Conservatives and libertarians believe strongly in property rights and contracts. We also believe that businesses should compete on a level playing field without government tipping the scales for anyone. So, it should be clear that the principled position for conservatives and libertarians is to oppose the DMCA anti-circumvention provisions that arguably prohibit cell phone unlocking.

Indeed it’s no surprise that it is conservatives and libertarians—former RSC staffer Derek Khanna and Rep. Jason Chaffetz (R–Utah)—who are leading the charge to reform the laws.

In it’s response to the petition on cell phone unlocking, the White House got it right when it said: “[I]f you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network.”

Let’s parse that.

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Earlier this year, Ryan Radia and I spilled a lot of ink on these pages critiquing the various “cell phone unlocking” bills that were introduced in reaction to a successful White House petition. Our assessment of these bills was that they ranged from timid to unhelpful. Their biggest vice was that they were generally band-aids and temporary fixes aimed solely at cell phones and not the underlying problem of the DMCA’s anti-circumvention provision.

Today, I’m happy to see Rep. Zoe Lofgren introduced a bill that would not only fix cell phone unlocking, but also goes a long way in addressing the DMCA Section 1201’s fundamental problems. Quite simply, the Unlocking Technology Act of 2013 makes the DMCA’s anti-circumvention provisions applicable only in cases where the person circumvents a digital lock in order to infringe copyright. So, ripping a DVD in order to distribute a film without permission on BitTorrent would still be illegal, but ripping the same DVD in order to watch the film on your iPad would be OK. This is good sense and good policy.

The bill also would allow the manufacture, sale, and import of anti-circumvention tools now prohibited under DMCA 1201. Sounds nefarious, but in reality what this means is that, for example, Linux users may for the first time get a legal way to play DVDs on their computers. And making tools that help the blind read ebooks won’t get you in trouble with the FBI.

Finally, the bill requires NTIA to conduct a study and publish a report looking at whether the economic impact of the DMCA’s anti-circumvention provisions, and to look at whether Section 1201 should be further amended or even repealed. Yes folks, this bill uses the word “repeal” in its text.

Congrats to Rep. Lofgren and her bi-partisan co-sponsors, Reps. Massie, Eshoo, and Polis, for showing that common sense still has a shot on the Hill.

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Since we last visited the cellphone unlocking question, three bills have been introduced in Congress that address the issue. My sources tell me that forthcoming shortly here on the TLF will be a Ryan Radia patented Radianalysis™ of the bills. While that’s still cooking, though, I wanted to give you my quick impressions.

The bills range from “meh” to crafty.

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In a recent blog post Scott Cleland endorses the Administration’s stance that the DMCA should be reformed to accommodate, as he puts it, “pro-competitive exceptions that consumers who have fully paid for the phone and fulfilled their legal and contractual obligations, of course should be able to use it with other carriers.” As he deftly explains,

In a nutshell, if one has honored one’s legal obligations to others, one should be free to unlock their phone/property because they indeed own the lock and the key. However if one has not honored one’s full-payment and legal obligations to others, one may have the phone in one’s possession, but one does not legally own the key to unlocking all the commercial value in the mobile device. Most everyone understands legally and morally that there is a huge difference between legally acquiring the key to unlock something of value and breaking into property without permission. The core cleave of this cellphone issue is just that simple.

I couldn’t have put it better myself. There is a key distinction to be drawn between two very different conceptions of “cellphone unlocking.”

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I just had a very respectful, reasoned, and, most importantly, informative conversation with Derek Khanna and CTIA on Twitter. It helps clarify a lot about the debate over cellphone unlocking, and I thought I’d share it with you after the jump.

The fact is that carriers today offer a [wide range of unlocked devices](http://blog.ctia.org/2013/03/04/unlocked-devices-2/) for sale, so you never have to worry about unlocking or breaking the law. In fact, almost all of the phones Verizon sells are always unlocked. And as far as I can tell, almost all carriers will unlock your phone, once you end your contract, if you just ask. This is all truly great for consumers.

So I don’t understand why carriers should be opposed to an unlocking DMCA exemption. (To be clear, I’m not aware of individual carriers taking positions on the matter, but their trade association did [file](http://www.copyright.gov/1201/2012/comments/Bruce_G._Joseph.pdf) in the most recent proceeding against the exemption.) It would be better if their customers didn’t have to ask for permission before unlocking a phone that happens to be locked—especially since carriers are willing to give that permission. And if unlocking is no big deal as long as you live up to your contractual obligations, I don’t understand why there should be limits on who can do the unlocking. Here is the exchange: Continue reading →

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I was going to elaborate on Cord’s post, but as luck would have it other people have beaten me to it. First, Tom Lee points out that phone unlocking is one of the DMCA exemptions granted by the Library of Congress in its triennial review process. So iPhone hackers are safe from the DMCA. However, there are other potential issues:

Apple may still have some claim against the iPhone hackers. That’s because circumvention devices typically employ code that’s the property of the device designer. Unless I’m mistaken, the DMCA exemption doesn’t grant anyone the right to use or redistribute others’ code. It’s also possible that circumventing the protection may necessitate the violation of patents held by the device designer.

A similar situation exists in the world of Xbox modding. Until recently it was easy to buy a modchip online. Properly installed, this allows you to turn your Xbox into a device that can run Linux, emulate older consoles, or act as a media center (and, yes, you can play pirated games, too).

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