What-the-iPhone does unlocking have to do with the DMCA?

There's been a lot of talk lately about the courageous and clever developers untethering the iPhone from the shackles of the AT&T network. I guess I'm the only one who's actually satisfied with AT&T's performance. Anyhow, a lot of the flap about the iPhone unlocking has come from the industry side: reportedly, AT&T has released the hounds after these tinkerers to prevent them from releasing software and hardware that would free the iPhone from the anointed wireless network.

Even more of a flap has been the talk surrounding the DMCA, and the Copyright Office's most recent exemption that would seemingly allow for hacks of mobile phones that permit their use on a competitor's network--like the freedom of "number porting" applied the actual devices themselves. Part of this discussion has been to delve into the ugly nuances of the DMCA's anti-circumvention clauses, and to say that the exemptions that the Copyright Office so graciously bestows upon the public only apply to users and tinkerers themselves, and not to those developers who might offer to the exempt the tools to do the circumventing. This would mean that if you, the iPhone user, wanted to hack the phone off the network, you'd have to code the crack yourself.

Let us look at two other current Copyright Office exemptions: for the blind to allow them to read and listen to e-Books, and for media professors to allow them to excerpt clips for in-class educational purposes. Under these exemptions, when read in the context of the DMCA, every blind person would have to code his/her own circumventing e-Book reader. Under these "exemptions," every media professor would have to code his/her own DeCSS to allow for the ripping of a DVD. Why? Because software and hardware manufacturers don't fall under the exemption (unless they themselves are blind and moonlight as media professors).

This is nonsense. But, we all know that's how the law is written.

Doesn't this iPhone hacking crack-down give us an opportunity? There's a lot of media hype here, and real people (not just us policy wonks) understand the real problem of not being able to use the iPhone on their network of choice. So, what do we do?

At a minimum, a first step would be to adopt and promote the following, common sense principle (I write this standing on the steady shoulders of Profs. Jerry Reichman, Graeme Dinwoodie & Pam Samuelson):

Exemptions must not be meaningless. If you may lawfully circumvent, the implied right to develop and use the enabling tool must follow.

We also should use this iPhone hacking opportunity to convince others that the Copyright Exemption Emperors have no clothes on and that the DMCA, at least for its anti-circumvention provisions, limits consumer freedoms and cripples a competitive marketplace for otherwise lawful uses of copyrighted works.

What does copyright have to do with using a mobile phone on a different network? The truth is: nothing. There may be copyright in the original expression of the software that tethers a mobile phone to the AT&T network, but there is not an exclusive right in the function of that software. Copyright, here, is just being used as an artificial padlock (or, should I say, garage door) on a business model. This is not what copyright law was meant to protect and we shouldn't tolerate this abuse of copyright, but instead use real-world incidents like these to rally the troops to end the abuse.

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