Mercury News - Unlocking To Get a Vote In Congress, But the Bill is Flawed

February 25, 2014
In The News

By Troy Wolverton

Congress on Tuesday is expected to take up the issue of cell phone unlocking. But what started out as an effort to restore consumer rights may end up being a setback to consumers.
While consumers may soon be able to legally unlock their cell phones again, the bill that would temporarily restore that right would essentially prohibit companies from making a business doing the same thing. In other words, while you could legally unlock your own cell phone — if you can figure out how to do it — you might have a difficult time buying an already unlocked used cell phone — because few of them would be on the market.
That wasn’t how the bill, H.R. 1123, was originally written or what it stated when it was voted out of committee. Instead, the bill simply would have set aside for the next year or so a regulatory ruling from last year and allowed anyone — consumer or business — to unlock cell phones individually or in bulk.
But late last week, new language barring bulk unlocking was added surreptitiously to the bill. Although the new language wasn’t subject to any hearings or public debate, it’s included in the bill that will be voted on by Congress. What’s worse is that the bill will apparently be voted on using a special procedure that would essentially bar both debate on the floor of the House and amendments to the bill.
The change to the bill was so substantial that Derek Khanna, a former Republican congressional staffer who started the campaign to reverse the regulatory ruling on unlocking and has worked for the past year to keep the issue alive, has become lukewarm on the bill, calling the new language “troublesome.” While he’s still backing the bill, Khanna expressed hope that the Senate, when considering the issue, would work on a bill without the bulk unlocking ban.
Other former backers have now dropped their support for the unlocking bill. Among them: the Electronic Frontier Foundation, consumer advocacy group Public Knowledge and local Democratic representatives Anna Eshoo and Zoe Lofgren.
“We’re all for phone freedom and we wish we could support the bill. Unfortunately, however, the costs for users outweigh the benefits,” the EFF said in statement.
Cell phone manufacturers and carriers frequently use software to bind or lock devices to particular networks. The locks are meant to make it difficult for consumers to take their devices with them to another carrier. Manufacturers and carriers say the locks are important to their businesses, allowing them to develop exclusive devices that can attract or retain consumers. Consumer advocates, meanwhile, basically view them as tools that thwart competition in the marketplace and prevent consumers from being able to fully control the devices they own.
The locks are protected by an obscure portion of U.S. copyright law that forbids consumers and businesses from tampering with protections put in place by intellectual property owners to protect their works — even when what they want to do with those works is completely legal or covered by fair use.
The Librarian of Congress is charged with reviewing, every three years, potential exemptions to that copyright provision. Starting in 2006, the Librarian recognized an exception for cell phone unlocking.
But in late 2012, the Librarian, citing the growing number of unlocked devices on the market, announced that the exemption would be revoked. Early last year, unlocking cell phones again became illegal.
Ever since, consumers and their advocates have pressed policy makers to overturn the Librarian’s ruling. A petition to President Obama last year, for example, received more than 114,000 signatures in a little more than a month.
At its base, the dispute over unlocking is about whether copyright law can be twisted to forbid otherwise legal activities. The copyright provision that prohibits the breaking of software locks was written as the age of digital information was just starting to take off. One of the features of digital information is that computers can be used to make perfect copies of originals. There was a real fear on the part of copyright holders that the market for their goods would be undermined by a flood of perfect digital copies of their works. Why buy a song from Apple if you can simply download the same one for free from Napster? The provision was written to allow copyright holders to protect their works from this kind of illicit mass copying.
But since then, the provision has been used to thwart all kinds of otherwise legitimate activities. Not only has the unlocking of cell phones been impeded by the provision, but so too have things like the “jailbreaking” of iPads so that they can run programs not approved by Apple, the making of printer cartridges by companies other than the printer manufacturer, and reporting on security vulnerabilities.
Advocates for a renewed right of unlocking generally oppose this kind of restrictive view of copyright. They’d like Congress or regulators to recognize that, in general, breaking software locks is OK if the intention is to do something legal, something that might be covered under fair use or other consumer rights.
What those advocates find objectionable about the bulk unlocking bar in the new bill is that it represents something of a Congressional imprimatur for the more restrictive view of copyright, one in which copyright law can be used to ban business practices that have nothing to do with making illicit copies of protected works.
As Eshoo and Lofgren put it in a joint statement today: “Congress should work to roll back abusive practices that use copyright law to prevent owners from having control over the devices they lawfully own. What it means to ‘own’ a device that has been purchased is what’s at stake here. The new addition to the bill puts the effort to stand up for the property rights of the owners of technology devices at risk.”
Eshoo, Lofgren and other backers of unlocking have put their hope in a broader bill co-authored by the two that would grant a permanent right for consumers and businesses to unlock phones, but to circumvent software locks if the intent is to do something non-infringing.
As I wrote in my column today, I think that bill is a long shot, given the current dysfunction of Congress. Instead, I argued that the Federal Communications Commission should simply step in now and bar the locking of cell phones to particular carriers.