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Unlocking Cell Phones Shouldn’t Dismantle Copyright Law


Written by Terry Hart
Director of Legal Policy, Copyright Alliance
Posted: March 14, 2013 @ 7:45 am
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Senator Ron Wyden was first to submit legislation on unlocking cell phones.

The Digital Millennium Copyright Act (DMCA) has recently become a hot topic in Congress. The renewed interest is the result of a “We the People” petition that successfully reached the required number of signatures to merit a response from the White House. The petition, titled “Make unlocking cell phones legal,” said, “We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.” The White House fully agreed with the petition, responding, “It’s time to legalize cell phone unlocking,” and adding, “if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network.

Within days of the White House’s response, lawmakers were rushing to offer legislative fixes compatible with the petition. Senator Ron Wyden (D-OR) was the first to introduce a bill, the Wireless Device Independence Act (S.467), which would create a permanent exemption for unlocking. Most recently, Senator Patrick Leahy (D-VT) has introduced legislation, cosponsored by four other senators from both parties, that would reverse the Library of Congress’s decision and restore the exemption.

But many proponents of the original petition reacted negatively to these legislative proposals. Derek Khanna, for example, one of the most public advocates of cell phone unlocking, said of the legislation that “the worst … approach would be to simply reverse the decision of the Librarian of Congress and provide a temporary ‘exception’ for three years and let the Librarian rule on this again in three years.”

To reiterate: petitioners sought a reversal of the recent decision on cell phone unlocking or a permanent exemption, Congress responded within days with bills that would do just that, and proponents of the petition complained “that’s not good enough!”

This alone is evidence that this whole episode was never about cell phone unlocking, but about a larger agenda to strip creators and copyright owners of their already tenuous legal protections. Khanna himself confirms this, writing at Boingboing that “Cellphone unlocking is the first step toward post-SOPA copyright reform.”

This showing of bad faith is unfortunate. While the actual scope of the cell phone unlocking problem has yet to be seen (most wireless providers already allow unlocking), most would agree that cell phone consumers should not fear criminal penalties for unlocking a phone they had purchased once they have fulfilled their contractual obligations with a wireless provider.

Though each of the bills proposed so far take a different approach, they are all premised on the idea that unlocking a cell phone is not a copyright issue.  As the Register of Copyrights noted when it recommended an exemption for cell phone unlocking in the 2010 rulemaking proceeding, “no opponent of the [exemption] has persuasively argued that the prohibition on circumvention is, in this context, protecting a copyright owner’s interest in a work of authorship and that permitting circumvention for the purposes of switching mobile networks poses a serious risk to copyright owners’ interests in protecting their works.” Wireless providers are still protected through contract and tort law if they wish to offer locked devices.

Regardless, opponents of effective copyright laws are attempting to leverage the success of the petition into a wide-ranging assault on section 1201 of the DMCA — and, no doubt eventually, on copyright law itself. Along with Khanna, a coalition consisting of the Electronic Frontier Foundation, Fight for the Future, Mozilla, Reddit, and others have launched fixthedmca.org, the ultimate goal of which is to repeal section 1201 in its entirety.

These efforts are misguided. Section 1201 is not only required by international obligations, it has also enabled a variety of successful business models — from DVDs to Netflix to Pandora — that have benefited consumers and creators alike in a digital age. Yet groups like those mentioned above have been anxious since last year’s blackout against SOPA to harness the energy that ultimately defeated that bill into affirmative efforts to change copyright law. Proposals beyond those affecting Section 1201 are even more regressive in nature: sharply reducing the duration of protection, re-implementing formalities, or eliminating statutory damages, to name a few. While weakening copyright would affect all stakeholders, its impact would be felt most by individual creators and small businesses that rely on copyright.

Cell phone unlocking is about consumer choice, competition, and common sense. Congress is on the right track with proposed legislation that responds in full to the We the People petition and should resist any efforts to turn the issue into a broader dismantling of the legal protections currently enjoyed by those who contribute expression to the public.

About the Author

Prior to joining the Copyright Alliance team, Terry wrote for Copyhype, a blog he started in 2010 that aims to make copyright cool again through lengthy, dry, legally dense articles. In 2011, the site was named by the ABA Journal as one of the top 100 law blogs in the U.S. and has been cited in legal publications and online news outlets. He also provided legal research for Robert Levine's Free Ride: How digital parasites are destroying the culture business and how the culture business can fight back, published in 2011.

4 comments
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  1. “Regardless, opponents of effective copyright laws are attempting to leverage the success of the petition into a wide-ranging assault on section 1201 of the DMCA — and, no doubt eventually, on copyright law itself.”

    The author chides the folks behind the petition as being disingenuous (showing “bad faith,” to be precise) when they set their sights on Sec. 1201 as a whole. Yet his argument for not being willing to re-evaluate Sec. is based on his belief that those behind the petition will, “assault” copyright law. However, even this is a misstatement of the issue. To the best of my understanding, the petitioners are not seeking the eradication of Sec. 1201 (it’s called “fixthedmca.org” after all, not “eradicatethedmca.org”). The reader would be well-advised to consult the website in question to see what really is at issue.

    In any case, there is no substance to Mr. Hart’s claim. Let’s be willing to discuss the core issue here: is Sec. 1201 good law or not?

    Mr. Hart gives two reasons in support of the proposition that Sec. 1201 is good law: (1) “Section 1201 is . . . required by international obligations,” and (2) the DMCA enabled successful business models such as DVDs, Netflix, and Pandora.

    I will not attempt to compare the WIPO treaty language and the language of Sec. 1201. But it suffices me to say that Mr. Hart’s unsubstantiated broad-stroke generalization of the measures the WIPO Copyright Treaty requires signatories to adopt is largely unfounded. (See Art. 11 and 12.) Does the WIPO treaty require signatories to adopt something? Yes. Does it require the adoption of Sec. 1201? No. Signatories are free to determine and implement their own measures to “provide adequate protection . . . to authors . . . under this Treaty of the Berne Convention . . . .” (Id.)

    Next, the suggestion that DVDs, Netflix, and Pandora would never have come about, or thrived, absent Sec. 1201 is laughable, to say the least. Such claims are inherently untestable, and lend little to the conversation.

    Again, we must return to the core question in this issue: is Sec. 1201 good law? Does it make sense for the Copyright Act to make it illegal for an iPhone user to load an OS other than iOS on their phone? Should it be illegal for the owner of an Xbox to load XMBC on their console? How does this protect the rights of content authors? If you buy an electronic device, should you be able to use that device as you see fit?

    Those that stubbornly and blindly fly to the aid of Sec. 1201 should open their eyes to the unfortunate reality: Sec. 1201 and its anti-circumvention provisions are much too broad. Should it be illegal to remove DRM from an MP3? Yes. Such protection falls squarely in the realm of copyright law and protects an author’s rights under Sec. 106. Should it be illegal to install other operating systems on the electronic devices that you buy? No. There are no Sec. 106 rights in jeopardy.

    This is what those behind the petition are trying to address. And this is why Sec. 1201, as drafted, is bad law.

  2. The problem as I see it with locking and making it a (criminal) offense to break locks is that such denies all access to material under the guise of copyright protection, but copyright protection is not so generous. There are valid and open reasons to be able to use even copyright protected material (a wide expanse of Fair Use and First Amendment ideals come to mind).

    The protection sought is not in scope with the protection afforded under (copyright) law.

  3. “That’s not good enough!” because it passes the buck back to LoC, sets up a sequel of the whole fiasco in three years, and doesn’t address the serious problem of the Librarian of Congress vetting technology policy with potentially far-reaching economic consequences.

    By your own words,” most would agree that cell phone consumers should not fear criminal penalties for unlocking a phone” once their obligations are met, and the issue is about “common sense”. Yet the Librarian did not agree, and displayed none of that common sense in his decision.

    The obvious outrage that should, and did, cause is behind the 100,000+ strong petition. Pretty ridiculous, then, to comment that the “whole episode was never about cell phone unlocking”, It’s pretty clear who has the agenda.

  4. Sorry Terry, please explain your logic for jumping from “To reiterate: petitioners sought a reversal of the recent decision on cell phone unlocking or a permanent exemption” and noting that some such as Derek Khanna effectively wanted a permanent exemption, to “This alone is evidence that this whole episode was never about cell phone unlocking”.

    Yes some people who supported the petition may have a further agenda which is now coming to the fore, but this does not invalidate the intent of the original petition to reverse a daft decision by the Librarian of Congress.