MetroPCS and Virgin Mobile are currently in a court battle over the popular MetroFLASH CDMA handset unlocking service offered by the regional carrier.
Virgin initiallly filed legal motions after discovering that the MetroPCS MetroFLASH service was allowing Virgin Mobile customers the ability to take them to MetroPCS locations with MetroFLASH for use on their network. As Virgin Mobile heavily customizes and subsidizes handsets for use on its service, the carrier recovers handset subsidies through its customer base.
For its part, Virgin has demanded MetroPCS cease offering MetroFLASH due to its belief that it prevents the company from recovering subsidies on its handsets. MetroPCS has countered with its own claims disputing Virgin Mobile’s case, with one claim already dismissed by judge Sidney Fitzwater and stating that Virgin may have certain rights regarding its trademarks once the phone is flashed over to MetroPCS service as it involves violations of said trademarks.
Watch this case folks, if consumers want freedom over where they can use their phones, the settlement of this case could have the same chilling effect as DeCSS, or the freedom of the FCC’s Comcast/BitTorrent ruling.
Honestly, I think Virgin Mobile has a point. If someone buys a phone, then flashes it for Metro, Virgin Mobile loses money. That will eventually lead to more expensive phones. Not a good idea. The good thing is that hardly anyone uses MetroPCS, so its not a huge deal.
Metro PCS has just as many or more than U.S. Cell
Sprint Tech, a customer does not sign a contract when buying the phone. If Virgin Mobile wants to use loss-leading, anti-competitive practices when selling their prepaid phones, they do so at their own peril.
All MetroPCS is doing, is enabling you to change settings that you could do at home with a PST and considerable homework. Ask anyone that has removed the Verizon UI from a Motorola phone.
Didn’t the federal government rule that it is legal to unlock a phone a while back? If they have already ruled that unlocking a phone is totally legal, then I don’t see where Virgin has a case here.
If they don’t want to lose money on the phones, stop subsidizing them. Sell them at full price and give the subsidy in the form of a minutes card or something. So the phone costs full price but comes with a $100 minutes card. Problem solved.
The Copyright office exempted SIM unlocking from the DMCA for private use.
MetroFLASH is a more-complex matter though, and Virgin Mobile has a case. I think they should lose that case, but it is unsettled law.
Virgin’s arguments are two-fold. One, MetroFLASH (they claim) is not personal use. It is a corporate offering of debranding phones. Virgin argues it’s no different from professional vendors who buy phones solely for the purposes of unlocking. Case law is on Sprint’s side in that regard.
The other argument is that Virgin phones, once debranded and unlocked, are using Virgin Mobile’s trademark inappropriately. It’s a pretty poor argument, considering that MetroPCS is offering the service to any carrier phone that is compatible, not just Virgin Mobile. They are not promoting the service using Virgin Mobile’s service marks.
Not that it maters one bit, considering the American appellate process, but the judge (for some illogical reason) appears to be leaning towards Virgin Mobile/Sprint on both counts.
Here’s the kicker, which may hurt Sprint once this does reach the appellate arena. Sprint agreed to give out the MSL codes for their phones, specifically in this event (porting out and using the phone on another carrier), as part of a class-action settlement.
To-date, the company has failed to uphold their end of the deal on that settlement, putting them at risk for another legal showdown to enforce the settlement. Still, Sprint can’t say that their subsidized postpaid phones can be used on other carriers, and their subsidized prepaid phones can’t. However, that’s exactly what they are asking the court to do.
Actually, if you notice the timing of all this and similar drama. Apple claiming that terrorists will use jailbreaking for subersive acts of violence last month or so along with VM’s complaints.
The DMCA /Phone unlocking issue is up for review /possible renewal this month and the antiunlocking forces are trying to time their dramas so that people pay attention to their side of the story.
VM could have sued Metro months ago but never did. VM could also have sued, Pocket, the company that creates the Houdinisoft flashing software which Metroflash is a variant of , but they didn’t. VM could have sued Cricket, Revol, and a ton of other companies that flash using the same software Metro does (under different names) , but they didn’t.
This inconsistent approach shows that it is more of a gambit then a real issue. If it were a real issue, VM’s new parent company Sprint would be involved declaring all out war against Pocket, Metro, Cricket, Blue Wireless , Mobi PCS, Revol and anyone else who uses the software and of course, Houdinisoft itself. But they are not as it is too high profile and would start a legal WAR which would tear the industry apart.
Also, if one goes to http://www.houdinisoft.com and check their phone list which can be flashed from various carriers like Alltel, Sprint, Verizon, NOT ONE MODEL from Virgin Mobile is listed.
VM really does not have a case. They are just lucky that their tenous trademark infringement argument stuck.
Other then that, it is a non issue and they are grabbing at straws.
I hope that the EFF, Electronic Frontier Foundation and their pro unlocking/flashing/jailbreaking allies soundly thrash the opposition.
VM has a point about suing phone unlockers who buy their phones in bulk, reflash them and resell them over seas taking away their subsidies. But they are messing with the average joe and jane who want their phones to work on Metro and Metro just happens to be the company willing to provide them with what they want.
If VM really wanted to prove a point, they should drop the suit and rise up to the challenge of trying to keep customers from leaving for Metro or whoever. They lost half a million people almost in the last six months. That is VM’s own fault, no one else’s .
That Houdini software looks pretty cool. I hadn’t seen anything like that before. I knew you could change CDMA carriers, but I thought you had to manually type in settings to do it.
I see Sprint on the list. Will that software somehow get Sprint to activate a non Sprint phone? Will it spoof another phone so Sprint activates an imposter phone or something?
Damn yet another antitrust. This is what microsoft got sued by the United States Government for. YOU CANNOT AND I REPEAT CANNOT TELL A CUSTOMER WHAT PHONE NETWORK THEY CAN USE THEIR PHONE WITH. ESPECIALLY IF THE COPANY HAS THE SAME TECHNOLOGY OR EVEN BETTER TECHNOLOGY TO SUPPORT THEIR NETWORK.
VIRGIN MOBILE IS ONLY LIKE ANY OTHER BUSINESS COMPETITOR AND TO HAVE YOU KOW IT VIRGIN MOBILE HAS ALREADY FILED BANKRUPTCY IN COURT FOR WEAK SALES, I THINK VIRGIN MOBLE A SUBSIDIARY OF SPRINT/NEXTEL IS LOOKING TO OUST MERTO PCS FROM THE CELLULAR PHONE BUSINESS.