No One’s “Signed Away” the Right to Unlock Cell Phones

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Several people have raised the specter of trade agreements standing in the way of cell phone unlocking. The basic idea is that, in a broad trade negotiation between the US and South Korea (and in a number of others), the two countries agreed to make sure their copyright laws had certain similar features. Among those were requirements that they have laws against breaking digital locks to access copyrighted works, and that they only have certain kinds of exemptions to them. Cell phone unlocking is not one of the specific exemptions.

Mike Masnick at Techdirt characterizes this (at least in the article's title) as the US "signing away" its ability to enact a more permanent exemption for phone unlocking. But that's not the case—nothing would prevent Congress from passing, or the President from signing, a law that made cell phone unlocking permanent.

First of all, trade agreements don't dictate what laws Congress can and can't pass. If they're executive agreements, they can't override any laws passed by Congress in the past, and even if they're executed as treaties, they can be superseded by later acts of Congress. Just like Congress can pass a law that overrides an earlier law, it can pass a law that overrides an earlier treaty. The only consideration here is whether Korea deeply cares about the fact that anticircumvention provisions not have any new exceptions added to them. Given that the biggest controversies surrounding the Korea-US free trade agreement centered on beef imports and not any sort of IP, much less this odd little backwater of copyright law, that seems highly unlikely.

In fact, there's pretty clear evidence that Korea would welcome new exemptions. Part of the agreement specifically provides for follow-up meetings that can take place if one of the countries adds new exemptions. (Check out note 14 on page 18-10.) Since that change is already contemplated, it doesn't seem like following through on that would spark some sort of international incident. Congress has the inherent power to act on its own, and then tell the U.S. Trade Representative to negotiate the new exemption with Korea.

Besides that, the telecommunications chapter of the very same free trade agreement states that service providers (like smaller phone companies) should be able to attach equipment (like phones) to the phone network. It also says that governments can prevent phone companies from using certain technologies in order to achieve legitimate public policy purposes. Promoting the competition and consumer protection achieved through unlocked handsets is certainly a legitimate public policy purpose. And should certain aspects of the IP chapter conflict with the telecom chapter, the agreement says that the telecom chapter should prevail (see article 14.23).

But citing the telecom chapter or requiring more negotiations might not even be necessary; all of the above is assuming that the agreement prevents phone unlocking in the first place. Which, unless you buy the sort of tenuous argument that federal courts have consistently rejected, it doesn't. The anticircumvention provisions of the DMCA and the free trade agreements only protect digital locks that protect access to works protected by copyright. The thing is, though, accessing the copyrighted software on a phone doesn't require unlocking it—it just requires turning the thing on. In other words, the "locks" we're talking about aren't locks on copyrighted works—something that pretty much everyone intuits—they're just protecting access to the (non-copyrighted, non-copyrightable) network.

We've been arguing from the start that, even absent the Library of Congress's exemption, unlocking a phone to use it with a different network is legal, just like programming a garage door remote to work with a different opener is legal, or just like using a generic inkjet cartridge is legal. A permanent exemption that clarifies this doesn't conflict with the trade agreement at all.

In any event, it's important to note the way that trade agreements are used as bargaining chips. People lobby negotiators to include provisions that the governments of the countries themselves might not have a big stake in, just so that they can use these agreements to try and lock down legislation they like—whether they're trying to sway legislators back home to enact their pet projects, or trying to prevent reforms to loopholes they currently exploit. That's a big part of the concern behind the Techdirt piece, and worth watching in current and future trade agreements. But it doesn't mean that Congress's hands are tied. To assume so would be to assume that the will of 535 elected representatives can be counterbalanced by a handful of lawyers in an administration's trade delegation.

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