AT&T lawyers could sue over iPhone unlocking

A Northern Ireland company that claims it can make Apple's iPhone work on any mobile network in the world says that it has shelved its proposed solution after receiving a threatening phone call in the middle of the night from a Silicon Valley law firm.

Belfast-based UniquePhones sells unlocking solutions for hundreds of mobile phone models, so that any SIM card will operate in any mobile phone. US telco AT&T has a two year agreement with Apple to act as the exclusive network for iPhone users and UniquePhones' solution threatens that deal.

According to UniquePhones, it received a telephone call from a California law firm "at approximately 2:54am" on the day that it planned to make the iPhone solution available for sale.

"After saying they were phoning on behalf of AT&T, the law firm presented issues such as copyright infringement and illegal software dissemination," says a statement on its site. "Uniquephones is taking legal advice to ascertain whether AT&T was sending a warning shot or directly threatening legal action. "

Uniquephones sells unlocking solutions for numerous handsets at prices from $1.99. Some phones can be unlocked using a software-generated code that is keyed into the handset. Others require their firmware to be updated or overwritten. According to its site, its iPhone solution involves "remote software unlocking services."

Meanwhile, a New Jersey teenager claims to have another solution to unlocking the iPhone. George Hotz, 17, says his method takes about two hours and requires some soldering. He has posted his 10-step solution on his blog.

Neither AT&T nor Apple has commented publicly on the reports and the legal position is not clear-cut. To bring action under US law, Apple or AT&T might seek to rely on the Digital Millennium Copyright Act. That law states that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

The DMCA also states that no person shall "offer to the public, provide, or otherwise traffic in any technology, product, service, device, component … [that] is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure".

To base an action on the DMCA, Apple or AT&T would have to convince a court that a protected work is being accessed by the unlocking solution. They would also have to show that a recently-introduced exception did not apply. That exception was passed by the US Copyright Office late last year.

The exception states that persons making non-infringing uses of certain works will not be subject to the DMCA prohibition. These works include "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."

A court could interpret this provision in different ways. It could take the view that unlocking your own iPhone is lawful, but that selling a solution to others, or even posting the instructions on a blog, without commercial gain, ceases to be an act carried out "for the sole purpose" of connecting to another network.

John Salmon, a technology lawyer with Pinsent Masons, the law firm behind OUT-LAW.COM, said that unlocking your own iPhone is likely to be lawful under European law, but that sharing the solution with others is probably not. "The legality depends in part on whether or not the interface is protected by copyright," he said. "The interface codes being accessed will need to be detailed enough to be copyright works themselves. If they don't qualify, Apple might still argue that there's a leak of confidential information by sharing the codes with others and consequently a court might order a website to remove that information. It may also have patents to protect its technology."

Under UK copyright legislation it is a criminal offence to provide "a service the purpose of which is to enable or facilitate the circumvention of effective technological measures."

It is likely to be an offence to provide such a service by posting instructions to a blog, said Salmon, if it can be shown that it "affects prejudicially the copyright holder." The offence applies to copyright-protected rights only but carries a maximum sentence of up to two years in prison.

According to UniquePhones, "As long as you own your handset, unlocking it is perfectly legal."

It continues: "So long as your handset does not remain property of your service provider (if you are on a contract, for instance), you are free to do as you wish with your phone."