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Obama Administration Agrees With Petition Criticizing Decision on Cellphone Unlocking

Wednesday, March 6, 2013
By Anandashankar Mazumdar

In response to an online petition, the Obama administration has expressed disagreement with the Copyright Office's decision in October to eliminate an exemption from anticircumvention law that would allow cellphone owners to unlock their phones in order to change service providers.

The controversy originates with the Copyright Office's conclusions after conducting its latest triennial round of reviewing exemptions to the anticircumvention provisions of the Digital Millennium Copyright Act of 1998, 17 U.S.C. §1201(a).

Section 1201(a) prohibits the circumvention of technological protection measures used by copyright owners to prevent copying or unauthorized access. However, Section 1201(a)(1)(C) allows the Copyright Office to exempt certain classes of copyrighted works if the prohibition is likely to adversely affect users' ability to make noninfringing uses.

After the 2005 review, the agency created an exemption for unlocking cellphones and it was renewed in the subsequent round. However, after the 2012 review, it determined that the exemption was no longer necessary for phones acquired after February 2013.

The reason for the termination of the exemption, according to the Copyright Office, was that “with respect to new wireless handsets, there are ample alternatives to circumvention.” That is, many different kinds of unlocked handsets are now available to consumers.

To the extent that there are still some locked phones, that did not change the fact that the current marketplace offers consumers a variety of options, the agency said. This might not be the case for “legacy” handsets, and thus the exemption was carried over for older phones.

An exemption for “jailbreaking” mobile telephones in order to make them interoperable with software that has not been approved by the handset vendor, which was first created in 2010, was not eliminated.


Petition Filed in January
In January, a petition was submitted to the White House's We the People website seeking to overturn the Copyright Office's determination.

According to the petition:

Consumers will be forced to pay exorbitant roaming fees to make calls while traveling abroad. it reduces consumer choice, and decreases the resale value of devices that consumers have paid for in full.

The [Copyright Office] noted that carriers are offering more unlocked phones at present, but the great majority of phones sold are still locked.

R. David Edelman, the administration's advisor for internet policy, posted a response to the petition and agreed with the petitioners, stating that unlocking cellphones should be exempted. Indeed, Edelman went further and said that tablet computers with mobile capability should also be subject to the exemption, a proposal that the Copyright Office had rejected entirely. Edelman stated:

It's common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers' needs.

This is particularly important for secondhand or other mobile devices that you might buy or receive as a gift, and want to activate on the wireless network that meets your needs--even if it isn't the one on which the device was first activated. All consumers deserve that flexibility.

In supporting the White House's position on the matter, Edelman referred to a letter submitted to the Copyright Office during the latest review period by Lawrence E. Strickling, administrator of the National Telecommunications and Information Administration.

In that letter, the NTIA took the position that “an exemption continues to be necessary to permit consumers affected by access controls to unlock their phones.”


Triennial Review Not Meant for Broad Policy
On March 4, the Library of Congress issued its own response to Edelman's statement. In that statement, the agency said that it is not the purpose of triennial review of DMCA exemptions to formulate and implement broad policy goals. It said:

The rulemaking is a technical, legal proceeding and involves a lengthy public process. … 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.

The review process “is a technical, legal proceeding” whose conclusions must be “based on a factual record developed by the proponents and other interested parties.”

Acknowledging this statement, Edelman said that the administration would support legislative measures that would prohibit limits on unlocking. He also said that the NTIA would be working with the Federal Communications Commission on this issue.

Julius Genachowski, chairman of the FCC, himself issued a statement on March 4 expressing concern about the Copyright Office's elimination of the unlocking exemption. He said:

From a communications policy perspective, this raises serious competition and innovation concerns, and for wireless consumers, it doesn't pass the common sense test. The FCC is examining this issue, looking into whether the agency, wireless providers, or others should take action to preserve consumers' ability to unlock their mobile phones.

Genachowski likewise supported legislative action to address the issue.

By Anandashankar Mazumdar


Text of online petition is available at https://petitions.whitehouse.gov/petition/make-unlocking-cell-phones-legal/1g9KhZG7.

Text of the NTIA's letter to the Copyright Office is available at http://www.ntia.doc.gov/files/ntia/publications/ntia_2012_dmca_letter_final.pdf.

Text of the Library of Congress's response to the White House is available at http://www.loc.gov/today/pr/2013/13-041.html.

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