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.