he exception allows circumvention of device controls "for the sole purpose of lawfully connecting to a wireless telephone communication network," according to language from the U.S. registrar of copyrights. So if a hacker unlocks the iPhone, then posts the unlocking code for free, he's engaging in a legal activity and enabling others to engage in the same legal activity,
said Michael Lewis, an IP lawyer at Philadelphia-based Fox Rothschild LLP. If that hacker is sued, he could probably argue that posting of the unlocking code is protected by free speech provisions in U.S. law,
according to Lewis.
Other IP lawyers disagreed. Movie studios have successfully sued Web site operators for distributing the DeCSS DVD-copying code, noted Carole Handler, an IP lawyer at Milwaukee-based Foley & Lardner LLP. The unlocker of the iPhone who posts code online could be held liable for secondary copyright infringement, she said.
"I don't see that [Apple and AT&T] have a choice," Handler said. "They have to do something. If you don't protect your intellectual property, it's gone."
Lewis' colleague, Gerry Norton, agreed, saying the unlocking exception was narrowly written. "The exception was just for the end user," he said.
Most of the lawyers agreed that selling software to unlock the iPhone, as McLaughlin was planning to do, would invite a lawsuit under the DMCA. "The courts seem to have less sympathy for people who are doing things to make a buck,"