July 31, 2013 | By Parker Higgins

Markup Brings Minor Improvements to Phone Unlocking "Bandaid Bill"

Update 7/31: After a week's delay and some additional minor amendments, the bill has now passed out of committee. We'll keep you posted as the legislation continues to wend its way through Congress.

Original post July 23, 2013:

The House Judiciary Committee is scheduled to hold a markup session today for HR 1123, Chairman Bob Goodlatte's "Unlocking Consumer Choice" bill addressing the current (and wildly unpopular) ban on phone unlocking. Unfortunately, although Chairman Goodlatte has introduced a manager's amendment [pdf] that somewhat improves bill, this legislation still doesn't go far enough in bringing about sorely needed reform to a fundamentally broken section of copyright law.

From its introduction, Goodlatte's bill has been a bandaid of sorts: it narrowly and temporarily addresses the symptom, but fails to go after the underlying problem. 

That underlying problem sits at the core of Section 1201 of the Digital Millennium Copyright Act (DMCA). That law makes breaking digital right management software (DRM) illegal as a default (subject to some narrow exceptions).  Recognizing that this default could impede otherwise lawful activities (like phone unlocking) the DMCA contains a rulemaking procedure that puts the burden on the public to explain every three years why circumvention is necessary for specific lawful purposes. Even if an exemption for those specific purposes is granted, the tools to do so remain unlawful.

Goodlatte's bill—both the version as introduced as well as today's manager's amendment—would make phone unlocking legal for end users until the next exemption hearings in two years. At that point, the burden of proving that carrier unlocking should continue to be exempted from section 1201 would again fall on the public. That's not a very good situation for anybody, but especially not for users, because it spreads uncertainty around phone unlocking's legality.

The new version of the bill makes an improvement on that front. Unlike the bill as introduced, the manager's amendment makes unlocking legal not only by end user, but also by people that the end user instructs to do the unlocking. That opens the door for a market and competition among phone unlocking services, but again that market is constrained by the murkiness of the legal future.

One other change in the new version is the call for a report from the Government Accountability Office on the DMCA rulemaking process and the burden of evidence that the process requires. This development is probably a good one; after all, the burden of evidence is too high, and official recognition of that fact could help drive real reform. But given the tendency for legislators to ignore the voice of reality when it comes to copyright policy, having the facts is no guarantee.

Ultimately, what will likely come out of this markup is a moderately improved bill that would temporarily and narrowly address a problem that has attracted a lot of attention, from the public, from legislators, and from the White House. But it doesn't bring the complete and permanent fix that EFF, along with a broad coalition of over 40 groups and individuals, has explained is necessary

Only one bill currently in Congress accomplishes that feat: the "Unlocking Technology Act," introduced by bipartisan sponsors earlier this year. Thousands of people have already contacted their representatives in support of the bill, which would limit violations of section 1201 to actual cases of copyright infringement.

A sane copyright law can't require acts of Congress to get technical exceptions for unpopular restrictions on non-infringing activities. Any improvement is welcome, but the public deserves and demands real fixes—not bandaids.

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