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In 2012, the Librarian of Congress, at the request of the Register of Copyrights, issued an exemption to legislation that prevents consumers from “unlocking” cellphones and using them on any wireless network they choose. The exemption applied only to devices purchased before January 26, 2013 — phones bought after that date cannot be legally unlocked due to the Digital Millennium Copyright Act (DMCA). 

Activists fought the legislation, which could also prevent consumers from modifying the software on a graphing calculator or performing repairs on a car, for months. Organizations like the Electronic Frontier Foundation, iFixIt, and Public Knowledge supported their efforts. Online petitions were posted, journalists were flooded with emails, and websites were created.

These efforts eventually prompted the drafting of multiple bills meant to solve the problem. One of those bills, the Unlocking Consumer Choice and Wireless Competition Act, passed the House on Tuesday and will make its way to the Senate.

Some of the organizations that supported efforts to legalize cellphone unlocking have pulled support for the bill following last-minute changes that criminalize bulk unlocking. The change has not yet been explained, though the bill’s sponsor, Rep. Bob Goodlatte (R-Va.), said that it was “important for Congress to at least make sure it’s legal again for people unlock recently-purchased phones.”

Public Knowledge suspended support for the bill on Friday with a statement from its Vice President of Legal Affairs, Sherwin Siy:

While the bill still allows a number of consumers to unlock their own devices, the amended version fails to address the flawed law at the root of the unlocking problem: the anti-circumvention provisions of the Digital Millennium Copyright Act.

The new language specifically excluding bulk unlocking could indicate that the drafters believe that phone unlocking has something to do with copyright law. This is not a position we support. Even if Congress believes that bulk unlocking is a problem, it’s clear that it’s not a copyright problem, just as individual unlocking is not a copyright problem. A bill designed to scale back overreaching copyright laws should not also endorse an overreach of copyright law.

The Electronic Frontier Foundation retracted its support for the bill in a blog post on Sunday:

The bill set for a vote tomorrow builds on the FCC deal by making phone unlocking legal for end users and people who help them, at least until the next exemptions are decided. (That’s about a year and a half from now, if you’re counting.) A tiny and temporary fix, but better than nothing, right?

Wrong.  That’s because the latest version of the bill contains new language expressly excluding “bulk unlocking.” Bulk unlockers acquire phones from a variety of sources, unlock them, and then resell them. By expressly excluding them, this new legislation sends two dangerous signals: (1) that Congress is OK with using copyright as an excuse to inhibit certain business models, even if the business isn’t actually infringing anyone’s copyright; and (2) that Congress still doesn’t understand the collateral damage Section 1201 is causing.

iFixIt pulled its support for the bill on Tuesday:

Reformers might have lived with the bill’s shortcomings—that is, until last week. Last minute changes were just made to the bill to exclude protections for “bulk unlocking,” a crude term referring to one of the fastest growing green industries in the US—electronics recyclers and refurbishers. Well respected companies that repair and refurbish cell phones have no legal standing to unlock devices. So, instead of fixing and reselling things like iPads and Galaxy phones, refurbishers will likely shred them instead. Unsurprisingly, environmental and recycling groups are now opposing the bill, raising concerns that this new change in the bill will worsen the e-waste problem.

Sina Khanifar, an activist who has helped organize efforts to legalize cellphone unlocking since January 2013, also retracted his support on Tuesday:

Accepting that Section 1201 can be used to prevent bulk unlocking is dangerous because it reinforces a loophole created by the DMCA. That loophole allows any manufacturer to lock down their hardware by implementing a simple software lock. For example, car manufacturers have started including diagnostic locks that prevent independent mechanics or enthusiasts from repairing their cars, making something as simple as resetting a “low oil” light a violation of copyright law.

Reactions from around the Web

Wired argues that efforts to legalize unlocking shouldn’t stop at cellphones, and that consumers should be allowed to unlock any device they own:

As long as Congress focuses on just unlocking cellphones, they’re missing the larger point. Senators could pass a hundred unlocking bills; five years from now large companies will find some other copyright claim to limit consumer choice. To really solve the problem, Congress must enact meaningful copyright reform. The potential economic benefits are significant, as free information creates jobs. Service information is freely available online for many smartphones from iFixit (my organization) and other websites. Not coincidentally, thousands of cellphone repair businesses have sprung up in recent years, using the repair knowledge to keep broken cellphones out of landfills.

As long as we’re limited in our ability to modify and repair things, copyright — for all objects — will discourage creativity. It will cost us money. It will cost us jobs. And it’s already costing us our freedom.

FCC Commissioner Ajit Pai supports efforts to legalize cellphone unlocking in a March 2013 statement:

American consumers should not face jail time for unlocking their cell phones. This should not be a matter of criminal or copyright law. Instead, it should be addressed by contract law. If a consumer is not bound by a contract, he or she should be able to unlock his or her phone. The Digital Millennium Copyright Act (DMCA), as it pertains to this issue, unnecessarily restricts consumer choice and is a case of the government going too far. Fortunately, there’s a simple solution: a permanent exemption from the DMCA for consumers who unlock their mobile devices. I commend the bipartisan efforts already underway to address this problem, and I hope it will be solved expeditiously.

Pando weighs in

I wrote about the petition to legalize cellphone unlocking in January 2013, and attempted to explain the issue in layman’s terms:

To better explain this we’ll turn to the most American of metaphors: the automobile.

It’s hard to find a new car. Some models offer more features than others, some come with excellent financing, and some let the entire world know that yes, you do belong to the 1 percent. But, no matter how hard it is to choose what you’d like to drive, it’s not like you have to make a commitment to drive the first 100,000 miles in that car on just one network of roads.

Carriers, on the other hand, are able to make rules like that and enforce them with costly two-year contracts. Actually, they’re able to go a step further, “locking” phones onto their networks even if the device is technically capable of operating on a competitor’s. Now these carriers will be able to maintain control of the device even after a customer’s contract expires, thanks to the Digital Millennium Copyright Act and good old-fashioned fear mongering.

[Featured image by Hallie Bateman for Pando]