hey everybody! first post!
Hope some of you more law inclined folk can give me some good advice here
I own an unlocking company and send unlock codes to customer's through email, unfortunately unlocking will be illegal WITHOUT the carrier's permission starting january 2013. But with the customer's permission it will be perfectly legal! What we're specifically doing is entirely legal, it's the customer unlocking the phone without the carrier's permission after we send them the unlock code, and us getting in trouble for providing the unlock code.
Problem is, when we sell the codes, we have no idea of knowing whether or not the customer's have permission. We will make the customer agree in the terms and conditions that they have the full carrier's permission, but that's all we can do.
My questions is this - are we going to be safe under the "Safe Harbor" laws set in place in the DMCA???
We follow all the necessary qualifications - We will put a notice on our website letting the customer know we don't promote copyright infringment, will block all customer's that we know are breaking the law, and most importantly we have no idea of knowing if they are committing copyright infringement. Please read the below column I found, this was the most information any one article gives specifically about providing unlock codes...
Question: Do the Section 512 Safe Harbor provisions apply to the distribution of circumvention tools such as serial numbers or to methods for disabling copyright management systems?
Answer: Section 512 creates a safe harbor from claims of "copyright infringement" for service providers who meet the statutorily-defined criteria. "Copyright infringement" is defined by Section 501 of the Copyright Act as any violation of the exclusive rights granted in sections 106 through 121 of the Act. Copyright infringement thus does not include violations of the DMCA's Anticircumvention provisions, which are found in Section 1201 et seq. While they are unlikely to be deemed direct infringers, distributors of serial numbers may face either vicarious or contributory liability for copyright infringement. Vicarious liability requires that the distributor have the right and ability to control the infringer's behavior and direct financial gain by the distributor. In circumstances of serial numbers posted on free message boards of Usenet groups, the distributor likely lacks both control and financial benefit. Contributory liability requires that the distributor possess knowledge of infringing conduct and materially contribute to the infringement. Although a distributor of serial numbers is likely aware that the numbers will be used to infringe, under Sony, if the serial numbers are capable of capable of "substantial non infringing use" contributory infringement may not be found.
The only issue we're running into is "Vicarious liability" because we are taking direct financial gain. But at the same time, we have no idea who or who is not breaking the law and committing infringement. The rest of the reasons we should be fine, we don't have the right or ability to control the infringers behaviour, and as the very bottom of the paragraph shows we are not committing contributory infringement because the serial numbers are capable of "substantial non infringing use" aka most of our customer's will have the carrier's permission.
I am wondering, because we have no idea who is committing infringement and who isn't - does that supersede the fact that we are taking direct financial gain? And or more importantly could we put on our website that if we find any customer committing copyright infringement, we will immediately refund them? So than not only are we following all the other rules to fall into the Safe Harbor, but we also are not taking any financial gain from known infringers????
thanks everybody and I appreciate any and all feedback!
While I think this is a fascinating topic to discuss theoretically to be clear, if you want any actionable advice this is an extremely litigious issue and something you'd really want an attorney to dive into both to understand the implications and craft the language to cover them if it's even possible. One word can make all the difference and there may be a very legal way to do this with some level of consent, involvement, etc while others may open you up to huge suits...
That said many companies have tried to take the defense you're suggesting and failed even when they were just providing a platform without actually giving the content... essentially it was said they knew what was happening and clearly you do as well to have posted about it. Contributory infringement is a powerful law and mighty hard to disclaim away. To draw an analogy of a somewhat different sort, I have the right to a personal copy of movie I purchase but I doubt you'd find much protection in trying to sell downloads under the guise that people have to own the movie first.
The safe bet is of course to validate consent.
After getting some quick and honest advice, safe harbor would not work for numerous reasons. reason i even asked is because i was very naive about the whole situation. Wasn't trying to get around the law, just trying to understand it and see if that would of been a legitimate option. But after speaking to several lawyers that obviously wont be an option because I want to 100% follow the law. According to the exception by the library of congress, we can still legally unlock phones released before jan 26, 2013, so we will just do that, along with unlock international phones in countries where it's legal. we will not be offering U.S. models released in 2013 and on to be in full accordance with the law. Thank you for your advice above and have a great new year!! Take care.
Sounds like a very smart call although I'm sure a hard one to make... Perhaps your attorneys can help advise you as to a path to find compliance working directly with the carriers in the future. It may be a pain but keeping the market open could be worth it, not to mention the extra step helps add legitimacy to the whole business for those worried...
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