One cheer for the new cellphone unlocking bill

One cheer for the new cellphone unlocking bill
A man checks his phone as he passes a T-Mobile store in New York in September 2012. Congress gave final approval Friday to a bill allowing mobile phone owners to circumvent the electronic locks that tie them to the network of the mobile phone company that sold them the device. (Mark Lennihan / Associated Press)

In just a few weeks last year, more than 100,000 outraged consumers signed an online petition urging Washington to reverse a new prohibition and let people circumvent the high-tech locks that tie their cellphones to a single mobile phone network.

It took lawmakers considerably longer to comply, despite widespread bipartisan support. And the measure they approved Friday lifts the ban only temporarily, and only for some owners. The slow pace and limited relief reflects the outsized role copyright issues play in the tech world, particularly when consumers' ownership interests are at stake.


On Friday the House approved by voice vote a Senate bill (S 517) to roll back a ruling by the Librarian of Copyrights that outlawed cellphone unlocking. That ruling, issued in October 2012, made it a crime for people who buy smartphones from mobile companies to unlock them for use on a different mobile network -- for example, when they travel to another country and want to use a foreign phone company's service for a week or two.

The law will remain in effect only until the next time the Librarian issues rules on the subject, which is expected to happen next year. "With such a strong signal from Congress, it's very unlikely that the Librarian will remove the unlocking exemption," said Sina Khanifar, the entrepreneur behind the original petition to the White House. "But the fact that public advocacy organizations have to make a fresh case for an unlocking exemption every three years is a perfect example of why the underlying copyright law, Section 1201 of the Digital Millenium Copyright Act, is in dire need of an update."

The act prohibits the circumvention of technical protection measures that keep copyrighted works from being accessed or copied without authorization. Every three years the Copyright Office, working through the Librarian of Congress, is supposed to consider requests for exemptions to let people make non-infringing use of the protected works. But after granting exemptions for cellphone unlocking in 2006 and 2010, the feds reversed themselves in 2012, saying consumers could unlock their devices only if their phone company agreed.

That was an absurd stance. The firmware on a phone may be copyrighted, but carriers don't use the locks to ward off piracy. They do it to protect against customers buying subsidized phones, then skipping off to a rival network. Yet they don't need this protection -- they set the prices and contract terms for their phones, and they can (and do) guard against subsidy arbitrage by imposing early termination fees.

Companies have tried frequently to use copyright law to limit their customers' ownership rights, for example by putting electronic locks on toner cartridges and garage-door openers. The courts have rightly turned back some of these efforts on the grounds that the locks weren't meant to deter piracy. The real solution, however, would be for Congress to clarify matters once and for all by passing a bill that gives consumers the right to unlock their devices for non-infringing uses. Rep. Zoe Lofgren (D-San Jose) has introduced such a proposal; Sens. Amy Klobuchar (D-Wis.) and Ron Wyden (D-Ore.) have offered similar bills targeted more narrowly at mobile products.

These broader approaches, however, would require changing the Digital Millenium Copyright Act. And according to Khanifar, lawmakers on the Judiciary committees simply weren't willing to take that step. That's not surprising, considering how hard the Hollywood studios and other copyright holders fight any move to weaken the protections of copyright law. They're particularly concerned about the anti-circumvention provisions of the Digital Millenium Copyright Act, which they consider key to defending against digital piracy.

To his credit, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) has been conducting hearings aimed at updating copyright law for the broadband era. Despite the widespread unhappiness with various provisions, however, there's sharp disagreement between tech and content companies as to what to do about them.

At any rate, the bill sent to President Obama's desk (which the White House said Friday he would sign) simply makes the Librarian's 2012 ruling on cellphone unlocking go away, restoring the exemption granted in 2010.

The measure also makes clear that unless and until the Librarian rules otherwise, anyone can unlock a phone for the purpose of connecting it to a different network, if authorized to connect by that network. That's a better approach than the House took in the bill it passed in February, which included a mischievous provision barring companies from unlocking phones for the purpose of "bulk resale."

The principle here is that once someone has paid for a phone, it shouldn't matter what legal use he or she makes of it. The restrictions on unlocking reduce a phone's utility and its resale price, diminishing the value of owning a phone. Such limits don't protect copyrights, they protect mobile networks and phone manufacturers eager to rid the market of resold or aging devices.

Solving the unlocking problem without touching the Digital Millenium Copyright Act is a bit like stopping people from coughing without curing their colds. It's a work-around that focuses on the symptoms, not the disease.

Follow Healey's intermittent Twitter feed: @jcahealey