My blog post http://www.satellitecardsharing.com/

If your phone company is in violation of your contract you have grounds for a lawsuit. In today’s world there’s a good chance of someone making that into a class action suit to represent others the company may have trated like you.

If someone steals from you it is still against the law for you to break into their house to steal your stuff back. This is no different.

I think this sort of activity is narrowing the gap between owning something and renting something.

It’s really more like redefining. What do you think they were talking about all these years when the talking heads spoke of leading us into a “service based economy?” Things are not owned by us, they are owned through contracts and promises to tithe a portion of our income to corporations and banks. It’s socialism without the government.

Of course, if I really want a tivo and I don’t want to tithe I can always buy a computer and build my own “personal media server.” And yeah, this new world we are heading into means my “home made and tithe free” tivo probably won’t have access to all the same content as the version blessed by the corporate big brother… so what? A hundred million blogs proves there people want to be heard and will produce “free content” if given the opportunity. Even if 99.999% of those blogs suck that’s still more “channels” of worthwhile content than all the satellite channels offer.

So you can tithe and be a serf in the corporate kingdom or “own” and live without that particular corporate “culture.” So long as the freedom to choose exists without regulatory coercion or outright legislation against free voices, it’s a completely fair trade. Want free cellphone service? Start a public drive to populate the world with open access wifi hubs and let those wanting to use it buy wireless network handsets.

I think this sort of activity is narrowing the gap between owning something and renting something. Maybe narrowing the gap isn’t the best way to put it… It’s maybe like eliminating the relevant differences between owning and renting. Eg, you can rent a DVR from many cable companies now, and it would have to be returned if you end the contract. Or, you can buy Tivo for more, and the service for more, and take it with you no matter who provides your cable (supposing there were competition in the cable market, for the sake of argument). This seems to me pretty similar to the phone situation, but the locks on the phones are essentially taking something the customer owns and applying to it properties that ordinarily apply to things you rent.

And that isn’t the case that concerns me. If a provider locks your phone while you have a contract with them, that’s fine. In fact, I wouldn’t be against a law that allowed them to lock the phone and disallowed anyone else from unlocking it until either the contract term expires or you settle the issue by paying the termination fee. But the DMCA is not that law, because it does more than that: If the provider refuses to unlock the phone after your contract term is up or after you have paid your termination fee, it is still a violation of the DMCA to unlock it yourself. After you’ve paid the cost and settled the contract, the phone is yours. The phone company should have no rights to it but that’s just what the DMCA gives them, and that is how it becomes anticompetitive: If my phone company doesn’t want me to switch to a competitor, they can force me to buy a new phone using the DMCA. Artificially tying customers to a particular company should be neither the intent nor the result of any legislation.

Oooh, actually not true. While it is true that the carriers “subsidize” the cost of cell phones, they do that by locking you into a 1 or 2 year contract. If you terminate early, even if it is in the 23d month of a 24 month contract, they charge the full “contract termination fee” which more than covers the subsidy. In fact, some argue that this early termination fee is illegal in california because it isn’t related to any actual damages to the carrier.

***I*** own the phone outright. The cell phone company has no lean or legal interest in my phone. They have no legal right to disable the phone or engage in anti completive practices to lock the phone–that is what their tenuously legal 2 year contract is for.

I can call a friend in England for about the same rate I pay to call a friend in Cali. Not quite that cheap, but damn close.

If Verizon won’t sell you a phone they haven’t “hacked” then it sounds like a good reason to choose another provider. it also doesn’t sound like a good case against this application of the dmca, since there’s no logic in concluding from those stories they wouldn’t still require you to use one of THEIR phones if this law were not in place.

I’ve heard an account of one AT&T customer whose phone was “locked” via digital data sent by AT&T – they locked his phone to their service without his knowledge or consent and refused to unlock it. Of course it was a phone he had unlocked from ANOTHER provider’s service thus giving AT&T reason to believe he might violate his contract with them as well. And, of course, this was only one side of the story – it’s entirely possible his contract with AT&T granted them the right to lock his phone and he simply didn’t read it before ageeing to it.

In other words I’m not saying either party here is an obvious good guy or bad guy. Laws need to be changed to better protect consumers, but that doesn’t mean shooting holes in a very efficient means of contract enforcement is the only or even best solution.

My experiences with Verizon are:

1. they won’t activate a phone unless it’s one they’ve hacked – no buying any new phone of eBay. You have to buy a used one that Verizon already hacked (i.e. crippled) or buy a new one from them.
2. for years they wouldn’t sell any bluetooth enabled phones, and when they finally sold the Motorola 700 (something like that) model they crippled the bluetooth so it couldn’t be used with a computer’s bluetooth modem to connect to the internet.
3. they refused to re-activate my old cell phone they sold me and I had used up till 7 months prior to my request claiming the FCC won’t let them.

Also, I’ve been told if you try to use your phone plugged into the computer with a cord with your modem that they’ll try to charge you “data rate” for the minutes.

Phone service bites in this country.

three blind mice, what phone company do you work for?

point well taken Montana. there are other ways to enforce the contract and to preserve the business model.

but we don’t really see the phone-lock as a misuse or inappropriate application of the DMCA.

if you remember lexmark tried to protect their ink-jet cartridges from competition using the DMCA, but the courts ruled that it was not an appropriate application of the DMCA to protect an article of manufacture.

we think this was a correct decision, incorrectly decided. what lexmark was (IOHO) doing was clearly within the literal language of the poorly written DMCA, but obviously outside the intent of the law. whist we believe in the necessity of a DMCA-like law, the DCMA itself is a sloppy bit of legislation.

one might ask why this case is different.. indeed there are many similarities.

the difference is that the mobile phone lock is bbeing used to enforce a contract/license. it only affects the article of manufacture purchased by the consumer. it does not prevent others from offering competiting products as was the intent with lexmark.

at the same time, it is clear to us that protecting a mobile phone lock was not the intended application of the DMCA..

but if lexmark was a negative unintended result of a well-intentioned law, the mobile phone lock is a positive unintended result.

it seems absurd on its face that the Stanford LC believe this is anti-competitive. the consumer is free to buy a locked phone, or an unlocked phone, among hundreds of models made by more than a dozen manufacturers, from a number of different operators – and in some regions there is even competition among different mobile standards. by any measure, the mobile market is a massive success of competition and deregulation. over 1/6th of the world’s population owns a mobile phone.

the DMCA has positively contributed to this and that should be taken into consideration by the Copyright office when granting exemptions.

In a world where we are constantly screaming about a lack of privacy, how is it the better option to create even MORE beauracracy and excuses for untrustworthy companies to share and sell personal information?

Encryption and meaningful, robust and well applied laws will enable all of us – little guys and megacorps alike – to interact with one another on our own terms. Continuing as we are means fostering an increasingly dysfunctional and litigious culture. Encryption and well applied data protection laws can displace the drive to the courts every time someone breaks a nail simply because fewer nails are going to get broken.

We cannot create a new “digital culture” and have any degree of privacy if we are going to say no one can own data or share data unless they are prepared to pay lawyers and courts to defend them over every last infraction of trust. I can understand a Stanford law professor drooling over such a notion, but I see a lot more merit in a DRM-ed and encrypted culture where “little guys” as well as corporations share tools of individual empowerment. If the “price” of that culture is slightly less less “free and public” access to hype laden, soundbite driven, corporate infotainment, so much better the bargain.