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


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 bill. 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 purposes.

The bill, named the "Unlocking Technology Act of 2013," 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.

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