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Free the Cell Phone! (Wired)Free the Cell Phone! (Wired)Posted Sep 28, 2005 20:03 UTC (Wed) by bfields (subscriber, #19510)In reply to: Free the Cell Phone! (Wired) by kirkengaard Parent article: Free the Cell Phone! (Wired)
does this make precedent for positive breaking of DRM as an access and fair-use exercise, where no illegal copying takes place? Someone can correct me if I'm wrong, but I believe the argument is that illegal copying *did* take place. The copying in this case is the "copying" that goes on inside the phone in order to execute code on boot. Since you need permission to make that copy, you need permission to turn your phone on. Since your phone company doesn't give you permission to turn on your phone for the purpose of unlocking it, you're making a copy without their permission--that is, an illegal copy. This is obviously ludicrous. Any reasonable person would say that the ephemeral "copies" that computer makes automatically when running software (from disk to memory, from memory to process, etc.) should be considered mere "use", akin to the use you make of a book when you read it, rather than a "copy" regulated by the copyright law. But my understanding is that this sort of argument has actually held up in court before.
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Free the Cell Phone! (Wired) Posted Sep 28, 2005 22:48 UTC (Wed) by zotz (guest, #26117) [Link] "Since your phone company doesn't give you permission to turn on your phone for the purpose of unlocking it, you're making a copy without their permission--that is, an illegal copy."
And if this is indeed so, your car company can slap a eula on your car and prevent you from selling it to someone else. Right? (Or at least make it illegal for the buyer to use the car.)
all the best,
drew
Doctrine of First Sale Posted Sep 29, 2005 2:47 UTC (Thu) by ncm (subscriber, #165) [Link] Right, the Uniform Commercial Code and the Doctrine of First Sale override any license restrictions that you didn't specifically agree to before you forked over the cash. Even if you did sign something (as may be common for cell phones) the UCC nulls any provisions that are not reasonable and expected for such transactions. When you pay for a phone, you own it and have a fundamental right (and license) to use it. No piece of paper in the box can take that away. Nothing you do to the phone to make it useful to you as a phone can violate any copyright or patent license: you paid, you're authorized, period.(The decision that copying data from ROM to RAM is covered by copyright holds in only one circuit (of nine) and hasn't been affirmed elsewhere, so it's on shaky ground. Likewise for the one that says shrink-wrap licenses, and the "no refunds" insult on your movie ticket, hold.) IANAL, this is not legal advise.
Doctrine of First Sale Posted Sep 29, 2005 16:41 UTC (Thu) by Ross (subscriber, #4065) [Link] Right, except, as I found, in the eigth circuit where EULAs can contain pretty much any conditions. IANAL either.
Free the Cell Phone! (Wired) Posted Sep 29, 2005 7:06 UTC (Thu) by Wol (guest, #4433) [Link] As I understand it, "copying in order to use", or your ephemeral copy, is explicitly recognized in US law and is declared NOT to be copying for the purposes of the Copyright Act.
So, in the US at least, this "illegal copying" argument won't fly because the Act specifically addresses this situation and says, "yes, this is legal".
Unfortunately, in the UK certainly, and probably most of Europe, this is not so.
Cheers,
Free the Cell Phone! (Wired) Posted Sep 29, 2005 12:49 UTC (Thu) by bfields (subscriber, #19510) [Link] As I understand it, "copying in order to use", or your ephemeral copy, is explicitly recognized in US law and is declared NOT to be copying for the purposes of the Copyright Act. That would make sense, wouldn't it? Alas, here's the precedent I was looking for. Read it and weep. Congress's response to this case (where a 3rd party computer repair company was sued for violating copyright just by turning a computer on) was to make an exception for the specific case of computer repair. Talk about missing the point....
Congress didn't miss the point Posted Sep 30, 2005 20:45 UTC (Fri) by Baylink (subscriber, #755) [Link] They did exactly what their owners wanted them to do.
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