The Phone Unlocking Victory Should Be the First Step Towards Real Copyright Reform

It’s increasingly rare for Congress to actually pass bills into law, but Friday brought some good news from Capitol Hill: More than a year after the exemption covering phone unlocking expired and a White House petition on the topic collected some 114,000 signatures, a narrow bill offering a limited carve-out for consumers unlocking phones made its way to the President’s desk to be signed into law.

This is a win for consumers. There was near universal agreement that the restrictions were unreasonable, ranging from a White House statement calling a phone unlocking allowance “common sense,” to a partial solution from the FCC, to a Congressional hearing on phone unlocking and the DMCA. EFF worked with a broad coalition of individuals, companies, and public interest groups to convert that common goal into real policy and to keep dangerous language from the House proposal out of the final version of the bill.

But this is also just a tiny step toward what should be the real goal: fundamental reform of the misguided law that is the heart of the problem. The reason the phone unlocking’s legality is even unclear is because of a Digital Millennium Copyright Act (DMCA) provision that prohibits the circumvention of technical measures that restrict copyrighted content. In the case of phones, that copyrighted content could include the actual software running the phone.

Of course, consumers want to be able to unlock their phones so they can use them with the carrier of their choice, and that has nothing to do with copyright infringement. Enforcing the business models of telephone companies is way out beyond what copyright law is supposed to do. Unfortunately, it’s not that unusual an application of the DMCA’s anti-circumvention provisions. In the 16 years since the DMCA became law, it’s done little to hinder infringements but a lot to shut down innovation and free speech.

The safety valve in that section of the DMCA is a rulemaking procedure that takes place every three years, where members of the public can argue for the Librarian of Congress to grant specific exemptions to the law. An exemption for phone unlocking had been granted in the past, but in the 2012 rulemaking, it was only extended for several months until early 2013.

The legislation we passed last week effectively corrects that error, granting an exemption for the remainder of this three-year term. But it does nothing to address the underlying problem: Copyright law is being used to as a tool against competition and innovation. Further, it gives little consolation to others burned by the DMCA’s anticircumvention rules.

With the next round of rulemaking expected to take place in the next year, even this narrow victory could be short-lived. The law requires each exemption to be argued from scratch each time, and there’s no shortcut process for “renewing” an already granted exemption. Practically speaking, the Librarian of Congress has been given a strong signal from the legislature on the need for a phone unlocking exemption, but there will still be a time-consuming process of formally making the case. The outcome is important, but in many cases that process is a waste of time for everybody involved.

A much better solution would be to reform that section of the law altogether. Even if we cannot come to a compromise that simply strips the anticircumvention rules out of the law, we should be able to condition their application to cases where there might actually be infringement.

Such a solution is possible. The bill that passed last week was only one of several proposed solutions to the phone-unlocking problem. Representative Zoe Lofgren’s bill, the Unlocking Technology Act, took this much better fundamental approach. And even with the urgency of phone unlocking off the table, Lofgren’s proposal would be an extremely important improvement to a profoundly broken section of copyright law.

This issue, bubbling under the surface for a long time, is increasingly important as more and more of our appliances, devices, and goods could face the phone unlocking problem: if everything’s got a layer of copyrighted software, our ability to own and operate the stuff we own can face hurdles from the DMCA. Our right to repair, to tinker, to repurpose, to resell, all are affected.

As in years past, EFF will push for the best possible exemptions in the triennial rulemaking. But it is also increasingly clear that the rulemaking is not a workable “safety valve.” Last week’s phone unlocking success was a partial victory, but users deserve more. Whether it comes from Lofgren’s Unlocking Technology Act or elsewhere, we will continue to push for that reform.