Commentary

Groups Say DMCA Problems Bigger Than Cell Phone Unlocking

The recent controversy about whether people should be able to unlock their mobile phones proves that Congress needs to revisit copyright law -- particularly a provision that makes it illegal to tamper with digital locks on software. That's according to a broad coalition of digital rights groups as well as Silicon Valley companies.

“We believe that the widespread concern about cell phone unlocking illustrates how ...  parts of the DMCA (Digital Millennium Copyright Act) can interfere with consumer rights and competition policy,” the groups say today in a letter to leaders of the House and Senate judiciary committees. “This interference is not limited to the realm of mobile communications devices.” Signatories include Public Knowledge, BoingBoing, Y Combinator and a host of other groups and individuals.

A debate about cell phone unlocking erupted earlier this year, after a new policy took effect that appears to make it illegal to unlock the devices. Until this January, consumers had the right to unlock their cell phones. But two months ago, doing so arguably became illegal, thanks to the Librarian of Congress.

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Briefly, every three years, the Librarian of Congress issues exemptions to a section of the DMCA that makes it illegal to circumvent digital rights management software. In the past, the officials granted an exemption for purposes of unlocking smartphones. But in October, the U.S. Copyright Office decided not to renew that exemption.

A few days before the exemption expired, entrepreneur Sina Khanifar started a Whitehouse.gov petition asking the Obama administration to back a bill to make unlocking legal. The Obama administration said last month that it would support such a bill.

In recent weeks, several lawmakers have introduced legislation to that effect. The letter sent today by Public Knowledge and the other groups specifically endorses proposals by Sens. Ron Wyden (D-Ore.) and Amy Klobuchar (D-Minn.).

“It is clear that copyright law should not stand in the way of consumers using their own phones with the wireless network of their choice,” the groups write. “Codifying the legality of wireless device unlocking will provide the certainty that this law will not stand in the way of consumer rights and competitive markets, now or in the future.”

Klobuchar's Wireless Consumer Choice Act directs the Federal Communications Commission to order carriers to allow unlocking, while Wyden's Wireless Device Independence Act provides that unlocking mobile devices doesn't violate the DMCA.

At the same time, Public Knowledge and the other groups say the problems with the DMCA's anti-circumvention provisions extend beyond cell phones. Indeed, as Princeton professor Ed Felten recently noted, anti-circumvention rules have threatened academic research about matters like electronic voting machines.

Public Knowledge points out that DMCA rules can hinder progress in other ways as well. “Congress must take action to ensure that laws and policies are keeping up with the pace of technological change,” the groups' letter to lawmakers continues. “Not addressing these questions will stunt advances in access to digital media for people with disabilities and may prevent new innovations and competitive uses for emerging devices.

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