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