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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.
THE FACT THAT THIS PLANT HAS GIVEN YOU SEEDS TO REPLANT IT IS ACTUALLY THEFT AND COPYRIGHT INFRINGEMENT FOR REPRODUCTION OF OUR PATENTED PRODUCT WATCH US MONOPOLIZE FOOD
— Monsanto
The discussion around people’s banished right to unlock their own cellphones has been framed as an unexpected and unanticipated effect of the copyright monopoly. To the contrary, it shows the heart of the monopoly’s philosophy: killing ownership as a concept.
There is a weak copyright monopoly reform bill happening in the United States Congress at the moment.
This bill is not about the copyright monopoly at all, and at the same time, about everything that the monopoly actually is. It is the Unlocking Technology Act of 2013.
The bill, which was presented to the U.S. Congress three days ago, makes it legal to unlock devices such as phones that you own, and do what you like with them. Let’s take that again, because it is jaw-dropping: the bill reforms the copyright monopoly to make it legal to tinker with objects that you own. It has nothing to do with BitTorrent, MKVs, streaming, or what we normally associate with the activity of sharing culture outside of the copyright monopoly distributions.
The bill is about your ability to take your phone to a different wireless operator. Your own phone, that you bought and paid for. Your legal ability to bring your own property wherever you like, without breaching criminal law and risking jail. How on Odin’s green Earth did this come to have to do with the copyright monopoly?
Few contemporary discussions put the spotlight like this one on how the copyright monopoly is not about rewarding artists, but is a political war on property – on our ability to own the things we paid for. (I won’t say “bought”, as that implies we actually own them.) The copyright monopoly is dividing the population into a corporate class who gets to control what objects may be used for what purpose, and a subservient consumer class that don’t get to buy or own anything – they just get to think they own things that can only be used in a predefined way, for a steep, monopolized, fixed price, or risk having the police sent after them.
This is not a free market. This is the opposite of a free market. The copyright monopoly stands in opposition to a free market, and in opposite to property as a concept.
Some people insist on deceptively calling the copyright monopoly “property”, which is categorical nonsense every bit of the way. Two people can’t both own an object in full; this is part of the very definition of property. Obviously, the idea that you could own the jacket you’re wearing while I could own its color is both asinine and nonsensical, just like the idea that you can own a CD but I can own the laser-etched pattern of grooves carved into it.
Yet, the copyright monopoly maximalists insist on calling their monopoly “property” in continued and deliberate deception. When you press them on how this goes counter to every known definition of property, they usually fall back to a stupid statement along the lines of “property is whatever we define it to be”, which avoids basic statements of fact on the nature of property, and goes to reveal the true intent – redefining property to something that creates two new classes in society: the corporate masters who own property, and the citizen serfs who get to use things they pay for in ways that are strictly defined and constrained.
To illustrate the absurdity of this, imagine a carpenter that had the legal right to send you to jail if you used his chairs in ways he disapproved of, after your having bought those chairs.
This is what the copyright monopoly was always about. The phone-unlocking issue is not an oddity or an outlier; it lies at the very heart of the monopoly’s philosophy. The copyright monopoly was always about control over other people’s property, and always about preventing creativity and innovation that could threaten the incumbents.
The copyright monopoly hurts creativity, hurts our economy, hurts our entrepreneurs – and most importantly, it is an affront to the most foundational concepts in society, such as the right to tinker with your own property. It needs to be questioned, dismantled, and abolished.
