So what’s going on with the DMCA and cell-phone unlocking? Just yesterday Jennifer Granick gave testimony before the Copyright Office in which she explained why an exemption to § 1201(a)’s prohibition on circumvention should be granted for a very limited class of works. And just what kind of exemption are we talking about? We are seeking an exemption that would allow individuals to circumvent technological protection measures (TPMs) in the form of firmware that enable cellphone handsets to connect to a wireless carrier.
This exemption would benefit consumers in a number of ways. First, it would ensure that cellphone handsets do not become useless when cell phone service providers consolidate or when service with a particular carrier provides service so poor that switching to a new carrier is the only viable alternative. Second, the exemption would help the Wireless Alliance (and potentially other consumer-friendly groups) to provide cell phone handsets to people who could otherwise not afford them. Third, by allowing individuals to unlock their phones, and take them to new carriers, the rate at which cell phones are discarded would be reduced. Where fewer cell phones are discarded, there is less toxic harm to the environment. Fourth and finally, an exemption to § 1201(a) for cell phone unlocking would provide an incentive for every wireless service provider to provide the very best cellular services possible. In other words, cell phone unlocking would increase the competition among providers in the wireless services space. This would be extremely beneficial for all consumers. All of these benefits are consistent with current policy, since unlocking a cell phone to use it with another carrier is undeniably a non-infringing use.
So what stands in the way of an exemption? Well, during yesterday’s testimony, Steve Metalitz, a well-spoken representative of the content industry, voiced some concerns. One worry he had concerned whether the Copyright Office is the right forum to allay the concerns of consumers who want to unlock their phone. On his view, the FCC or an antitrust court would provide a better forum. The problem with this view is simple: the Copyright Office is the only venue with the authority to issue an exemption for cell phone unlocking. Thus, even if the FCC or an antitrust court said that cell phone service providers could no longer lock their phones to just one network, the potential for liability under the DMCA would persist. (Interestingly, Mr. Metalitz conceded early in the question and answer period not only that cell phone locking may be anticompetitive, but also that it may contribute to environmental damage.)
Another concern is that allowing individuals to unlock their phone would encourage copyright infringement. It is true that modern cell phones contain a great deal of copyrighted content. Modern cell phones also use DRM technology to manage the use of this content. One might infer from these two observations that unlocking a phone is equivalent to unlocking the treasures inside the phone. Not true at all. Cell phones are like personal computers. They have different “layers” of code: there’s a bootloading program, an operating system, a set of applications, and the content that those applications access. For many phones, the locking mechanism only “speaks” to the bootloading program and the operating system. The implication, of course, is that unlocking a phone does not usually give one access to copyrighted content. That content is simply protected by code at another layer. This makes a great deal of sense in the context of phone design. Many layers are better than just one: if the code that locks the phone “lives,” so to speak, at a different layer from the code that protects copyrighted content, all things being equal this will provide more protection for copyrighted works. And, as David Carson astutely pointed out during the Q & A period, if an exemption is granted, service providers will have a powerful incentive to make sure that unlocking a cell phone does not effectively give individuals access to copyrighted media.
We are hopeful that this narrow exemption will be granted. Using an unlocked cellphone on a network of one’s choice is clearly a non-infringing use, and in light of the positive impact an exemption would have on the environment, competition among wireless providers, and consumer choice, this exemption certainly should be granted. Cross your fingers.