Debate Over Mobile Phone Unlocking Highlights Fantasy Thinking vs. Real World
from the are-they-serious dept
Today in the House Judiciary Committee, they're holding hearings concerning cell phone unlocking, focused specifically on Rep. Goodlatte's proposed bill, which actually seems to be the weakest of all the proposed bills. It doesn't offer a permanent fix. It doesn't fully tackle the problem. Actually, it barely tackles the problem, and serves only to punt the issue down the road. That is, it would "repeal" the rejection of the exemption to the DMCA for cell phone unlocking by the Librarian of Congress (if you don't recall, the whole fight is because the DMCA ridiculously makes it illegal to circumvent "technology protection measures" even if the reason has nothing to do with infringing on someone's copyright, but every three years, the Librarian of Congress gets to issue "exemptions"), but would allow the Librarian of Congress to revisit the issue at the next triennial review. It does nothing to address the actual problem, which is a ridiculous and broken anti-circumvention clause, section 1201 of the Copyright Act.The hearing has four witnesses... and all are more or less lining up behind Goodlatte's weak bill, some for better reasons than others. A few others haven't been invited to speak, but have submitted written testimony as well. I'll cover the remarks of the four speakers going in order of "reasonable" to "ridiculous" followed by two of the interesting written submissions.
- First up, is testimony from George Slover of Consumer's Union. He highlights, correctly, how important mobile phone unlocking is for consumers, and points out that it's a demonstration of "the harm the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) are causing consumers." He also points out that this issue should be a reason to explore more deeply the role of the anti-circumvention provisions found in Section 1201. He does offer a qualified support for the bill, but lists out a bunch of other changes that he thinks really should be added to the bill, to further allow consumer freedom and innovation around unlocked phones to thrive. The basic rights of consumers is important, and Slover definitely highlights that.
- Next up, is testimony from Steven Berry from the Competitive Carriers Association, who have also been fighting hard to allow phone unlocking. There, the message is obvious. The competitive carriers provide greater innovation in terms of business models, service plans, etc., but much of that is enabled by allowing unlocking of phones, so users can switch from big network providers to a competitive carrier, without having to buy a new phone. This testimony focuses on the importance of unlocking specifically, and doesn't touch on the bigger issue of fixing the anti-circumvention provision. It's narrowly focused.
- Then we get to testimony from Mike Altschul from CTIA, which is basically the trade group for the big mobile carriers. Their argument is basically "hey, we let you unlock your phones if you ask, so there's no need for this exemption." It claims, ridiculously, that carriers need to "lock" their phones so they can provide subsidies to make phones cheaper. But that's clearly not true. Carriers that subsidize their phones also have contractual early termination fees, which solve the subsidy issue, so the claim that they need the locks to protect the subsidies makes no sense. They already have the ability to do so contractually -- and they use it. There's no need for them to rely on digital locks and a broken copyright law to further protect something they already have through contract. Furthermore, the argument that they already allow unlocking is simply not correct. They allow unlocking in certain situations, but not all, and people have run into issues such as when travelling abroad, and just wanting to put in a foreign sim card.
- And, finally on the spoken testimony, we come to testimony from Steve Metalitz. Metalitz is the MPAA and RIAA's go to guy for writing the laws they like in DC. ACTA, SOPA, TPP have his fingerprints all over them, and he's the epitome of an extreme maximalist. There's nothing about greater copyright protection that he finds problematic, and he always supports expansions. I have no idea why he's a witness at this panel, since he has nothing to do with phone unlocking, and while he has advocated for the MPAA/RIAA's extreme interests during DMCA exemption reviews, he officially took "no position" on cell phone unlocking.
His testimony is basically a spirited, ridiculous, and flat-out misleading "defense" of Section 1201 and the anti-circumvention provisions of the DMCA, which he seems to credit as being the reason why we have any entertainment at all online today. He claims that 1201 is "one of the most critical provisions" and says that it, specifically, has been "critical" (he likes that word) to the entertainment industry embracing the online world. This is wrong. First, the industry was dragged kicking and screaming into the online world, not willingly. And the anti-circumvention provisions have been nearly entirely useless in protecting their works, nearly all of which are available DRM-free from unauthorized sources. On the music front, they've already ditched DRM, and others will likely follow.
Metalitz then claims that 1201 is critical to the success of cloud computing, which is also wrong and ridiculous. It's wrong because what protects cloud computing is not copyright law, but good computer security. If cloud providers are hanging their hat on a copyright infringement claim if someone breaks into their network, they're doing it wrong. It's also ridiculous, because it tries to pretend that the tech industry is supportive of section 1201, when many find it quite problematic.
After that, he points out that 1201 was such a good idea that "scores of other countries have followed." What he leaves out is that those "scores of other countries" were pressured by the US government, in large part because of international treaties that (oooh, look at that) were strongly "supported" by Metalitz. It's quite a feat to claim that other countries supported your idea when they did so under pressure from the US government, using points highlighted by the RIAA/MPAA's own representatives.
Most significantly, the Section 1201 rulemaking is an exercise in legal theatre. All the parties to the rulemaking—those seeking an exemption, the rights holders, and the Copyright Office staff--acknowledge that it is unclear whether the rulemaking has any practical effect. This is because Section 1201(a)(1)(C) authorizes the Librarian of Congress to adopt exemptions to the Section 1201(a)(1)(A) prohibition on the act of circumventing a technological protection measure (TPM), but not to the Section 1201(a)(2) prohibition on the development and distribution of the technologies necessary to perform the circumvention. In other words, after receiving an exemption, a person might be legally permitted to perform the act of circumvention, but might have no lawful way of obtaining the technology necessary to perform that act.There's more to it, but that's a good snippet. It's a shame that this more detailed view wasn't included as a part of the actual hearing.
Similarly, all the parties understand that what occurs inside the hearing room has no connection to the world outside it. In the last three rulemaking cycles, LCA has joined with other groups in seeking exemptions for educators and students to circumvent the TPMs on DVDs for the purpose of making educational uses of film clips. The rights holders know that the uses we seek will not harm their market in any way. They also know that whether the exemption is granted or rejected will have absolutely no impact on the level of infringement. This is because the technology necessary to circumvent the TPMs on DVDs is widely available on the Internet and easy to use. Nonetheless, the rights holders reflexively oppose the exemption or seek to narrow it so that it would be unusable. As a result, the discussions in the rulemaking descend into hyper-technical issues such as the quality of video necessary for effective pedagogy in different kinds of courses.
Moreover, in two rulemaking cycles, witnesses from the Motion Picture Association of America (MPAA) demonstrated how a person could camcord a film off of a high definition television. MPAA was attempting to show that a relatively high quality recording could be made without circumventing a technological protection measure. What it succeeded in proving, however, was the contradiction underlying its position. If one could obtain a high quality copy without circumvention, why use technological protection measures in the first place, and why should their circumvention be unlawful? Moreover, the MPAA was demonstrating how to camcord a film precisely at the same time it was asking Congress, state governments, and foreign legislatures to impose criminal penalties on camcording.
Similarly, we've got Derek Khanna's submission which he discussed here yesterday. Khanna's submission, alone among all of the testimony, actually delves into the details of what the actual problems are and how allowing people to actually own what they buy (what a concept!) is a good idea for consumers, for innovation and for business. It's fairly comprehensive, and again, his voice would have been quite a useful addition to the actual hearing.
Banning technologies is an extreme step by government, a truly incredible reach of Federal power, and I would petition this body to be very careful in continuing to delegate the authority of what technologies to ban to a quasi-regulatory agent when, in these and many other circumstances, there is no compelling governmental interest.Hopefully, Congress will recognize that punting this and pretending there's nothing wrong with section 1201 is the wrong way to go, but given the situation, it doesn't seem like those in Congress are even open to considering that issue at this time.
This legislation, as currently crafted, does not reflect the input of the White House, former FCC Chairman, FCC Commissioner, scholars or outside groups such as R Street and FreedomWorks. Our campaign was about actually solving this problem and restoring a free market. Minor changes to this legislation would ensure that H.R. 1123 actually solves the problem it intends to address by permanently legalizing unlocking and allowing for businesses to sell the technology to consumers. Overall, our contention is that given the enormous benefits that phone unlocking provides to the consumer, phone unlocking should be made permanently lawful for the consumer to use, industry to develop and marketers to sell.
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Filed Under: 1201, anti-circumvention, bob goodlatte, congress, copyright, digital locks, dmca, judiciary committee, mobile phone unlocking, mobile phones, steve metalitz
Companies: cca, consumers union, ctia, mpaa, riaa
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Yes, real world is you don't exactly own those phones.
Just don't buy them. Problem solved.
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Re: Yes, real world is you don't exactly own those phones.
This may be true for AT&T and Verizon (though I recently saw an ad for AT&T saying that you could bring your device to AT&T, though they still charge you the same price whether you bring your own or use theirs,) but it certainly isn't true for T-Mobile, Sprint, or many of the MVNO cell companies out there.
I just bought an unlocked Samsung III, which I am using on T-Mobile. I didn't agree or sign anything when buying the phone. I bought it unlocked, and have root on it. However, the same vendor was selling locked phones which would have worked fine for most people (mine has all of the data-bands, so I could theoretically use my phone on AT&T, which was worth the extra cost even though I'd never again use AT&T.) The only difference between the phones is I bought it directly from the manufacturer unlocked, so no DMCA violation occurred, while the folks that bought their phones locked would have to violate the DMCA to unlock them. T-Mobile doesn't care...as they aren't subsidizing either my purchase of an unlocked phone or their purchase of a locked one.
The problem isn't buying them, it is going to AT&T/Verizon and agreeing to not buy the phone that is the problem. Don't sign stupid contracts that lock you into a phone that you didn't "buy".
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Re: Yes, real world is you don't exactly own those phones.
In a day and age where the Internet is as much of our daily lives at home as running water, this idea is stupid. Why should businesses be able to lock up technology from the public because they aren't willing to "sell" it.
Really if this issue/legislation wants to be fixed it should clearly spell out that you cannot sell a device (not talking songs/movies, but technology) with any sort of DRM. It should be unlocked and available to be jailbroken or used in any way the consumer wants to use it.
Honestly, wasn't this country founded on the concept of government not telling us exactly what to do when? When/why did we ever let businesses start doing that?!
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Re: Re: Yes, real world is you don't exactly own those phones.
We didn't "let" them. They took/made those rights for themselves because our laws allow lawmakers to be "bought."
Citizens United was simply the icing on the cake. Go all the way back to 1886, in Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 to when some clerk (may he rot in hell forever) wrote "The defendant Corporations are persons ..."
Ever since then, they've taken over nearly every right in the Bill of Rights, with no end in sight.
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Re: Yes, real world is you don't exactly own those phones.
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Re: Yes, real world is you don't exactly own those phones.
Just don't buy them. Problem solved.
Oh no. We're entitled to have everything on our own terms. You should know that by now.
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Re: Re: Yes, real world is you don't exactly own those phones.
That's the essential crux of the conflict. There are a set of people who believe that putting a microprocessor in something means that someone else should own control of another person's property.
But Hollywood believes it is entitled to have everything on its own terms. We all know that by now.
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Re: Yes, real world is you don't exactly own those phones.
ON top of the fact (just look at your bill) you are continuing to pay special taxes for increased infastructure and E-911 (which is done and just a boondoggle)... SO if i am forced by the power of the state (violence) to pay for it, why do they get to take extra 'rights' to control it?
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Re: Yes, real world is you don't exactly own those phones.
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Re: Yes, real world is you don't exactly own those phones.
You go out_of_the_blue be a troll, be free...
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Re: Yes, real world is you don't exactly own those phones.
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(I don't know how it works in the US, but I certainly own the phone once my contract's expired. Vodafone even unlocked my old iPhone for me after I renewed my contract, enabling me to sell it on for a small profit on my initial outlay for my new phone).
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Worse...
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Indeed, and the stupid thing is that the measures suggested by this fool are going to make security WORSE, not better. Security researchers on the right side of the law may have their activities hampered, or even made impossible, while existing black hat hackers will continue ignoring the law as normal. In other words, serious flaws cannot be fixed before they are already exploited.
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This is just more proof that you just want all intellectual property law abolished so that you can steal everything from the big corporations (strike through) starving artists and middlemen (strike through) poor content creators and patent trolls (strike through) hard working innovators. You aren't fooling anyone mike.
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Fantasy thinking V Real world
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Re: Fantasy thinking V Real world
Actually, this hearing looks like standard political theater: grave solons, carefully chosen "witnesses", the token contrary view...we've been here before. Hey, maybe the politicians can get their pals in the MPAA to whip up a new script for them. Something with more pizzazz, something that has dogs in it. And kissing - John Q. Public eats that stuff up.
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Re: Re: Fantasy thinking V Real world
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I have no idea if unlocking a cell phone would make it easy to spy on people - maybe it would, but I'd guess more likely not. But since when has Congress been interested in the facts? "You mean we can more easily spy on citiz...er, terrorists, if we make it easier to unlock cell phone? Law passed! Get this to the President STAT!"
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"the entertainment industry embracing the online world"
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Camcorders
And why in the world would anyone use it to copy a movie off their TV?
Just shows how far behind MPAA is.
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Re: Camcorders
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Re: Camcorders
There are phones that don't need wires now. And you can listen to music and watch movies on them.
Maybe you can see a business opportunity here? No? What's that you say? People shouldn't be listening / watching that way because it's wrong? Okay, nevermind.
The future.
We'll wake you up when the paradigm has shifted.
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Phone Locks Should Be Illegal
There are other countries where SIM locks are illegal, such as Belgium. If carriers want to pursue a subsidy model, which is a good idea, then they need to protect their investment in ways that don't cripple the hardware the consumer purchases.
Make no mistake. The consumer does purchase the phone, subsidy or not. If you breach your carrier contract, you pay the ETF and keep your phone...they don't ask for the phone back, do they? Is that an option? NO. And after the 2-year contract, the phone still belongs to the customer. It seems clear that the phone is the customer's -- so why is it not illegal for the carrier to booby-trap your phone?
Forget making consumer unlocking legal. The People should be demanding that the locking of phones be made illegal.
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Need this
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Listen
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