Post New Bill Preserves Phone Unlocking, Opens Door to Larger Copyright Reform

New cell phone unlocking bill would not only allow you to unlock your

cell phones, it would address a long-standing problem in copyright enforcement.

Today, Rep. Zoe Lofgren, joined by Rep. Thomas Massie, Rep. Anna Eshoo, and Rep. Jared Polis, introduced another cell phone unlocking

bill. Unlike those that have come before, though, this one also takes aim

squarely at the problems with the 1998 Digital Millennium Copyright Act (DMCA) itself—the

law that may make it illegal to break digital locks, even for noninfringing

purposes.

The bill, named the “Unlocking Technology Act of

2013,” specifies that you’re not infringing copyright when you unlock your

cell phone—which is when you adapt or alter the phone’s firmware so it can be

used with a different cell phone company.

This differs from other bills that have been proposed to

solve the same problem. Those bills try to make sure that phone unlocking is

legal under the DMCA, not the Copyright Act. And the phone unlocking portion of

this bill doesn’t mention the DMCA at all. So under that section of the bill,

someone who unlocked their phone couldn’t be sued for copyright infringement,

but could still be sued under the DMCA. That’s likely only a small improvement

over the current situation, since it’s already pretty unlikely that someone

could win a copyright infringement suit against an unlocker.

But this latest bill

is more than just a slight improvement—it’s a massive one. That’s because

of the boldest part of the bill—a section that says that breaking digital locks

won’t violate the DMCA if what you do with the copyrighted work after you break

the lock doesn’t infringe copyright.

This solves a problem that has plagued the DMCA since its

passage, and one that was warned of even before then.

It’s

what keeps people from space-shifting movies from their DVDs onto their

tablets, even though that doesn’t infringe copyright.

what keeps people from space-shifting movies from their DVDs onto their tablets, even though that doesn’t infringe copyright. It’s

what prevents the development of lots of accessible technologies to help people

with visual and hearing disabilities access copyrighted works—again, something

totally noninfringing.

what prevents the development of lots of accessible technologies to help people with visual and hearing disabilities access copyrighted works—again, something totally noninfringing. It’s

what has delayed computer security researchers in disclosing the fact that copy

protection mechanisms were putting dangerous back doors in people’s computers.

This new bill would also make it clear that providing

devices and services to get around digital locks wouldn’t be illegal—unless

those devices or services were intended for copyright infringement.

The idea is to make sure that tools that can be used for

noninfringing purposes aren’t outlawed in an overbroad attempt to prevent

illegal copying. Just like VCRs, DVD burners, and photocopiers aren’t outlawed,

even though they can easily be used to infringe copyrights, tools that let

users rip their DVDs, or format-shift their ebooks, shouldn’t be illegal just

because some bad actors might abuse them.

Added bonus: The

bill also puts to rest one of the red herrings that people have raised about

“international agreements” blocking our ability to amend the DMCA. While a

number of trade agreements pushed by the U.S. say that the countries signing

the agreement should only have a limited number and type of exemptions to the

DMCA, these agreements can’t legally bind Congress’ hands and prevent it from

exercising its Constitutional role to make laws.

Nonetheless, if we want to make sure that our trading

partners aren’t upset with us for having more freedoms in domestic law than in

the agreements, we can resolve that by removing those restrictions from the

trade agreements—something that trading partners may well prefer, since these

restrictions certainly seem to have been pushed by the U.S. anyway.

The Lofgren bill therefore also directs the administration

to ensure that the free trade agreements are consistent with the update to the

DMCA, and doesn’t take effect for nine months in order to create time for those

discussions to get under way.

We’re extremely glad to see such a comprehensive bill put

forward to not only fix the problem of cell phone unlocking, but also that

looks forward to a future with copyright laws less susceptible to abuse.

Image by flickr user izqrdo.