Legal Question in Intellectual Property in California

Hello,

I am interested in selling UNLOCKED iPhones on eBay. However, I have heard that the DMCA (Digital Millennium Copyright Act) has banned selling unlocked phones for profit in November of 2006. However, they had made an exception... you can unlock your phone solely for the purpose of connecting to a wireless telephone service... not to make profit. This law lasted three years, so it ended in November of 2009. I have yet to find an updated version.

The strange thing is that there are many websites selling unlocked phones for profit... tigerdirect.com etc. There are also many people selling unlocked phones on eBay. Is it legal now or is the DMCA really terrible at enforcing their own laws.

If it were still the same laws. Would it be illegal to sell with the purchase a DVD that explained how to unlock it. Also giving in the eBay description a disclaimer about the law and saying to use it for solely connecting to a wireless telephone network. Any legal help is greatly appreciated. Thank you!


Asked on 7/02/10, 11:46 pm

1 Answer from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

A possible answer is that the copyright owners have given permission for the unlocking of the phones in question, or manufactured them as unlocked in the first place. The purpose of copyright law is to allow the creators of intellectual property to enjoy a limited, legal monopoly so as to profit from their creations. In the course of exploiting their intellectual property rights, the copyright holders are perfectly capable of producing both locked and unlocked versions at the factory, perhaps selling the unlocked ones for a higher price. Now, I don't know if that's what's going on here, but it's one possible explanation. You might also inquire of several of the sellers such as the one you mentioned by name (against lawGuru rules) and see what they will tell you about how their phones became unlocked - at the factory or in their shop.

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Answered on 7/03/10, 9:52 am


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