The murky copyright situation surrounding phone unlocking could get a little bit clearer, thanks to the new and somewhat improved Unlocking Consumer Choice and Wireless Competition Act, a bipartisan bill in the Senate.
As a refresher: the notion that phone unlocking might violate copyright law comes from an ill-conceived section of the Digital Millennium Copyright Act (DMCA) that prevents the circumvention of technical measures around copyrighted works. If such measures are understood to include restrictions on phone software, then unlocking may violate the DMCA—an outcome Congress never intended.
It's not clear that such an argument would stand up legally, but for years the legal cloud was lifted thanks to a specific exemption to the anti-circumvention rules, granted by the Librarian of Congress in a triennial rulemaking procedure. But in the latest round, the Librarian ended that exemption, restoring a dangerous climate of legal uncertainty. Consumers, understandably, were outraged. A popular petition gathered over 100,000 signatures, drawing responses from the White House, the FCC, and legislators on both sides of the aisle, ultimately bringing us to this week's bipartisan language.
The bill, introduced by Senators Patrick Leahy and Chuck Grassley, offers a narrowly targeted fix to this specific issue, reversing the Librarian of Congress' denial and effectively putting the exemption back on the books until the next rulemaking concludes—about another year.
The bill also makes clear that the exemption does not require phone owners to perform the unlock themselves, and can direct others to unlock their devices without running afoul of the law. Moreover, it instructs the Librarian to consider extending the exemption to include other locked devices, such as tablets. Finally, unlike the House bill, it excludes the dangerous language targeting bulk unlocking, which we feared sent a message that Congress implicitly approves using copyright law to target a business model.
This is a good step in the right direction, but we have a ways to go. The fact is that phone or tablet unlocking, per se, isn't the real issue. The real issue is that an overbroad section of copyright law is sticking its nose in places where copyright simply does not belong. To the extent phone unlocking is affected, that's certainly a problem for users—but it's far from the only area the anti-circumvention rules in the DMCA have bitten the public. Any legislative solution that limits itself to phone unlocking is treating one symptom, and not the underlying disease.
All in all, this proposal is a fine fix for the specific problem of phone unlocking. It looks likely to pass, which is undeniably a good thing for phone owners.
But as we've told Congress before, users deserve better, too. They deserve a more holistic approach to the DMCA's anti-circumvention rules, and the unnecessarily burdensome process of repeatedly arguing for exemptions. It's not impossible to develop such an approach, either; Representative Zoe Lofgren's Unlocking Technology Act, introduced last year, would be a great start.
It may be more difficult politically to achieve a real solution than a fast and narrow fix, but as the damage from anti-circumvention measures continues to mount, it's clear that it is absolutely worth the effort.
This article first appeared on Electronic Frontier Foundation under Creative Commons license.