Cell Phone Unlocking: The Root of the Problem (and Solution) is in Copyright

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Yesterday, the White House responded to a We the People petition on phone unlocking, stating that consumers should be able to unlock their cell phones and tablets. This puts the administration in line with a large number of consumers who are upset that the Library of Congress refused to exempt phone unlocking (modifying phone software so consumers can use their phones with a different mobile phone company) from the Digital Millennium Copyright Act (“DMCA.”)

However, the White House statement doesn’t reverse the Library’s decision, and nothing in the statement seems to suggest that it plans to. Instead, it focuses on other avenues to fix the problem:

The Obama Administration would support a range of approaches to addressing this issue, including narrow legislative fixes in the telecommunications space that make it clear: neither criminal law nor technological locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation.

We also believe the Federal Communications Commission (FCC), with its responsibility for promoting mobile competition and innovation, has an important role to play here. FCC Chairman Genachowski today voiced his concern about mobile phone unlocking (.pdf), and to complement his efforts, NTIA will be formally engaging with the FCC as it addresses this urgent issue.

While Congress certainly does have a role in fixing this problem, the solution doesn’t really rest in telecommunications law. The problem originates from copyright law overrunning its banks into areas of competition law and telecommunications law, among many others. A fix that only addressed cell phones wouldn’t help in other situations where an incumbent tried to lock consumers into their own ecosystems and lock out competitors, whether they were universal garage door openers, generic inkjet cartridges, or, say, game consoles that won't play used games.

As for the FCC, the agency’s toolkit is more limited than Congress’s. While the FCC has broad authority over phone carriers, and could issue rules that would prevent them from engaging in anticompetitive lawsuits or other arrangements, its power over handset manufacturers or firmware makers can be more limited.

The problem here is one created by statute, and thus it falls to Congress to repair the damage. The Library of Congress's statement certainly doesn't suggest that it's likely to start some new process of reversing itself, so rather than try and set up a fight between them and the NTIA, or have the FCC try to patch up the mess piecemeal, legislators need to amend the law to prevent more debacles like this one. There are a number of things that need fixing:

Making Lawful Uses Actually Lawful

Despite the fact that it's named the Digital Millennium Copyright Act, the DMCA gets used in all sorts of ways that have little to do with copyright. If I'm doing something that isn't infringing copyrights, why should I ever be worried about violating the DMCA? Yet that's the situation we have now, because of a lack of clarity in the law. It would take a bold argument (though, granted, that's never deterred them before) for carriers to argue that taking a phone from one provider to another was a copyright infringement. So if bringing your own phone to a new carrier is legal, it should be perfectly legal to undo the locks that prevent you from doing this legal act. This is the principle behind our Internet Blueprint proposal here.

Making Common-Sense Exemptions Permanent

Another fix, mentioned recently in this piece by Derek Khanna would be simply making a number of common-sense exemptions permanent. Every three years, advocates for the blind and visually-impaired have had to argue with publishers that they actually have the right to read. Getting exemptions to unlock DRM on e-books so they can be made accessible shouldn't be a triennial adversarial chore. Nor should phone unlocking, DVD ripping, or jailbreaking. Yet every three years or so (delays aside), every single one of these things gets argued again. It wouldn't take much to fix some of the past-granted exemptions in law, the way certain types of library uses, encryption uses, law enforcement purposes, and other activities get a baked-in exemption.

Fixing the Process

Speaking of endless battles, there are a number of changes to the process of the rulemakings that could make it less painful, and ensure saner outcomes. It's a particularly strange thing that, in what turns out to be largely a question of telecom competition policy, the opinion of the Copyright Office ends up getting more weight than the National Telecommunications and Information Administration, and the FCC has no status at all. And that the final determination is made by the Librarian of Congress. I'm not suggestion that this becomes a one-agency, one-vote sort of thing, but clearly, there's room for process improvement. Likewise what the burdens of proof are and how they're established. Especially when the digital locks under review are only tangentially related to protecting copyrights, it doesn’t make sense to ignore or deemphasize anti-competitive effects or the effects on people other than the copyright holder.

So while we're glad that the White House recognizes exactly how bizarre our copyright laws have become—so bizarre that they interfere with fair telecommunications policy—the solution isn't just to patch the problem with changes to telecom law. It's to get at the root of the problem itself, and fix section 1201.

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