The Government Might Want To Legalize Phone Unlocking, But Unfortunately It Signed Away That Right

from the oops dept

We’ve written plenty about the Librarian of Congress’ decision to remove the DMCA anti-circumvention exemption that applied to mobile phone unlocking, along with the White House petition that got over 100,000 votes, and the White House’s quick response to say that it agreed that phone unlocking should be legal. But for reasons that are not at all clear, it seemed to think it was something that could be fixed by telco law, even though it was copyright law that got us into the mess.

Lawyer Jonathan Band, who works for the Association of Research Libraries, has put out a really excellent short legal primer on the issue, which is a highly readable 8 pages, and covers all the necessary details and background, including a few things you probably have not read elsewhere (such as how some court cases had already narrowed the old “exemption” anyway). However, the most interesting part to me is where he talks about how the White House’s position is likely in violation of existing international trade agreements and almost certainly against what the administration itself, via the USTR, is proposing in the Trans Pacific Partnership (TPP) discussions:

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.

This is why we find international agreements like ACTA, TPP and now TAFTA so worrisome. Even when they do not directly change the law, they often lock us into bad laws such that we cannot easily fix them. This is one small example, but an important one. Hopefully, the White House and the USTR will (1) release the current negotiating text for the IP chapter on the TPP so that knowledgeable people can go through and it make sure these little “easter eggs” are not present (2) make a clear and definitive statement that it will not agree to any international agreement that would do something as ridiculous as tie Congress’s hands when it comes to allowing people to unlock their mobile phones.

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Comments on “The Government Might Want To Legalize Phone Unlocking, But Unfortunately It Signed Away That Right”

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Anonymous Coward says:

Re: Re:

Almost no students that I know obey copy’right’ law. Very few. They all have illegally downloaded texbooks in their laptops, everyone jailbreaks their phones, etc… The law is effectively mute, everyone around me now ignores it from strangers to friends and no one has any sympathy for it. The law is merely a corporate written formality that’s unenforced, unenforceable, and regularly ignored by everyone. No International agreement can fix that.

jilocasin (profile) says:

'temporary' solutions aren't a problem

Well if this is correct:

“KORUS does allow for administrative procedures like the DMCA’s rule-making to adopt temporary exemptions, but not permanent ones.”

That shouldn’t be a problem, thanks to the helpful example of the copyright maximalists.

All we need to do is to craft a solution that’s _limited_ to infinity minus a day.

If the Supreme Court says that’s good enough to keep copyright terms ‘limited’, it should be just fine for some ol’ treaty.

Bergman (profile) says:

Re: 'temporary' solutions aren't a problem

We’ve had a temporary standing army for decades. It only exists due to a loophole, and Congress has to keep reauthorizing it every few years or it automatically reverts to peacetime levels.

The federal government has absolutely no problem extending a temporary measure indefinitely, what’s one more on the pile?

Greg (profile) says:

This is one of the main problems with the DMCA. It expanded copyright laws to cover things that are not really about copyright. The digital locks provision of the DMCA is entirely separate from anything really having to do with copyright because it only has to do with thing that DO NOT violate copyright.

If I break the digital lock to pirate something, I have already committed copyright infringement so I can be sued/charged over that with no need of the additional provision. If I break the digital lock to do something that is completely legal this is the ONLY time the provision will come into play. It is like making all gun ownership illegal because they can be used to rob and murder. Last time I checked robbing and murdering is already illegal so why would you punish gun owners that don’t violate the law.

The digital locks provision is all about Hollywood getting to run its own little fascist scheme where they get to decide what you can do with your own personal electronics.

John says:

Re: Re:

No it won’t: the thing nobody is saying here is that the Congress can simply repeal legislation later, or the president can refuse to uphold or enforce it (and perhaps issue an Executive Order threatening as enemies of the people those who do), when the legislation is unconstitutional: it’s just for now the status quo is all pretending otherwise, with the Court (for many decades) being more concerned with everybody being oppressed equally by the same rules and calling it “order”, rather than a reign of lawlessness. Laws like these are even a taking: more than just on your property, they significantly infringe the right to property itself, though I’m sure the legal scumbags have some sophisticated theories justifying it.

Ed C. says:

It’s still not clear how or why the DMCA should even apply to unlocking a cell phone in the first place. Other rulings on the “anti-circumvention” clause have already clarified that it can only apply to protection schemes for works covered under copyright. In this case, the purpose of the “lock” is to prevent the user from changing carriers, not the duplication of a copyrighted work.

Anonymous Coward says:

See, this is why I want to laugh each and every time the trolls whine, “If you want something changed, change it democratically.” Every single time, either the trolls pour cash into the mouths of those with ruling power, and assuming you bypass that level of security, they start wagging their fingers and say “Ah ah ah, you can’t do that.”

davnel (profile) says:

How did the Librarian Of Congress get involved in a civil contractual matter between a company and a customer? What has copyright to do with unlocking phones? Are they suggesting that unlocking the phone somehow distributes the content of the ROMs inside it. What copyright, exactly, is being violated?

Anticircumvention rules in the DMCA should apply to entertainment content, movies, songs, books, and the antipiracy protection applied thereto. What has unlocking or “jailbreaking”, both of which are civil contract violations at worse, got to do with copyright? Someone had best take a long hard look at what Congress has done to us.

Anonymous Coward says:

this is the problem when allowing only one side of the coin to give input and not be able to present sensible changes. going down the road that only benefits certain business interests at the expense of everything else, giving monopolies on certain items, is a bad thing that can only get worse when no changes are allowed. i wonder if Korea actually realised this fact? i also wonder if anyone there is taking too much notice? i certainly hope not!

Derek Kerton (profile) says:

Weird turn of events

So we can’t unlock our cellphones because of trade obligations to S. Korea?

That’s ironic, because in their country it is ILLEGAL for a cellular carrier to subsidize a phone at all.

However, with big companies like Samsung, LG, and Pantech selling phones to the USA, why would Korea want to extend the life of phones beyond 2 years by unlocking them to a second-hand market?

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