January 19, 2006 | By Aaron Jue

DMCA Reply Comments: The Cell Phone Locking Exemption

In the previous post, we noted the approaching deadline for filing reply comments in the Copyright Office's DMCA rulemaking proceeding and summarized the proposed exemption submitted by Ed Felten and J. Alex Halderman. This post highlights another key first round comment, one submitted by the Stanford Center for Internet and Society's Cyberlaw Clinic on behalf of the Wireless Alliance and Robert Pinkerton.

Mobile Firmware Exemption

The Wireless Alliance, a Colorado corporation that recycles and resells used and refurbished mobile handsets, and Robert Pinkerton, a frustrated mobile phone user, filed a comment requesting a DMCA exemption for "computer programs that operate wireless telecommunications handsets" or "mobile firmware."

This exemption targets the practice commonly known as cell phone locking - when a provider stops customers from using their phone on another provider's network. As anyone who has taken their GSM phone to Europe only to discover that they can't purchase and use a local GSM chip because of provider lock-in can attest, cell phone locking creates real problems for mobile phone users.

In order for mobile users to switch their handset from one service provider to another, they need access to the firmware that operates their mobile phones. In an effort to keep their subscribers locked in to their network, most major mobile service providers take steps to protect their firmware from unwanted end user upgrades. The technological measures taken to prevent users from accessing the firmware vary, but their goal is the same: limiting competition and consumer choice.

Beyond these anticompetitive effects, allowing anti-circumvention claims against mobile phone users who upgrade the firmware on their handsets creates significant independent harms. The inability to switch mobile phones between providers contributes to 150 million mobile phones (and the toxic chemicals they contain) being discarded every year. And because most handsets are unusable on other networks without upgrading their firmware, the potential re-use of unwanted handsets in developing nations is thwarted.

Were you forced to buy a new handset or remain with your current provider because your phone was locked in to a particular network? Have you been unable to use your handset internationally because of firmware limitations? If you can offer this sort of personal and specific factual information in support of this comment, we urge you to file a reply comment with the Copyright Office.

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