On Jan. 26, a decree from the Librarian of Congress wen […]
On Jan. 26, a decree from the Librarian of Congress went into effect, making it illegal for users to change the way their cell phones work. During an once-every-three-years review of digital copyright laws, the librarian ruled that “unlocking” is, indeed, a copyright violation.
“Unlocking” permits phone owners to switch between carriers that use the same transmission standard, giving freedom to those who must travel beyond their carrier’s coverage area or who simply want to be able to choose a different carrier.
The Librarian, who is charged with the enforcement of copyright and trademark laws in the United States, ruled that “fair use” rules in the Digital Millenium Copyright Act (DMCA) did not apply to the handset’s operating system, and as such, is exempt from the end-users’ prerogative to change his privately-owned device as they wish.
This extension of corporate intellectual property to privately-owned possessions constitutes a major invasion of privacy and corrupts the notion of private ownership, as argued by the Electronic Frontier Foundation and other technology rights advocates.
Congress has taken up the call to respond to these charges. Four bills have been introduced which will legitimize “unlocking.” However, as these four bills take decidedly different approaches to legislating a response to this issue, many observers are concerned that these bills do too little, or may create a legislative crisis that ultimately will be determined in the courts.
The Senate’s response
Sens. Patrick Leahy (D-Vt.), Chuck Grassley (R-Iowa), Al Franken (D-Minn.) and Orrin Hatch (R-Utah) introduced S.517, the “Unlocking Consumer Choice and Wireless Competition Act,” which changes federal regulations from the Librarian of Congress’s 2012 ruling to the more permissive 2010 ruling, which permitted “unlocking.”
The bill would also charge the Librarian to determine if other devices, such as tablets, should be unlocked. Proponents argue that this bill offers a “soft touch”; it wouldn’t force carriers to assist users with “unlocking” or seek damages from breach of contracts or enforce penalties on buyers that “unlock” their phones. Opponents feel that the “soft touch” leaves the issue unchanged and just puts the debate off for later; three years from now, the Librarian would be free to ban “unlocking.”
Sen. Ron Wyden (D-Ore.) introduced S.467, the “Wireless Device Independence Act,” which would actually change the DMCA to specify that modifying software on a mobile device with the explicit purpose of operability on a different network is exempt from copyright consideration by the Librarian of Congress.
Proponents argue that the bill forces Congress to take the appropriate stance on this issue — by addressing the deficiencies of a particular governmental agency and issuing legislation to correct it. However, the wording of the bill creates a massive loophole — it only exempts the “owners” of a computer program, and not the “licensees.”
The Second Circuit of the United States Court of Appeals has ruled that the end-user is the rightful owner of the copy of the software he purchased. However, the Ninth Circuit has ruled that the end-user does not own the intellectual rights to software, and has only purchased a license for the software’s use. Therefore, the end-user has no right to change it, according to the Ninth Circuit’s ruling. If Wyden’s bill pass, this argument likely will be settled at the Supreme Court.
Sen. Amy Klobuchar (D-Minn.) has introduced S.481, the “Wireless Consumer Choice Act,” which has been co-sponsored by Sens. Mike Lee (R-Utah) and Richard Blumenthal (D-Conn.). The bill states: “Pursuant to its authorities under title III of the Communications Act of 1934 … the [FCC], not later than 180 days after the date of enactment of this Act, shall direct providers of commercial mobile services and commercial mobile data services to permit the subscribers of such services, or the agent of such subscribers, to unlock any type of wireless device used to access such services. Nothing in this Act alters, or shall be construed to alter, the terms of any valid contract between a provider and a subscriber.”
This would create a power struggle. Without changing the DMCA, the Librarian of Congress still has the ultimate say on the legality of “unlocking,” but this bill authorizes the Federal Communication Commission (FCC) to act toward forcing the carriers to permit “unlocking,” despite the librarian’s ruling. This contradiction would throw the issue to the courts to straighten out. Legally, DMCA and Klobuchar’s bill are “in pari materia,” or “legally similar, but contradictory.” S.481 offer specificity to DMCA, and — in accordance to court precedence — would ultimately be upheld should the issue ever go to court.
However, most opponents believe that these three bills serve only as an invitation to involve the Judiciary in determining the course of this debate. Without directly addressing and correcting the problems with the DMCA, the issues behind the illegitimacy of “unlocking” will remain.
“The root of this problem lies in parts of the Digital Millennium Copyright Act and how easily they are abused at consumers’ expense,” said Christopher Lewis of Public Knowledge in an emailed statement. “Amending the DMCA itself will ensure stronger competition, and also that consumers can use the devices they’ve bought in whatever lawful way they choose.”
The fourth bill, introduced in the House by Reps. Zoe Lofgren (D-Calif.), Thomas Massie (R-Ky.), Anna Eshoo (D-Calif.) and Jared Polis (D-Colo.) — the “Unlocking Technology Act of 2013” — would amend the DMCA to make it clear that unlocking copy-protected content is only illegal if it is done to “facilitate the infringement of a copyright.” If the end-user used circumvention technology “primarily designed or produced for the purpose of facilitating noninfringing uses,” then the end-user would not be in copyright violation.
An example of this is DVD ripping. Under the current law, making a digital copy of a copyrighted DVD is illegal, regardless of the intended use. Under Lofgren’s bill, as long as the end-user does not distribute the ripped movie, it would be perfectly legal to make a digital copy — as it is for ripping music CDs. Lofgren’s bill is favored out of the four currently-considered bills for it offers to correct not only the issue with mobile phone “unlocking,” but other copyright concerns, as well.
The need for the law “to get out of the way”
Take, for instance, car repair. Many new vehicles use “lock-out codes” to make it impossible to have the vehicle serviced by anyone but a manufacturer-approved repair shop. The vagueness of the DMCA makes attempts to circumvent these codes a crime, even though no copyright violation took place.
Another instance is “fair use.” “Fair use” allows copyrighted material to be used for public-serving reasons, such as commentary, criticism, reporting, teaching and archiving. While the Copyright Law protects and authorizes “fair use,” if the material is protected by a Digital Rights management (DRM) system, “fair use” access to the material becomes a crime under the DMCA.
Between 2005 and 2007, Sony BMG placed a “rootkit” virus as part of the “Extended Copy Protection” DRM system on their CDs. When users ran the CD in their computers, the CD installed a “rootkit” — a hidden program that hides other programs and give them preferential access to the computer and to the programs running on the computer, including antivirus programs and the operating system itself — as a way of blocking buyers from ripping the CD.
This “rootkit” created a back door that opened the computer to further attacks. Researchers investigating this were blocked by the Recording Industry Association of America (RIAA) on grounds of DMCA violations. Despite this particular case being overturned in court four months later, the RIAA has blocked hundreds of researchers similarly from discovering the industry’s “trade secrets.” Lofgren’s law would end this.
In the shuffle between these four competing bills, Lofgren’s is the clear underdog. However, most analysts agree that Lofgren’s amendment — which offers the most comprehensive reform to the DMCA — would do the most good.
As Edward Felten argued for Slate, “These days almost everything we do in life is mediated by technology. Too often the systems we rely on are black boxes that we aren’t allowed to adjust, repair, or — too often — even to understand. A new generation of students wants to open them up, see how they work and improve them. These students are the key to our future productivity — not to mention the security of our devices today. What we need is for the law to get out of their way.”