February 12, 2009 | By Fred von Lohmann

CTIA: All Your Cell Phones are Belong To Us!

Beware, iPhone unlockers who defected from AT&T to T-Mobile, because America's wireless phone giants think you're a copyright infringer, a DMCA circumventor, a contract breacher, and a trademark violator. You committed all these offenses simply because you want to use your phone (yes, the one you own) on another network or with other software applications.

That's what CTIA - The Wireless Association, speaking for America's largest wireless carriers, told the Copyright Office in its February 2 filing opposing the DMCA exemptions that EFF and phone recyclers like The Wireless Alliance proposed in the latest DMCA triennial rulemaking.

This is yet another example of the DMCA being invoked not to stop "piracy," but to hinder competition and innovation, reminiscent of Lexmark's DMCA lawsuit to stop people from refilling laser printer toner cartridges (Lexmark ultimately lost that one). It's also one more effort by some technology companies to curtail our "freedom to tinker," a freedom that has been an engine of innovation in our economy.

Wireless carriers want to tie you to their service, and holding your phone hostage is a favorite way to do that (along with early termination fees). Although some carriers claim to be willing to unlock your phone after your initial commitment is up, many consumers report difficulty getting their providers to live up to the promise. Other providers of "pre-paid" phones, such as Tracfone and Virgin Mobile, will never unlock the handset, because those carriers sell the devices below cost in an effort to hook more customers. (Kudos to Verizon, which sells 96% of its phones unlocked, demonstrating that there's nothing about being a wireless carrier in the United States that requires you to sell locked phones.)

Whatever you think about these "give away the razors, but gouge them on the blades" business models, it's hard to see why the DMCA should give them special legal protection. After all, Congress passed the anti-circumvention provisions of the DMCA to protect copyrighted works from piracy, not to enable wireless companies to lock customers into a single service provider or source for mobile applications. The notion that these technical restrictions are meant to protect cell phone firmware from piracy is absurd -- the copyright in the firmware is just a convenient legal hook on which to hang the DMCA.

While CTIA's filing claims that legal enforcement of phone locking is good for the environment, competition and consumers, real consumers and consumer groups have joined the EFF in support of exemptions for jailbreaking and unlocking. The Public Interest Spectrum Coalition (PISC), a group which includes the Consumer Federation of America, Consumers Union, Free Press, Media Access Project, the New America Foundation, and Public Knowledge, filed reply comments in favor of the exemption. And individual phone users wrote to say that when carriers disable handsets, they can not copy over contact lists, delete unwanted applications, or install their native language font. And over 8000 consumers signed a petition saying they support an exemption for unlocking phones.

EFF and its recycler clients look forward to the opportunity to respond to the CTIA's misleading claims at a hearing on the requested exemptions in March. At that hearing, we will point to all the evidence in the record that demonstrates to the Copyright Office that section 1201 endangers customers, competition and the environment without providing any protection to wireless providers' or handset manufacturers' legitimate copyright interests.

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