Victory in Anti-Circumvention Proceedings

Today, the Copyright Office issued new rules allowing people to circumvent technological protection measures on their cell phones in order to be able to switch carriers and use the phone on a different network.


In order to control the distribution and use of their works, copyright owners are increasingly using access and copy protection schemes in their digital works. The Digital Millennium Copyright Act (DMCA) [at 17 USC 1201] prohibits circumvention of these mechanisms, with only a few narrow statutory exemptions. However, the Copyright Office is allowed to issue new exemptions if you can prove that the statute burdens a non-infringing use and that an exemption won't overly harm copyright interests.

On behalf of Robert Pinkerton, an individual, and The Wireless Alliance, we applied for an exemption for unlocking cell phones. [pdf].

We argued that mobile communications providers are using software locks to control customer access to mobile phone operating software embedded inside the devices. These locks prevent customers from using their handsets on a competitor’s network. Customers who want to use their handsets on a different network must circumvent the locking software to access the computer program that allows the phone to operate (mobile firmware). Mobile providers are using section 1201(a) to stop customers from selecting a provider of their choice, resulting in poorer service and higher costs for customers, reduced competition contrary to explicit U.S. policy, and environmental disaster as a result of mobile handset waste. Locked phones also contribute to the problem of the digital divide between rich and poorer nations.

The copyright industry filed objections, as did the CTIA and TracFone , a large vendor of pre-paid cell phones. TracFone and CTIA argued that the DMCA was necessary to help wireless providers maintain their business models.

This exemption will directly affect several pending lawsuits brought by TracFone against large buyers of aftermarket pre-paid handsets. It may also affect the pending VirginMobile cases, which do not make DMCA claims, but nonetheless challenge the practice of unlocking with other tort claims.

Hopefully it will help travellers like Robert Pinkerton, and resellers and recyclers like The Wireless Alliance to make full productive use of the mobile handsets that they buy.


You can also access our reply comments and exhibit the transcript of the hearing before the Copyright Office.
After the hearing, we were asked to answer supplemental questions. Our answers to those questions are here.

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