It seems that in order to get there, you need to make an argument something like: “The Tracfone suit demonstrates that the anticircumvention rules are bad law because they can be used to protect a BAD business model, and do not have other benefits that outweigh the costs.” For one thing, it’s not clear that the first part is true — it’s not clear that there is anything wrong with Tracfone’s business model. And the second part depends on demonstrating that protection of copyrighted works is unnecessary or harmful. But of course, if you could do THAT, I don’t think you’d really need the business model argument.

The point that there is a deep discount is a good one. As for Bruce’s idea, no one (except perhaps Bruce) is saying abolish contract. Sure if one wants to sell below cost and then require a service plan, one can try to do so. As mmm points out that may be hard to do. But that contract issue is not the same as the public ordering that is involved in copyright law which is now being used for the private contract matter.

Tracfone seems to have developed a business model, or at least a pricing plan, that depends on its ability to prevent free riders. It may or may not be able to do that given the legal tools available. But there doesn’t seem to be anything nefarious about the attempt.

It may be “protecting a business model” but it might also be “enabling a business model.”

The first sale probably bar much in the way of Tracphone’s ability to limit by contract the end users “use” of the phone. Moreover, since there isn’t really a required “service” like in the ordinary mobile phone sense, there’s really little to stop them from doing this.