Is It Illegal to Unlock or Jailbreak iPhone and iPad in China?

By You Yunting

A friend asked me a question: why by the latest USA legislature, to unlock iPhone shall be against the law, while it is permitted by law to do so for iPad? This question is complicated on essence, and it actually involves two restrictions designed by Apple on its devices.

On the initial launch of iPhone, the exclusive operating partner of Apple for its new device in USA was AT&T, and therefore it built the capability into the phone so as to ensure only the AT&T would be service network. Later on, as detained a slow internet speed, such a SIM lock was soon been unlocked, and from then on other operator could serve the users with iPhone.

The hardware of Apple could only purchase and install the apps through AppStore website or its software, either it is free or fees payable, and that is with the main purpose to prevent piracy. But it puzzles the users for they could no longer use multitask system, gesture control or their favorite browser with the device. For this reason, the user also uses jailbreak techs from hackers to install the third party applications on the phone.

To Apple’s opinion, both unlock and jail breaking are violating the USA laws, and however, on the other hand, to the understanding of the users, why their sole proprietary phone shall be restricted by Apple? And as measures to combat against Apple’s rude control over their phones, unlock and jail breaking shall naturally be legitimate. Under such circumstances, the Copyright Office of USA affiliated to the Library of Congress promulgated the DMCA (Digital Millennium Copyright Act), which regulates the exemption of liability that the user shall have full right to unlock or jailbreak their iPhones so as to choose the operator or install third party’s apps as they will. The legislature was cheered by users, for they got the legal insurance of their fight-against and freewill app installment on their phones. But we have to point out that is a misinterpretation on the new law, since it aims at the break on the unreasonable restriction by manufacturer on the phones, instead of encouraging unlicensed pirated software to be installed on the phone. The copyrighter is surely enjoying their rights over the apps, and any unlicensed provision of the software could be an infringement.

The legislature shall have aimed at the interests balance between the manufacturer like AT&T and users, yet as unexpected, it is jeopardizing the interests of copyright holders for they have no way to control the piracy download after the jail breaking.

For this reason, before the latest amendment to DMCA’s exemption clauses, the Copyright Office of USA also made compromise to adding tablet into the regulatory devices. They advocated that the tablet has a broaden meaning, and may include electric reader, handed game device or even the laptop. Therefore, we have seen the tablet, with iPad included, has been precluded from the legitimate jail breaking list in the latest amendment, while iPhone is remained on it.

In fact, the legally set out tablet is not too complicated to understand, for they mainly covers the tablet built on iOS, Android, Windows and reader of E-ink. Its vacancy on the list could only contribute to the competition among the parties involved and the interest balance intended by the legislator. The apps in tables appear to be more complicated as compared with the apps in smart phones, and demands more time and expenditure on their development. And it may lead to a bigger loss to the copyright holder once the piracy is “permitted”. Also, the restriction on the network is not as prominent as that on the smart phone, and consequently once it is added onto the list, the user would be more favored in practices and finally the development of the industry would be damaged.

Before the end of this essay, let’s take a look on relevant laws covering unlock and jail breaking in China:

With regard to unlock, to my opinions, the SIM unlock would enable operator switch, which is permitted by law in China. But when the user purchases the phone at a preferential price from the operator who makes allowances then, the user shall follow the contract entered into with the operator and pay the agreed communication fees; otherwise there would be a breach of the agreement. The contract between the operator and the user shall be protected by General Principle of Civil Law and Contract Law.

For the jail breaking, all the apps either in iPhone or iPad are software, which are under the protection of Chinese Copyright Law and Protection Regulation on Computer Software. Although the download of pirated software is not inhibited by Copyright Law, the infringement could also be constituted by the website for software provision for download and installment purposes. On that occasion, the copyrighter could file the lawsuit against the website for the infringement against the right of copy and the information communication by networks.

Lawyer Contacts

You Yunting86-21-52134918

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