Forget the Cellphone Fight — We Should Be Allowed to Unlock Everything We Own
wired.com
wired.com
I'm astonished that people overwhelmingly believe this falsehood. The White House response opposes legalized phone unlocking, except to phones already out of contract. When they say they "support unlocking", they have a different interpretation of what that means:
And if you have paid for your mobile device, and aren't bound by a service agreement or other obligation, you should be able to use it on another network.
[...] neither criminal law nor technological locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation.
https://petitions.whitehouse.gov/petition/make-unlocking-cel...
A (very) few journalists are paying attention:
http://www.nationaljournal.com/tech/obama-s-stance-on-unlock...
Maybe that "falsehood" doesn't conform to your beliefs about what sort of unlocking should be allowed, but I think the quote you highlighted is a reasonable one.
There are legitimate reasons to allow restrictions on what can be done with subsidized devices which are still bound by a service agreement. Your comment suggests that you're astonished that people are swayed by those reasons, which comes across as a bit insulting.
I think their definition disagrees with most peoples' definitions, including the one in the petition itself:
"As of January 26, consumers will no longer be able unlock their phones for use on a different network without carrier permission, even after their contract has expired."
Unlocking phones under contract is implicitly their core complaint. The White House response didn't actually respond to it.
Your comment suggests that you're astonished that people are swayed by those reasons,
I do not think this; I think they aren't aware of the issue at all.
That's not so clear to me. You conveniently neglected to italicize "even after their contract has expired", which along with this phrase -- "decreases the resale value of devices that consumers have paid for in full" -- seems to be included highlight the fact that the situation where a phone has been paid for in full is potentially different from a subsidized phone which is still being paid off.
Agreeing with the petition for that subset of phones isn't failing to respond to the petition.
The petition is about both of them. Another of its complaints applies only to phones with contracts: roaming fees,
Consumers will be forced to pay exorbitant roaming fees to make calls while traveling abroad.
(The point being that travellers' inability to deal directly with other telcos, because of the locks on their phones, gives telcos monopoly power, allowing them to charge monopolistic rates).
You conveniently neglected to italicize "even after their contract has expired"
I did italicize it -- that's what I was emphasising! It's double-italicized so it became normal again, according to this rule, which I infer is a bit obscure (sorry for the time-wasting!)
If something within a run of italics needs to be italicized itself, the type is normally switched back to non-italicized (roman) type
https://en.wikipedia.org/wiki/Italic_type#Italics_within_ita...
The first italicisation is what I understand to be HN convention: to italicize quoted text.
Roaming fees are just as much a problem for locked phones that are off-contract.
Perhaps, but unlocking off contract is explicitly their complaint.
The reason it is not illegal to smash the phone is because it is your phone. The service agreement is a contract that you entered saying you will pay a monthly fee for two years independently of what happens to the phone. The phone is used by the phone company as an incentive to get you to enter the contract.
In any case, breaking a term of a private contract is not a criminal act. If I stop paying my monthly phone bill they can potentially sue me in civil court but the FBI won't come knocking on my door. The DMCA criminal "circumvention" statute doesn't really have anything to do with the private contract.
And because you have to either continue paying for service or pay a termination fee. In either case the provider is recouping the cost.
Isn't that still the case if I switch carriers?
It's not like a mortgage, where the bank technically still owns part of your home. It's a package deal. When you buy the phone, subsidized or not, it's yours. The US legislature has made it illegal for you to unlock the phone, despite that fact.
Like what? As long as the customer is paying the service fee as they agreed to, the carrier shouldn't care if someone wants to use their device on another network. That means less network congestion and less necessary infrastructure, with the possible downside of fewer overage fees going to the carrier.
It's not like people would be able to buy a subsidized phone, unlock it and break their contract to go with another carrier, and pocket the subsidy. The early termination fee covers that. The carriers even say so: when Verizon increased their ETF from $175 to $350 for smartphones, they cited smartphone subsidies as their reason.
Then you are begging the question. If there are business models which some producers and consumers choose to participate in which involve some kind of "no-tampering" clause, then clearly there is some value in allowing such deals. If you don't like them, you're free to not participate.
Subsidized contracts come with early termination fees and require a credit check. Unlocking was legal for years. Was there a significant problem with people unlocking phones, breaking their contracts and getting away with not paying the fee?
You don't own a subsidised cell phone until your contract is out.
What unlocking then provides, is the ability to escape onerous terms and fees for additional service, such as roaming fees when traveling outside of the normal service area.
If, with a GSM model, for example, you can pop in a different SIM under those circumstances, should you be able to?
Given some the the shenanigans that have occurred in this industry, including outsized roaming fees, I tend to be in favor of saying "yes", to this.
Or, put it this way: Competition's good. Even, or especially, within the term of rather long (with respect to technical and economic developments within the telecommunications industry) two year contracts.
If, with a bit of effort and trouble, you can escape absurd roaming fees, new data cap restrictions, et al. Then, perhaps, your current, contracted carrier will feel more incentive to compete with reasonable terms and pricing.
For the last decade I've bought my phones unlocked and subscribed to a monthly plan that I can leave at any time. That means paying full price for the phone at the time of purchase, which is a lot more than the discount prices used to tempt you into a contract.
Look, just because it's in your pocket and you get to use it as soon as you leave the store does not mean you own it.
So who owns it? When last I checked, there was no line of credit, I am allowed to sell the phone to someone else without informing the carrier, and I am responsible for repairing any damage or replacing the phone if it is rendered non-functional. It sounds like I paid the carrier's price, signed a contract, and then owned the phone (while being locked into a contract).
There is more to this than just the carrier's contract. Let's say I travel to another country, and I want to pay for a phone plan there so that I do not have to pay roaming charges. I'll need to unlock my phone to do that...and now by law I cannot (at least not here in America). For that matter, suppose I am here in America and I want to have two contracts with two different carriers on the same phone...once again, the law stops me. This is, plain and simple, a law that protects the carriers' business model in ways that other businesses are not protected.
Don't fall into the trap of thinking that the free market is relevant here. It is not a free market when some players get special privileges and protections not available to other players. Cell phone companies get lots of special privileges, and this is just one more to add to that list.
The differences from leasing a car are for obvious reasons. If you don't make the payments on a car, a repo guy comes along and takes your car away. Bit difficult to do that on a phone, so they hit you with an early termination fee instead and you agree to it as part of the contract terms.
Don't fall into the trap of thinking that the free market is relevant here. It is not a free market when some players get special privileges and protections not available to other players. Cell phone companies get lots of special privileges, and this is just one more to add to that list.
I didn't mention the free market, but since you bring it up, the players within the phone industry have similar privileges. Saying that they get different privileges from, say, auto retailers is pointless, because they're not int he same market. Although I'm no fan of the major cell companies, I could point out that they also bear the burden of paying billions up front for lease of spectrum, whereas manufacturers of cars just have to get the thing running and into the hands of the would-be driver, who then pays over time for road use through taxes on fuel etc.
You want to unlock the phone overseas, then do it overseas where you won't be subject to US law. You want to have two contracts on the same phone, the second one is going to be month-to-month by definition because the second carrier has no property interest in the phone. you can easily get out of your contract by paying the ETF.
As I said elsewhere, I don't like these contractual provisions either, which is why I don't enter into such contracts. I do own my own phone, because I paid for it. This is what people in other parts of the world do, because the rock-bottom prices (with contract!) are not on offer in most other parts of the world.
I suppose that would be true if we exclude all the electronics shops that could make a business charging a small fee to unlock phones.
"I could point out that they also bear the burden of paying billions up front for lease of spectrum"
Which actually helps the cell companies more than it hurts them, since it basically rules out a large number of potential competitors. A coffee shop can run a wifi network, but that gets extremely limited bandwidth and extremely limited power. Amateur radio operators have fewer restrictions on power, but are completely tied up in other regulations.
Large areas of the United States are served by only a handful of cell carriers, whose service is overpriced and mediocre at best. There are two possible solutions to that situation: abandon market-based solutions and create a monopoly that is heavily regulated to protect consumers from abusive practices, or embrace market-based solutions and reduce the barriers to competition (say, opening cell phone bands to unlicensed secondary users with established rules for settling interference disputes). Right now, we are not really pursuing either strategy, and in the mean time we are falling behind other countries in terms of wireless deployment.
"You want to unlock the phone overseas, then do it overseas where you won't be subject to US law"
OK, sure, but that just means that American businesses that might unlock phones (say, businesses at international airports) cannot exist. It still helps the cell carriers' business model, just not as much as it might have (it reduces the convenience and introduces potential language barriers).
"You want to have two contracts on the same phone, the second one is going to be month-to-month by definition because the second carrier has no property interest in the phone"
Neither carrier has a property interest in the phone. Nobody is charged a fee for breaking their phone while under contract; they are expected to just buy another phone.
"you can easily get out of your contract by paying the ETF."
So what? That is not the issue. Nobody is suggesting that people should be able to terminate their contracts without paying a fee. The issue is whether or not people will be able to unlock their phones, which is completely orthogonal to the issue of contracts.
You know perfectly well that you retain liability for the ETF, which is a proxy for the phone, and reflective of the impracticality of repossessing it.
And the administration supports the right to unlock your phone out of contract. While it's in contract, and non-unlocking is a contractual provision, that's between you and your carrier. If you find the non-unlocking provision of the contract offensive, as I do, then don't enter into such a contract.
No, I know no such thing; all I see is a cell phone company using a loss leader strategy, and the US government affording them special protections for that strategy. On paper and elsewhere, you own your phone -- end of story. There is no issue of repossession because there is no line of credit involved. Furthermore, even if there were a line of credit here, credit card companies are able to go after delinquent accounts even in cases where repossession is infeasible, and often with amounts of money that are much larger than the price of a typical phone.
It is not as though the contract is for free service plus payment for the phone in installments. The service is still at a massive premium even with the contract, and the early termination fee is only tangentially related to the price of the phone. The sole purpose of selling the phones at a discount is to entice consumers into paying for contracts; it is a classic loss leader strategy.
"While it's in contract, and non-unlocking is a contractual provision"
Contract law is a separate issue from the DMCA. The problem here is not the enforcement of a contract, it is the fact that even without a contractual prohibition on unlocking the phone you would still be forbidden from doing so.
Who ever said it was? Arguing with you is turning out to be a colossal waste of time; every time you run into problems you gin up a straw man and attack that. This is my last contribution to this thread.
Contract law is a separate issue from the DMCA. The problem here is not the enforcement of a contract, it is the fact that even without a contractual prohibition on unlocking the phone you would still be forbidden from doing so.
I've already addressed that points. The administration has expressed its support for people being able to unlock their phone when its out of contract. So if the administration gets what it wants and Congress updates the law, your complaints will be moot. If you don't like the terms of offer in a discount cellphone contract, then don't enter into such a contract.
Who ever said it was? Arguing with you is turning out to be a colossal waste of time; every time you run into problems you gin up a straw man and attack that. This is my last contribution to this thread."
You are the one who claimed the people do not own their phones while under contract. If the contract is not an installment plan or a line of credit, then what property ownership do you think the companies have on the phone? Well, I guess since it was your last contribution to the thread, you will not answer.
"The administration has expressed its support for people being able to unlock their phone when its out of contract"
That is not in any way related to what I said. I said that the problem is that the DMCA forbids unlocking regardless of the contract. You can enter into a contract that says nothing about unlocking, and guess what? Unlocking will still be illegal.
Stop pretending that this is not a special protection for the cell carriers' business.
More like you're wrong, and are just assuming no one will take the time to read a contract and call you on it.
I just read through the T-Mobile contract (http://www.t-mobile.com/Templates/Popup.aspx?PAsset=Ftr_Ftr_...), and there is no mention of title at all. They do try to restrict what you can do with your device while it is on their network (including prohibiting you from "modifying the device", which should include unlocking), but nowhere do they claim ownership of the device.
The phone is not loaned/leased to you. There is no lien on it. The carrier has no recourse to repossess the phone. The early termination fee is there, of course, but is entirely unrelated from a contractual point of view. If you break your contract, they have the right and ability to collect the early termination fee, and nothing else.
As an aside, I'm not sure why you'd consider it so impractical for the carrier to repossess the phone if someone breaks contract. It's certainly feasible, and they could likely refurb and resell the phone for something on the order of the early termination fee. But yes, that would take more effort than sending a bill, so they have chosen not to consider the phone on loan. It's yours, contract or not.
But none of this is particularly relevant. The question at hand is about whether or not unlocking your phone is a DMCA violation and thus a criminal act. Depending on the particular carrier, it may or may not be a violation of your contract to unlock your phone, but that should be a civil matter, not a criminal one.
Why are you so hell-bent on ceding power to companies that have been granted mono/duopolies by the government, and are making use of a precious public resource (radio spectrum)? Do you seriously care so little for your rights as a customer -- hell, as a human being -- that you'd prefer that modifying a device you own (yes, own) is a felony? I just don't understand why anyone would side with one of the carriers... ever. For the most part they are as anti-consumer as companies can be. Individuals have little way to right that imbalance without government intervention.
But you also own obligations to pay back a loan and interest to a bank.
Technically you have a credit and debit sheet, a new asset plus a new liability.
The distinction is that those are contractual conditions. If you fail to carry comprehensive insurance on your vehicle, they may repossess it etc. according to the contract, but the police don't come to arrest you.
Every minute of hassle and every unreasonable fee holds back the rest of society like broken windows.
2) It's not the same insurance. The law typically requires you to carry liability insurance, which covers third parties you harm. The car dealer wants you to insure against damage to the car, which the law may not require you to insure against.
http://www.thetruthaboutcars.com/2012/01/saab-pulls-the-plug...
Oh wait no, it's a DMCA violation and a criminal offence, well that all seems fair and proportionate.
Afaik there aren't any service agreements that prevent consumers from unlocking. As such, I think they're advocating for the ability to unlock at any time.
Here's one:
WIRELESS CUSTOMER AGREEMENT ("Agreement")
3.0 TERMS RELATING TO YOUR DEVICE AND CONTENT
3.1 Your Device
[...] You agree that you won’t make any modifications to your Equipment or its programming to enable the Equipment to operate on any other system. AT&T may, at its sole and absolute discretion, modify the programming to enable the operation of the Equipment on other systems. [discussion of SIM locks follows]
https://www.att.com/shop/legalterms.html?toskey=wirelessCust...;
Sure, but a purchase often comes with restrictions that you agree to before deciding on the purchase. If you don't agree to the restrictions you can avoid the purchase altogether. I can buy a six hundred thousand dollar house and still not have the right to put a garden gnome on my lawn if I bought in a community with by-laws that prohibit that.
"Because manufacturers have copyrighted the service manuals, local mechanics can’t fix modern equipment. And today’s equipment — packed with sensors and electronics — is too complex to repair without them. That’s a problem for farmers, who can’t afford to pay the dealer’s high maintenance fees for fickle equipment."
So farmers are buying "fickle" equipment that is expensive to repair and the blame is put on copyright abuse? Copyright is just the mechanism used to enforce the business model. The equipment manufacturer made a business decision and this is part of their business model by choice. Any other manufacturer is free to supply equipment and compete on a different business model. If the issue is really that significant to the market then farmers will flock to the competition that provides manuals with their equipment.
I doubt that Wired thinks I can buy a copy of their (print) magazine and then, since I own it, I can do whatever I want with it (like scanning it and putting it online).
/petulantchild
Btw, it's a Wired opinion piece, so it doesn't necessarily reflect Wired's own thoughts on the matter.
European property law was full of encumbrances on property: you could own all sorts of sub-holds and fiefdoms and whatnot. Much of that was thrown out in early U.S. law, in favor of a principle that each plot of land has one owner, who owns it fully in the clear, subject only to the superior sovereignty of the governments with jurisdiction. And then that person can sell the land fully, or rent it, but can't sell the complex kinds of partial ownership and sub-ownerships that were common in the UK. That persisted for a while, until contract law reinvented some of them a century or two later.
I think we should call this the "Just-market Fallacy" (I just Googled it and I'm not the first person to use the phrase), analogous to the Just-world Fallacy.
In that case the belief is that people get what they deserve. If bad things keep happening to you it must be because you're doing something wrong. Because the world is overall just.
In this case people are willfully encouraging a certain business practice by giving those businesses their money. Then they complain about the business practice they just supported and look to the government to force the businesses to behave differently. They're not being victimized by a harsh world and being told it's their fault. They're willfully victimizing themselves.
This is different if there is some kind of government enforced monopoly interfering in the market. But the end result is the same in that case. The business isn't the problem.
You're ignoring the collective action problem. Suppose that long-term contracts reduce competitiveness, because if people can't switch providers at the drop of a hat then companies don't compete as aggressively and in consequence their profits go up while the value for money on cellular service goes down. The providers know this and charge a premium for off-contract service (or, equivalently, offer a phone subsidy for on-contract service which add less to the monthly fee than paying full price for the phone would). So for each individual customer, it's better to take the subsidy, even though doing so at scale is bad for customers in general.
Solving collective action problems like that is one of the few things that governments are good at, assuming they haven't been captured by industry lobbyists.
You would know if there was a wireless company offering an off-contract plan that was actually more attractive than their competitors' on-contract plans because everybody would switch to it -- customers don't want to be locked into a long-term contract, they only do it because the providers have the incentive to make off-contract plans more expensive.
And while I see your point about the high barrier to entry, all that does is delay the process. Eventually...if a profitable market opportunity is there to be taken, someone will take it. If it requires a big player, then a big player will do it. Granted there may be a longer period of suffering.
So kind of like I was saying then... their coverage map has more holes than coverage. But they still get to charge about as much as the big players by offering no contracts, and it doesn't break the cartel because customers will never switch to them in large numbers as a result of the poor coverage.
Why do you expect price competition to ever be a profitable strategy in a concentrated market? If you lower your prices to gain market share, so will your competitors, and so lowering prices doesn't actually gain you any share, it just lowers everyone's margins. Nobody has any incentive to be the first to do it.
> If it requires a big player, then a big player will do it. Granted there may be a longer period of suffering.
Maybe if you wait long enough. But if the waiting period is measured using the geological timescale, it may be prudent to weigh other alternatives.
...by doing the only things they can in order to remain competitive in the short term.
The Just-market Fallacy is analogous to the Just-world Fallacy because it assumes that all actors are free to change their behavior, thus if they don't change their behavior, they are getting what they deserve from the market.
I could maybe accept that markets might tend to create equitable outcomes over very long terms, but most people don't live on very long terms; they live day to day, and if today sucks, today they complain.
I guess it depends how eager you are to have government get involved and attempt to make things right. I generally have little faith in government meddling resulting in a net positive.
This is, unfortunately, another fallacy of the market. In real life, the ones with the most pain are often the ones with the least ability, financial or otherwise, to alleviate it.
Once the consumers know the power they have in their hands, change will come easier.
There should be laws preventing forced vertical integration. If you sell hardware you cannot restrict the os(you are free to provide os, but locking of the bootloader should be left to the user). If you sell OS you cannot limit what applications the user can run and from where to obtain them etc ...
Except you can buy directly from the phone manufacturer: https://play.google.com/store/devices/details/Nexus_4_8GB?id..., http://store.apple.com/us/browse/home/shop_iphone
Your argument basically amounts to: "if the carriers did have a monopoly on phones, then there would be a problem."
Having said that, I agree that it should be easier to unlock phones in the US, even if it's just for international coverage (which would be something).
Thus, I'll keep using iPhones and my AT&T service and I'll take the subsidy for a new iPhone every few years.
My in-laws only got iPhones because they could get one for free. In their case, spending $0 for 4 older, on-contract, locked iPhones is preferable to spending $800 for 4 new, on-contract, locked iPhones. I would have been laughed at for suggesting $1800 to get 4 iPhone 4's unlocked.
That gives poor people less of a vote than rich people.
The economics of contract plans didn't look that good to me, because it meant a much higher monthly bill than I felt comfortable paying for a bunch of features I was not at all sure I would really use or need. I was happy with my decision and have stuck with month-to-month service ever since. Back then, MetroPCS (who I signed with at the time) was a tiny company operating in only 2 or 3 urban markets, now they operate in most of the country.
>> That gives poor people less of a vote than rich people.
> I don't think so.
Sure you do, it's not really subjective... 1 < 2, and all that.
> Being poor means that you don't get to buy the nicest thing on the market if you don't have the money.
Yeah, I knew you did.
For this "movement" to work, long-term, we will need these small wins first.
Customer service told me tampering in any way would void the warranty on my entire vehicle.........
Needless to say I they didn't send me a copy of the manual.
Or more precisely, they should be able to lock stuff, but doing so should automatically license all their copyrights, patents and trademarks used in the thing they locked for everyone to use for free forever in any way without limits.
If they are out to fuck the public in the ass, there's no reason the public's courts and police should assist or protect them.
I've owned a few unlocked phones and found that switching networks is largely useless as my phone is unlikely to support the best data features from another provider.