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Well naturally... (0, Insightful)

Anonymous Coward | more than 3 years ago | (#34419070)

In the US the tone of the punishment has to fit the tone of the skin. It's the American Way.

Re:Well naturally... (0)

windcask (1795642) | more than 3 years ago | (#34419132)

It's this kind of insightful commentary that makes me glad I read Slashdot.

Re:Well naturally... (3, Interesting)

tysonedwards (969693) | more than 3 years ago | (#34419216)

Seems more likely that Mr. Majed was already in custody for previous offenses prior to the exception being enacted. As such, as far as the law is concerned, the agency holding Mr. Majed is in the right.
As far as I see the situation, as soon as the acts that 'did not cause harm to others' (quote from article) ceased to be a crime, he should have been released as he was simply being held on those charges, and prosecution had not yet commenced.

Re:Well naturally... (-1, Offtopic)

Marillion (33728) | more than 3 years ago | (#34419596)

And this is being moderated down?

Re:Well naturally... (0)

Anonymous Coward | more than 3 years ago | (#34419858)

As it should be. His skin color had nothing to do with it, he pleaded guilty because he was too dumb to know his rights.

No ex post facto laws (2, Insightful)

Anonymous Coward | more than 3 years ago | (#34419082)

And? The clause about no ex post facto laws swings both ways.

Re:No ex post facto laws (1)

CheshireCatCO (185193) | more than 3 years ago | (#34419182)

It's not clear to me how this shakes out, though. The Library of Congress doesn't make laws, they just interpret (some of) them. I believe that when the judiciary re-interpret a law, people charged with violating it previously can benefit from the change.

Re:No ex post facto laws (0)

commodore64_love (1445365) | more than 3 years ago | (#34419456)

When the Supreme Court (either Union or State level) declares a law unconstitutional, that also implies the law never existed. It was on paper but had zero force of law from Day 0.

But the LOC isn't saying the DMCA is unconstitutional, so the law still remains in full force from the time of its creation to the Day when the LOC said it's okay to jailbreak. Anybody caught during that ~5 year span of time shall still be punishable.

BTW:

I don't believe the SCOTUS has the right to nullify laws. Certainly there's not a word in the Constitution that gives them power to negate what the Legislature duly-passed and the Executive signed. They can decide CASES but never were they given power to unmake laws.

Nullification is a reserved power of the Member States.

Re:No ex post facto laws (3, Insightful)

hedwards (940851) | more than 3 years ago | (#34419640)

You're being dense. Nullification is the whole reason why we have an independent judicial branch.

Nullification is what happens when SCOTUS rules a law to be unconstitutional. Unless of course I've missed the cases where SCOTUS rules something to be unconstitutional and the law stays legally binding. What you're arguing is semantics as any law that's ruled to be unconstitutional is unconstitutional unless SCOTUS issues a new precedent or test that indicates otherwise.

Re:No ex post facto laws (1)

s73v3r (963317) | more than 3 years ago | (#34419662)

That's just stupid. Without the power to nullify laws that are unconstitutional, how is the Judiciary supposed to serve as a check on the Legislative branch?

Re:No ex post facto laws (1)

dreemernj (859414) | more than 3 years ago | (#34419780)

The government believes differently. The supreme court can nullify laws as a way to balance the legislative branch. Check out Marbury v. Madison.

Re:No ex post facto laws (4, Informative)

msauve (701917) | more than 3 years ago | (#34419680)

In the same way that regulatory agencies make regulations (regulatory "law"), Congress has also transferred authority (unconstitutionally in both cases, IMHO) to the LoC with regard to exceptions to the DMCA. They're doing more than interpretation, they're effectively changing the law. See Section 1201(a)(1) title 17, United States Code [copyright.gov] . Seems the exceptions only go for 3 years, and begin when the determination is made.

Following the links in the article, "Majed... was arrested by FBI agents on November 22, 2009." If one goes back to the determination in effect at that time, from 2006 (These exemptions went into effect upon publication in the Federal Register on November 27, 2006, the 3 year term was later extended [copyright.gov] ), one finds this exemption:

5. 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.

That sure sounds like exactly what he was doing.

Here's the section of the DMCA which grants authority to the LoC:

The Librarian shall publish any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking conducted under subparagraph (C), that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected, and the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period.

Re:No ex post facto laws (0)

Anonymous Coward | more than 3 years ago | (#34419208)

Yeah, that clause is quite the little slut, isn't it?

Re:No ex post facto laws (3, Funny)

Anonymous Coward | more than 3 years ago | (#34419364)

Yea, except the case was brought after the exemption, since this is about jailbreaking to port to a different carrier, not jailbreaking to run other software. The latter exemption wasn't until this year, but the former was back in 2006. However, the shitty slashdot summary leaves out a key point, this idiot pleaded guilty, so you can't really blame anyone but him.

Re:No ex post facto laws (4, Insightful)

commodore64_love (1445365) | more than 3 years ago | (#34419560)

>>>this idiot pleaded guilty, so you can't really blame anyone but him.

The Supreme Court has ruled that your Fifth Amendment right to remain silent is still a protected right, if it can be demonstrated that the person was never informed of that right. They also stated that oftentimes completely-innocent people will plead guilty to a crime they never committed, so that alone is not enough evidence to convict.

Bottom Line:

Keep your mouth shut. I've had people tell me, "Oh well if you were innocent why wouldn't you cooperate with the police and let them see inside your trunk, or home?" Answer: Because innocent people have been sent to prison. Better to not volunteer anything.

Re:No ex post facto laws (1)

StikyPad (445176) | more than 3 years ago | (#34419464)

Yes and no. Just like you can't charge someone for committing a crime before it was a crime, you can't continue to incarcerate someone for a crime that is no longer a crime. Depending on the why the law is no longer applicable, they may even be entitled to damages for wrongful imprisonment (and of course, anyone can try to sue the state for just about anything).

All of this assumes that they haven't done anything in jail that's earned them a longer sentence, which they'd likely still have to serve, as messed up as that is. "True, you shouldn't have been here in the first place, but since you were, and you were involved in a fight that you didn't start, you still have 2 more years."

Re:No ex post facto laws (1)

Anonymous Coward | more than 3 years ago | (#34419798)

Yes and no. Just like you can't charge someone for committing a crime before it was a crime, you can't continue to incarcerate someone for a crime that is no longer a crime.

Why not? If it was illegal when they did it why should they get out of their punishment just because the law changed?

The reason ex-post facto laws are uncostitutional is because you can't avoid breaking a law that doesn't exist at the time of your action, and the obvious (ab)use of an ex-post facto law is to retroactively ilegalize something because you want a perticular person(s) to be guilty so you find something they did and illegalize it knowing they can't undo their past actions.

However if you break an existing law you're not being a victum of unkowable future actions. And if there's a reason to end the sentances of everyone curently being punished for having broken it the government could simply have them pardoned.

Re:No ex post facto laws (1)

Monkeedude1212 (1560403) | more than 3 years ago | (#34419548)

The Librarian of Congress has actual power in regards to laws?

I thought they spent most of their time archiving certain twitter feeds.

Re:No ex post facto laws (0)

Anonymous Coward | more than 3 years ago | (#34419694)

That's nonsense.

If a law is repealed, then it means the crime is not considered wrong anymore and those serving time for it should be released. And sometimes, laws are repealed not because people change their mind but because they are considered wrong (e.g. unconstitutional, too vague, too harsh, harmful to society, etc.)

If a law is added, people who committed the crime prior to adding the law did not know what they did would become illegal and therefore they should not be punished. Also, if people could be punished for actions they did before these actions were outlawed, it would be possible to make laws for the sole purpose of putting a specific person or category of people in jail.

In the present case, the law was not even changed, the matter of jailbreaking was just unclear and a court finally decided that the law had to be interpreted as allowing jailbreaking. Which means the judge who sentenced that guy to jail misinterpreted the law and the guy should not have been in jail in the first place.

Anyway, I think such idiocy like this lawsuit that put this guy in jail will ultimately just make people think that industries who rely on copyrights for their business have a terrible business model and it will also make people think that copyrights should not be applied the way they are. They're just going to get the population angry and copyright laws heavily modified so that copyrights grant very little privileges.
The music industry for one is already using copyrights to make a business suing people; I'm against piracy, but if the music industry makes more money through lawsuits than through sales I think there's a problem and perhaps copyright abuse.
Personally I already think copyright laws should only forbid other companies from manufacturing a copyrighted technology or using copyrighted artistic work in their own business (e.g. like using a character from a novel/movie by someone else, writing a novel that is supposed to be part of a series created and copyrighted by another author, or selling copyrighted music/movies).

Re:No ex post facto laws (1)

mweather (1089505) | more than 3 years ago | (#34419700)

No, it doesn't. If it did, the telecoms wouldn't be immune to lawsuits for assisting in illegal wiretapping.

First post (-1)

Anonymous Coward | more than 3 years ago | (#34419090)

Sounds like a terrorist, I say waterboard him!

Not really jailbreaking (4, Informative)

dogmatixpsych (786818) | more than 3 years ago | (#34419110)

I know this is a semantic issue but jailbreaking usually refers to installing apps on phones and not usually unlocking a phone from a particular carrier. Anyway, carry on with the discussion.

Re:Not really jailbreaking (1)

godrik (1287354) | more than 3 years ago | (#34419416)

it might be much easier to unlock once it is jailbroken...

Re:Not really jailbreaking (-1)

Anonymous Coward | more than 3 years ago | (#34419988)

Congratulations, you're a moron.

This isn't iPhone we're talking about. Based on my perusal of the article and the one it links to, these are crappy feature phones sold at steep discount from marginal carriers that cater to people who only want basic voice services. The guy in question didn't "jailbreak", he did a SIM unlock, a very old and uninteresting procedure that far predates any of the drooling-iTard vocabulary you are using like crutches....

Re:Not really jailbreaking (5, Informative)

Zed Pobre (160035) | more than 3 years ago | (#34419428)

Quoting the text of the relevant exemption, with some added emphasis:

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

The man doing the unlocking wasn't using any of those phones to connect to a network. He was unlocking phones for resale overseas, making a profit by violating the terms of a subsidy. The exemption doesn't cover this, and you probably don't want it to cover this, assuming you still want to be able to buy phones at less than full market price. If you find a story where someone is convicted under the DMCA for unlocking his or her own phone for personal use, then there's a story. This isn't one.

Re:Not really jailbreaking (0)

Dalzhim (1588707) | more than 3 years ago | (#34419568)

If I am allowed to sell structures I built out of legos, why wouldn't I be allowed to re-sell phones I have modified? This is absurd. If the profit I try to make on the original phone is too high, then I won't sell any. Besides, for each phone I sell, apple still gets their sale too.

Re:Not really jailbreaking (2)

Zed Pobre (160035) | more than 3 years ago | (#34419946)

Because you bought it below cost and the company that was selling it will go out of business if you are allowed to do so.

Let me continue that Lego analogy:

If you purchased a high end Lego Mindstorms kit at half market price from a company that did so on the condition that you were doing so for personal use and for the next two years any generic buckets of legos you bought for use with your Mindstorms kit would be purchased from them at their normal rates, and then turned around and resold that kit without even using it, you are effectively stealing from that company. Literal stealing this time, not the 'copying is theft' kind of stealing. A physical piece of merchandise has been removed without honoring the purchase agreement, which happened to have some contractual terms in addition to a nominal initial exchange of funds.

Now, if the company added a high tech marker to the Mindstorms kit that would shut it off when used with generic lego pieces to prevent exactly this kind of theft, and you went out of your way to disable that marker not even so you could personally violate your agreement and use generic buckets of legos bought from other people, but instead so you could run around taking advantage of the fact that the company in question couldn't keep track of how many of these kits you were buying at different outlets to start your own business in competition with theirs, using their own subsidy to undercut them, you are in violation of the DMCA.

The exception as written is a good and necessary thing, because that kind of marker tends to have a major flaw: the restriction tech doesn't self-destruct at the end of the contract, leaving people who have actually completed their agreements unable to make full use of what they purchased. To protect that ability, it was written loosely enough that you can even shaft the company you bought it from as long as you are doing it for personal use.

It was not written so loosely, and should not be written so loosely, that a purchaser can drive a company out of business by bulk subsidy abuse, unless you're of the opinion that no phones should ever be subsidized by contracts.

Person circumventing vs. person connecting (1)

tepples (727027) | more than 3 years ago | (#34419642)

when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network

He was unlocking phones for resale overseas, making a profit by violating the terms of a subsidy. The exemption doesn't cover this

The circumvention is initiated solely in order to connect to the overseas wireless telecommunications network. I don't see anything in this exemption stating that the same person must be doing both the circumventing and the connecting.

and you probably don't want it to cover this, assuming you still want to be able to buy phones at less than full market price.

I don't want the "subsidy". If I'm paying $70 a month to AT&T for iPhone service, I want to see "Phone installment payment: $20; service: $50" on the bill. Among U.S. postpaid carriers, T-Mobile comes closest to this ideal, with the "Even More Plus" SIM-only offers that take $10 off voice and $20 off voice+data for a plan without a new phone.

Re:Not really jailbreaking (4, Insightful)

MoonBuggy (611105) | more than 3 years ago | (#34419652)

He was unlocking phones for resale overseas, making a profit by violating the terms of a subsidy.

There were no terms - it's a prepaid phone, no contract was signed. The worst that could happen is they declare him in violation of their terms of service (and thus stop providing said service), but I really don't think that'd be an issue to him...

The exemption doesn't cover this, and you probably don't want it to cover this, assuming you still want to be able to buy phones at less than full market price.

It makes little difference if the end user can still legally unlock their phone - the carriers can't rely on the law to back up their technical measures, and that's the way it should be. If you want to enforce terms after the initial sale, do so with a contract (as the pay monthly services already do).

Re:Not really jailbreaking (1)

beakerMeep (716990) | more than 3 years ago | (#34419608)

Reminds me of the old Hacker/Cracker debate. I think "jailbreaking" has entered into the popular lexicon. Laymen (and hence journalists) now use it in place of rooting/unlocking despite it being.....imprecise.

Since Apple's particularly restrictive measures to lock down their phones are responsible for this particular term, I'm not sure it's entirely uncalled for that they are catching a bit of collateral damage on this one.

Still, this is pretty similar to any type of unlocking such as PS3s being opened up to a different Linux distro. And, I find jail time to be excessive for DMCA violations, though I don't agree with the DMCA to begin with.

Re:Not really jailbreaking (0)

Anonymous Coward | more than 3 years ago | (#34419984)

Reminds me of the old Hacker/Cracker debate. I think "jailbreaking" has entered into the popular lexicon. Laymen (and hence journalists) now use it in place of rooting/unlocking despite it being.....imprecise.

Since Apple's particularly restrictive measures to lock down their phones are responsible for this particular term, I'm not sure it's entirely uncalled for that they are catching a bit of collateral damage on this one.

Still, this is pretty similar to any type of unlocking such as PS3s being opened up to a different Linux distro. And, I find jail time to be excessive for DMCA violations, though I don't agree with the DMCA to begin with.

Jailbreaking is a popular, well understood term. Lots of people jailbreak phones without unlocking, or unlock without jailbreaking, both, or neither, and there are good reasons to do all of the above. We need separate terms for them, and it would be confusing to conflate them.

Re:Not really jailbreaking (1)

erroneus (253617) | more than 3 years ago | (#34419682)

True... it is a semantic issue... I might also say this is a semitic issue give his name.

Unlocking a phone for use on another carrier cannot be a copyright issue. At least not on the surface. Unlocking a phone for use on another carrier, I thought, was established as a right of the consumer long ago... perhaps I'm wrong but I don't think so. By unlocking a phone, what copyright protection measure is being circumvented? None as far as I can tell.

On the surface, it sounds like he is being charged with a crime he didn't commit.

Jailbreaking is not unlocking (5, Informative)

SuperKendall (25149) | more than 3 years ago | (#34419150)

The convictions were all from people breaking phones (as in hundreds or thousands of phones) to use on different carriers. The iPhone jailbreaking (which the story summary was meant to make you think of even though no iPhones were involved in this story) does not unlock the phone for use by other carriers.

You may proceed jailbreaking as normally despite this FUD, just as many millions have already done...

Re:Jailbreaking is not unlocking (1)

hedwards (940851) | more than 3 years ago | (#34419254)

And how precisely is that a violation of the DMCA? I'm serious, people bought the phones and there is no copyright involved with that.

Because the exception is personal use (1)

SuperKendall (25149) | more than 3 years ago | (#34419760)

Because you jailbreaking or even unlocking a phone is not illegal, when you do it to thousands of phones you don't own just to sell that's where the issues come up.

Re:Because the exception is personal use (1)

MoonBuggy (611105) | more than 3 years ago | (#34419882)

Why?

He owned the phones. He chose to unlock them. He then sold the phones. Sure, Tracfone got screwed over in the process, but if they'd wanted to retain control over the phones after the sale then a simple contract would do the job quite easily - just a little 'sign here' after a few lines about only using the handset to access Tracfone approved services.

Re:Jailbreaking is not unlocking (1)

runningman24 (1172197) | more than 3 years ago | (#34419358)

Hmm.

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

It seems to me that jailbreaking was specifically authorized both to run applications and to connect to a different network.

Source: http://www.copyright.gov/1201/ [copyright.gov]

Really bad summary (4, Informative)

secretcurse (1266724) | more than 3 years ago | (#34419166)

It's legal to jailbreak your own "used" phone. This guy was jailbreaking phones by the thousands and selling them. It's still legal to jailbreak the phone you own and use, it's just illegal to unlock and sell in bulk.

Re:Really bad summary (2, Insightful)

StikyPad (445176) | more than 3 years ago | (#34419266)

[citation needed]

Re:Really bad summary (1)

phantomfive (622387) | more than 3 years ago | (#34419546)

Uh, did you even read the article? It talks about it there. Pretty clear that the courts have interpreted mass-unlocking to be illegal. Might also want to read this [copyright.gov] .

Re:Really bad summary (1)

godrik (1287354) | more than 3 years ago | (#34419616)

which article ? We post links to actual articles on slashdot ? I thought the posts were just random thought!

Re:Really bad summary (1)

StikyPad (445176) | more than 3 years ago | (#34419936)

I did in fact RTFA, and it doesn't say anything about that. There's a similar comment in TFA, but why is a comment on that page any more reliable than a comment on this one? Oh right, it's not.

Re:Really bad summary (1)

MoonBuggy (611105) | more than 3 years ago | (#34419286)

Great. Why?

Re:Really bad summary (1)

rtfa-troll (1340807) | more than 3 years ago | (#34419618)

In this case; no comment. I don't know the man and don't know the truth of what his lawyers and the other side say.

Generally; because you sign a contract. The contract says you will stay with a network and pay for it. The amount you pay for the contract covers the cost (though maybe not the price) of the phone you get. In order to get "thousands" of phones you have to fill in the contract information fraudulently in some way or other otherwise the company wouldn't let you get so many phones.

Re:Really bad summary (1)

MoonBuggy (611105) | more than 3 years ago | (#34419696)

These are prepaid phones. No contract signed, no fraud.

Re:Really bad summary (2)

The13thSin (1092867) | more than 3 years ago | (#34419740)

Exacty, and I don't understand why more people aren't asking the same question. How is this not outrages?

Why is it illegal to legally purchase items, do something with them, then resell? (If the car industry worked this way, I know at least a couple of car companies that would go out of business.) And even more ridiculous: why is this a criminal offence opposed to a civil matter?

I know some people have a weird idea about ownership, but the *only* reason I see for this is to keep a broken businessmodel working... and without any good reason too. If the phone is subsidized, there should a legally binding contract attached that forces the buyer to (for instance) also have subscription X for Y months. That's it.

Can someone please tell me why jailbreaking / unlocking phones (even for commercial gain) should be a criminal offence?

Re:Really bad summary (1)

jellomizer (103300) | more than 3 years ago | (#34419854)

You cross the line when you do such things for profit vs. for yourself. Buy doing this for profit and in bulk he is abusing one companies business model to create his own.

Jail Breaking your iPhone which you paid for either full price or after paying a termination fee, to go on a different network is up to you. But selling that phone is the problem.

Re:Really bad summary (1)

MoonBuggy (611105) | more than 3 years ago | (#34419982)

You cross the line when you do such things for profit vs. for yourself. Buy doing this for profit and in bulk he is abusing one companies business model to create his own.

Last I checked it wasn't the court's job to prop up business models. He was unlocking phones that he owned. If Tracfone didn't want him to do so, they should've made him sign a contract - as they didn't, their business model was nothing more than a gamble, and he called them on it.

Jail Breaking your iPhone which you paid for either full price or after paying a termination fee, to go on a different network is up to you. But selling that phone is the problem.

Again, why? Even the carriers don't mind this - that's what the contract's there for in the first place, to ensure the subsidy is paid. Once that's done you can resell it, keep using it, or bury it under a small mound in the garden for all they care. The reason Tracfone is getting so pissy is that they didn't bother with a contract, and now they're trying to leverage the law into protecting their subsidy instead.

Re:Really bad summary (1)

delinear (991444) | more than 3 years ago | (#34419462)

So if you have the technical know-how to do this yourself, it's fine, if you share that skill with people who don't have the know-how, it's suddenly a crime? I can't believe for a second that that is what the LoC intended with its reading of the law. It would be like saying locksmith skills that help you break into your own house when you lose your keys are fine, but selling that servive to people who have lost their keys and don't know how to get into their homes is illegal. Either the breaking is legal or not, the selling of services should have no bearing without a specific law ruling it out.

Re:Really bad summary (0)

Anonymous Coward | more than 3 years ago | (#34419620)

No. It's fine to share it. It's illegal to buy the phone, unlock it, then sell it.

Re:Really bad summary (1)

Schadrach (1042952) | more than 3 years ago | (#34419814)

Right, so it's legal to take your tools and pick the lock to get into your house, but selling that service to someone else should be illegal? Or are you saying it would be OK if he had people ship him phones, charge to jailbreak/unlock them and ship them back?

Essentially, is the crime that he bought the phones, unlocked and sold them, or that he was selling the capability to unlock phones? How is there any meaningful difference between the two?

Re:Really bad summary (1)

Opportunist (166417) | more than 3 years ago | (#34419886)

But it's legal to let a guy come to me and I unlock it for him for a fee? Where's the logic in that?

Oh, we're discussing the law, ignore the question please.

Re:Really bad summary (1)

The13thSin (1092867) | more than 3 years ago | (#34419968)

I'd like to redirect you to a great question asked earlier: Great, why?

When the Telco's found out that prepaid phones could be unlocked, they should've said: damn, the businessmodel of subsidizing prepaid phones isn't going to work. Instead, laws were put in place to protect their failing businessmodel and people are not just responsible for damages (as this should clearly be a civil matter), but actually land in jail. I'm amazed this kind of thing doesn't cause much more of an outrage than it does. (Especially because you can legally get simple unlocked feature phones for cheap anyway, but even if you couldn't it's the wrong way around of how law should work.)

Re:Really bad summary (1)

s73v3r (963317) | more than 3 years ago | (#34419742)

It is, apparently. Part of the DMCA is against distributing tools which can be used to circumvent the DMCA. When the LoC declares exemptions for doing things like decrypting DVDs or jailbreaking phones, unless they specifically mention distributing the tools is ok, then the exemption has not been granted for the tools.

Of course, I'd love to see that try to stand up in court, that distributing a tool which performs an action made legal by the LoC is still illegal.

Illegal uless used? (5, Insightful)

grimJester (890090) | more than 3 years ago | (#34419494)

It's legal to jailbreak your own "used" phone. This guy was jailbreaking phones by the thousands and selling them. It's still legal to jailbreak the phone you own and use, it's just illegal to unlock and sell in bulk.

Is it illegal to jailbreak a phone if you haven't used it? Illegal to jailbreak more than one phone? Illegal to sell a phone after you jailbreak it? Illegal only if two or more of the above?

I think you have a case of the ole "illegal to profit from someone else's work" mindset.

Re:Really bad summary (1)

EricWright (16803) | more than 3 years ago | (#34419602)

Not only that, but a tiny bit of googling will show you that he is suspected of funneling these phones to Hezbollah. As they have been classified a terrorist organization by the USA, they're going to throw everything they can at him. The precedent set is unfortunate, but when someone is suspected of providing aid to a terrorist group, what do you expect the government to do? Issue a mild warning not to do it again?

Re:Really bad summary (1)

Yetihehe (971185) | more than 3 years ago | (#34419612)

In Europe it's perfectly legal. In many shops with mobile phones they will unlock it for you (of course not in carrier's shops ;) )

Re:Really bad summary (0)

Anonymous Coward | more than 3 years ago | (#34419614)

Eerily similar (in the reverse sense) to the saying about how if you kill one person, it's murder but if you kill millions, it's national policy.

Re:Really bad summary (1)

Opportunist (166417) | more than 3 years ago | (#34419844)

So, it's ok to break for fun but not for profit?

Notes (1)

blueg3 (192743) | more than 3 years ago | (#34419196)

Note that he didn't just jailbreak his own phone. He was purchasing discounted prepaid phones from a company, jailbreaking them, and then selling them.

I don't know if this falls under the text of the exemption:
"(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset."

Regardless, he apparently pled guilty, so there was no decision on the matter by a jury.

Lawsuit Phishing (1, Insightful)

digitaldc (879047) | more than 3 years ago | (#34419220)

So if you own a car, you can mod it to run on ethanol, remove the factory stereo and logos with no problem. But, if you do a similar thing with a cheap phone or gaming system you are instantly a CRIMINAL!

The new business model in the media/tech industry seems to be 'Lawsuit Phishing' where you sue everybody and hope that a few suckers actually pay you.

Re:Lawsuit Phishing (5, Insightful)

Desler (1608317) | more than 3 years ago | (#34419296)

Except that what he was doing does not fall under the exemption. The exemption was that you can jailbreak YOUR OWN phone. This is the same reason why it's legal to break CSS encyption on DVD to use copyrighted clips in fair use works but it is not legal for someone to run a business where by they are stripping CSS off of ripped DVDs and then selling those unencrypted discs.

Both Techdirt and the submitter seem to have reading comprehension problems.

Re:Lawsuit Phishing (1)

digitaldc (879047) | more than 3 years ago | (#34419372)

Yes, I should have read the article.
Mod me to oblivion

Re:Lawsuit Phishing (1)

delinear (991444) | more than 3 years ago | (#34419496)

He buys the phones. At that point they are his phones. He modifies them and then sells them second-hand (it's just that, in this case, second-hand happens to be better than new).

Re:Lawsuit Phishing (1)

Desler (1608317) | more than 3 years ago | (#34419928)

If he was jailbreaking these phones for his own use it would be covered. The exemption doesn't cover when you do this and then try to sell those phones (or DVDs as in the second example I provided).

Re:Lawsuit Phishing (1)

Stregano (1285764) | more than 3 years ago | (#34419338)

I think you misunderstood what is happening. It would be like if I bought up a bunch of new cars, installed a bunch of after market parts, and then sold them as new. Or if I was selling a bunch of softmodded consoles in bulk.

Re:Lawsuit Phishing (1)

boristdog (133725) | more than 3 years ago | (#34419380)

It would be like if I bought up a bunch of new cars, installed a bunch of after market parts, and then sold them as new.

Still legal.

See "conversion van"

Re:Lawsuit Phishing (1)

delinear (991444) | more than 3 years ago | (#34419528)

I don't think he ever claimed to be selling them as "new" (maybe "unused", which is a fair claim under the circumstances). As far as I know there's no law to prevent me buying a bunch of cars, fitting my own parts and selling them as second-hand.

Re:Lawsuit Phishing (1)

Desler (1608317) | more than 3 years ago | (#34419972)

The notion of whether he claimed it was new or not is irrelevant. The point is that the exemption only covers jailbreaking phones for your own use. It doesn't cover jailbreaking phones and then reselling them as part of a business. This seems to be the point that Techdirt nor the rest of the whining idiots seem to realize.

Re:Lawsuit Phishing (0)

Anonymous Coward | more than 3 years ago | (#34419342)

Then the state prosecutes you for not paying its fuel tax. No idea with what solar is going to do for this...

Phone companies are evil (5, Insightful)

troll -1 (956834) | more than 3 years ago | (#34419240)

If they controlled the Internet you'd buy your computer from your ISP and it wouldn't work with any other ISP, your Internet bill would list every website you went to, out-of-state websites would be billed at a higher rate (except for nights and weekends). The current model for phone networks is an overpriced relic of the last century.

Re:Phone companies are evil (0)

Anonymous Coward | more than 3 years ago | (#34419868)

SHHHHH. Don't give them any ideas.

A Lot of Confusion (4, Interesting)

cob666 (656740) | more than 3 years ago | (#34419250)

I read the article and some of the comments below the article and I was amazed that there are people that equate unlocking or jailbreaking a phone to stealing intellectual property. I'm not very familiar with the wording of the DMCA exlusion that allows you to carrier unlock a phone but I did believe that it applied to a phone that you own. I somebody is charging a fee to unlock phones that clearly this doesn't fall under the DMCA exclusion as I understand it. However, if somebody were to purchase a phone for X dollars, carrer unlock it and then re-sell it for X+Y dollars then that SHOULD fall under the DMCA exlusion although it would be exploiting a loophole.

I'm still not sure how this guy ended up doing jail time and what kind of precedent that sets.

Re:A Lot of Confusion (0)

Anonymous Coward | more than 3 years ago | (#34419716)

Well, the way that this works is that the phones are subsidized by the carrier in exchange for your agreement to use their service. For the contract-based carriers, the phones are sold at a considerable discount (in many cases, even free to the customer) in exchange for a contract lasting a certain amount of time with provisions for an early termination fee to balance the phone subsidy. For the prepaid carriers, the subsidy is a bit less, but they still expect the customer to continue purchasing prepaid blocks for use with the phone.

The prepaid carriers' phones are where things get sticky. There is no contract with an early termination fee, so if you were to purchase the phone, you, as a consumer, could do what you want with it. The gray to black area occurs when you purchase many of those phones with the intention of making them not tied to the provider for resale. The DMCA exclusion is for the consumer, not the reseller (Just as the FTC's Do Not Call list applies only to consumers and not businesses).

Re:A Lot of Confusion (2)

puto (533470) | more than 3 years ago | (#34419774)

The article is FUD, because the guy was busted doing a ton of other shit. For Immediate Release November 23, 2009 United States Attorney's Office Eastern District of Pennsylvania Contact: (215) 861-8200 Eight Charged in Conspiracy to Traffic Counterfeit and Stolen Goods PHILADELPHIA—United States Attorney Michael L. Levy, together with Special Agent-in-Charge of the Federal Bureau of Investigation Janice K. Fedarcyk, Special Agent-in-Charge of Immigration and Customs Enforcement John P. Kelleghan, Special Agent-in-Charge of the Internal Revenue Service Don Fort, and Superintendent of the New Jersey State Police Colonel Joseph R. Fuentes, today announced the unsealing of a 33-count indictment charging Sadek Mohamad Koumaiha, Mohamad Kassem Sibai, Hassan Mahmoud Koumaiha, Ali-Ibrahim El Sayed Abdallah, Mohamad Majed, Bilal Hussein Hamden, a/k/a “Billy,” Shady Anis Ghadban, a/k/a “Danny,”and Ali Kassem El-Sibai with multiple counts of conspiracy, trafficking-in stolen goods, trafficking-in counterfeit goods, false statements to government officials, and conducting an illegal money transmitting business. According to the indictment, Sadek and Hassan Koumaiha, Mohamad Kassem Sibai, Ali-Ibrahim El Sayed Abdallah, and Majed purchased stolen merchandise, including Sony PlayStation 2 systems, laptop computers, and cellular telephones, purportedly worth hundreds of thousands of dollars, from an undercover law enforcement officer. The indictment further alleges that defendants Sibai, the Koumaihas, and Shady Anis Ghadban, purchased thousands of dollars worth of counterfeit goods, namely Nike shoes and a variety of brands of cellular telephones, from an undercover law enforcement officer.

Beyond the Scope (3, Insightful)

Voyager529 (1363959) | more than 3 years ago | (#34419262)

From the link in TFA:

Majed shipped several thousand prepaid wireless phones to co-conspirators in Michigan and Hong Kong.

Majed didn't go to jail for jailbreaking his iPhone, or even a handful of them for friends. The jailbreaking exemption (http://www.copyright.gov/1201/) states that the exemption exists for the owner of the device in order for the owner to use an alternate cellular network. This guy was essentially running a business buying heavily subsidized Tracfones, unlocking them, and selling them by the thousands. One could argue that between the purchase and the resale that he was the owner of the device and thus was covered, but let's keep perspective - Majed wasn't convicted for rooting his Droid, he was running a business on a technicality, and a stretched one at that.

Re:Beyond the Scope (2)

Bert64 (520050) | more than 3 years ago | (#34419504)

So basically the courts are propping up a flawed business model operated by a large telco...
Most telcos tie subsidised phones to a long contract to recoup the cost, this model just doesn't work with prepaid phones which is why telcos usually offer massively inferior phones on prepaid plans.

Re:Beyond the Scope (2)

l0ungeb0y (442022) | more than 3 years ago | (#34419552)

Well, look at it as a service for those who wish to OWN an unlocked phone but lack the know-how. Stretching the law or not, he was within his rights.

Technicality? (2)

grimJester (890090) | more than 3 years ago | (#34419710)

One could argue that between the purchase and the resale that he was the owner of the device and thus was covered, but let's keep perspective - Majed wasn't convicted for rooting his Droid, he was running a business on a technicality, and a stretched one at that.

Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works [copyright.gov]

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

I don't see how the fact that he was the owner of the phones is a technicality or a stretch in any way. He wasn't hacking someone else's phone; he was hacking phones he owned so they could connect to another network. Would it be legal in your opinion if he resold the phones as-is and the end user "initiated the circumvention" by asking him to do it? Is it illegal in the US to make a business out of doing something you're legally allowed to do?

Re:Beyond the Scope (2)

tlhIngan (30335) | more than 3 years ago | (#34419750)

Majed didn't go to jail for jailbreaking his iPhone, or even a handful of them for friends. The jailbreaking exemption (http://www.copyright.gov/1201/) states that the exemption exists for the owner of the device in order for the owner to use an alternate cellular network. This guy was essentially running a business buying heavily subsidized Tracfones, unlocking them, and selling them by the thousands. One could argue that between the purchase and the resale that he was the owner of the device and thus was covered, but let's keep perspective - Majed wasn't convicted for rooting his Droid, he was running a business on a technicality, and a stretched one at that.

He's also accused of funnelling his profits from selling the phones to terrorist organizations, which is the real charge. They're throwing every possible crime he's doing as well in the hopes that maybe one charge will stick. Selling unlocked phones en masse is one charge he can do, but the real reason is the funding terrorist organizations.

It's the sort of link you wish people wouldn't make, because it means unlocked phones can get tainted with the "supporting Al Qaeda" and "causing 9/11" crap. "Only terrorists need unlocked phones".

If that's the "real charge" (0)

Anonymous Coward | more than 3 years ago | (#34419874)

If that's the "real charge" why then do him for the false ones? Is the penalty for aiding terrorists less than that for jailbreaking a phone???

Re:Beyond the Scope (4, Insightful)

MoonBuggy (611105) | more than 3 years ago | (#34419810)

He was running his business to the letter of the law. Tracfone was running theirs on a gamble that the subsidised phones would pay for themselves. Majed owned the phones and was well within his rights to do what he liked with them - dump them in the ocean, if he wanted - with no regard to repaying Tracfone's subsidy; if they'd wanted the terms to be different, a simple contract at the time of sale would've solved all their problems (and made Majed's business immediately untenable by virtue of breaching that contract).

Re:Beyond the Scope (2)

puto (533470) | more than 3 years ago | (#34419970)

Actually he pled down to a lesser charge,DMCA violation. He was trafficking in stolen and counterfit goods and money laundering as well and his buddies got caught by an undercover agent in a sting. Those are the real reasons he was busted.

Re:Beyond the Scope (1)

AigariusDebian (721386) | more than 3 years ago | (#34420002)

So, can anyone explain to me why do the carriers actually sell these devices without signing a contract with the person? That would full eliminate this situation - sure, you can buy a thousand cheap phones, unlock them and sell them on, but you will still have to pay monthly fees on the thousand 2 year contracts or pay the ETF.

Disgraceful waste of public resources (2)

Fast Thick Pants (1081517) | more than 3 years ago | (#34419282)

It's pretty appalling that our police, courts, and jails are being used this way -- basically as a favor to the well-connected telecom oligopolies and their sleazy lobbyists. Sure, the law is the law -- but the corporations really ought to be footing the bill for this themselves. AT&T and Verizon should create and maintain their own police force and prisons.

(Also, the Irish should eat their children.)

Re:Disgraceful waste of public resources (1)

AarghVark (772183) | more than 3 years ago | (#34419722)

Its all about return on investment. You get much more bang for your buck in buying a Senator of Congressman and then having the full weight of the US government behind you than trying to hire a private army of thugs and lawyers to do it yourself.
Makes perfect business sense. What doesn't make sense is why we don't call out our politicians for this behavior.

Primitive heathens (2, Insightful)

countertrolling (1585477) | more than 3 years ago | (#34419284)

Putting people in the stockade for stealing a loaf of bread... No not even... for not renting the baker's knife to cut his own bread...

Librarians don't pass laws (1)

l0ungeb0y (442022) | more than 3 years ago | (#34419302)

Correct me if I'm wrong here, but the the statement by the Librarian of Congress is merely an opinion of the interpretation of the DMCA, and as such, is meant only to be used by judges as precedent in deciding cases and does not in itself establish any legal statute.

Re:Librarians don't pass laws (1)

BBTaeKwonDo (1540945) | more than 3 years ago | (#34419542)

It's not just an opinion - the statute requires the Librarian to provide a list of exemptions to the anti-circumvention provisions. These exemptions have the force of law, because the law says they do. From http://www.copyright.gov/1201/2010/Librarian-of-Congress-1201-Statement.html [copyright.gov] :

Section 1201(a)(1) of the copyright law requires that every three years I am to determine whether there are any classes of works that will be subject to exemptions from the statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work.

Well I cant complain too much (1)

OverlordQ (264228) | more than 3 years ago | (#34419304)

Remember how the Librarian of Congress announced that jailbreaking your phone was legal

Yes, do you?

Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

I'm pretty sure jailbreaking for other networks doesn't fall under application interoperability.

Re:Well I cant complain too much (1)

jspayne (98716) | more than 3 years ago | (#34419922)

And this is why the jailbreaking provision is not relevant. Unlocking is a different exercise, and it is addressed in the very next point of the same ruling [arstechnica.com] :

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

This FUD may create a business niche (1)

mlts (1038732) | more than 3 years ago | (#34419426)

Maybe all this FUD about jailbreaking/unlocking may create niche -- a cellphone for people wanting open access to their device, where the only limit on them is the hardware limitations. I'm sure there are people out there who wouldn't mind paying for an Android phone that ships with su available, stock Android UI (no MotoBlur or any other vendor/cellular carrier stuff), and with the source code available for all parts of the OS so custom builds are more of spending time making cool features, not trying to fight one's way around manufacturer created obstacles like signed kernels, eFuses, or the like.

If it wasn't so close to the end of the model's production cycle, I'd consider a N900 just on principles alone, although it really would be nice to have Google make an ADP with up to date hardware specs for running Android apps.

Re:This FUD may create a business niche (1)

mlts (1038732) | more than 3 years ago | (#34419526)

Grr, hate replying to myself... meant "create a niche". Darn typos.

One clarification: The nice thing about Android, it can be made into a decent balance between a UNIX environment and a place to run mainstream commercial apps. So, a phone can run the balance of being tweakable with nmap and other tools a command window away, as well as handling Exchange and other communications.

Re:This FUD may create a business niche (1)

AltairDusk (1757788) | more than 3 years ago | (#34419666)

Maybe all this FUD about jailbreaking/unlocking may create niche -- a cellphone for people wanting open access to their device, where the only limit on them is the hardware limitations. I'm sure there are people out there who wouldn't mind paying for an Android phone that ships with su available, stock Android UI (no MotoBlur or any other vendor/cellular carrier stuff), and with the source code available for all parts of the OS so custom builds are more of spending time making cool features, not trying to fight one's way around manufacturer created obstacles like signed kernels, eFuses, or the like.

If it wasn't so close to the end of the model's production cycle, I'd consider a N900 just on principles alone, although it really would be nice to have Google make an ADP with up to date hardware specs for running Android apps.

The Nexus One fits all of those criteria and it's still available to developers.

Jailbreak? (3, Funny)

russ1337 (938915) | more than 3 years ago | (#34419536)

as Steven Colbert would say.....

Jailbreak.... or...... Freedom Patch?

Breaking something out of jail is known to be bad... setting something free is much better....

Outlawing the car to protect the horse and cart (1)

Anonymous Coward | more than 3 years ago | (#34419584)

Seems like Tracfone's business model can't survive their users unlocking their phones. In a capitalist country, they should just go out of business.

Clarification (1)

Mr_Silver (213637) | more than 3 years ago | (#34419736)

Worth noting that the FBI allege that Majed was reselling the phones and funneling the profits to Hezbollah.

I'm not sure how that makes convicting someone (for something which has already been deemed legal) any more valid (and quite frankly, I don't know enough about the DMCA or US laws to even begin to form an opinion) but I do think it would have been nice if the story included this fairly important bit of information.

There is a way to do it even ignoring First Sale (1)

Evardsson (959228) | more than 3 years ago | (#34419766)

The best I can tell from the wording of the exemption to the DMCA for unlocking cell phones to use on a different carrier, is that it must be done by the owner of the phone using software they legally obtained. So, ignoring First Sale, if he had sold these phones along with a legal copy of the unlocking software and a step-by-step instruction manual, that would have been fine (assuming he could legally re-sell the software).

The question comes, in my mind, where the principal of First Sale applies in this case. Since he (presumably) legally obtained the unlocking software, he was legally unlocking the phones. I would think that First Sale would come into play at the point where he purchased the phones and any resale after the fact would be unencumbered. Of course, IANAL and I don't speak legalese.

Any chance an IP lawyer with DMCA knowledge/experience could enlighten us?

Who's still uses iPhones? (-1, Troll)

countSudoku() (1047544) | more than 3 years ago | (#34419926)

You're probably an idiot... no, my mistake, you ARE and idiot! :) Have a nice day with your locked-in pretend phone.

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