Of the many ways cell phone carriers gouge consumers, one of the most egregious is making it impossible to take your phone with you when you switch to a new provider.

Moving your phone between carriers has been considered an infringement of the old carrier's property rights, so customers were forced to turn in or junk their old phones, and pay all sorts of extra fees to get a new phone along with their new plan.

But beginning in December, U.S. copyright law provides an exemption for consumers who want to "unlock" their cellphones and take them along when switching providers.

The exemption was one of six announced as part of regular revisions to the Digital Millenium Copyright Act (DMCA), the 800-pound-gorilla of technology-related copyright law in the U.S.

The ruling by the U.S. Copyright Office stated that the "software lock" preventing customers from using the same phone with different carriers "appears to be limited to restricting the owner's use of the mobile handset to support a business model, rather than to protect access to a copyrighted work itself."

"The underlying activity sought to be performed by the owner of the handset is to allow the handset to do what it was manufactured to do -- lawfully connect to any carrier. This is a noninfringing activity by the user," said Chief Register Marybeth Peters.

Wireless carriers typically lure customers with the promise of rebates and instant savings for new phones, but only if they sign multi-year contracts with heavy termination fees. The new phone also often comes with a "handset activation fee," which negates much of the customers' savings.

Unlocked phones that are not attached to any carrier are often prohibitively expensive, sometimes costing double what they would with a new carrier contract.

Selling unlocked cellphones on auction sites such as eBay has been a booming "grey market," and has earned the wrath of the wireless industry. Wireless lobby association CTIA and prepaid phone company TracFone both submitted unsolicited statements opposing the exemption.

The Register's office criticized CTIA and TracFone for not submitting their statements in the time allowed.

"Not only would acceptance of the late filings wreak havoc on the decisionmaking process, but it also would be fundamentally unfair to the parties who have made timely submissions, and in particular to the proponents of the exemption."

The exemption for unlocked cellphones will last three years, until the next time the Copyright Office reexamines the DMCA for potential new exemptions.

Supporters of the exemptions are pinning their hopes on the new Democratic Congress supporting legislation to reform the DMCA and make the exemptions permanent, although the Democratic record of appeasing the telecommunications industry is not less unseemly than the GOP's.

Rootkit Revisions

An other major ruling enables security researchers to circumvent copy-protected audio CDs -- but only to test, investigate, and/or fix any security flaws.

The revision came about as a result of the Sony rootkit scandal, when the company sold CDs that contained software designed to prevent copying the content, but also caused the user's computer to be vulnerable to hackers, and possibly causing catastrophic damage to the computer if removed.

Under the terms of the DMCA, any attempt to circumvent the rootkit or disable it would technically be considered a breach of Sony's copyright, and could be punished with fines or even criminal prosecution.

Although Sony eventually agreed to a settlement for the many class-action suits filed against it in the rootkit case, many legal questions remained unresolved.

In making her recommendation to exempt security researchers, Peters pointed out that the damage from rootkits was not only a consumer issue, but a national security issue, noting that the Department of Homeland Security had issued warnings about the Sony rootkit.

"[I]t could be argued that research into and correction of security flaws in access controls ultimately will have a positive impact on the market for or value of copyrighted works, to the extent that it results in the marketing of copies of copyrighted works that do not pose computer security risks for consumers," Peters said.