So, with respect to the DMCA making these contracts unnecessary are you just pointing out the facts or are you advocating this as good policy?

So, with respect to the DMCA making these contracts unnecessary are you just pointing out the facts or are you advocating this as good policy?

Exactly. With the DMCA in place the normal contract process is by-passed. I don’t see that as a good thing. You even hint at why it would be bad: “Theoretically, I guess, a carrier could put a term into the contract that makes it breach to ever unlock the phone. However this a) sounds like an unconscionable consumer contract,” (emphasis mine). By the same logic if the DMCA creates a default infinite-term contract it is similarly unconscionable.

We sign contracts to get subsidized phones in exchange for being customers of a certain provider for a couple of years. Why should we assume the provider has the right to render those phones obsolete if we switch to a competitor once the contract has ended? Particularly in light of the spirit of the DMCA, which was intended to protect media such as music and video and not to create a platform lock-in mechanism.

Exactly. With the DMCA in place the normal contract process is by-passed. I don’t see that as a good thing. You even hint at why it would be bad: “Theoretically, I guess, a carrier could put a term into the contract that makes it breach to ever unlock the phone. However this a) sounds like an unconscionable consumer contract,” (emphasis mine). By the same logic if the DMCA creates a default infinite-term contract it is similarly unconscionable.

We sign contracts to get subsidized phones in exchange for being customers of a certain provider for a couple of years. Why should we assume the provider has the right to render those phones obsolete if we switch to a competitor once the contract has ended? Particularly in light of the spirit of the DMCA, which was intended to protect media such as music and video and not to create a platform lock-in mechanism.

As the Copyright Office’s report points out, this is intended to be used by consumers after all their contractual obligations have expired. That is, if I buy a subsidized phone from Verizon and sign a one-year contract, the new rule would allow me to legally unlock the phone and take it to Sprint after one year.

Theoretically, I guess, a carrier could put a term into the contract that makes it breach to ever unlock the phone. However this a) sounds like an unconscionable consumer contract, and b) probably wouldn’t happen as long as there’s still a competitive market–they would have to offer a very hefty discount before you accepted such a heavy-handed term. With the DMCA they didn’t have to worry about this at all. Circumventing the lock was an illegal (and possibly criminal) act, contract or no contract.

Even if such a term made it into a contract, I wonder how practical it would be for carriers to enforce it. They would have to go after thousands, if not millions of customers who unlocked their phones. In contrast, with the DMCA, they could go after the one actor that unlocked phones or built tools to unlock (perhaps a competing carrier in my scenario).

How do you then take your Cingular-tethered mobile to T-Mobile, if Cingular won’t unlock the master key in the TPM for you?

Ha, little subscriber, you thought you actually owned your equipment?

How do you then take your Cingular-tethered mobile to T-Mobile, if Cingular won’t unlock the master key in the TPM for you?

Ha, little subscriber, you thought you actually owned your equipment?

That said, I’m very excited about the iPhone rumor- I have a strict no-Apple rule, but might break it if that means I can give an even bigger finger to the cell companies.