June 5, 2013 | By Mitch Stoltz

Congress Moves To Protect Phone Unlockers - A Small Step Towards Fixing the DMCA

Congress looks poised to create a new legal shield for mobile phone unlocking, making it clear that people who switch wireless carriers won't face civil suits or criminal penalties under the Digital Millennium Copyright Act. That legal protection was taken away by a ruling from the Librarian of Congress last October. In a hearing tomorrow morning, a subcommittee of the U.S. House Judiciary Committee will hear from witnesses about a bill to bring it back - at least temporarily. It's a no-brainer that people should be able to use the phones they own on the networks of their choice, as everyone from the wireless carriers to consumer advocates to the White House agrees. Congress should fix cell phone unlocking - and then it should quickly turn its attention to fixing the legislative mistake that got us into this mess in the first place.

That's because the limitation on cell-phone unlocking is just one of many dangerous consequences of one law: section 1201 of the Digital Millennium Copyright Act (DMCA), which prohibits "circumventing" digital locks on copyrighted works. It's a broad prohibition that causes problems for video artists, software developers, security researchers, and consumers of digital goods. Congress knew it would cause these problems, but its answer was woefully inadequate: a process for the Librarian of Congress to establish some exemptions every three years. In 2006 and 2010, the Librarian approved an exemption targeted at cell phone unlocking, but opted not to renew the exemption in 2012 (and rejected some other exemptions for otherwise lawful activities). That decision didn't necessarily make unlocking illegal, but it did strip it of the explicit legal protection it had before, and raises a threat of lawsuits or criminal prosecution.

The focus of tomorrow's hearing is a bill that would fix a small part of the problem - but only for two more years. Representative Bob Goodlatte's "Unlocking Consumer Choice and Wireless Competition Act" simply reverses the Librarian's decision about unlocking, restoring the legal shield until the next rulemaking in 2015. At that time, the Librarian could again refuse to protect consumers' rights to do as they want with the phones they own. Rep. Goodlatte's bill doesn't prevent this problem from happening again and again - and it doesn't fix any of the myriad other problems the DMCA causes, such as preventing people from "jailbreaking" tablet computers and suppressing open discussion of security vulnerabilities.

There's another bill that would fix the unlocking problem permanently, and many other problems besides. Representative Zoe Lofgren's "Unlocking Technology Act" would make it legal to circumvent access controls on copyrighted works to make legal uses of those works - any work, for any legal purpose. It also legalizes making and selling circumvention tools designed and marketed for legal purposes - something the three-year rulemaking at the Library of Congress can't do.

You can e-mail your members of Congress and let them know that you support Rep. Lofgren's bill. And during the hearing tomorrow, we hope the subcommittee looks beyond a temporary fix for the unlocking problem and begins to think about some more fundamental questions, like:

  • Why does the government's librarian have the power to set technology policy?
  • Why are wireless carriers claiming that they need to use a law written to curb copyright infringement in order to prevent re-sale of used phones? What does locking phone customers to one carrier have to do with protecting creative work from copyright infringement, anyway?
  • Do trade agreements negotiated in secret by the executive branch prohibit Congress from fixing serious problems with the DMCA here at home, as the subcommittee's memo suggests? Must our elected representatives obey the secret decisions of unelected bureaucrats?
  • Is giving heavy-handed legal protection to digital locks really good for creativity, innovation, or our economy? So good that it's worth all the problems the DMCA has caused?

A fix for unlocking is a good idea, but it's not enough, not by a long shot. We need to demand answers to these sensible questions and a saner copyright law that doesn't need narrow, technical exceptions for each problem that comes along.


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