Cord Blomquist wonders this, among other things, over at Tech Liberation, saying:

Does AT&T, Apple, or both companies have a legal case to bring against the hackers? Likely.

Actually, it's pretty hard to say right now. There are a few types of legislation that are relevant here. The first is the odious DMCA, a law that forbids device owners from circumventing "technological measures that control access to copyrighted works". Copyfighting geeks feel that if you buy a device it should belong to you and you should be free to do with it as you please. If the vendor set its price with the assumption that you'd be stuck buying ringtones or printer ink or razorblades exclusively from them, well, too bad. The DMCA provides legal protection for the aforementioned business model.

However, unlocking a cell phone happens to be a special case: it's one of six current exemptions to the DMCA granted by the Library of Congress.

Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

Apple may still have some claim against the iPhone hackers. That's because circumvention devices typically employ code that's the property of the device designer. Unless I'm mistaken, the DMCA exemption doesn't grant anyone the right to use or redistribute others' code. It's also possible that circumventing the protection may necessitate the violation of patents held by the device designer.

A similar situation exists in the world of Xbox modding. Until recently it was easy to buy a modchip online. Properly installed, this allows you to turn your Xbox into a device that can run Linux, emulate older consoles, or act as a media center (and, yes, you can play pirated games, too).

But you can't do this with the chip when it first arrives in the mail. Although the device is (or was) legal on its own terms, it couldn't unlock the full potential of the Xbox without running custom firmware — firmware that was based on code to which Microsoft owns the copyright. Consequently most modchips shipped with a firmware based on Linux called Cromwell. This was built without using copyrighted code and could be legally distributed. But it wasn't capable of doing much besides booting Linux and replacing itself with new firmware loaded from a burned CD.

If a modchip user wanted to use his or her Xbox for other applications they'd have to hunt through the wilds of IRC to obtain the forbidden firmware. In fact, the chips would ship with detailed instructions about soldering and firmware replacement. But when you got to the part about finding alternate firmware, the manual would adopt a "you didn't hear it from us" sort of tone and direct the user to various websites and chatrooms that the chip manufacturer insisted weren't at all affiliated with their operation.

It's all a bit ridiculous. But this is the situation that Xbox owners faced, and one which may be applicable to iPhone owners, too. Until the courts or congress decide exactly what ownership of an electronic device means we'll increasingly find ourselves in these strange legal landscapes.