Last month, we wrote about how the White House had bumped up
the number of signatures it requires to get on "We the People..." petitions from 25,000 to 100,000 before it is "required" to respond (though, its response rate on qualifying petitions has been dismal
). Around the same time, we also talked about how unlocking your mobile phone, so it could be used on other carriers, was switching
from being legal to being illegal, thanks to the Librarian of Congress choosing not
to renew an exemption to the DMCA's anti-circumvention rules for unlocking mobile phones.
While the reasoning for not renewing the exemption was that many carriers now allow unlocking anyway, that's not true across the board, and there are plenty of limitations. Just the fact that you need to ask permission to do what you want with a device you legally purchased and own should be troubling enough. Lots of people were reasonably angered by this story, and a petition sprung up on the White House site
, urging the President to reinstate the exemption:
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.
The petition itself was actually set up by Sina Khanifar, who used to run a business around unlocking phones, and was threatened by Motorola back in 2005. It was that experience that led to the original attempt to convince the Librarian of Congress to establish the unlocking exemption from the DMCA. He has explained why the exemption is important
, and how this simple change not only makes something perfectly reasonable against the law, but how it effectively kills off the business he had built around unlocking phones and helping consumers actually use what they want. And, contrary to what some claim about the need to keep phones locked, he points out that there are already contractual ways to incentivize people to keep their phones locked. Lots of carriers have long term contracts with large early termination fees. They don't need the threat of copyright penalties on top of that as well.
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.
As we've noted time and time again, the DMCA anti-circumvention clause has little to do with basic copyright, and everything to do with big companies trying to control what you thought you had purchased.
The petition needs to get to 100,000 signatures by February 23rd, and is currently sitting at about 62,000. It's possible, but it may be difficult. And, of course, it's not even clear what (if anything) the administration can really do. The DMCA exemption rulemaking only comes around every three years. Having them jump in with an "off-year" change would be unprecedented -- and could potentially lead to legal challenges. Congress, however, could step in and fix things with a bit of regulation, but it's unclear if they have the appetite to do that. Still, having people speak out and show that they think this bit of copyright law is crazy and restrictive seems like a good thing.