New Bill Preserves Phone Unlocking, Opens Door to Larger Copyright Reform

May 9, 2013

New cell phone unlocking bill would not only allow you to unlock your
cell phones, it would address a long-standing problem in copyright enforcement.

Today, Rep. Zoe Lofgren, joined by Rep. Thomas Massie, Rep. Anna Eshoo, and Rep. Jared Polis, introduced another cell phone unlocking
. Unlike those that have come before, though, this one also takes aim
squarely at the problems with the 1998 Digital Millennium Copyright Act (DMCA) itself—the
law that may make it illegal to break digital locks, even for noninfringing

The bill, named the “Unlocking Technology Act of
” specifies that you’re not infringing copyright when you unlock your
cell phone—which is when you adapt or alter the phone’s firmware so it can be
used with a different cell phone company.

This differs from other bills that have been proposed to
solve the same problem. Those bills try to make sure that phone unlocking is
legal under the DMCA, not the Copyright Act. And the phone unlocking portion of
this bill doesn’t mention the DMCA at all. So under that section of the bill,
someone who unlocked their phone couldn’t be sued for copyright infringement,
but could still be sued under the DMCA. That’s likely only a small improvement
over the current situation, since it’s already pretty unlikely that someone
could win a copyright infringement suit against an unlocker.

But this latest bill
is more than just a slight improvement—it’s a massive one.
That’s because
of the boldest part of the bill—a section that says that breaking digital locks
won’t violate the DMCA if what you do with the copyrighted work after you break
the lock doesn’t infringe copyright.

This solves a problem that has plagued the DMCA since its
passage, and one that was warned of even before then.

This new bill would also make it clear that providing
devices and services to get around digital locks wouldn’t be illegal—unless
those devices or services were intended for copyright infringement.

The idea is to make sure that tools that can be used for
noninfringing purposes aren’t outlawed in an overbroad attempt to prevent
illegal copying. Just like VCRs, DVD burners, and photocopiers aren’t outlawed,
even though they can easily be used to infringe copyrights, tools that let
users rip their DVDs, or format-shift their ebooks, shouldn’t be illegal just
because some bad actors might abuse them.

Added bonus: The
bill also puts to rest one of the red herrings that people have raised about
“international agreements” blocking our ability to amend the DMCA. While a
number of trade agreements pushed by the U.S. say that the countries signing
the agreement should only have a limited number and type of exemptions to the
DMCA, these agreements can’t legally bind Congress’ hands and prevent it from
exercising its Constitutional role to make laws.

Nonetheless, if we want to make sure that our trading
partners aren’t upset with us for having more freedoms in domestic law than in
the agreements, we can resolve that by removing those restrictions from the
trade agreements—something that trading partners may well prefer, since these
restrictions certainly seem to have been pushed by the U.S. anyway.

The Lofgren bill therefore also directs the administration
to ensure that the free trade agreements are consistent with the update to the
DMCA, and doesn’t take effect for nine months in order to create time for those
discussions to get under way. 

We’re extremely glad to see such a comprehensive bill put
forward to not only fix the problem of cell phone unlocking, but also that
looks forward to a future with copyright laws less susceptible to abuse.

Image by flickr user izqrdo.