That is exactly what happened to a Sondra Arquiett in 2010 when an agent with the Drug Enforcement Agency (DEA) took it upon himself to create a fake Facebook account with the hopes of establishing contact with criminal drug dealers.  DEA agent Timothy Sinnigen admitted to creating the account and appropriating Arquiett’s likeness, according to the federal lawsuit that Arquiett filed against the DEA and agent Sinnigen in the Northern District of New York.  Arquiett had previously been arrested for drug charges in 2010, and during that time some of her personal items were seized.  One of those items was her cell phone, which contained personal and private photographs.  Sinnigen used the photographs on the fake Facebook page in order to create the impression that it had been created and was being managed by Arquiett.

The photographs, some of which contain images of Arquiett’s young son and niece, were taken and used without permission or authorization.  The complaint alleges that Arquiett was “deprived of her Constitutional rights, including her right of privacy afforded to her under the First Amendment”.  This clearly raises some concerns about privacy, and to what extent the government can use your personal information.  The Justice Department will investigate this practice and the issues it creates.

The case had been set for trial in the U.S. District Court for the Northern District of New York, however it appears now that it may head to mediation.
By Taylor Hume

CalOPPA was amended and signed into law on September 27, 2013, and went into effect on January 1, 2014.  California law makers did not do away with the previous version of CalOPPA, but rather added to it.  Now, website operators who collect PII from California residents will be required to disclose how they respond to “Do not track signals” or other mechanisms that allow users to choose how their PII is collected regarding their online activities on and across third-party web sites or online services.  It should be no surprise that there is a growing public concern for privacy on the Internet, and as the average user becomes more sophisticated they are learning more about the value of their privacy.  As a result, many consumers are choosing not to have their online behavior tracked when given the choice.

The existing law and the amendment can be found at the California Legislative Information website in their entirety for your review, and the portion relevant to the new amendment can be found below.  Among other things, the operator must:

(5) Disclose how the operator responds to Web browser “do not track” signals or other mechanisms that provide consumers the ability to exercise choice regarding the collection of personally identifiable information about an individual consumer’s online activities over time and across third-party Web sites or online services, if the operator engages in that collection.

(6) Disclose whether other parties may collect personally identifiable information about an individual consumer’s online activities over time and across different Web sites when a consumer uses the operator’s Web site or service.

(7) An operator may satisfy the requirement of paragraph (5) by providing a clear and conspicuous hyperlink in the operator’s privacy policy to an online location containing a description, including the effects, of any program or protocol the operator follows that offers the consumer that choice.

Understanding how your business will approach this is critical. If you collect PII from California residents for the purposes of tracking users’ online activity, this is something to pay attention to.  For any questions regarding the information above, please contact us.

By Taylor Hume

We are not persuaded by plaintiffs’ arguments [that the defendant “aided and abetted” the unlawful texting while driving or that a jury could infer defendant knew the driver was texting and thus that she violated an “independent duty to avoid texting to a person who was driving”] as stated, but we also reject defendant’s argument that a sender of text messages never has a duty to avoid texting to a person driving a vehicle.  We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.  But we also conclude that plaintiffs have not presented sufficient evidence to prove that Colonna had such knowledge when she texted Best immediately before the accident.

While some have accused the court of “inventing a new form of liability,” the fact is that the Plaintiff lost, and, in a well-reasoned opinion citing numerous cases, the court merely applied and restated the law.  As quoted by the court, “An act is negligent if the actor intends it to affect, or realizes or should realize that it is likely to affect, the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other.”  Restatement (Second) of Torts, §303 (1965).  A texter who has reason to know that a driver will read his or her text and by texting causes an accident is negligent by definition.

Circumstances may make employers liable for employees who text and drive.  In fact, some employers are highly likely to know or have reason to know when their employees are behind the wheel.  Certainly businesses use text messages to direct their employees.  More interesting to businesses is the vast array of other, similar circumstances that might create liability.  “Push to talk” is exempted from an FMCSA ban on cellular phones, but could easily cause an accident or otherwise distract a driver.  Many businesses require their drivers to travel using GPS, which also finds itself in the crosshairs.  The rise of “smartwatches,” Google glass and similar “virtualwear,” touch-screen vehicle radio and comfort controls, heads-up displays and other, as-yet unforeseen technologies raise a slew of liability questions.

The opinion in Kubert v. Best wasn’t a stretch.  Inventive lawyers will stretch in the future, though.  What policies do you have in place to protect your company?

By Dov Szego

Hiring is always a dicey proposition.  Hiring the wrong person can be costly in a number of ways: the search process is expensive, training is expensive, and bad employees can try to destroy a company from within by stealing trade secrets or revealing private company information.

Google, of course, uses analytics to determine how best to find the right job candidates.  The have, for instance, determined that the correct amount of interviews for a candidate is four (though they sometimes have someone come in for a fifth interview for their own internal training purposes).  Most striking is that Google uses a panel of different employees and not proposed co-workers or direct supervisors when vetting a candidate because the folks at Google feel that non-stakeholders will be less biased.

The Washington Post story has a few more interesting nuggets and I encourage everyone to take a look.  Could an Amazon profile be far behind?

UDRP Complaints have various criteria that must be met in order for the Complainant to prevail.  Before moving forward with a complaint, you may want to ask yourself if you can satisfy the three main criteria that every Complaint must have in order to be successful.  The ICANN UDRP Policy includes these three main elements that a Complainant must prove, and they are stated within the policy as follows:

(i) your domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain name; and

(iii) your domain name has been registered and is being used in bad faith.

True Value Company recently filed a UDRP complaint against the registrant of Truevalueweb.com with the National Arbitration Forum “NAF”.  The Complainant undoubtedly has trademark rights in the mark “True Value” as evidenced from its use of the mark in connection with hardware products since 1963 and its registered trademarks and service marks.  The perplexing part of True Value’s complaint is that it claims that there is confusion in the marketplace because the Respondent is offering similar services in connection with Truevalueweb.com.  Since True Value Company is a hardware store and Truevalueweb.com offers web hosting services, I really don’t see how this is possible.  Evidently, Complainant does offer web hosting and design services to businesses that are part of its cooperative, but not to the general public.  This is certainly not the strongest argument, but an attempt nonetheless to satisfy a necessary element by illustrating consumer confusion.

The Complainant also argues that the Respondent’s website uses the same color scheme in an attempt to confuse people and make them believe that Respondent is in some way affiliated with Complainant’s business.  A simple glance at the two websites is all you will need to conclude that this an odd claim.  The folks over at domainnamewire.com have done an excellent job illustrating the oddity of Complainant’s assertions in their article, and I urge you to look at the screenshots that they provided.  The final decision from the NAF, published here, references the three criteria I inserted above.  The NAF decided that Complainant provided enough evidence to satisfy criterion number 1 above, but that it did not prove that Respondent had no rights or legitimate interests in the disputed domain name.  Not being able to satisfy the second criterion, analyzing the third was not necessary.

If you do not want to pursue a UDRP Complaint, perhaps a cease and desist letter is better suited for your needs.  This is a less formal option, but is certainly something to be taken seriously.  If you are considering this approach then it may be worthwhile to review this rather humorous story about a New Jersey Township attorney’s letter to a citizen of West Orange, NJ, who is the owner of Westorange.info.  Cease and desist letters should not be issued lightly, and diligent research is a key element to preparing a good one.  In this situation, the West Orange Township attorney, Richard D. Trenk, issued the letter to a citizen who had registered a domain name that included the township’s name with the accompaniment of the “.info” domain extension.  After reviewing the site, it is blatantly clear that there could be no confusion as to whether the site was affiliated with the official government website located at westorange.org.  With that being said, the cease and desist letter was clearly not well thought out or planned.  If you have a few minutes, and are up for a good laugh, then I encourage you to read the entire uproxx.com article referenced above including pro bono counsel’s response to West Orange Township attorney, Richard D. Trenk.

It is important for every business to police its trademarks to the extent possible, and this may involve sending cease and desist letters and filing UDRP complaints when necessary.  If you are thinking of taking action, make sure that the necessary elements are in place prior to jumping the gun.  If you have any questions about this, please feel free to contact one of our Internet attorneys.

By Taylor Hume

How could this be possible? Can you add people to Facebook groups without their authorization?  The answer is yes, but you must first be friends with the person who you wish to add.  This is great if the group is for something like a high school reunion or a birthday party, but could be devastating if it contains something as extreme as a death threat.  Imagine the implications for anyone on social media, but especially those in the public eye such as politicians, celebrities and executives.

This is obviously not the only thing that can go wrong in the world of social media, but is an extreme example of something that all professionals can learn from.  Issues regarding impersonation, defamation, harassment, cyber bullying and stalking are all things that come to mind when thinking about the dark side of social media.  What is worse is that although the public is becoming more and more sophisticated about what they read on the Internet, there are still many people that believe what they read.  Even if you don’t immediately believe it, it can have an effect on your perception of someone, or whether you choose to do business with someone.

Many people view outlets such as Facebook as a personal space that is separate from their professional life.  The problem is that many people can view what you say and do on social media sites, so you are putting it out there for people to see, and these people include your boss, your colleagues, your clients, etc.  Be careful who you add as friends or connect with on social media, because let’s not forget that it was more than likely one of Gerry Rogers’ friends that added her to the group at issue here.  This is a network that you have built, and whether you like it or not and it can reflect badly on you personally and professionally.

Gerry Rogers is certainly the victim here whether it was a friend that added her or her account was hacked, but careful monitoring of social media profiles could have prevented this.  Social media is meant for meaningful engagement and conversations.  It is important to remain active once you join to both grow the value of your network and protect yourself.  We at Centre believe that social media is a great tool and can be an enjoyable endeavor.  If you have any questions about social media, online defamation or impersonation, contact us and check out or page on social media consulting.

By Taylor Hume

More importantly, Windows XP, sometimes billed as “the most popular operating system ever,” is set to reach “End of Life” less than a year from now, on April 8, 2014.  This might not seem like an issue, but millions of users, particularly businesses, continue to use the venerable Microsoft XP operating system.  For those of you who are visual, consider the following data from Netmarketshare:

What this table illustrates for us is that Windows is like Star Trek Movies – people only like every other one (sorry Cumberbatch).  There are reasons for this: After its second service pack, XP is sleek, stable, capable, and relatively user-friendly.  Vista is a bloated mess, with numerous unnecessary and obtrusive changes.  Windows 7 made necessary, intuitive changes, and made the OS capable again.  Windows 8 again adds numerous senseless changes, and appears, perhaps as a result, to be following the Star Trek pattern despite being reasonably polished.  Bottom line, the average user is more likely to be using the much-hated Windows Vista than Windows 8 at this point.

The data also shows the problem: at End of Life, security support for XP, still extremely popular, will end.  Who wants their bank using unsupported, insecure operating system software?  What about their government?  Their court system?  Microsoft’s threats are very real – by May of 2014 any security issues in Windows XP will be permanent, unless third-party software developers find a way to step in and extend updates, or at least engineer patches.

Why hasn’t everyone updated?  The strategy behind Windows 8 appears to be to convince people that they want their phone to look like their tablet, which also looks like their desktop.  There are obvious hardware issues with this:

–          Phones are small, and have small screens.  Tablets are slightly larger, but still have small screens.  The greater “real estate” of a laptop/desktop is useful and should be used.

–          Phones have touchscreens.  Tablets have touchscreens.  Most laptops/desktops don’t have touchscreens.  An OS that assumes a touchscreen, or at least is optimized for one, is crippled by the lack of a touchscreen.

–          Phones and tablets, though becoming increasingly viable as work-machines, are still “toys” for the most part.  Laptops/desktops are easily both.

Ignoring the hardware issues, which there is no reason to do, a lot of Windows 8’s changes are intimidating.  Why Microsoft thought it was a good idea to make desktop users boot to something other than the familiar desktop is unfathomable.  The elimination of the much loved start button and program trees entirely blow my mind.  Many hotkeys users have used for a long time appear to be gone, a process that started with previous versions of MSOffice.  Bluntly, the learning curve for Windows 8 is unreasonable for people who have used an essentially identical OS for more than twenty years.

Even the numbers of copies of Windows 8 sold don’t reflect the numbers used however, as Windows 8 simply isn’t being adopted.  Most businesses will switch to tried and tested Windows 7 before they consider Windows 8.  Apart from the more shallow learning curve, Windows 7 retails more cheaply.  Staples alone recently gave $100 off for purchasing a Windows 8 device -basically “buy the hardware, get the software free” – or $100-$400 for trading an older device in for one with Windows 8.  Giving your product away is generally not a winning business strategy.

All of these issues are not lost on Microsoft.  Having only recently confirmed that the rumored “Windows Blue” will be a free update styled “Windows 8.1,” there is some hope that Microsoft is responding to its critics.  Much hype now surrounds the upcoming “Windows 8.1,” which may just be a service pack a la windows XP fame, but has been rumored to be something more.  Some have even suggested that this update, less than 8 months after the release of Windows 8, is the precursor to a subscription based Windows OS at least eventually (which I predict would be a disaster of epic proportions and catapult Linux to the fore).  Though Microsoft has confirmed the likely return of the desktop and probable unveiling of “snap” screen-division effect, the details will remain needlessly secret until the June 26 preview.
By Dov Szego

Essentially, the CAS allows content owners to identify infringing IP addresses after verifying that infringement is taking place by P2P (“peer to peer”) file sharing.  The ISP then sends a warning to the Internet service user who had that IP address at the relevant time.  After multiple warnings the Internet service user may be required to view a video about piracy, and after several warnings that user’s service may be “throttled,” or slowed down to make piracy more difficult or time-consuming.  The CAS includes an arbitration process for challenging warnings (Russell’s teapot: How do you prove you weren’t pirating?), but no circumstance under which an Internet service user’s account is to be terminated.

Frankly, no one will or even should be satisfied by this system.  For Internet service users the CAS is a generally offensive, paternalistic, probably meaningless annoyance.  First, those who are engaged in piracy will most likely treat the various warnings as “strikes” in the baseball sense – you can still hit a home run after two strikes, and you can still pirate after five.  While those who aren’t engaged in piracy may get the benefit of an “early warning” that someone may be using their Internet connection to pirate, they may just as likely be getting “warnings” for non-piracy in the form of legitimate sharing of documents or other files or even, less likely, fair use.  Furthermore, our firm has experience in cases where intellectual property owners take the position that it is the alleged infringer’s obligation to prove to them that there is no infringement, rather than their obligation to prove that there is.  One can easily see where it might be easier for an intellectual property owner to simply report all the IP addresses that are file-sharing certain search terms, without verifying actual infringement, than to fully download and hash-confirm every file from every apparent infringer.  Though this will violate the terms of the CAS, it will happen, and innocent users will certainly express their aggravation at the expense and hassle of arbitration.  ISPs won’t enjoy their users’ aggravation.

For content owners, the system has no teeth.  The one benefit is that it may make it easier for these providers to ultimately identify repeat offenders if they decide to sue.  That very minor expediting, and even more minor reduction in the cost, of a lawsuit, is almost certainly less relief than they would prefer particularly since none of the voluntarily participating ISPs have indicated they will actually terminatethe service of repeat offenders.  More to the point, CAS is limited to P2P file sharing – what about, say, megaupload, rapidshare, mediafire, YouTube, dailymotion, etc.?  A study in the wake of the shutdown of megaupload showed little effect on piracy.  How happy can intellectual property owners be about the promise to repeatedly threaten slaps on the wrist – without the promise of any actual slap, ever?  Also, not all providers are participating, apparently only AT&T, Cablevision, Comcast, Time Warner Cable and Verizon are – 25% of all broadband users don’t receive service from a participating ISP.  At least 25% of broadband users won’t even get the idle threat…

Worst of all, I am not at all convinced that this system doesn’t actually threaten, in some ways, the CDA immunity it was apparently intended to preserve.  47 USC §230(c), the CDA immunity provision, states that 1) the ISP cannot be considered the “publisher or speaker” of pirated materials, 2) the ISP can restrict “objectionable” content such as “obscene, lewd, lascivious, filthy, excessively violent, harassing” content, and 3) the ISP is entitled to “enable or make available to information content providers or others the technical means to restrict access to pirated material.”  The immunity is intended to protect ISPs from liability for the actions of others because, obviously, they may not be aware of things said by their users (in a defamation context) or content shared (in a copyright/intellectual property context).  Most courts have taken literally the immunity in the form of the ISP not being considered the publisher or speaker, thus insulating against primary liability for, say, defamation or copyright infringement.  It would seem though, that when the ISP has warned the same user 6 times that they are violating copyrights, but continues to provide even throttled service, there may be secondary liability in the form of negligence or perhaps even some possible conspiracy.  Of course, the CAS is far too new for there to be any caselaw on this question, but I would gladly make the argument, particularly where the same user continues to share the same file(s) after several warnings.

Frankly, CAS is more interesting as evidence of some effort by ISPs than as an actual piracy preventer.  It should be interesting to see what happens as people hit or exceed their 6 strikes, but continue to run the bases.

By Dov Szego

This program was designed to avoid the legal problems associated with “traditional” digital transfers — “selling” a digital file means making and transferring a copy of that file onto the buyer’s computer, which has long been viewed as “reproduction” of a protected work within the meaning of the Copyright Act.  “Reproduction” is prohibited by the Act because it yields more copies of the work than existed prior, and only the copyright holder has the right to create such new copies.

This is where the “First Sale Doctrine” comes in, or should come in, as Redigi argued.  This doctrine states that once a copy of a work is sold, that copy can be resold to another buyer without infringing on copyright.  This doctrine is what allows used bookstores or record stores to operate freely.  Because such a transaction does not create an additional copy of the work, the copyright holder’s rights are not infringed.

At first glance, Redigi’s service seems to comply with the First Sale Doctrine because it requires the seller to delete the file after selling.  Thus, the number of copies in existence remains the same both before and after the transaction.  However, the Court in Capitol Records LLC v. Redigi, Inc. held that it was the “creation of a new material object and not an additional material object that defines the reproduction right.”  Even though the file was eventually deleted from the seller’s computer, the buyer’s file was still, technically, a copy of that original file and therefore a new “reproduction” within the meaning of the Copyright Act.

This ruling seems to comply with the “letter” of the Copyright Act, though perhaps not the “spirit” of the Act or the First Sale Doctrine.  If the ruling stands, it may have consequences for online streaming services, which briefly place copies of streamed files on a user’s computer before playing and deleting them.  However, the real problem here might be that the long-recognized First Sale Doctrine was created, according to the Court in this case, “in a world where the ease and speed of data transfer could not have been imagined.”  So, in the Court’s view, it is up to Congress to bring the Doctrine into the 21st Century and, for now, its hands are tied. 

Regular readers of Internetbizlaw and the Centre Knowledge blog know that I am pro technology consumer, and very cynical about the “graying” of property rights.  I am not going to spend a lot of time in this post discussing the “right and wrong” of legalizing unlocking, or not, but everyone should understand a few facts:

Fact: Wireless companies sell phones to subscribers at rates lower than the retail price of the phone in exchange for lengthy contracts – 1 to 2 years (The term “subsidized” is probably inaccurate, though commonly used – the existence of a top of the line phone, the nexus 4, at a price in line with these lower rates, the absence of any request by carriers for return of phones at the end of contracts, the rapid drop in prices of phones in the face of planned obsolescence, and the fact that some phones, including the IPhone 5, are now sold “unlocked,” suggest that the “retail price” of phones includes a healthy, if not corpulent, profit margin, and the reduced prices more closely reflect the market value of the phones).  Fact: Simple math tells us that by the end of his contract, the average wireless subscriber who pays $200 up front for a phone with a “retail price” of $700, paying a minimum of $60/month for 24 months, pays far more than the price reduction he was given.   Fact: American full-payment wireless subscribers subsidize service to low-income subscribers – they are overpaying for service.  Fact: at least parts of various wireless companies’ networks may have been built on government subsidies and otherwise these companies benefited from what amounted to massive tax subsidies.  Fact: Profits for wireless carriers have little, if any, to do with the product they provide or the numbers of people they provide it to: just for example, Verizon’s profits grew even as its rate of subscriber growth slowed, and AT&T made “solid profit” despite lacking enough handsets to satisfy demand.  Fact: wireless spectrum is leased to wireless carriers by the FCC, which controls the spectrum in public trust for American citizens, and the wireless carriers then sell access to the spectrum to consumers – the American citizens who “own” the spectrum in the first place.  Fact: The U.S. provides slower, less reliable, more expensive Internet access than much of the rest of the world – in fact, despite cell company claims that average bills are shrinking, it appears they are actually growing.

The recent controversy comes from the Library of Congress’ (“LOC”) interpretation of the Digital Millennium Copyright Act (‘‘DMCA’’), specifically Chapter 12 of Title 17 of the United States Code, which prohibits “circumvent[ion of] a technological measure that effectively controls access to a [copyrighted] work.”  17 U.S.C. 1201(a)(1)(A).  Without going into detail, the “locking” of a phone involves coding, which at least arguably involves the control of access to copyrighted code.  More strange, every person I have spoken to about this matter has uttered a sound similar to “Hwah??” when they realize the rule barring unlocking cell phones comes from the LOC, not directly from a court or Congress.  To explain, 17 U.S.C. 1201(a)(1)(C) requires the Librarian of Congress to hold a rulemaking proceeding to determine categories of work exempt from the prohibition against circumventing electronic controls.

A little history is in order:  The DMCA was passed in 1998; including the most recent, there have been 5 LOC rulemakings.  Here are links to all but the last one, 2012.  Notably, in 2006 (see paragraph 5), the LOC exempted:

 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.

 Again in 2010 (see paragraph 3), the LOC exempted:

 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.

Sound familiar?  So, until recently, unlocking cell phones was entirely legal.

In the literally hundreds and hundreds of posts about this fairly significant change in the law, I have yet to see anyone point to the actual language used by the LOC in its October 26, 2012 rulemaking to suddenly make cell phone unlocking illegal.  As much fun as pontification and rehashed pontification may be, here is the moving part in the flesh (37 CFR 201(b)(3), or p. 65278, column 2, ¶3) – the LOC exempts:

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.

This language is so muddled it makes the Magna Carta read like a shopping list (“… Butter, milk, eggs, chocolate chips, and equal protection under law…”).  It appears, at least, that the LOC as of October 26, 2012, made it legal until 90 days (January 26, 2012 or thereabouts) to unlock phones.  After that, such activity became copyright infringement under 17 U.S.C. 1201(a)(1)(A).

Start your truck, we’re looking at driving through…

First, since this falls under Copyright law, and 17 U.S.C. 1201 lists at least some (but not all) defenses to Copyright infringement, should those defenses, including fair use, be available?  Here’s a hint, look at 17 U.S.C. 1201(c)(1)..  (“Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”).  Are carriers really going to sue people?  Who has standing, the manufacturer of the phone?  The new carrier?  The original carrier?  All three?  Why would the manufacturer or new carrier ever sue?

Second, what does “a wireless telephone handset originally acquired from the operator of a wireless telecommunications network or retailer” mean?  Assuming it means what it says, what if I give someone my brand new phone and they sell it back to me?  What if my friend and I both swap identical phones?  This seems like a pretty big hole.  I pilot twin Droid Bionics (think “Razr Maxx with half the battery life and a user-swappable battery” – one for backup and development) on Verizon (not at the same time), both bought from third-party prior owners, not Verizon — can I unlock them?  Maybe: the October 26, 2012 rulemaking, after defining “legacy phones” as “used (or perhaps unused) phones previously purchased or otherwise acquired by a consumer” continues, “[t]he Register concluded after a review of the statutory factors that an exemption to the prohibition on circumvention of mobile phone computer programs to permit users to unlock ‘legacy’ phones is both warranted and unlikely to harm the market for such programs.”  Sounds simple, right?

To test this theory, I called Verizon after the loophole closed and told them I wanted to unlock the phone not currently being used on my account to put it on a prepaid network.  I was told that they will not unlock their devices unless the owner is relocating abroad.  Have I satisfied the “if the operator of the wireless communications network…” language?  Now that the loophole has closed, does it still matter?  Since mine are “legacy phones,” did it ever?

Finally, the criminal section for Copyright violation is 17 USC §1204 and reads in relevant part that prison may be in the cards for “[a]ny person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain…” (Emphasis added) If I have an unused cell phone and I want to use it on a different network than the one that originally sold it, assuming without argument that my effort to unlock is “willful,” is it “for purposes of commercial advantage” (probably not) or “private financial gain” (does getting access to cheaper wireless qualify)?

So what we have here is an inconsistent and illogical rule, reversing at least 6 years of the opposite rule, with limited justification and basis, and huge, poorly defined loopholes, sewn together with the threat of civil persecution and criminal prosecution.   Doesn’t it make more sense to just sign the petition?

By Dov Szego