The Duct-Tape Approach To Fixing Broken Copyright Law Happens Again With Phone Unlocking

from the the-system-is-broken dept

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If you follow the history of copyright law, it's truly about taking a ridiculous duct-tape approach to dealing with changes in technology. Basically, each time a new technology comes along that shows how the old laws are obsolete, lobbyists run to Congress and some sort of change is duct-taped on, often haphazardly, with little concern for either the unintended consequencesexploring how broken the system is in the first place. That actually makes things worse, because you have all these random "add-ons" that make copyright law make even less sense. When radio came along, we got some duct tape. When cable TV came along, we got some duct tape. When the internet came along, we got some duct tape. And not all of it made sense. There are still big fights going on today as everyone tries to sort out how the radio duct tape applies to the internet. And, of course, the Aereo fight was partly about whether or not the cable duct tape applies to the internet (leading to the Supreme Court turning duct tape into a duck).We've discussed at length the ridiculous process by which cell phone unlocking was briefly declared legal under copyright law... and then magically became illegal due to a decision by the Librarian of Congress to rescind an exemption to the DMCA. After over 100,000 people signed a petition asking for it to be fixed, the White House told Congress to fix it -- but in true duct-tape fashion, decided that it should just add on some more duct tape by saying changes should be made to, rather than targeting the root of the problem: Section 1201 of the DMCA, better known as the anti-circumvention clause.As we noted recently, after aof a mix of fighting over this and a whole lot of nothing, the Senate came up with a compromise that isn't horrible, but doesn't do very much other than make it legal to unlock your phones again. The full Senate has now approved this . Of course, earlier this year, the House passed a dangerously bad bill to pretend that it was dealing with the problem as well, but it actually had some bad problems. The two houses will have to bring the bills into alignment now, and hopefully the Senate bill wins out.However, as Tim Lee over at Vox points out, this is a huge missed opportunity because it's Congress taking that same duct tape approach yet again. Rather than actually fixing the underlying problem (a broken Section 1201), Congress has decided to pass a bill that duct tapes on "except for unlocking mobile phones... for now." This isn't surprising. Actually fixing Section 1201 would be a massive process that would lead to quite an insane fight from Hollywood (theythe anti-circumvention provision, because it allows them to DRM everything and create controls for themselves beyond what everything else in copyright law allows -- such as taking away fair use).The other big stumbling block is that, thanks to bogus international trade agreements, doing something so simple as to actually fix this broken part of the DMCA that possibly made cell phone unlocking illegal... would likely violate more than half a dozen trade agreements . While Congress has the power to ignore those trade agreements if it wants, lobbyists love to go apeshit about anything that might "violate international agreements," as if suddenly Europe won't do business with us any more because we dare to let people unlock their mobile phones.Either way, this one issue does a lot to show why copyright law continues to be such a mess. It's just a hack process, which new technology routes around... and Congress' response is just to duct tape on the next mess to "fix" the mistake, rather than look at the underlying reasons why the law is outdated and problematic. Hopefully you'll be able to unlock your mobile phones soon without worrying about breaking the law -- but that won't be true for other things, like modifying your video game console or other types of electronic devices. A sane world would get to the root of the problem and fix it, but this is Congress we're talking about, and no one thinks that's a sane world.

Filed Under: 1201, anticircumvention, copyright, dmca, duct tape, exceptions, phone unlocking