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Cell Phone Unlocking Illegal - New DMCA Exemption

 

Cell Phone Unlocking Is Now Illegal For All Cell Phones Purchased After January 26th, 2013

 

Per the latest DMCA exemption ruling there are 3 requirements that must be met in order to legally unlock any cell phone:

 

      1. The phone must have been purchased before January 26th, 2013. It is illegal to unlock any phone purchased after January 26th, 2013 in USA.

      2. The owner of the phone must be the one initiating the unlocking for the purpose of their own authorized use on another carriers network.

      3. The owner of the phone must first request the unlock code from the carrier and wait a reasonable period of time before unlocking their self.

 

You may have been re-directed to this page if the selections you made when attempting to order an unlock code do not meet these 3 requirements.

 

This decision by the Librarian of Congress is so ridiculous that even the Obama administration disagrees with it. Read the Whitehouse.gov response here: https://petitions.whitehouse.gov/response/its-time-legalize-cell-phone-unlocking

 

Don't let the big three carriers who lobbied for this get away with locking consumers in even after their contracts expire. Fight back for consumer rights by becoming a Phone Member to buy and sell phones that are already unlocked. Let's get as many people to cancel their service and switch to Solavei as we can.

 

Click here for more information about buying and selling wholesale unlocked phones as a Phone Member at PhoneMember.com.

 

If you sell someone an unlock code we highly recommend that you do not enter the code for them and make sure they are in compliance with the exemption to the Digital Millenium Copyright act before selling them a code or giving them any other information or advice on unlocking their phone.

 

Since it would be absolutely impossible for any consumer to excersize their fair use right to unlock their own phone without using either an unlock code or software obtained from a third party, we will continue operating under the assumption that we are not in violation of the DMCA by providing the required information to those who are legally circumventing per the exemption. If we are threatened in any way for providing consumers with the information they need to legally unlock their phone we will put together an association of thousands of small business owners to challenge the constitutionality of the Digital Millenium Copyright Act, and we will also file a class action lawsuit against any company, organization, agency, or individual who would attempt to infringe upon our constitutional rights. If the Librarian of Congress decides to re-consider his decision and eliminate the exemption for any cell phone, old or new, we will comply by shutting down our business and putting our employees out of work. But as long as it is legal for any consumer to unlock their phone we will be here to provide them with the information they need to legally do it. We believe that is our constitutional right which cannot be infringed and we will fight to the bitter end to defend it.

 

In the case of Chamberlain v. Skylink the Appeals Court set out six elements that a plaintiff must prove in order to prevail in an anti-circumvention case. "A plaintiff alleging a violation of § 1201(a)(2) must prove: (1) ownership of a valid copyright on a work, (2) effectively controlled by a technological measure, which has been circumvented, (3) that third parties can now access (4) without authorization, in a manner that (5) infringes or facilitates infringing a right protected by the Copyright Act, because of a product that (6) the defendant either (i)designed or produced primarily for circumvention; (ii) made available despite only limited commercial significance other than circumvention; or (iii) marketed for use in circumvention of the controlling technological measure. A plaintiff incapable of establishing any one of elements (1) through (5) will have failed to prove a prima facie case. A plaintiff capable of proving elements (1) through (5) need prove only one of (6)(i), (ii), or (iii) to shift the burden back to the defendant." (Emphases in original.)

 

We believe this precedence concludes that since we are only providing information required for consumers to legally unlock their own phone per the exemption for cell phone unlocking; "(5) infringes or facilitates infringing a right protected by the Copyright Act" cannot be proven because there is no work protected as outlined by The Librarian of Congress in the exemption for any phone purchased prior to January 26th, 2013 for which the consumer has requested the unlock code, waited a reasonable period of time for a response, and initiated the unlocking for the purpose of connecting their phone to another carrier with authorization of that carrier. We also believe "(1) ownership of a valid copyright on a work" being applicable to cell phones would be very difficult to prove in a court of law. .

 

How Did It Become Illegal To Choose Which Network You Want To Use Your Own Property With?

 

As if we all weren't struggling enough in this difficult economy, the big boys in the wireless industry have lobbied the Librarian of Congress to take away your right to unlock your own phone for the purpose of using it with the carrier of your choice. Every 3 years the Librarian of Congress, an unelected official, reviews requests for exemptions and opposition to exemptions to the Digital Millenium Copyright Act. (DMCA) Over the last 6 years an exemption was granted for cell phone unlocking, stating that a consumers right to unlock their phone was fair use, and did not violate copyright laws because the person who purchased the phone, owned the phone, and had the right to use the phone with any carrier they want. However, in the last decision made in October, 2012, CTIA successfully lobbied to have this exemption reversed because a previous legal case ruled that the software on a device is not owned by a consumer, only leased. So now that the Librarian of Congress has ruled that you do not own the firmware on your phone, you no longer have the right to unlock it unless your phone was purchased before January 26th, 2013.

 

This is the law you are violating if you unlock a phone purchased after January 26th, 2013:

 

http://www.copyright.gov/title17/92chap12.html#1201

 

Here is the new exemption (right revocation) granted for cell phone unlocking:

 

Wireless telephone handsets – interoperability with alternative networks

 

Computer programs, in the form of firmware or software, that enable a wireless telephone handset originally acquired from the operator of a wireless telecommunications network or retailer no later than ninety days after the effective date of this exemption to connect to a different wireless telecommunications network, if the operator of the wireless communications network to which the handset is locked has failed to unlock it within a reasonable period of time following a request by the owner of the wireless telephone handset, and when circumvention is initiated by the owner, an individual consumer, who is also the owner of the copy of the computer program in such wireless telephone handset, solely in order to connect to a different wireless telecommunications network,and such access to the network is authorized by the operator of the network.

 

 

Basically what has happened, is the big boys in the wireless industry have won the right to have their business model protected, while the smaller players in the wireless industry, and all consumers have lost their freedom. This is a chilling effect on our rights to free speech, and our freedom to choose which companies we do business with. The DMCA was never intended to squelch freedom of speech or our right to choose. It was intended to prevent people from copying music, software, movies, and other copyright protected works. It was never meant to protect a few companies business model, while ripping apart the business model of all others. Furthermore, what is very hypocritical about this decision and CTIA, is that they are still going to unlock phones, refurbish them, etc. It looks like as long as you are part of the big boy club you can do whatever you want, even if it's in violation of the DMCA and you have no exemption to protect you. So now, not only have they eliminated our rights to unlock and re-use phones, they run a cartel, (similar to a monopoly) to continue doing it theirselves without any competition: http://www.gowirelessgogreen.org/what-we-do/recycling-e-waste.aspx Make no mistake about it, if an original USA carrier phone is going to be sold to work overseas as they openly advertise on their own website, it will first need to be unlocked. Since the businesses doing the refurbishing are authorized by the cartel, they will still be able to do the unlocking without any complaint made for violating the law.

 

Thousands of small business owners now not only have to deal with tax increases in a difficult economy, they also have to deal with their business model now becoming "illegal" because of the decision of one unelected official who was successfully lobbied by a cartel. Most independent wireless businesses sell services that allow consumers to bring their own phones. These services include Cricket, Page Plus, H2O, Red Pocket, Simple Mobile, Solavei, and all other GSM prepaid carriers which consumers were able to just insert the GSM sim card into their unlocked device. Now that it will be illegal to unlock new phones, independent wireless businesses will not be able to compete with the cartel of the big businesses unless they can quickly change their business model. Many small business owners are not even aware that they must change their business model because the new exemption has not received any publicity. Usually when something is completely unconstitutional and immoral, and our rights are being infringed, it seems the media now days, does a great job of keeping quiet about it. For many small business owners, by the time they find out about the new exemption to the law, which is actually more of a restriction of the protection of the law, it will be too late. They will be forced to either completely shut down their business, or lay off employees to downsize so they can focus only on selling services for the cartel. That's exactly what we need right now, more unemployed!

 

Hopefully, once James H. Billington realizes how chilling his decision was, he will restore the exemption for all phones, and not wait for 3 years until the cartel has put all the smaller players out of business.

 

 

What Can You Do About This Injustice?

 

You can call your local media and demand that they publicize this injustice. You can call your State Congressman and Senator. You can call the US Copyright Office and demand that they restore your rights and freedoms. You can refuse to support the cartel by switching to a smaller prepaid carrier. We recommend Solavei. You can buy a phone that is already unlocked. We would appreciate it if you would support us by joining our Solavei network. If you have a T-Mobile phone you can use it with Solavei and you do not need to unlock it. Any T-Mobile phone will work with Solavei without unlocking. Any factory unlocked phone will work with Solavei without unlocking.

 

 

Become A Phone Member

 

If you want to support us with a new business model for phones that are bought and sold already unlocked, please join our group of wireless stores and consumers who refuse to let the cartel just take over. Become a Phone Member now: http://www.PhoneMember.com

 

 

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