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Remember the hard-won battle for consumers’ right to unlock their own cell phones that concluded a few months ago? It lasted over a year and included 114,000 Americans signing a petition, support from the White House, and bipartisan action from both the House and the Senate. We did it, though, and as a result individuals now have the right to unlock phones they own so they can take those phones with them when they switch from one network to another.
But that right could disappear next year, depending on how the Copyright Office rules once again in the triennial proceeding set forth under Section 1201 of the Copyright Act. Section 1201 prohibits the breaking of digital “locks” (like the software-based restriction that keeps a phone tied to one carrier’s network) and gives the Copyright Office the power to grant limited exemptions. Indeed, consumers will lose the right to unlock their own phones unless someone convinces the Copyright Office to renew the exemption for phone unlocking.
Without exemptions, Section 1201 will stand in the way not only of consumers who wish to unlock their phones, but also of a number of other things that most people wouldn’t expect have anything at all to do with copyright law, such as:
- Conducting security research on on-board computers built into cars
- Connecting vitally important medical devices to third-party accessories that make it easier for patients to read or interact with them
- Using applications that read eBooks out loud so they can be enjoyed by the blind and visually impaired
- Replacing outdated software on interactive TVs with newer and better designed applications
- Converting DVDs to an electronic format for playback on devices that don’t have DVD drives
- Feeding 3D printers with input materials that weren’t made by the manufacturer of the printer
Today Public Knowledge and several other organizations are filing exemption requests with the Copyright Office for these uses, and many more. This represents hundreds of hours of work from advocates, nonprofit organizations, and law school clinics across the country—all organizations with limited resources. And today’s filings are just the beginning, because in order to get an exemption, each organizations will also need to file comments and reply comments, and many will eventually testify in hearings in California and Washington, DC.
So why are public advocates spending mountains of scarce resources on this process, all to achieve temporary permission to do things that common sense tells us shouldn’t be illegal to begin with, especially under copyright law?
The problem is the law—it’s simply overdue for updating. When Section 1201 was passed as part of the 1998 Digital Millennium Copyright Act, digital locks were a relatively new concept. It was reasonable to believe at that time that digital locks would be used primarily to prevent piracy, and that individuals would have little reason to defeat them other than to commit piracy. But in the sixteen years since then, it’s become clear that digital locks are often put in place not to protect against piracy, but to protect businesses against competition. The law wasn’t designed to buttress anticompetitive practices, but all too often that’s how it’s used today.
That’s why in addition to participating in this proceeding, Public Knowledge and others are also trying to convince Congress to reform 1201 in a meaningful and balanced way. Last year Representative Zoe Lofgren of California introduced a bill that would do that, called the Unlocking Technology Act, and it has co-sponsors from both parties. We’ll be working with Congress and the public to try to get a version of that bill, or something like it, passed in the next Congress.
We’ll also be reporting on the proceeding at the Copyright Office over the coming months. Check back for updates on Public Knowledge’s own exemption proposals (for 3D printers and DVDs), proposals introduced by our allies, and the process itself.
Image credit: Flickr user MyCd