Librarian Of Congress Shoots Back At White House Over Phone Unlocking: We're Just Doing Our Job

from the well,-that's-one-way-to-look-at-it dept

Following the White House officially coming out and saying that mobile phone unlocking should be legal, the Librarian of Congress has issued what feels like a passive aggressive response, basically saying that their job is not to consider the public policy, but just to follow the specific rules under the DMCA.

Both the Librarian of Congress and the Register of Copyrights value our colleagues in the administration and the thoughtful discussions we have had with them on this issue. We also agree with the administration that the question of locked cell phones has implications for telecommunications policy and that it would benefit from review and resolution in that context.

The question of locked cell phones was raised by participants in the Section 1201 rulemaking conducted between September 2011 and October 2012 by the Register of Copyrights, who in turn advises the Librarian of Congress. The rulemaking is a process spelled out by the Digital Millennium Copyright Act in which members of the public can request exemptions from the law to enable circumvention of technological protection measures. In the case of cell phones, the request was to allow circumvention of technological protection measures controlling access to copyrighted software on cell phones.

The rulemaking is a technical, legal proceeding and involves a lengthy public process. It requires the Librarian of Congress and the Register of Copyrights to consider exemptions to the prohibitions on circumvention, based on a factual record developed by the proponents and other interested parties. The officials must consider whether the evidence establishes a need for the exemption based on several statutory factors. It does not permit the U.S. Copyright Office to create permanent exemptions to the law.

As designed by Congress, the rulemaking serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy.

In other words, “hey, don’t blame us — we just did what we were supposed to do, and that’s got nothing to do with policy.” I find that a bit disingenuous. Clearly, a part of the DMCA triennial exemptions is to recognize when the law is creating a situation that makes little common sense, and to try to act as a valve to prevent the blocking of certain uses and technologies. Here, they failed to do so, and the White House has called them out on it.

Unfortunately, we’re still left scratching our heads as to why the White House claims this should be fixed via telecom law, when the issue arose entirely out of copyright law. It looks like the White House is trying to do some tap dancing to avoid admitting that the DMCA anti-circumvention clause is seriously broken.

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Comments on “Librarian Of Congress Shoots Back At White House Over Phone Unlocking: We're Just Doing Our Job”

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Re: Trample the individual

That is the real issue. The law is preventing you from using your personal property. The rights of media conglomerates have been declared more important than the basic natural rights spelled out in our Declaration of Independence.

The rights of individuals are being trampled to suit corporations.

That’s a non-trivial thing there.

It’s high time the personal liberty aspect of this situation became more visible.

Anonymous Coward says:

Re: Re:

Most things are public in the sense that if you know the right places at the right times and with the right accreditation, you can actually advice the people running the process to a limited degree.

It is a question of making the information needed to do that, most political entities lack. While an extremely limited influece in most cases, the public input is very essential for politicians to support raising concerns over these types of things.

So to the administrators: Please advertise how to influence these things better to the broad public, so people can voice their concerns during the creation of the horrible laws/rules instead of after they have been made!

Akari Mizunashi (profile) says:

Re: Re: Re:

Except, in this case a majority of the public did voice their opinion against the phone locking prior to the decision, stating nothing short of what the White House stated in its press release.

This is part of the issues with these “public discussions”. Rarely, if ever, does the public actually have a voice, despite being the majority of opposition.

I’ve seen this too many times to believe it’s a coincidence.

out_of_the_blue says:

Holy cow-towing! Mike appears to think WH hasn't just done PR.

The LOC has decided and is now being pushed by rabble: WH has punted this into left field, that’s all.

The simple fix is: DON’T BUY a locked phone. — Why don’t you “capitalists” follow your own notions? Vote with your credit card.

Take a loopy tour of! You always end up at same place!
Why aren’t you fanboys helping out Mike with links back to here as I do? What a bunch of innovation-less freeloaders!

Rikuo (profile) says:

Re: Holy cow-towing! Mike appears to think WH hasn't just done PR.

For once, I agree with Blue. Which is why I have yet to have a smartphone. Hell, I have a dumb-phone that I never use: its battery has been dead for about 3 weeks now.

However, Blue, still reported because of your signature. I still don’t know what it means. Or maybe that’s your master plan: to drive us all insane in trying to figure out something that has no meaning.

Anonymous Coward says:

Re: Re: Re: Holy cow-towing! Mike appears to think WH hasn't just done PR.

I’d like to add to this.

The Nexus 4 8 GB model cost $299. The Nexus 4 16 GB cost $349. The price on both of those is when purchased from Google directly through the Play Store, otherwise the price of either goes up dramatically.

In addition, for those who may be unaware, the Nexus 4 is Google’s flagship device (for the Nexus lineup, insofar as it’s their only phone) and provides a completely untouched/stock Android experience. It is completely friendly to tinker with/hack and it receives updates directly from Google as they are released/made available. No waiting for the manufacturer to release an update, which has to then be approved by a carrier and eventually sent out OTA (over the air) to any given phone(s).

For the price there is literally no better phone you can be. It has the most recent cutting edge technology/hardware in it and it’s life expectancy is for about 18/24 months (based on a comparison to previous Nexus device, and by life expectancy I mean how long it will continue to receive updates from Google, not how long the hardware will actually last/work)

As has been pointed out above by the other AC, it is also sold completely unlocked and works on any GSM carrier (meaning any carrier that utilizes SIM cards). More specifically, the SIM card for the Nexus 4 is of the “micro” variety.

Just fyi, as a semi-disclaimer, I am an Android enthusiast (and tinkerer/hacker) and have owned various Nexus devices (the Nexus S 4G with Sprint previously and I currently own a 16 GB Nexus 4 with service through T-Mobile, as well as a 32 GB WiFi Nexus 7). I work in IT and I routinely have to setup/fix various phones/tablets as part of my daily routine (which isn’t counting all the work I do on both outside of work) and I can say that the Nexus 4 is hands down the best device I’ve had the pleasure of owning/working with. Doesn’t disappoint at all in my opinion.

Anonymous Coward says:

Re: Re: Re:3 Holy cow-towing! Mike appears to think WH hasn't just done PR.

I believe the Nexus 4 might end up on Sprint. But the price point would be “regular price”. Meaning significantly higher than the Play Store/GSM variant.

Keep in mind by “I believe” that I mean “rumor has it”. I’ve heard it from enough reliable sources that their is potential it’ll happen. When would be the more important question. As for Verizon, never ending up there. Verizon botched their Galaxy Nexus to the point that it’s about 4 updates behind all other Nexus devices, as far as software goes. (Although there’s been a leak of the 4.2.2 software, which is insane coming from Verizon. That’ll put it up to date with the very latest Nexus devices.)

If you want the Nexus 4 for Sprint, get the LG Optimus G. Same hardware, but not the same software. (Meaning the LG versions isn’t the “stock” Android experience.) Of course, it’s already been “unlocked” (as far as the bootloader is concerned), and I believe work has already begun on custom AOSP ROMs.

Anonymous Coward says:

Re: Re: Re:2 Holy cow-towing! Mike appears to think WH hasn't just done PR.

True. I was in the same camp as you originally, the “must have expandable memory” and “replaceable battery” camp. But honestly, since I switched to the N4 I haven’t had reason for either.

I tend to have spare USB cables everywhere I am throughout the day (as in left there or there for work). The other thing is, the N4 has pretty great battery life. I’m a power (and heavy) user. At the the very worst, I’ll be at 35% or so by 1 PM and I charge it for a short while and I’m at 100% by 3 (at the latest).

I also tend to flash ROMs on a regular basis or do beta testing of various apps for a few developers (I volunteer to help the Android community and app selection grow, as well as just be helpful in general). The lowest amount of memory I’ve had thus far (with a few discographies on the phone, as well as multiple ROM backups, hundreds of pictures/screenshots/image downloads, etc) has been about 4 GB of free space out of the 16 GB.

What helps is T-Mobile where I live has great coverage, so I keep lots of things in the cloud. I have thousands of songs in Play Music I uploaded from my personal collection. Keep various documents/videos in Google Drive. Etc.

To each their own I say. I’m an Android purist, so I prefer the stock Android experience. If replaceable battery and expandable memory is what you need, I’d recommend the Galaxy S III or Note II. (Although if you want the former and don’t have it already, just wait. The Galaxy S IV is getting unveiled on March 14th.)

John Fenderson (profile) says:

Re: Re: Re:3 Holy cow-towing! Mike appears to think WH hasn't just done PR.

I understand. 🙂

I actually do need replaceable batteries and memory. I use my current phone (an Infuse running Cyanogenmod) heavily, both in terms of battery usage and storage, and I’m allergic to the cloud. I’m currently using more than 20 gigs on the phone!

PaulT (profile) says:

Re: Holy cow-towing! Mike appears to think WH hasn't just done PR.

Don’t buy a locked phone? Well, sometimes you don’t have a choice. Often you don’t know if it’s locked. Even if you did, this law would mostly attack people who were providing a legitimate service for those people without the technical knowhow to understand what they were buying (or how to unlock), not the people complaining about the bad laws. It would make it illegal to help those locked in. It’s to prevent people from doing something perfectly legitimate with their own property – and you support “tough shit” as the response when people complain, rather than recognise that it’s a symptom of the woefully broken system you worship.

So, another deliberate understanding of the point by ootb, followed by an attack on anyone complaining about their rights being stripped. Nice.

Ninja (profile) says:

Re: Re: Holy cow-towing! Mike appears to think WH hasn't just done PR.

I don’t think any manufacturer allows you to root your phone without voiding the warranty for instance. I have yet to find a phone that comes with only essential applications only or that allows you to uninstall apps that come with it.

So basically he’s full of bs.

Anonymous Coward says:

Re: Re: Re: Holy cow-towing! Mike appears to think WH hasn't just done PR.

Just to clarify, rooting DOES NOT void your warranty. What does specifically void your warranty is unlocking the bootloader of your phone (which is sometimes essential to gain root, but which is dependent on what phone you wish to gain root on).

As far as which phones come with only the essential apps, the Nexus lineup from Google is completely bloat free. Overall though, the vast majority of phones come with some bloatware. Luckily, any Android device running Jelly Bean (4.1 at the minimum) allows for the easy disabling of any applications by the user. It’s literally a one-click process to disable an app. (Then, as an added extra/customization. You can hide apps you don’t wish to see through the use of non-stock launchers, like Nova or Apex.)

I’d also like to add that while the manufacturers don’t care about root, beyond unlocking the bootloader, insofar as voiding warranties is concerned, the carriers do. Or better said, some do (like AT&T and Verizon, ESPECIALLY Verizon). And they will void the warranty status/coverage on your device (at their discretion) if they find it is rooted.

If I can clear up any further questions you may have, let me know.

Go_back_to_the_blue says:

Re: Holy cow-towing! Mike appears to think WH hasn't just done PR.

“WH has punted this into left field, that’s all.”
Way to combine two sports in to one metaphor!
?Why aren’t you fanboys helping out Mike with links back to here as I do? What a bunch of innovation-less freeloaders!?
Your linking people already here back here, big help thanks Capt. Redundant! Your innovation we single handed end world hunger!
Point us to your Tech Blog so we can all come to your house eat your food and shit on your floor!

Siliconlips (profile) says:

Why is it not automatic

It seems that at the end of a contract the carriers should automatically disable the lock. With FOTA they can do this for nearly any phone. If that phone is still in service then they should be required to remove the lock or if someone walks in with a locked phone that is past its contract date, the user should be able to have the carrier remove the lock.

Anonymous Coward says:

Re: Why is it not automatic

agreed. the lock should disappear with the end of the original contract. ( why original? because the lock is justified on the basis of the subsidised cost of the phone. if the original contract has expired, the carrier has earned their money back. Therefore, the lock should expire.

kog999 says:

Re: Re: Why is it not automatic

“agreed. the lock should disappear with the end of the original contract. ( why original? because the lock is justified on the basis of the subsidised cost of the phone. if the original contract has expired, the carrier has earned their money back. Therefore, the lock should expire.”

How is the lock justified to cover the subsidised cost? If i unlock my phone it does not invalidate my contract. I still have to pay them the same amount of money every month weather my phone is locked or not. They make no less money if i have a unlocked phone and continue to pay for there service. If i cancel my contact i still have to pay an early termination fee to cover the cost of the subsidised phone so again they get there money.

Anonymous Coward says:

Re: Re: Re: Why is it not automatic

Yeah I think people are mistaken about this. They’re talking bout it like it’s a lien, or a loan secured against the phone as collateral, but that’s not how US cell phone contracts work. You get the phone in exchange for signing the contract, and that’s it. The phone is yours. If you want to turn around and immediately unlock and sell it, you have not in any way violated the spirit of that agreement.

PaulT (profile) says:

Re: Re: Why is it not automatic

Actually that still raises problem, such as what happens if a carrier goes out of business before the lock is removed or network compatibility issues while travelling abroad.

There’s still the issue of whether this should be covered by law at all – if the person paying the contract still pays it to the end of its term, then who cares whether there’s a lock? If the person fails to pay till the end of the contract, then surely that’s something best left to the contract itself (termination fees) or contract law (breach of contract measures), not copyright?

txpatriot says:

Re: Re:

That would be the public.

I.e., anyone interested enough in this issue to participate in the legally mandated public comment and review process to actually try and make a difference, rather than simply whining on an Internet blog which will do absolutely no good.

You know, those people . . .

Jeremy Lyman (profile) says:

I’m really not sure why copyright gets to be involved here anyway. They are software locking a piece of hardware and using tangential legislation to keep it secured. People aren’t unlocking phones to get at the valuable firmware so they can copy and distribute it. They’re modifying or wiping it so that it’s different than the original copyrighted version, so they can use their property the way they want.

That’s like saying you can’t re-use a canvas and frame that contains a copyrighted painting, even if you own this copy completely. Illegal to get rid of the copyrighted part of your property? That’s insane.

Once you’ve sold a copy of something you don’t own it any more. You own the right to copy it, but not that particular copy, and you have no say in what happens to it.

Arthur Moore (profile) says:

Re: Re:

It doesn’t matter.

The DMCA provision is about Technological Protection Measures.

“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”

Given what hapend with Aaron Swartz are how many small businesses are willing to take the risk that nothing in the phone is covered by the DMCA.

Also remember, there are two different types of unlocking. Jailbreaking, where the phone’s operating system is changed, and carrier unlocking. That’s where you can now use even your dumb phone on a different network.

The fun thing to think about is console modding. It’s almost identical to jailbreaking a phone, especially for the PS3. This is one of the big reasons why any proposed law is going to be extremely narrowly tailored.

DannyB (profile) says:

Re: Re:

I’m really not sure why copyright gets to be involved here anyway.

You ask the question, but then you answer it yourself.

In short, it’s about control.

Control of the hardware you paid for.
Control of your ability to sell physical products you own.
Control of your ability to sell non-physical purchases — games, music, movies, e-books, etc.
Control of your speech online.
Control of the public domain — by re-copyrighting it.
Control of your photos taken in public spaces.
Control of your online videos that contain fleeting and incidental, but copyrighted, background noises or images.
Control of your ability to play music that can be heard by the public.
Control of your ability to hum, sing, whistle or use lyrics on your answering machine.
Control of your ability to inform someone else of a major news event.

It’s also about restrictions and extortion:
Restricting your playing of the radio in a space where members of the public might overhear it.
Restricting/extorting nightclubs / bars into overpaying for bundles licenses over performance of a single copyrighted work.
Restricting/extorting playing TV’s in public spaces.

But all of this is necessary in order to promote the useful arts and sciences. For limited times. Heh, heh.

Phoenix84 (profile) says:

Re: Re:

I’m really not sure why copyright gets to be involved here anyway.

Because software (including firmware) is copyrighted and unlocking the phone requires changing the software or firmware (circumventing) to enable features the carriers/manufacturers don’t want you to use. If they didn’t care, all phones would already be unlocked, even on subsidy.
It’s our broken system that allows this.

Anonymous Coward says:

I’m not sure that’s a completely fair analysis of the Library of Congress’ roles in all this. It seems to say to me that you can’t expect them to make permanent changes to the law because that’s beyond their power. If the President wants to take someone to task over the law it should rightly be congress because they’re the ones that pass the laws.

Arthur Moore (profile) says:

Re: Re:

Ah, but you’re forgetting something. There are quite a few laws that have expiration dates. Like tax cuts that have been in effect for most of my life.

It is a sad but ugly truth. In the US, it’s perfectly normal to have ‘temporary’ measures that are effectively never ending because they’re constantly renewed.

On the positive side, this will hopefully be solved with a more permanent solution that doesn’t rely on one man’s whim.

Lord Binky says:

Sorry, but the rulemaking was put in there so congress DID NOT have to handle the issue. It’s avoiding accountability without relenquishing control/power, and it’s part of a politicians basic toolkit. The chance of failure for this tactic increases significantly as it attempted in succession. Similar to how the person that retaliates usually gets caught, not the instigator.

They shoved combersome tools into the Librarian of Congress and the Register of Copyrights’ laps and said ‘The tools suck, but be happy we give you power’.

So I assume that instead of being completely inept at any mental processes, they just hoped problems wouldn’t come up. I just can’t see that they just now realized they were used as a scapegoat so that others didn’t have to work or take blame.

Overcast (profile) says:

“We’re Just Doing Our Job”

But they assuming someone wants to unlock the phone to ‘circumvent’ technological protections.

There could be numerous reasons one would want to do this – including wiping it’s OS and installing something custom on the hardware – that’s not at all ‘circumventing software’.

While the DCMA may cover various things – if it doesn’t restrict what you can load on a Laptop; why a cell phone?

Many Laptops are designed for ‘Windows 7’ – does that make loading Linux on it illegal?

SuperSparky (user link) says:

You vote for this

I don’t know why most of you are complaining. Those that want the government to regulate and control everyone cannot be surprised when they control and regulate something that affects you. You voted for this, stop whining.

In an environment where people desiring power use “unfairness”, “injustice for certain groups of people”, “blame ‘that successful guy’ for your own lack of success”, and foster an environment of people depending on government to take care of them, and you are surprised that when they gain power they actually don’t have your interests in mind?

I hope you realize what the purpose of the KoolAid they feed you really is.

There is a reason why this country was originally set up with a minimal government, because big ones hurt everyone in the end. The government changed about 100 years ago (since yesterday), and has been getting worse, and bigger ever since.

It doesn’t matter if you’re liberal, conservative, or all around libertarian. Large governments repress and control everyone, and utopian ideas can never be realized if you think a group of bureaucrats that make the rules will make your dreams come true, ever. Alice, welcome to Neverland.

You voted for this. Suck it up and live with it, or finally realize that a big government never grants you a better life, but only makes your liberty disappear.

Want to know why these bureaucrats are screaming “the sky is falling!” about this so-called “sequester”? It’s a mere $85 billion out of multitrillions. They want you to be scared at any notion of a shrinking government.

Be good sheeple and stop whining

special-interesting (profile) says:

The prez seems to be trying to flex some initiative but quickly running into the manifold of real and bureaucratic complexities. Hard to see if he will be able to see and act through all the red tape bound to exist or be laid when matching political wits with special interest groups.

Today I learned things like the Library of Congress (LOC) was in fact (like its name implies) a part of the Legislative division of government. Of which I have no opinion atm.

However I still cannot fathom why they get to decide what is a basic right amid the lamely titled ‘exceptions’ to copyrighted items/works. (cell phones? Gimmie a break!)

The LOC is so huge and diverse they are more worried about the size of the next appropriation hearings than some obscure law with annoying and time consuming ‘exceptions’ complete with public input (protests?) and the mostly hated (by who?) special interest lobbing. There is no absolute way they will want to risk pissing off the very funding cash flow which nourishes them.

It was kinda sweet that Congress tried to keep its bureaucracy from the digital device and other provisions but its more likely the LOC will end up tainted in much the same way as the FCC, FDA or whatever zar named position.

Any law that prohibits circumvention of DRM be it hard or soft coded is a waste of legislative manpower and precious fed money.

txpatriot says:

Where were you when it mattered?

You all have a Constitutional Right to whine all you want.

But where were you when the LOC & Copyright Office were taking public comment on this exemption? You had a chance to have your voices heard when it could have made a difference — so what did you do about it? If you chose not to participate, then you basically chose to live with the results. And don’t complain that you didn’t know about it — it seems like many of you are self-proclaimed copyright experts. That being the case, you should have been aware of this.

With all the info on the web, ignorance is a choice.

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