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Censorship

Jailtime For Jailbreaking 281

Posted by CmdrTaco from the well-thats-not-fun dept.
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."
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Jailtime For Jailbreaking More

Jailtime For Jailbreaking

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  • No ex post facto laws (Score:2, Insightful)

    by Anonymous Coward

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

    • 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 (Score:5, Informative)

        by msauve ( 701917 ) on Thursday December 02, 2010 @01:36PM (#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: (Score:3)

          by msauve ( 701917 )
          I'll just add to this, since many posts show that people are confusing the action at issue here with what's allowed by the most recent LoC findings. As I referenced, there was an exemption going back to 1996 for "jailbreaking" in order to move a phone to a different network. The more recent exemption (for "jailbreaking" in order to run other software) was added this past July. It doesn't appear to apply to this case at all (it is neither appropos or timely). This is from the current finding:

          (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.

    • Re: (Score:3, Funny)

      by Anonymous Coward

      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 (Score:5, Insightful)

        by commodore64_love ( 1445365 ) on Thursday December 02, 2010 @01:28PM (#34419560) Journal

        >>>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.

    • 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 mess

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

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

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

  • Not really jailbreaking (Score:5, Informative)

    by dogmatixpsych ( 786818 ) on Thursday December 02, 2010 @01:05PM (#34419110) Journal
    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: (Score:2)

      by godrik ( 1287354 )

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

    • Re:Not really jailbreaking (Score:5, Informative)

      by Zed Pobre ( 160035 ) on Thursday December 02, 2010 @01:21PM (#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.

      • 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 ta

        • 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.

          Then you need better reading comprehension, because you skipped over the important bit: "... initiated by the owner of the copy solely in order ...". The owner of the copy at time of circumvention was not doing so in order to connect. He was doing to in order to resell, undercutting his supplier.

          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.

          Then you should be happy, as T-Mobile also will send you an unlock code if you buy a phone from them unsubsidized, so you can get around this problem legally with perfect ease. They'll even send you an unlock co

      • Comment removed (Score:5, Insightful)

        by account_deleted ( 4530225 ) on Thursday December 02, 2010 @01:34PM (#34419652)
        Comment removed based on user account deletion

    • 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

    • 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 c

    • Actually, this is a very important distinction.

      Jailbreaking, SIM unlocking, and rooting are quite different things and I have been surprised at how many people don't know the difference. Now, however, seeing that even the editors of /. don't know the difference I begin to understand why there is so much confusion.

  • Jailbreaking is not unlocking (Score:5, Informative)

    by SuperKendall ( 25149 ) on Thursday December 02, 2010 @01:07PM (#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...

  • Really bad summary (Score:5, Informative)

    by secretcurse ( 1266724 ) on Thursday December 02, 2010 @01:08PM (#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: (Score:3, Insightful)

      by StikyPad ( 445176 )

      [citation needed]

        • Yes of course it's illegal to traffic stolen and counterfeit goods, but WTF does that have to do with the OP's claim that "[i]t's legal to jailbreak the phone you own and use, it's just illegal to unlock and sell in bulk."

          I have yet to see a source for this claim.

      • 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: (Score:2)

          by godrik ( 1287354 )

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

        • 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.

        • Again you fail reading comprehension. As per your link:

          (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. (Emphasis mine)

          As long as he owned the program to unlock the phones, it's exe

    • Comment removed based on user account deletion

      • 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 worki

      • 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.

        • Comment removed based on user account deletion

        • 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.

          No, it is not a problem. The law says the owner may jailbreak the phone. First Sale law says the owner may resell the device. If you acquire the phone legally and completely (e.g. not a lease) then you have the legal right to modify it in this fashion and subsequently resell it as the law is written today. There are ways in which you're not allowed to modify it at all, but none of them preclude selling it.

    • 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

      • Re: (Score:2)

        by s73v3r ( 963317 )

        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? (Score:5, Insightful)

      by grimJester ( 890090 ) on Thursday December 02, 2010 @01:25PM (#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.

    • 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?

      • The precedent set is unfortunate

        Fortunately, no precedent is set by a guilty plea.

        And if he was really funneling these phones to terrorists, arresting him was the last thing we should have done. Having the DHS/CIA/WhatHaveYou intercept all the phones either before or after he got them, record all the EMEIs and other identifying information, and then passing them through would have been the smart thing. Then intercept and pay special attention to all calls made on those phones. What's the point of having

    • 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 ;) )

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

  • 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."

    Regardles

  • Phone companies are evil (Score:5, Insightful)

    by troll -1 ( 956834 ) on Thursday December 02, 2010 @01:12PM (#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.

  • A Lot of Confusion (Score:5, Interesting)

    by cob666 ( 656740 ) on Thursday December 02, 2010 @01:12PM (#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: (Score:3)

      by puto ( 533470 )
      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, Sp

    • Re: (Score:3)

      by mcgrew ( 92797 ) *

      I was amazed that there are people that equate unlocking or jailbreaking a phone to stealing intellectual property.

      You can't steal intellectual property any more than you can steal rainwater or air. The writer doesn't own his work, it belongs to everyone. He merely has a limited time monopoly on its publication.

      That's not pedantry, it's a distinction with a difference. Please stop saying "stealing IP" because IP can't be stolen.

  • Beyond the Scope (Score:4, Insightful)

    by Voyager529 ( 1363959 ) <voyager529@ya[ ].com ['hoo' in gap]> on Thursday December 02, 2010 @01:13PM (#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: (Score:3)

      by Bert64 ( 520050 )

      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.

    • 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.

    • 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

    • Re: (Score:3)

      by tlhIngan ( 30335 )

      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

    • Comment removed (Score:5, Insightful)

      by account_deleted ( 4530225 ) on Thursday December 02, 2010 @01:43PM (#34419810)
      Comment removed based on user account deletion

    • 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.

  • 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.)

  • 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...

  • 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.

  • 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: (Score:2)

      by jspayne ( 98716 )

      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

  • 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

    • 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? (Score:4, Funny)

    by russ1337 ( 938915 ) on Thursday December 02, 2010 @01:27PM (#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....

  • 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.

    • It's worth noting that the FBI can allege anything it wants against this poor fucker without facing any real repercussions, and that it's totally irrelevant to this issue.

  • 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 ca

  • To everyone claiming this is unjust: RTFA.

    The guy was found guilty because... he pleaded guilty. What's the court supposed to do, argue the defense's case for them when they've already said they did it?

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