Unlocking the mystery behind Copyright laws preventing untethering mobile phones even after contract ends
The Librarian of Congress has determined that unlocking (a.k.a. jailbreaking) a cellphone (i.e. circumventing restrictions which limit the porting of a cellphone to another carrier) is a now copyright violation. However, just two years ago, the Librarian of Congress came to a contrary conclusion, finding that unlocking a cellphone was not a violation of U.S. Copyright law. But how is it that the Librarian of Congress welds such a powerful pen to decide what is and is not a copyright violation?
Constitutional scholars, fifth graders, and arguably the rest of us from ABC television's School House Rock, "I'm just a Bill on Capital Hill" are keenly aware that Congress writes laws (bills) and the bill becomes law if the president signs the bill or Congress overrides a presidential veto. Seems pretty straight forward, right? Well what about vesting the Librarian of Congress with authority over whether unlocking a cellphone (i.e. circumventing restrictions which limit the porting of a cellphone to another carrier) is a copyright violation? The answer lies in the Copyright statute itself and Administrative Law.
The Copyright Act, and in particular, provisions of the Digital Millennium Copyright of 1998 (DCMA) includes provisions which prohibit circumvention of "technological measure[s] that effectively controls access to a copyrighted work" (17 U.S.C. § 1201). The purpose of this provision is to prevent copying and distributing copyright protected (digital) works, i.e. piracy of works. However, the Act includes provisions for exemptions to the prohibition against circumvention for designated technologies, thus allowing one to have access without violating the copyright statute. The Act spells out who shall be the "decider."
(B) The prohibition...shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined...
(C) ... by the Librarian of Congress, upon the recommendation of the Register of Copyrights, who shall consult with the Assistant Secretary for Communications and Information of the Department of Commerce. §1201. Circumvention of copyright protection systems (emphasis added)In 2010, the Librarian of Congress exempted "unlocking" cell phones from the prohibition, allowing one to legally untether a cellphone from one cell phone carrier when the cellphone carrier contract ends and connect it to another.
(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset. ("Librarian of Congress Announces DMCA Section 1201 Rules for Exemptions Regarding Circumvention of Access-Control Technologies")In 2012, the Librarian of Congress changed his tune, citing evolving technologies and more options for consumers to purchase unlocked cell phones as reasons for not continuing the exemption. (See Section 1201 rule making: Fifth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention).
What does this mean? Well, if you own a sporty Apple iPhone 5 on Verizon, no sweat. It comes unlocked so after your contract expires, feel free to connect it to your favorite CDMA (and possibly GSM) network of choice, here in the US or abroad. It you have an iPhone anchored to the AT&T network, you will need to get AT&T's permission to unlock the phone or risk copyright infringement if you unlock your iPhone.
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good post.
ReplyDeleteUnlocking mobile phones was legalized as a result of online petitions made to the White House. And yes the happy news is now mobile phones unlocking is hassle free. Recently also, I unlocked my Blackberry phone using unlock code. I got the unlock code for my Blackberry phone from UnBBLock.com at affordable cost with easy unlocking guide.
ReplyDeleteHouse unanimously passed bill from the Senate which President Obama said he would sign, which will reinstate "a 2010 rulemaking by the Librarian of Congress so that consumers can transfer, or 'unlock,' their cell phones without running afoul of copyright laws." See link to a press release and an official OP-IP Blog post to follow...
ReplyDeletehttp://www.leahy.senate.gov/press/leahy-and-other-leaders-of-senate-and-house-judiciary-committees-hail-final-congressional-action_on-pro-consumer-cell-phone-legislation