The Curious Case of Cell Phone Unblocking and Copyright

Yesterday, the White House responded to a petition on its We The People site that asked the Obama Administration to “Make Unlocking Cell Phones Legal.” The petition was created in the wake of the most recent DMCA triennial rulemaking proceeding by the Library of Congress. The White House agreed fully with the petition, which was created by an individual named Sina Khanifar and championed on various online outlets by former RSC staffer Derek Khanna, among others.

The White House agreed with the substance of the petition, stating “consumers should be able to unlock their cell phones without risking criminal or other penalties” and even went beyond the petition to suggest “the same principle should also apply to tablets, which are increasingly similar to smart phones. “

Cell phone “unlocking” refers to removing restrictions placed on the phone that limit its use to a specific wireless carrier or geographic location (and it should not be confused with “jailbreaking” a phone, which involves removing restrictions that limit what apps and software may be loaded onto a device). Many major carriers “lock” devices in this way to support a business model where phones are offered to consumers below cost and subsidized by long-term service contracts. Some wireless carriers argue that, along with various other legal claims, unlocking cell phones without authorization violates the Digital Millennium Copyright Act (DMCA).

At this point, you might be confused. If you’ve been following this story and paused to wonder what exactly unlocking cell phones has to do with copyright — and what exactly the Library of Congress has to do with this — don’t worry, you’re not alone.  

The DMCA, in part, prohibits the circumvention of any “technological measure that effectively controls access to a work protected under this title.” This provision, in 17 U.S.C. § 1201, was part of the 1998 law to implement recently ratified WIPO treaties.

Many wireless providers have asserted that these provisions apply to cell phone unlocking. How so? The copyrighted “work” in question here is the operating system of the cell phone, the software that runs the device. Wireless service providers have put in place technological measures that only allow access to a phone’s operating system with the carrier’s authorization, that is, by a paying customer. Unlocking a phone, they argue, circumvents these technological measures.  

But the DMCA also allows for exemptions to these prohibitions. Late in the legislative process, Congress added an exemption procedure because of concerns that the DMCA prohibitions would adversely affect individuals’ abilities to engage in fair use of digital works.

Since Congress often struggles to keep up with rapid technological changes, exemptions are created through an administrative rule-making procedure, which operates under the direction of the Library of Congress and with the input of the Register of Copyrights and the general public. By law, this procedure occurs every three years. 

This procedure is driven entirely by the public, beginning when the Library solicits proposals for exemptions (the Library does not sua sponte propose any exemptions). These proposals are followed by a public commenting period on the proposed exemptions, as well as public hearings. 

Congress created a specific and detailed legal standard that the Library must follow when determining which exemptions to adopt, which the Copyright Office describes as follows:

The law provides that the proponent of an exemption bears the burden of showing that the use at issue is noninfringing and that such activity is, or is likely to be, adversely affected by the prohibition on circumvention. It is not sufficient to demonstrate that a use could conceivably be noninfringing, or that the absence of an exemption possibly could result in an adverse impact. The question of noninfringing use is a question of statutory law and legal precedent. Neither the Librarian nor the Register has the authority to create new law, though either may suggest (and has suggested) legislative action outside the confines of the rulemaking. If the proponent establishes that there is a harm, the Register proceeds to weigh several factors described specifically in the statute, including: (1) the availability for use of copyrighted works; (2) the availability for use of works for nonprofit archival, preservation, and educational purposes; (3) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comments, news reporting, teaching, scholarship or research; (4) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (5) such other factors as appropriate.

Since the DMCA passed, five rounds of DMCA exemption proceedings have been conducted: in 2000, 2003, 2006, 2010, and 2012. In 2006 and 2010, the Library of Congress adopted an exemption that allowed individuals to unlock their cell phones. However, although the exemption was again proposed in 2012, the Library ultimately did not adopt it (exemptions are reviewed de novo during each proceeding, so it does not matter if they had previously been adopted).

The record suggests that the proponents of the exemption simply failed to make their case as they did in previous proceedings. It should also be noted that proponents may have been successful if they had a little more help: only a handful of groups and individuals supported the exemption (conspicuously missing are Derek Khanna, Sina Khanifar, and most everyone else who have joined the recent outcry over cell phone unlocking).

In its recommendation to the Library of Congress, the Register of Copyright notes that proponents did not provide sufficient evidence of harm to grant an exemption, instead offering merely broad statements and scattered anecdotes.

What’s especially odd about this entire story is that Derek Khanna and others not only failed to participate in the public proceeding but blame the Library of Congress itself for reaching a decision they don’t agree with in the proceeding they ignored. But as the Library stated in its response to yesterday’s statement from the White House:

The rulemaking is a technical, legal proceeding and involves a lengthy public process. It requires the Librarian of Congress and the Register of Copyrights to consider exemptions to the prohibitions on circumvention, based on a factual record developed by the proponents and other interested parties. The officials must consider whether the evidence establishes a need for the exemption based on several statutory factors. It does not permit the U.S. Copyright Office to create permanent exemptions to the law.

As designed by Congress, the rulemaking serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy.

Finally, perhaps the most important takeaway of this story: what does all this have to do with individual creators and the creative industries?

Nothing, really. In fact, many creators, who are also phone consumers, likely welcome less restrictions on their ability to unlock their phones.

In fact, at the time of the Copyright Office proceedings on the proposed exemptions, a group of joint creators and copyright owners — consisting of the Association of American Publishers, the American Society of Media Photographers, the Business Software Alliance, the Entertainment Software Association, the Motion Picture Association of America, the Picture Archive Council of America, and the Recording Industry Association of America — expressly said they “do not take a position” on the exemption.

What happens next is likely up to Congress. It did not grant the Library of Congress to reverse its own decisions, and the White House did not indicate it would do much beyond supporting legislation to explicitly remove cell phone unblocking from the scope of the DMCA.