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 processwas 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 lawfor 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.
Legal protection for people who unlock their mobile phones to use them on other networks expired last weekend. According to the claims of major U.S. wireless carriers, unlocking a phone bought after January 26 without your carrier’s permission violates the Digital Millennium Copyright Act (“DMCA”) whether the phone is under contract or not.
When it comes to entitlement, few private companies can match the RIAA. The latest cause of their whines is Google. After Google published their report last week on DMCA takedowns, the RIAA is determined to make out that Google is the problem, because almost 1.25 million removed links in one year wasn’t enough, and it’s all Google’s fault, despite the search giant having absolutely no hand in putting any of them online.
Poor Google can’t do anything right in the RIAA’s eyes.
The Mountain View search engine is being lambasted by the Washington DC lobby group for not being proactive enough with the tools they have provided to deal with the alleged copyright infringements of completely unconnected third parties.
Worse, it’s claimed that Google are actively hindering the RIAA, because they’re not allowing the industry group free reign to have each and every suspect link terminated perpetually.
When Google published their report on DMCA takedowns last week, the RIAA was unimpressed. In fact, they were so unimpressed by the average of ONLY 3,400+ links taken down each and every day, that they did what any well-connected lobby group would do – it took to its blog and wrote a top-5 list of facts on why it’s ALL GOOGLE’S FAULT!
Fact 1
Google places artificial limits on the number of queries that can be made by a copyright owner to identify infringements.
Because nothing says “problem sorted” like allowing someone else’s bots unrestrained access to your data. Of course, the RIAA should be free to run as many search bots as they want, potentially hindering the search engine’s core business as they hunt down potentially infringing links. The RIAA is after all a big fan of DDOS’s, having been been the target of a few themselves. And it is better to give, than to receive, which is why the RIAA would like the ability to share one with the Google links database.
Fact 2
Google also limits the number of links we can ask them to remove per day.
As we’ve seen before, nothing says “accuracy” like a stream of bot-generated links. It’s impossible to churn out an unlimited number of links with human oversight, and we’ve see how well that’s worked in practice, time and again. Since such takedowns are meant to be submitted under ‘penalty of perjury’, it’s clear that Google is just looking out for the RIAA, preventing them from committing so many perjurious acts that penalties would have to be enforced. Thanks to Google, the RIAA is being saved from itself.
Fact 3
The constraints Google has placed on the tools they promote to deter infringement are well below what is necessary to identify and notice infringements on the Billboard top 10, much less the entire catalog of the American creative community.
If the number of takedowns were so limited, and so inadequate, then surely better care would be taken to ensure accuracy. Earlier this year, in a submission to the New Zealand Government, Google noted that 37% of DMCA notices it received were not valid claims, and 57% targeted a competitor. Perhaps if these notices were better used, there would be enough to do what the RIAA wants. And yes, apparently the RIAA speaks for the entire ‘American creative community’ now.
Fact 4
Google claims that the DMCA notices it has received for a site represent less than 0.1% of the links it had indexed for the domains at the top of this list. But this number is misleading given the constraints imposed by Google on a copyright owner’s ability to find infringements and send notices to Google.
Since Google indexes so many links using their own resources, it’s just not right that the RIAA can’t have unlimited use of those same resources, for free of course.
As already discussed, it’s clear that were the RIAA able to have a freer hand to determine what Google can and can’t index, there would be a lot more than 0.1%. Where there’s 0.1%, they’re sure that it could be 10%, and if there’s 10%, then there might well be 100%. However, those restrictions prevent the RIAA from filing those notices, or even finding out. And the 37% of claims that are false? They are just collateral damage, for the Greater Good, nothing to worry about, much less do anything about. Besides, the RIAA knows best, and is just looking out for artists, honest!
Fact 5
If “take down” does not mean “keep down,” then Google’s limitations merely perpetuate the fraud wrought on copyright owners by those who game the system under the DMCA.
Finally, how DARE content be re-indexed if a notice has been filed? The RIAA’s position is CLEAR on this – a DMCA notice is a permanent ban on that content ever being indexed by Google again. It doesn’t matter who uploaded it, if it was a fan with a bootleg before and now it’s an official release, or even if it’s just entered the public domain or someone else has taken over the rights, it simply cannot reappear.
No matter what the copyright status is, once someone has filed a notice against it, that content should be completely banned from the internet. Because otherwise it’s a fraud on copyright owners, and not the kind where RIAA members claim the copyright for stuff they don’t own the rights to, or prevent the rights holder from using their own work, or lie to law enforcement to get goods seized. That kind of ‘copyright fraud’ is clearly acceptable, unlike the former examples.
Sending almost 2-in-5 DMCA notices that are bogus, safe in the knowledge that false claims won’t be punished is another fine example of how to game the spirit of the DMCA in an acceptable manner.
If the tone here has verged into the absurd, there’s probably a good reason. The RIAA’s demands are sheer lunacy. If the RIAA wants its demands to be heard, then first it needs to get its own house in order, before their abuses of the law are noticed and wipe them out. To blame Google for their own shortcomings is more of the same myopia that has left them playing catchup for the last 13 years, but who is surprised by that any more?
