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Mobile phone unlocking will be illegal by January 26

Mobile phone unlocking will be in violation of the DMCA by January 26. Users will need explicit permission from carriers if we don't want to break the law.
January 25, 2013
If you have a network-locked mobile phone in your hands, you might want to consider having it unlocked soon. By tomorrow, January 26th, it will already be a violation of the Digital Millennium Copyright Act (DMCA) to unlock a mobile phone without permission from your carrier.

Recall that in October, the Librarian of Congress gave a 90-day window for smartphone buyers to unlock their phones, and that window lapses tomorrow. This means that you will need to get express permission from AT&T, for instance, before you can use your SIM-equipped smartphone with another network. However, you will be legally allowed to unlock your device once it’s out of contract, or if you have paid the full price, as opposed to getting the phone via subsidy.

There are exceptions, though. According to our previous report on the matter, the ruling allows users to arbitrarily unlock smartphones purchased before January 2013. Of course, some carriers already offer their smartphones unlocked from the box, such as Verizon’s iPhone 5. Apple also sells the iPhone 5 unlocked for $649, while we Android lovers can always opt for the $299 Google Nexus 4 from the Google Play Store, which does not come with network locks or carrier subsidies.

The Electronic Frontier Foundation (EFF) has criticized the Librarian of Congress for this seemingly unfair use of the DMCA provisions. “Arguably, locking phone users into one carrier is not at all what the DMCA was meant to do. It’s up to the courts to decide,” said the advocacy group in a statement.

In a statement to TechNewsDaily, Christopher S. Reed from the U.S. Copyright Office clarified that “only a consumer, who is also the owner of the copy of software on the handset under the law, may unlock the handset.” However, the Librarian of Congress had clarified that software in smartphones and other devices will remain the intellectual property of the developer. Meanwhile, users are only granted rights and licenses under the EULA. As such, it will no longer be within fair use to break network locks because you don’t own the phone’s software in the first place.

Perhaps this will be one main driver toward user preference for bring-your-own device setups that carriers like T-Mobile are now promoting.

Update: We have interesting comments on our Google+ post covering this article. Some suggest a workaround: you can actually backup the phone’s stock OS, and then re-flash it with a custom unlocked ROM. That way, you essentially preserve the software — which the phone company or carrier owns — so that you can legally unlock the phone.