilitate
the circumvention of effective technological measures."
It is likely to be an offence to provide such a service by
posting instructions to a blog, said Salmon, if it can be shown
that it "affects prejudicially the copyright holder." The offence
applies to copyright-protected rights only but carries a maximum
sentence of up to two years in prison.
According to UniquePhones, "As long as you own your handset,
unlocking it is perfectly legal."
It continues: "So long as your handset does not remain property
of your service provider (if you are on a contract, for instance),
you are free to do as you wish with your phone."
