The Government Might Want To Legalize Phone Unlocking, But Unfortunately It Signed Away That Right

from the oops dept

Tue, Mar 12th 2013 12:06pm — Mike Masnick

We've written plenty about the Librarian of Congress' decision to remove the DMCA anti-circumvention exemption that applied to mobile phone unlocking, along with the White House petition that got over 100,000 votes, and the White House's quick response to say that it agreed that phone unlocking should be legal. But for reasons that are not at all clear, it seemed to think it was something that could be fixed by telco law, even though it was copyright law that got us into the mess.

Lawyer Jonathan Band, who works for the Association of Research Libraries, has put out a really excellent short legal primer on the issue, which is a highly readable 8 pages, and covers all the necessary details and background, including a few things you probably have not read elsewhere (such as how some court cases had already narrowed the old "exemption" anyway). However, the most interesting part to me is where he talks about how the White House's position is likely in violation of existing international trade agreements and almost certainly against what the administration itself, via the USTR, is proposing in the Trans Pacific Partnership (TPP) discussions:

The White House position, however, may be inconsistent with the U.S. proposal in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the KoreaU.S. Free Trade Agreement (KORUS) and other free trade agreements to which the United States is a party. This demonstrates the danger of including in international agreements rigid provisions that do not accommodate technological development.

KORUS obligates the United States and Korea to adopt provisions concerning the technological protection measures based on section 1201 of the DMCA. Furthermore, KORUS mandates that the parties "confine exceptions and limitations" to the circumvention prohibition to a specific list of exceptions that matches the specific exceptions in the DMCA. Cell phone unlocking, of course, is not on that list. KORUS does allow for administrative procedures like the DMCA's rule-making to adopt temporary exemptions, but not permanent ones. The challenge before Congress is to devise a permanent exception for cell phone unlocking that does not breach the obligations under KORUS and other similar free trade agreements.

The draft text for TPP is secret, but the U.S. proposal for the IP chapter was leaked two years ago. The leaked proposal contained KORUS's closed list of exceptions. Because TPP is currently under negotiation, there still is time to make sure that the TPP does not prevent national governments, including the United States, from amending their laws to permit the unlocking of cell phones and other wireless devices.

This is why we find international agreements like ACTA, TPP and now TAFTA so worrisome. Even when they do not directly change the law, they often lock us into bad laws such that we cannot easily fix them. This is one small example, but an important one. Hopefully, the White House and the USTR will (1) release the current negotiating text for the IP chapter on the TPP so that knowledgeable people can go through and it make sure these little "easter eggs" are not present (2) make a clear and definitive statement that it will not agree to any international agreement that would do something as ridiculous as tie Congress's hands when it comes to allowing people to unlock their mobile phones.

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Filed Under: congress, copyright, dmca, exceptions, exemptions, free trade agreements, korus, limitations, mobile phones, tpp, unlocking

36 Comments

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Ninja (profile), 12 Mar 2013 @ 10:32am

Aha, isn't it obvious? The MAFIAA had it crafted into those agreements precisely to prevent later "fixes". These tactics now yielded one major fruit. However will they start suing people for jailbreaking? I wonder if the US has enough jails to deal with the extra influx of "criminals".
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silverscarcat (profile), 12 Mar 2013 @ 10:53am

It's too bad...
That our usual detractors won't see the problem even though you spelled it out for them.
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Anonymous Coward, 12 Mar 2013 @ 12:13pm

Note the US Government ignores its own laws when its suites it, such as border searches, and obeys every letter when it suites its campain contributors.
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Anonymous Coward, 12 Mar 2013 @ 12:14pm

This should be easy. Create legistlation that makes things like cell phone locking illegal and there will be no need for circumventing!
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DH's Love Child (profile), 12 Mar 2013 @ 12:19pm

I think you have far too much faith in this government to think they will address this in any meaningful way.
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jilocasin (profile), 12 Mar 2013 @ 12:33pm

'temporary' solutions aren't a problem
Well if this is correct:

"KORUS does allow for administrative procedures like the DMCA's rule-making to adopt temporary exemptions, but not permanent ones."

That shouldn't be a problem, thanks to the helpful example of the copyright maximalists.

All we need to do is to craft a solution that's _limited_ to infinity minus a day.

If the Supreme Court says that's good enough to keep copyright terms 'limited', it should be just fine for some ol' treaty.
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Anonymous Coward, 12 Mar 2013 @ 12:34pm

Re:
Good thing the prison system in the U.S. is privatized.

More criminals = more money for the privatized prison system, and more lobbyist money going towards passing more criminalizing laws.
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jupiterkansas (profile), 12 Mar 2013 @ 12:35pm

Re:
They don't want to send people to jail. They just want them to pay hefty fines.
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Anonymous Coward, 12 Mar 2013 @ 12:55pm

What is the punishment for unlocking a cell phone. If you can't change the law change the punishment. Make it a fine of 10 cents, or something.
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Greg (profile), 12 Mar 2013 @ 12:58pm

This is one of the main problems with the DMCA. It expanded copyright laws to cover things that are not really about copyright. The digital locks provision of the DMCA is entirely separate from anything really having to do with copyright because it only has to do with thing that DO NOT violate copyright.

If I break the digital lock to pirate something, I have already committed copyright infringement so I can be sued/charged over that with no need of the additional provision. If I break the digital lock to do something that is completely legal this is the ONLY time the provision will come into play. It is like making all gun ownership illegal because they can be used to rob and murder. Last time I checked robbing and murdering is already illegal so why would you punish gun owners that don't violate the law.

The digital locks provision is all about Hollywood getting to run its own little fascist scheme where they get to decide what you can do with your own personal electronics.
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Shmerl, 12 Mar 2013 @ 1:11pm

Again, this should not be narrowed down to unlocking phones. The whole DMCA/1201 idiocy should never be put in any trade agreements, since it will make it harder to scrape it from internal US law.
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Anonymous Coward, 12 Mar 2013 @ 1:25pm

Seriously..
What were they thinking when they made it necessary to renew exceptions every three years? I can't think of a single instance of an exception that would be justified at one point and not at a later point.

They must have had a reason when they put it in there ,but I can't fathom it.
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Anonymous Coward, 12 Mar 2013 @ 1:31pm

More than that it is giving the necessary tools for others to truly take away American innovation by locking it away in their own patent systems around the world.

Chinese Knockoff Maker Reportedly Copies, Patents iPhone 5 Design
http://www.wired.com/gadgetlab/2012/09/goophone-apple-iphone/
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CK20XX, 12 Mar 2013 @ 1:51pm

Re: It's too bad...
They'd probably just say that cell phones should never be unlocked in the first place, that it's immoral to do so or that the issue is so petty that no one should make a big deal out of it.

The new world order loves citizens like that. They come pre-brainwashed!
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Crashoverride (profile), 12 Mar 2013 @ 2:02pm

Kind of like how Washington and Colorado Marijuana legalization laws are illegal under Federal and International UN treaties.

http://seattletimes.com/html/localnews/2020487915_apcolegalizingmarijuanaun2ndldwriteth ru.html

This appears to be the setting up for a major test of states rights.
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Anonymous Coward, 12 Mar 2013 @ 2:31pm

Re:
The UN is the worst. Get rid of that bullshit already. Fucking pussies.
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Ed C., 12 Mar 2013 @ 2:40pm

It's still not clear how or why the DMCA should even apply to unlocking a cell phone in the first place. Other rulings on the "anti-circumvention" clause have already clarified that it can only apply to protection schemes for works covered under copyright. In this case, the purpose of the "lock" is to prevent the user from changing carriers, not the duplication of a copyrighted work.
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AzureSky (profile), 12 Mar 2013 @ 3:06pm

Re: Re:
but the prison lobby wants them sent to prison, and they got a metric fuckton of money
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Anonymous Coward, 12 Mar 2013 @ 4:35pm

Re: Re: Re:
school to prison pipeline
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dwightwade, 12 Mar 2013 @ 5:18pm

Meh, its not going to get done by Congress anytime its lets put it in short. You can still using I guess, "illegal" unlocking service online. There are many. Like those VPNs for Six Strikes except the unlocking service actually works.
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Anonymous Coward, 12 Mar 2013 @ 9:38pm

Re:
Almost no students that I know obey copy'right' law. Very few. They all have illegally downloaded texbooks in their laptops, everyone jailbreaks their phones, etc... The law is effectively mute, everyone around me now ignores it from strangers to friends and no one has any sympathy for it. The law is merely a corporate written formality that's unenforced, unenforceable, and regularly ignored by everyone. No International agreement can fix that.
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Anonymous Coward, 12 Mar 2013 @ 10:50pm

See, this is why I want to laugh each and every time the trolls whine, "If you want something changed, change it democratically." Every single time, either the trolls pour cash into the mouths of those with ruling power, and assuming you bypass that level of security, they start wagging their fingers and say "Ah ah ah, you can't do that."
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davnel, 13 Mar 2013 @ 2:59am

How did the Librarian Of Congress get involved in a civil contractual matter between a company and a customer? What has copyright to do with unlocking phones? Are they suggesting that unlocking the phone somehow distributes the content of the ROMs inside it. What copyright, exactly, is being violated?

Anticircumvention rules in the DMCA should apply to entertainment content, movies, songs, books, and the antipiracy protection applied thereto. What has unlocking or "jailbreaking", both of which are civil contract violations at worse, got to do with copyright? Someone had best take a long hard look at what Congress has done to us.
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Jeremy Lyman (profile), 13 Mar 2013 @ 4:37am

If only there was a provision that criminalized "circumventing" sovereign legislation authority.
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Anonymous Coward, 13 Mar 2013 @ 5:36am

this is the problem when allowing only one side of the coin to give input and not be able to present sensible changes. going down the road that only benefits certain business interests at the expense of everything else, giving monopolies on certain items, is a bad thing that can only get worse when no changes are allowed. i wonder if Korea actually realised this fact? i also wonder if anyone there is taking too much notice? i certainly hope not!
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Anonymous Coward, 13 Mar 2013 @ 7:25am

Re: Re:
Why pay 33 dollars a day when you can get it for 29 right? Who gives a fuck if the assaults on other inmates and staff are about 5 fold higher because they bought discounted EVERYTHING.
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John, 13 Mar 2013 @ 8:52am

Re:
No it won't: the thing nobody is saying here is that the Congress can simply repeal legislation later, or the president can refuse to uphold or enforce it (and perhaps issue an Executive Order threatening as enemies of the people those who do), when the legislation is unconstitutional: it's just for now the status quo is all pretending otherwise, with the Court (for many decades) being more concerned with everybody being oppressed equally by the same rules and calling it "order", rather than a reign of lawlessness. Laws like these are even a taking: more than just on your property, they significantly infringe the right to property itself, though I'm sure the legal scumbags have some sophisticated theories justifying it.
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NicGibsn (profile), 13 Mar 2013 @ 10:12pm

Government has taken the correct step. I hope this works to stop the illegal activities related to Mobile phones to extent.
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James R Grinter, 14 Mar 2013 @ 5:32am

it'd be fairly easy to solve. Just pass legislation that requires the telco to remove the SIM-lock on the device on demand, for free (or, go further - prevent them being sold like that in the first place).

No-one would need to be circumventing the technical measures prevented by the DMCA and treaties, because it would be done legally for you.
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Derek Kerton (profile), 14 Mar 2013 @ 7:58pm

Weird turn of events
So we can't unlock our cellphones because of trade obligations to S. Korea?

That's ironic, because in their country it is ILLEGAL for a cellular carrier to subsidize a phone at all.

However, with big companies like Samsung, LG, and Pantech selling phones to the USA, why would Korea want to extend the life of phones beyond 2 years by unlocking them to a second-hand market?
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Anonymous, 17 Mar 2013 @ 8:11am

Get rid of the treaties if they're no good.
Throw away the treaties. They're not worth the paper they're printed on.

The US has abrogated lots of treaties in the past. And not long ago, either. I believe G W Bush actually abrogated a treaty, which is now dead.
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Bergman (profile), 17 Mar 2013 @ 1:14pm

Re: 'temporary' solutions aren't a problem
We've had a temporary standing army for decades. It only exists due to a loophole, and Congress has to keep reauthorizing it every few years or it automatically reverts to peacetime levels.

The federal government has absolutely no problem extending a temporary measure indefinitely, what's one more on the pile?
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Tafoor, 25 Mar 2013 @ 12:22am

Its not good of being the cell phone locked in first place they should thought it back before applying it.
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thehelpdeskguy, 16 Apr 2013 @ 4:09pm

Broken URL for J Band's paper
Mr. Masnick:

The newly redesigned ARL website has broken the link for his paper. Mr. Jonathan Band, Esq., graciously sent me a copy in response to my request. I will happily upload it, if you wish.
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Marina Smith, 31 Jul 2014 @ 5:07am

business mobile
A good business landlines is always handy especially when it comes to important calls from bosses.
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David Troy, 13 Feb 2015 @ 9:10am

Business Mobiles
Not sure if it would be good or bad for the business mobiles industry! Either way you'd think tying their own hands on the matter was never a good move.
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