TracFone Gets Personal

News: In a great article (which I'm asking for permission to post in full) by Louis Trager for Communications Daily, Tracfone is claiming that I received personal favoritism from the Copyright Office. I. Received FAVORITISM. From the COPYRIGHT OFFICE! Stop laughing and keep reading.

Background: Every three years, the Copyright Office holds a rulemaking for exemptions to the Digital Millennium Copyright Act's anti-circumvention provisions. The statute prohibits circumventing digital locks that control use of copyrighted works. Intended to stop crackers from cracking DRM on music and movies, phone companies were using the statute to stop people from unlocking cell phones they had purchased so that they could use them on other wireless communications providers' networks. CIS and the Cyberlaw Clinic applied for an exemption for cell phone unlocking on behalf of an individual and a recycling business, The Wireless Alliance. After a long, hard battle, we won, and our exemption was granted. I wrote two Wired News/Circuit Court columns about unlocking, Free The Cell Phone! and Cell Phones Freed! Poor Suffer?.

Following our win, Tracfone sued the Copyright Office, claiming violations of due process, constitutional separation of powers and the Administrative Procedure Act.

Details: Apparently, at a California State Bar conference, Copyright Office General Counsel David Carson criticized Tracfone for filing its objections seven months after the public comment period had closed, and for failing to provide a satisfactory explanation. TracFone attorney Jim Baldinger lashed out at Carson, and then at me. Here's the quote from Trager's article:

Baldinger suggested that the Copyright Office went to unusual lengths to accommodate exemption proponent Jennifer Granick, exec. dir. of Stanford Law School Center for Internet & Society, to the extent of flying out to stage one of 2 hearings in the proceeding at the law school. The other was in D.C. Asked how he reconciled suspicions of favoritism with Carson's having had nothing good to say about Granick's boss, Prof. Larry Lessig, Baldinger said he couldn't: "I don't understand why the Copyright Office did what it did... I'm shocked by the way the whole thing has transpired."

The fact is, we beat TracFone fair and square. There's nothing unusual about the Office flying out for hearings. In the previous rulemaking, they held sessions in Los Angeles and D.C.

And, their late submission was not strategic as a piece of advocacy. TracFone basically proved everything we were saying was true, which was that cell phone locks were "technological protection measures" covered by the anti-circumvention statute, that there was a current risk of harm to unlockers, and that the industry was flat out unable to point to any way in which the exemption would promote copyright infringement, the prevention of which is the point of the statute. TracFone proved for us that they were using the DMCA to protect their prepaid business model, which was not what Congress intended or what the Copyright Office is supposed to promote.

I didn't need and I didn't get Copyright Office favoritism. I guess Baldinger can't imagine that a lone clinical teacher with eight students and a small office in the basement of Stanford Law School could beat his big law firm and rich client. But we did.

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