June 6, 2013 | By Mitch Stoltz

Unlocking Hearing Shines A Light On The DMCA's Problems And The Need For A Real Fix

As we reported yesterday, there was a hearing this morning on Capitol Hill to talk about restoring legal protection for mobile phone unlocking that the Librarian of Congress took away last fall. The representatives and witnesses all agreed that consumers should be able to switch wireless carriers without facing civil lawsuits and criminal prosecution. The committee seems poised to move forward with Representative Goodlatte's (R-Va) bill, which brings back the legal shelter for unlocking until the next Library of Congress hearings in 2015.

We're glad to see Congress shining a spotlight on one of the unfortunate consequences of section 1201 of the Digital Millennium Copyright Act, a law that broadly bans "circumvention" of digital locks on creative works, even to make lawful and beneficial uses of those works.  The exceptions to that law are narrow and hard to use - and as the flap over unlocking illustrates, neither businesses nor consumers can rely on the Librarian to grant useful legal shields for legal activities.

Still, let's keep in mind what Rep. Goodlatte's bill does and doesn't do:

  • It shields consumers from legal trouble but not the makers of software and services for those consumers to use.
  • It protects the unlocking of phones but not of tablets or any other mobile devices, unless the Librarian expands it later.
  • It protects unlocking for network switching but not jailbreaking to install new software. It won't halt anticompetitive, anti-consumer, and anti-artist abuse of the DMCA.
  • It will sunset in two years.

So let's just say we have a long way to go.  

Also worrisome is that, as we saw in the SOPA hearing in 2011, some members of Congress remain committed to regulating digital innovation (or letting the government's librarian regulate innovation) without understanding it. Committee members seemed all too willing to accept the claim, for example, that allowing consumers full control over their phones could lead to the spread of counterfeit goods and malware.

Fortunately, some witnesses and members were willing to ask sensible questions.  Representatives Zoe Lofgren (D-Ca) and Jason Chaffetz (R-Utah), along with George Slover from Consumers Union, questioned why the DMCA, a law that was intended to reduce copyright infringement, is being used to enforce the terms of mobile phone contracts.  Rep. Lofgren has another bill - the Unlocking Technology Act - that will fix the DMCA comprehensively and permanently, but it needs your support.  Take action now to let your Representative know you support real DMCA reform.


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