Jailtime For Jailbreaking

An anonymous reader writes "Remember how the Librarian of Congress announced that jailbreaking your phone was legal and not a violation of the DMCA? Yeah, well, tell that to Mohamad Majed, who has already spent over a year in jail and has now been pressured into pleading guilty to criminal DMCA violations for jailbreaking phones for use on other carriers."

Not really jailbreaking

[dogmatixpsych]

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.

Jailbreaking is not unlocking

[SuperKendall]

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...

Really bad summary

[secretcurse]

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:Not really jailbreaking

[Zed Pobre]

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:No ex post facto laws

[msauve]

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:Well naturally...

[puto]

Yes, and you can read the original filing. The guy and his buddy bought thousands of stolen phones, and playstations, and laptops, that he knew were stolen from an undercover FBI guy over the course of few years. He and his pals are no angels. No heros. But then again, they could have posted a link to it. http://www.investigativeproject.org/documents/case_docs/1136.pdf [investigativeproject.org]

Re:No ex post facto laws

[Adrian Lopez]

"Certainly there's not a word in the Constitution that gives them power to negate what the Legislature duly-passed and the Executive signed."

Nonsense. Here are some relevant words for you:

"Congress shall make no law..."

and

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Re:Beyond the Scope

[puto]

Court doc. Seems all the phones were sold to them by an undercover agent as stolen goods. http://www.investigativeproject.org/documents/case_docs/1136.pdf [investigativeproject.org]

Re:Well naturally...

[DJRumpy]

Exactly. This wasn't some poor cell user trying to get his phone working on another network which is the specific use case allowed under the exception, but rather he was specifically prosecuted for breaking DMCA for the explicit purposes of trafficking that same hardware for a profit.

Hardly innocent.

Re:No ex post facto laws

[Attila Dimedici]

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

There is nothing in the Constitution about judicial nullification. The idea that the Supreme Court gets to decide whether a law is constitutional or not was the result of a Supreme Court decision where they basically said that was their place. However, since the ruling was made while the Framers of the Constitution were still among those running the country, it does not seem that they found this to be an unreasonable reach. Of course at the time the understanding was that members of Congress would not vote for bills they believed to violate the Constitution and that Presidents would not sign such bills into law (since all such persons take an oath to uphold the Constitution). We now know that to not necessarily be the case since George W. Bush signed a bill into law that he explicitly said he expected the Supreme Court to overturn at least parts of.