A new bill introduced in Congress today aims to resolve the restrictions that complicate phone unlocking, and it's doing it the right way. While other proposals would apply temporary "bandaid" fixes that fail to address the underlying problems behind the restrictions, this bi-partisan proposal from Representatives Zoe Lofgren, Thomas Massie, Anna Eshoo, and Jared Polis, gets to the root of the issue.
Contact your representative today to ask them to join in supporting this bill.
That makes this new bill, H.R. 1892, a rare exception to the sorts of bad copyright policy usually promoted in Washington, and the first one to meet the conditions we set forth in a group letter to Congress earlier this year. There we explained why the public needs a complete and permanent fix on phone unlocking, and why that has to start with re-examining the Digital Millennium Copyright Act's (DMCA) so-called "anti-circumvention" rules laid out in section 1201.
As it's currently written, section 1201 creates a blanket ban on breaking digital rights management (DRM) software—even if there's no resulting copyright infringement. Its rulemaking procedure puts the burden on the public to explain every three years why circumvention is necessary for specific lawful purposes. Even then, once an exemption for those specific purposes is granted, the tools to actually achieve these purposes remain unlawful (which makes as much sense as declaring it legal to drive while banning cars).
The uncertainty around the legal status of phone unlocking is a symptom of section 1201's unintended consequences. Here are the three targeted fixes that H.R. 1892 creates to solve the problems the DMCA has created.
- It focuses the definition of "circumvention" to include only circumvention that infringes or facilitates the infringement of copyright. This point may seem technical, but it's very important. If this bill were adopted, it would reduce the massive overreach of section 1201 that the triennial rulemaking process was designed to mitigate — but which hasn't been very effective.
Also important, the bill calls for Congressional review of the DMCA in general, and section 1201 in particular. This kind of review is most welcome: the DMCA's record of 15 years of unintended consequences speaks for itself, and as long as Congress takes its commitment to the public interest seriously it will have to recognize that fact.
- Next, the proposal addresses phone unlocking in particular, carving it out from the general circumvention restrictions by adding it to a list of exemptions already built into the law for certain computer programs. Unlike previous proposals, this bill would also cover the tools and services used in phone unlocking.
Put simply: under this bill, unlocking a phone is not an infringement. Of course, that's consistent with a common sense understanding of what copyright law should cover.
- One final nice touch: the bill instructs the executive branch to clear up any potential conflicts that may be caused by international agreements. Once again, the clarity is welcome. Opponents of an effective phone unlocking fix have used the possibility of incompatibility with existing trade agreements to spread fear, uncertainty, and doubt.
Regardless of whether these claims are true, that sort of chatter can slow down real change and entrench laundered policies. The US Trade Representative has no business directing Congress on domestic policies, and this bill would remedy that issue.
We support this new proposal, and urge more Congressmen to support this bill as a real effective fix to the phone unlocking issue and an important conversation starter about where copyright law has failed the public. If you are in the United States, please ask your representative to support this bill today.
