Unlocking cellphones vs. wireless carriers: Our view

USATODAY

Most cellphones sold in the United States have a software "lock" that prevents them from working on other carriers' networks.

So when the Library of Congress announced recently that the "unlocking" of cellphones would no longer be legal without the permission of your wireless service provider, its decision prompted widespread criticism.

It's easy to see why. Travelers who want to take their phones abroad while avoiding massive roaming charges will be out of luck, unless their carriers are willing to cough up an unlock code. People whose contract is up — and see no reason to buy a new phone — will be at the mercy of their providers to unlock their phones for them. Carriers have done that in past, and say they will do it in the future, but now they will have less incentive to do so.

Even more than criticism, the announcement prompted bewilderment. Just what is the Library of Congress doing regulating cellphone service, anyway?

Good question. There really isn't a good answer, other than that wireless providers have managed to get the Library of Congress, which oversees the U.S. Copyright Office, to do their bidding.

A better answer is to take the Library of Congress out of the business of being the industry's contract enforcer. Congress should also give consumers the right to unlock phones, at least under certain circumstances, such as when they travel overseas and want to tap into local networks, and certainly when they are no longer under contract.

What's most galling about the ruling is that it shows how the wireless industry has used — or perhaps misused is the better word — copyright law to strengthen its hand in dealing with consumers and limiting competition.

When Congress passed the Digital Millennium Copyright Act in 1998, the goal was to help digital content providers — such as musicians, filmmakers and software companies — prevent illegal pirating of their works.

To state the obvious, people don't unlock phones to steal copyrighted material. They do it to allow their phones to work on other networks. Nevertheless, the wireless industry prevailed upon Congress to include unlocking as an unlawful act, subject to periodic reviews by the Copyright Office and the Library of Congress.

Until late last year, the Copyright Office granted a waiver to cellphone unlocking. But in its latest review, it decided that it had to stop granting temporary exemptions. The Library, which for historical reasons going back centuries is in charge of the Copyright Office, agreed. Now the unauthorized unlocking of phones is punishable with fines of up to $500,000 and five years in jail — for using a phone that you own, even after you're clear of any contract.

This gives people who are unhappy with the quality of service much less leverage in fighting their provider. The age-old threat of taking business somewhere else will be hollow.

Phone locking might well have its purposes. Most people prefer to get phones cheaply in exchange for locking into contracts with a provider. And locking gives providers a convenient way to keep them from skipping out early. But unlocking does not get you out of a signed agreement, or prevent a carrier from going after you for breaching one.

When Congress' librarian starts behaving like the new sheriff in town, consumers have good reason to suspect the law is stacked against them.