The Real Reason We Should Cheer the Cellphone “Unlocking” Law

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Cell phones sit on display in the window of a store on January 14, 2013 in New York City.

On its face, a bipartisan bill introduced in the House of Representatives last Thursday to permanently legalize cellphone “unlocking” isn’t particularly groundbreaking. There seems to be consensus in Washington that consumers should be allowed to take their mobile devices to a different carrier—say, use your AT&T iPhone on the Verizon network after the initial service contract has expired. The practice was legal from 2006 through January of this year, thanks to an exemption from the Digital Millennium Copyright Act. And after the Library of Congress allowed  that exemption to lapse in January, President Obama and numerous lawmakers called for a quick fix.

But the episode is symptomatic of a much larger problem with the nation’s digital copyright laws. And Thursday’s House bill, unlike its predecessors in the Senate, is the first to seriously address it.

Fifteen years ago, Congress passed the DMCA in response to dramatic changes in the copyright landscape caused by the Internet and to implement two treaties from the UN’s intellectual property organization. In its most significant section, the DMCA outlawed users from bypassing access controls on software or hardware (like the mechanisms that limit a cellphone to one carrier), and the trafficking of tools to get around access or copy controls. Lawmakers included exemptions for backing up information and for some types of encryption research and repair, and put in place a system by which new exemptions could be approved (or revoked) by the Library of Congress every three years.

Think about that for a second: The law governing all digital copyright in the U.S. predates Napster and can only react to technological innovation every 36 months — which might as well be three centuries given the pace of digital innovation over the last decade and a half.

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The implications of the DMCA have been far-flung. Consumers are limited in what they can legally do with products they’ve purchased, even if they’re not infringing on copyright, and software makers must tread carefully around the law—in 2009 the DVD Copy Control Association sued RealNetworks for distributing a program that allowed user to “rip” DVDs onto their hard drives and watch movies without a disc.

Academia has had to contend with the DMCA as well. As computer science professor Edward Felten explained in a piece for Slate earlier this year, the law’s tight restrictions on circumvention can interfere with research and even put the public at risk. One of Felten’s students discovered that CDs from Song BMG were installing malware on computers without customer’s knowledge, making undetectable security holes in their operating systems. In order to figure out exactly what the program was doing, Felten’s team had to disable the CDs’ content protections. But he couldn’t warn the public without fear of legal reprisal from the record company. “We weren’t afraid that our research results were wrong,” he wrote. “What scared us was having to admit in public that we had done the research at all.”

While the House’s new Unlocking Technology Act of 2013 has been widely reported as primarily another fix for unlocking, its most important feature addresses the much broader problem that has haunted Felten and others for so long. By revising a key section of the DMCA, the House bill would make it legal for anyone to use, manufacture, or provide a work-around to content protection mechanisms as long as their primary function is not copyright infringement. In other words, breaking the seal would no longer be illegal; misusing the content within—or purposefully enabling others to do the same–would be the crime.

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“This bill reflects the way we use this technology in our everyday lives,” Rep. Zoe Lofgren, the bill’s primary sponsor, said in a statement. “Americans should not be subject to fines and criminal liability for merely unlocking devices and media they legally purchased. If consumers are not violating copyright or some other law, there’s little reason to hold back the benefits of unlocking so people can continue using their devices.”

It’s not yet clear whether the majority of her colleagues agree with that sentiment. But if the legislation passes, it could be the most significant development in digital copyright since the DMCA. In addition to revising the 1998 law, the bill also calls for an official review of the DMCA’s anti-circumvention measures’ impact on consumers and the marketplace, which could prompt Congress to consider further changes in the future.

While many consumer activists cheered recent efforts to legalize phone unlocking, the various Senate bills only addressed that single issue. Governing the digital realm through narrow exemptions to sweeping restrictions, as the U.S. has done for the past 15 years, seems ill-suited to the quickly-evolving nature of technology. The latest House bill wouldn’t just solve a present problem. It could finally allow federal law to evolve alongside reality.