We really don’t own our stuff anymore (at least not fully); the manufacturers do. Because modifying modern objects requires access to information: code, service manuals, error codes, and diagnostic tools. Modern cars are part horsepower, part high-powered computer. Microwave ovens are a combination of plastic and microcode. Silicon permeates and powers almost everything we own.

This is a property rights issue, and current copyright law gets it backwards, turning regular people — like students, researchers, and small business owners — into criminals. Fortune 500 telecom manufacturer Avaya, for example, is known for suing service companies, accusing them of violating copyright for simply using a password to log in to their phone systems. That’s right: typing in a password is considered “reproducing copyrighted material.”

It hasn’t always been that way. Copyright laws were originally designed to protect creativity and promote innovation. But now, they are doing exactly the opposite: They’re being used to keep independent shops from fixing new cars. They’re making it almost impossible for farmers to maintain their equipment. And, as we’ve seen in the past few weeks, they’re preventing regular people from unlocking their own cellphones.

The White House position, however, may be inconsistent with the U.S. proposal in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the KoreaU.S. Free Trade Agreement (KORUS) and other free trade agreements to which the United States is a party. This demonstrates the danger of including in international agreements rigid provisions that do not accommodate technological development.

KORUS obligates the United States and Korea to adopt provisions concerning the technological protection measures based on section 1201 of the DMCA. Furthermore, KORUS mandates that the parties "confine exceptions and limitations" to the circumvention prohibition to a specific list of exceptions that matches the specific exceptions in the DMCA. Cell phone unlocking, of course, is not on that list. KORUS does allow for administrative procedures like the DMCA's rule-making to adopt temporary exemptions, but not permanent ones. The challenge before Congress is to devise a permanent exception for cell phone unlocking that does not breach the obligations under KORUS and other similar free trade agreements.

The draft text for TPP is secret, but the U.S. proposal for the IP chapter was leaked two years ago. The leaked proposal contained KORUS's closed list of exceptions. Because TPP is currently under negotiation, there still is time to make sure that the TPP does not prevent national governments, including the United States, from amending their laws to permit the unlocking of cell phones and other wireless devices.

1. It tells the Librarian of Congress to "repeal" the existing failure to exempt phone unlocking and replace it with the exemption that was put in place back in the last rulemaking in 2010 (which was a weaker unlocking rule than the one before it). That "new" / "old" ruling will stick around until the next rulemaking in 2015 when the Librarian might decide to dump it again.
2. Within one year, the Librarian of Congress, with the help of the Register of Copyrights, is supposed to determine whether or not to extend the exemption further to things like tablets (as requested by the White House).
3. It explicitly states that nothing in the bill changes anything of importance.

The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties. In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if you have paid for your mobile device, and aren't bound by a service agreement or other obligation, you should be able to use it on another network. It's common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers' needs.

This is particularly important for secondhand or other mobile devices that you might buy or receive as a gift, and want to activate on the wireless network that meets your needs -- even if it isn't the one on which the device was first activated. All consumers deserve that flexibility.

The Obama Administration would support a range of approaches to addressing this issue, including narrow legislative fixes in the telecommunications space that make it clear: neither criminal law nor technological locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation.

We also believe the Federal Communications Commission (FCC), with its responsibility for promoting mobile competition and innovation, has an important role to play here. FCC Chairman Genachowski today voiced his concern about mobile phone unlocking (.pdf), and to complement his efforts, NTIA will be formally engaging with the FCC as it addresses this urgent issue.

Finally, we would encourage mobile providers to consider what steps they as businesses can take to ensure that their customers can fully reap the benefits and features they expect when purchasing their devices.

This is terrific news. It shows the power of the people to affirmatively act to fix policy rather than just stop bad policy. We the people have this power when we come together to fight for positive, common-sense solutions. This is a major affirmative victory for the digital generation that stood up against censorship of the internet through SOPA a year ago. The work of this movement is not done, now Congress must follow through -- and it will require continued activism and engagement from average people who made this possible.

A free society should not require its citizens to petition their government every three years to allow access to technologies that are ordinary and commonplace. Innovation cannot depend upon a permission-based rulemakings requiring approval every three years from an unelected bureaucrat. A free society should not ban technologies unless there is a truly overwhelming and compelling governmental interest

The "ban raises competition concerns; it raises innovation concerns."

Genachowski isn't sure what authority he has, but if he finds any, given the tone of the conversation, it's likely he will exert his influence to reverse the decision. "It's something that we will look at at the FCC to see if we can and should enable consumers to use unlocked phones."

We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.

Motorola's cease and desist letter didn't claim that I was illegally distributing their copyrighted software. Instead, it claimed that I was "distributing software ... for the purpose of circumventing the protection measures" associated with their copyrighted software. There is a subtle but meaningful difference.

The DMCA includes anti-circumvention provisions that are intended to protect music and movie owners who want to distribute their work digitally, but are afraid of piracy. The provisions prohibit anyone from circumventing the locks that control access to copyrighted works. For example, DVDs are protected by a Digital Rights Management (DRM) system that attempts to prevent anyone from easily making copies of movies. The DMCA prohibits circumventing that type of protection system.

But unlocking a phone has nothing to do with copyright infringement, and using the DMCA to prosecute unlocking cell phones is not what the law was intended for. If Motorola's interpretation of the DMCA were valid, companies would be able to create simple software security mechanisms that legally prevent a customer from using a device in any way except that in which the manufacturer intended.

Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain...

Given copyright laws broad interpretation by the courts, it could be argued that merely unlocking your own smartphone takes a device of one value and converts it into a device of double that value (the resale market for unlocked phones is significantly higher) and therefore unlocking is inherently providing a commercial advantage or a private financial gain - even if the gain hasn't been realized. In other words, unlocking doubles or triples the resale value of your own device and replaces the need to procure the unlocked device from the carrier at steep costs, which may be by definition a private financial gain. Alternatively, one can argue that a customer buying a cheaper version of a product, the locked version vs. the unlocked version, and then unlocking it themselves in violation of the DMCA, is denying the provider of revenue which also qualifies. There are several cases that have established similar precedents where stealing coaxial cable for personal use has been held to be for "purposes of commercial advantage or private financial gain." (See Cablevision Sys. New York City Corp. v. Lokshin, 980 F. Supp. 107, 109 (E.D.N.Y. 1997)); (Cablevision Sys. Dev. Co. v. Cherrywood Pizza, 133 Misc. 2d 879, 881, 508 N.Y.S.2d 382, 383 (Sup. Ct. 1986)).

(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and

(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.

If people see this and respond, well no one is really going to get those types of penalties, my response is: Why is that acceptable? While people's worst fears may be a bit unfounded, why do we accept a system where we allow such discretionary authority? If you or your child were arrested for this, would it comfort you to know that the prosecutor and judge could technically throw the book at you? Would you relax assuming that they probably wouldn't make an example out of you or your kid? When as a society did we learn to accept the federal government having such Orwellian power?

But even if Apple is within their legal rights, releasing a firmware update that they know will break some phones is a terrible business strategy. It's never a good idea to anger your customers, and it certainly wouldn't be difficult for Apple to add a function to the firmware updater that checks the phone for unlocking software and warns the customer if a potential problem is detected. Users might still be annoyed at being unable to get the latest firmware, but that's better than silently turning their phone into a paperweight. More generally, Apple shouldn't underestimate the value of the unlockers to the iPhone product ecosystem. Those sorts of tech-savvy early adopters are the most likely to develop new and innovative uses for the product, thereby increasing its value for all customers. For example, podcasting has surely made the iPod more valuable; it was invented by tech hobbyists and only later integrated by Apple into iTunes. And if Apple plays hardball with phone-unlockers, that's not likely to enhance their bottom line. More likely, they'll most likely just persuade people who like tinkering with their gadgets to buy their next cell phone from another company.