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.