Wyden Bill Would Override Copyright Office Rejection of Cellphone Unlocking Exemption

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By Tony Dutra and Anandashankar Mazumdar  

Following up on the Obama administration's disagreement with the Copyright Office, Sen. Ronald L. Wyden (D-Ore) introduced a bill that would let mobile phone buyers unlock their devices to allow an easy way to switch to a different network provider.

The “Wireless Device Independence Act of 2013,” S. 467, creates a specific exemption 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.

The controversy originated with the Copyright Office's conclusions after conducting its latest triennial round of reviewing exemptions to remove unlocking from its list.

Administration Acts First

The agency justified the removal of the exemption because “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.

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

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 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.”

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. 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.”

S. 467 Changes Section 1201

That response set the stage for Wyden's legislative attempt to override the Copyright Office's decision.

S. 467 would modify Section 1201(a)(1)(B), which currently identifies exemptions to anti-circumvention liability by reference to the Copyright Office's triennial list. The bill would insert a specific exemption for:

(i) a user of a computer program, in the form of firmware or software, that enables a wireless telephone handset, or other wireless device that can connect to the Internet, originally acquired from the operator of a wireless telecommunications network or retailer to connect to a different wireless telecommunications network if--

(I) the user legally owns a copy of the computer program;

(II) the use of the computer program by the user is solely for the purpose of connecting to such wireless telecommunications network; and

(III) the access to such wireless telecommunications network is authorized by the operator of the network.


Other exemptions would remain within the purview of the Copyright Office.

The bill was referred to the Senate Judiciary Committee. Wyden was a member of that committee until recently.


Text of S. 467 is available at http://pub.bna.com/ptcj/S46713Mar5.pdf.

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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