Debate Over Mobile Phone Unlocking Highlights Fantasy Thinking vs. Real World

from the are-they-serious dept

Thu, Jun 6th 2013 7:31am — Mike Masnick

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.

When it came to written testimony, we'll highlight two key ones. First is from the Library Copyright Alliance, which says what really needed to be said: that section 1201 of the DMCA is ridiculous, broken and in need of real reform:

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.

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.

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, 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.

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.

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.

HR 1123 CU Testimony (PDF)HR 1123 CU Testimony (Text)

HR 1123 CCA Testimony (PDF)HR 1123 CCA Testimony (Text)

HR 1123 CTIA Testimony (PDF)HR 1123 CTIA Testimony (Text)

HR 1123 Metalitz Testimony (PDF)HR 1123 Metalitz Testimony (Text)

Lca Testimony Unlocking Technology Act 06june13 (PDF)Lca Testimony Unlocking Technology Act 06june13 (Text)

Final, Khanna Submission June 6, 2013 (PDF)Final, Khanna Submission June 6, 2013 (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

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

36 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

This comment has been flagged by the community. Click here to show it

out_of_the_blue, 6 Jun 2013 @ 7:33am

Yes, real world is you don't exactly own those phones.
They're just part of a complex system. And the only way you got the phones was to agree that they're not entirely yours.

Just don't buy them. Problem solved.
[ link to this | view in thread ]
Pragmatic, 6 Jun 2013 @ 7:41am

What should we use to communicate with, Blue? Paper cups and bits of string? Morse code? Shouting? Semaphore? Do tell, I'm all ears.
[ link to this | view in thread ]
PaulT (profile), 6 Jun 2013 @ 7:49am

"It's wrong because what protects cloud computing is not copyright law, but good computer security."

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.
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2013 @ 7:52am

Mike, thinking that people should actually own their own property and be able to do whatever they want with it, what kinda insanity is this?

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.
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2013 @ 7:56am

Re:
Use the OOTBPN(ootb_pirate_network) :)
[ link to this | view in thread ]
Zakida Paul (profile), 6 Jun 2013 @ 7:59am

Fantasy thinking V Real world
That sounds like global economic policy.
[ link to this | view in thread ]
PaulT (profile), 6 Jun 2013 @ 8:04am

Re:
This seems to be one of his most common deflection tactics recently. Don't like a small part of a contract you're asked to agree to that makes your side of a deal first? Reject everything to do with it - but don't you dare talk about it. Of course, he also has to base even this on what's presumably a lie.

(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).
[ link to this | view in thread ]
PaulT (profile), 6 Jun 2013 @ 8:05am

Re: Re:
"deal first"

Worse...
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2013 @ 8:08am

surely the reason that Steve Metalitz is there is not so much to try to make a case to stop phone unlocking because of the harm it does (God knows how!!) to the entertainment industries, but because what bullshit he comes out with is exactly what politicians want to hear! it then gives them a reason, somehow, to do what the industries want by using absolute crap reasons and excuses!! he is the one to blame when it all goes tits up for speaking so convincingly!!
[ link to this | view in thread ]
ltlw0lf (profile), 6 Jun 2013 @ 8:13am

Re: Yes, real world is you don't exactly own those phones.
And the only way you got the phones was to agree that they're not entirely yours.

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".
[ link to this | view in thread ]
Baldaur Regis (profile), 6 Jun 2013 @ 8:17am

Re: Fantasy thinking V Real world
And it smells like teen spirit.

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.
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2013 @ 8:18am

Re: Yes, real world is you don't exactly own those phones.
"Just don't buy them. Problem solved."

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?!
[ link to this | view in thread ]
jackn, 6 Jun 2013 @ 8:23am

Re: Yes, real world is you don't exactly own those phones.
If you are so against the free flow of information, why don't you move to the NK or china?
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 6 Jun 2013 @ 8:42am

Re: Yes, real world is you don't exactly own those phones.
They're just part of a complex system. And the only way you got the phones was to agree that they're not entirely yours.

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.
[ link to this | view in thread ]
Coogan (profile), 6 Jun 2013 @ 8:57am

Actually, there's a fairly easy fix this. If you want the government to get all excited about allowing people to unlock their phones, just tell them it'll make it a lot easier for them to spy on "terrorists". They'll absolutely wet themselves in joy.

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!"
[ link to this | view in thread ]
DannyB (profile), 6 Jun 2013 @ 9:26am

Re: Re: Yes, real world is you don't exactly own those phones.
So you think people should not own what they buy?

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.
[ link to this | view in thread ]
jupiterkansas (profile), 6 Jun 2013 @ 9:28am

Re: Re: Fantasy thinking V Real world
Have you seen the scripts the MPAA have been producing. They haven't come up with anything new in decades.
[ link to this | view in thread ]
Chris Brand, 6 Jun 2013 @ 9:32am

"the entertainment industry embracing the online world"
Presumably this is one of those embraces that allows you to stab the embracee in the back ?
[ link to this | view in thread ]
out_of_the_blue, 6 Jun 2013 @ 9:39am

Alright, that is enough, they need to stop cuckolding my little phone.
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2013 @ 9:43am

Camcorders
Do people still use camcorders?

And why in the world would anyone use it to copy a movie off their TV?

Just shows how far behind MPAA is.
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2013 @ 9:50am

Re: Yes, real world is you don't exactly own those phones.
Except one thing you forgot in your fucked as normal rant Out of your Ass... OUR Tax Dollars developed and was given to the ass hats to develope the network.

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?
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2013 @ 9:55am

Re: Yes, real world is you don't exactly own those phones.
OH and one other thing, you apparently forgot, even when and IF i sign the fucking contract they just change it later but im still liable for the fucking disconnect fee.... So contract goes from pay x for y to pay x for y-v on Mondays, and if you bitch you get to pay us (x * 50) for us to listen to you bitch, you had a contract you didnt have to sign, OH we changed it later... Ha Ha the Government likes us (and our "contributions") more than you...
[ link to this | view in thread ]
Rikuo (profile), 6 Jun 2013 @ 10:06am

Re: Camcorders
Precisely. So, someone in the US who wants to put together a thesis in video format and wants to use clips from a Blu-ray must spend at least a few hundred dollars to get a decent 1080p camera (no, your phone's camera just won't do), point it at the screen, play the movie and then dump the resulting footage into Sony Vegas or Adobe Premier...when instead, they can put the disc into their drive and rip it, saving all that money they would have wasted on a camera.
[ link to this | view in thread ]
DannyB (profile), 6 Jun 2013 @ 10:07am

Re: Camcorders
Dear Hollywood,

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.
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2013 @ 10:28am

Re:
By making a big scene of this he is trying to make it clear that he and the people he represents wants to avoid any kind of changes. It is a preemptive measure to avoid politicians getting the thought that 1201 or 1202 could be changed to accomodate this change. He cleverly avoids to go against this law since it is a lost battle already and has probably been cleared by the "appropriate channels" - read lobbyists and economic backers of the politicians.
[ link to this | view in thread ]
Abara, 6 Jun 2013 @ 11:07am

Re: Yes, real world is you don't exactly own those phones.
So Mike gives an explanation on a problematic subject and what you have to reply to that with your mind of a 10 year old focused on contradiction is. This is all complex because of reasons and you have to live with it because corporation.

You go out_of_the_blue be a troll, be free...
[ link to this | view in thread ]
jackn, 6 Jun 2013 @ 11:53am

Re:
reread the article. You seem confused.
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2013 @ 2:44pm

People that do terminate their contracts early usually aren't too concerned about the early termination fee. I had a dispute with Cingular about 7 yrs ago and ended up terminating my contract, I still haven't paid them their fee. All it means is that I won't ever get ATT again. So I don't see the issue with telling someone they can't unlock their phone while they're still under contract or haven't paid the fee. But it should be part of contract law, not copyright. Though I'm not in favor of the subsidies either. If people had to pay full price for a phone, they'd want it to last more than 2 yrs and they'd expect the manufacturer and carrier to support the phone with more than just anti-jailbreaking updates.
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2013 @ 2:48pm

Re: Re:
I'm a shill and us shills never read articles.
[ link to this | view in thread ]
Niall (profile), 7 Jun 2013 @ 4:17am

Re: Yes, real world is you don't exactly own those phones.
If you don't like what people who buy and own the phones do with them, don't sell them. Then happily go out of business when those people buy ones that let them do more, or they just ignore your dinsaur rules anyway.
[ link to this | view in thread ]
Niall (profile), 7 Jun 2013 @ 4:20am

Re: Re:
I think your sarcasm detector may be broken. Please send it in to an authorised dealer, who will charge you 3x its current value for fixing.
[ link to this | view in thread ]
Derek Kerton (profile), 7 Jun 2013 @ 1:01pm

Phone Locks Should Be Illegal
I've said it before, and I'll say it again. In a rational rule system the locking of phones should be illegal. It is tantamount to Ford selling you a car, but not giving you the keys.

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.
[ link to this | view in thread ]
Trinath, 13 Jun 2013 @ 2:30am

Need this
Need this is a nice debit and it unlocking is also a kind of technology
[ link to this | view in thread ]
Jack Bendlecott (profile), 13 Jun 2013 @ 7:53am

Re: Re: Yes, real world is you don't exactly own those phones.
When/why did we ever let businesses start doing that?!

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.
[ link to this | view in thread ]
Jack Bendlecott (profile), 13 Jun 2013 @ 7:55am

Re: Re: Yes, real world is you don't exactly own those phones.
Quicher bitchin'! You don't pay the War of 1812 phone tax anymore, so just give it time and the 9/11 one will go away...someday.
[ link to this | view in thread ]
MayField (profile), 22 Jul 2013 @ 4:39am

Listen
I'm always surprised when businesses fail to listen to their own customers. Whilst I know they don't expect everyone to vote with their feet, there must be a certain number that do. Ultimately customer view matters in the longer term and surely the obverse of all this is that the company that offers what the customer wants will get the biggest share?
[ link to this | view in thread ]