Comments on: Tracfone Wins Against Phone Unlockers

By: PhoneBoy

PhoneBoy — Sun, 30 Nov 2008 08:53:18 +0000

@flashover49 Can’t use an unlocked device with Tracfone. Their phones contain special software which, in theory, will only come on a Tracfone device. It is not possible to “download” this software anywhere to install on a non-Tracfone phone.

By: flashover49

flashover49 — Sat, 29 Nov 2008 22:39:36 +0000

If you can flah the phone with their software where do you get it?

By: flashover49

flashover49 — Sat, 29 Nov 2008 22:38:27 +0000

Ok, how can I use an unlocked phone as a tracfone? The phones they sell seem to eat power like its candy. I have a new phone and would like to use the old for my kids on a tracfone network. Can I do this and if so how?

By: PhoneBoy

PhoneBoy — Sun, 16 Mar 2008 00:37:18 +0000

I’ve never opened up a TracFone, but I remember seeing verbage like “Your TRACFONE can only be used through TracFone Wireless, and cannot be activated with any other wireless or cellular service” on the back of the packaging. Similar verbage exists on the GoPhone packaging. I’ll have to go check next time I’m in a store that sells Tracfone and see exactly what it says.

I think you’re right on the lawsuit front, though. It’s going to take someone with money to appeal these decisions so we can see what the real issues are.

By: Christopher Price

Christopher Price — Sat, 15 Mar 2008 23:08:41 +0000

But where do the prepaid phones say that? I don’t see anything on the phone that says “by turning this phone on you agree with the EULA in the packaging.” I don’t see anything on the phone that says, when you power it on “by using the phone you agree to an EULA.” The service operator cannot imply an agreement to a contract that the user was not presented with.

I could see the courts deciding in favor of the operator on the basis that an unlocking company should have known the terms of the EULA due to the volume of their business. That would separate them from the end-user exception.

However, I think one of these cases will have to wind up being appealed before we see clear judicial review of the whole matter of unlocking. Considering unlockers generally don’t have the financial resources to do that… it may be awhile before this matter gets cleared up.

By: PhoneBoy

PhoneBoy — Sat, 15 Mar 2008 22:54:23 +0000

@christopher: Actually, those prepaid phones do have an EULA of sorts that basically say “you will use this phone only in conjunction with our service.” The U.S. Copyright office has granted a temporary exemption permitting end users to buy phones and use them with another service, essentially making that part of the EULA unenforceable while the exemption is in effect.

These businesses that are basically doing the same thing are getting sued–and losing. This is the crux of why I want to know exactly on what legal grounds they are winning these lawsuits. It reeks of a double-standard, something I try and avoid where possible.

In my opinion, if you have to use the legal system to continually enforce your business model, something’s wrong with your business model.

By: Christopher Price

Christopher Price — Sat, 15 Mar 2008 09:43:01 +0000

The U.S. Copyright Office has ruled that SIM subsidy locks do not violate the DMCA. The question here, is if the firmware is acting as an alternative SIM subsidy lock. I say it is… much like how iPhone has an internal lockdown matrix which is acting as a second activation hurdle which must by bypassed.

I don’t see the software being flashed onto the phone as being pirated. A phone owner has a license to the underlying operating system in the phone (at least, an implicit license… most phones don’t carry an EULA… yet).

Thus, once you flash the software back onto the phone, even though it is unbranded… it’s the same underlying kernel and core. You’re just removing the arbitrary code that Tracfone has added.

My advice to Tracfone: Re-structure your business model to make phone unlocking a non-issue. Or, have manufacturers create truly custom models that have no suitable firmware replacement.

By: spg

spg — Thu, 13 Mar 2008 10:13:14 +0000

it is in nokia financial benefit to sell the maximum number of phones. so they would have little motivation to sue since they profit nicely from these transactions.

By: PhoneBoy

PhoneBoy — Thu, 13 Mar 2008 07:50:45 +0000

Likely the software being flashed on the phones IS pirated. However, wouldn’t the manufacturer be suing if that was the case? I haven’t heard Nokia or other manufacturers being involved in these lawsuits, but maybe I’m wrong.

By: spg

spg — Wed, 12 Mar 2008 23:01:00 +0000

the replacement software being flashed onto the phones could possibly be pirated. but i do not see any other area where a law is being broken. it seems to me only logical that it should be at least completely legal to buy the phone and ship them out of the country(as what they are new, used whatever they should be called). it would then be the laws in the other country that would apply to the actual re flashing of the phones. i can tell you that from traveling in many part of the world that when you go to countries where subsidized phone are not the norm the shelves tend to be dominated by prepaid phones from various western countries where they are subsidized. the exception is in countries that have special import taxes on cell phones(and usually other electronics) and therefore strict regulation on imports to prevent tax evasion.