Rep. Goodlatte Slips Secret Change Into Phone Unlocking Bill That Opens The DMCA Up For Wider Abuse

from the a-big-mistake dept

Tue, Feb 25th 2014 5:16am — Mike Masnick

As you may recall, there's been a ridiculous (on many levels) fight concerning the legality of "unlocking" mobile phones. Let's go through the history first. Because of section 1201 of the DMCA, the "anti-circumvention" provision, companies have been abusing copyright law to block all sorts of actions that are totally unrelated to copyright. That's because 1201 makes it illegal to circumvent basically any "technological protection measures." The intent of the copyright maximalists was to use this section to stop people from breaking DRM. However, other companies soon distorted the language to argue that it could be used to block certain actions totally unrelated to copyright law -- such as unlocking garage doors, ink jet cartridges, gaming accessories... and phones. There have been court cases about a number of these issues, with (thankfully) many courts ruling against this kind of abuse, though it still happens.

Separately, every three years, the Librarian of Congress gets to announce "exemptions" to section 1201 where it feels that things are being locked up that shouldn't be. Back in 2006, one of these exemptions involved mobile phone unlocking. Every three years this exemption was modified a bit, but in 2012, for unexplained reasons, the Librarian of Congress dropped that exemption entirely, meaning that starting in late January of 2013, it was possible to interpret the DMCA to mean that phone unlocking was illegal. In response to this there was a major White House petition -- which got over 100,000 signatures, leading the White House to announce (just weeks later) that it thought unlocking should be legal -- though, oddly, it seemed to place the issue with the FCC to fix, rather than recognizing the problem was with current copyright law.

Following this, a slew of new bills were introduced in Congress, many of which attempted to narrowly deal with the specific issue, while leaving the larger issues untouched. Many of these bills were incredibly problematic, though eventually the consensus seemed to get behind one bill before... nothing. Fast forward a year and nothing has changed, though the main bill, supported by Rep. Goodlatte, called the Unlocking Consumer Choice Act, is scheduled to go to a vote on Tuesday. It had gone through the basic markup process and some adjustments had been made to make it a good first step towards fixing problems.

As of last week, a bunch of folks, who were concerned about the issues with unlocking and how Section 1201 was a problem, were supportive of this bill and were expecting to publicly speak out in favor of getting the bill passed. Except... late last week, with no explanation whatsoever, and no consultation with others even though the markup and Judiciary Committee process had already concluded, Rep. Goodlatte slipped into the bill a little poison pill/favor to big phone companies, adding a seemingly innocuous statement as section (c)(2):

No Bulk Unlocking--Nothing in this subsection shall be construed to permit the unlocking of wireless handsets or other wireless devices, for the purpose of bulk resale, or to authorize the Librarian of Congress to authorize circumvention for such purpose under this Act, title 17, United States Code, or any other provision of law.

While this gives Goodlatte and other maximalists some sort of plausible deniability that this bill is making no statement one way or the other on bulk unlocking, it certainly very strongly implies that Congress believes bulk unlocking is, in fact, still illegal. And that's massively problematic on any number of levels, in part suggesting that the unlocker's motives in unlocking has an impact on the determination under Section 1201 as to whether or not it's legal. And that's an entirely subjective distinction when a bill seems to assume motives, which makes an already problematic Section 1201 much more problematic. Without that clause, this seemed like a bill that was making it clear that you can't use the DMCA to interfere with an issue that is clearly unrelated to copyright, such as phone unlocking. But with this clause, it suggests that perhaps the DMCA's anti-circumvention clause can be used for entirely non-copyright issues if someone doesn't like the "motive" behind the unlocker.

Given that, both Public Knowledge and EFF have pulled their support for the bill. As Public Knowledge noted:

"The new language specifically excluding bulk unlocking could indicate that the drafters believe that phone unlocking has something to do with copyright law. This is not a position we support. Even if Congress believes that bulk unlocking is a problem, it's clear that it's not a copyright problem, just as individual unlocking is not a copyright problem. A bill designed to scale back overreaching copyright laws should not also endorse an overreach of copyright law."

EFF made a similar statement:

By expressly excluding [bulk unlocking], this new legislation sends two dangerous signals: (1) that Congress is OK with using copyright as an excuse to inhibit certain business models, even if the business isn’t actually infringing anyone’s copyright; and (2) that Congress still doesn’t understand the collateral damage Section 1201 is causing. For example, bulk unlocking not only benefits consumers, it's good for the environment—unlocking allows re-use, and that means less electronic waste

Two members of Congress who have been closely associated with these issues, Reps. Zoe Lofgren and Anna Eshoo, also pulled their support of the bill late Monday as well, expressing their clear outrage at how this change was slipped in after the fact, in a letter sent to their colleagues in the House:

After this bill was marked up and reported out of committee, a new section was added to the bill without notice to or consultation with us....

They furthermore point out that it's ridiculous that Congress is not fixing the broken anti-circumvention parts of the DMCA, and could possibly be strengthening them with this sneaky change of language:

In his concurring opinion in Lexmark v. Static Control Components, Judge Merritt wrote: "We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves..." The court's holding prevented Lexmark from using dubious copyright claims and an overboard reading of 17 USC 1201--the same section the Unlocking Consumer Choice Act alters--to prevent third parties from creating competing printer ink cartridges. The issue is similar here.

Congress should work to roll back abusive practices that use copyright law to prevent owners from having control over the devices they lawfully own. What it means to "own" a device that has been purchased is what's at stake here. The new addition to the bill puts the effort to stand up for the property rights of the owners of technology devices at risk.

It is sad that the bipartisan consensus reached during mark-up in the Judiciary committee to improve the law has been destroyed by a secret decision of the majority after the bill was reported out.

Unfortunately, the bill was deemed so uncontroversial that it's been listed on the suspension calendar of the House, which is where non-controversial bills are put to ensure quick passage. That means that, not only did Goodlatte slip in a significant change to this bill that impacts the entire meaning and intent of the bill long after it went through the committee process (and without informing anyone about it), but he also got it put on the list of non-controversial bills to try to have it slip through without anyone even noticing.

Either way, it seems that even if the bill does pass, it won't do anything to fix a very broken part of the DMCA and, in fact, could make it somewhat worse. Politics as usual when it comes to anything having to do with copyright.

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: anti-circumvention, bob goodlatte, dmca, drm, unlocking

35 Comments

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

Reader Comments

Subscribe: RSS

View by: Time | Thread

Ninja (profile), 25 Feb 2014 @ 5:37am

Goodlatte has a history of being a moron if memory serves. No surprises here. I thought it went through too smoothly despite the 1 year hiatus.

There is simply no political will to fix anything as the things are actually good for a select few.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 5:48am

what a shame that those who have been effective in 'changing his mind' cant be exposed along with what was in it for Goodlatte personally. this type of behavior from a member of Congress, charged with the task of ensuring there is fair play for customers and that private company interests don't run amok, is disgraceful. i sure hope that when it comes to election time for representatives, the people remember which ones have screwed them rotten and which ones actually tried to do what is right and proper in maintaining a more level playing field!
[ link to this | view in thread ]
James, 25 Feb 2014 @ 7:11am

What would help here is ...
a link to, or even specific mention of, the bill in question.

I'm pretty comfortable with navigating the complexities of contacting my elected representatives. I'd love to drop mine a line saying they should not support this flawed bill.

But I'm lazy, and since you've already done all the research in the world, why not put a link to the bill or at least its name/number in the body of the article?

It appears the bill in question is Unlocking Consumer Choice and Wireless Competition Act, H.R. 1123. But even the EFF doesn't call out the bill by name, so maybe I've identified the wrong one.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 7:23am

No doubt Rep. Goodlatte will receive a hefty bonus for slipping this in.
[ link to this | view in thread ]
nasch (profile), 25 Feb 2014 @ 7:29am

Slipped in?
Can anyone explain how a rep can just insert language into a bill without telling anyone about it?
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 7:34am

Just one tiny nitpick -- "Every three years this exemption was modified a bit, but in 2012, for unexplained reasons, the Librarian of Congress dropped that exemption entirely, ..."

The register of copyrights did offer an explanation (http://www.gpo.gov/fdsys/pkg/FR-2012-10-26/html/2012-26308.htm):

1. Developing case law made it unclear whether cell phone owners owned the software incorporated into cell phones or whether they were merely licensees. If the latter, then their rights to modify the software would be limited by contract.

2. Quoting from 77 Fed. Reg. 65,260 (Oct. 26, 2012): " The Register further concluded that the record before her supported a finding that, with respect to new wireless handsets, there are ample alternatives to circumvention. That is, the marketplace has evolved such that there is now a wide array of unlocked phone options available to consumers. While it is true that not every wireless device is available unlocked, and wireless carriers' unlocking polices are not free from all restrictions, the record clearly demonstrates that there is a wide range of alternatives from which consumers may choose in order to obtain an unlocked wireless phone. Thus, the Register determined that with respect to newly purchased phones, proponents had not satisfied their burden of showing adverse effects related to a technological protection measure."

3. The exemption for legacy (pre-February 2013) phones was left intact.

After the controversy erupted, the Copyright Office issued a statement: "The rulemaking is a technical, legal proceeding and involves a lengthy public process. � The officials must consider whether the evidence establishes a need for the exemption based on several statutory factors. It does not permit the U.S. Copyright Office to create permanent exemptions to the law. [] As designed by Congress, the rulemaking serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy."

Basically, that in this respect, the Copyright Office was not authorized by the statute to create policy on this account. The F.C.C. has the authority to regulate cellphone providers, so they could tell phone companies to stop preventing unlocking. Otherwise, if Congress and the president thought it was a good idea, then they have the authority to change the law. It wasn't up to the Copyright Office to make that policy decision.
[ link to this | view in thread ]
Jay (profile), 25 Feb 2014 @ 7:50am

Re: Slipped in?
The same as a person from the RIAA slipping in language on a bill that is passed while screwing over artists: precedent and knowledge that the public wouldn't agree with it.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 8:03am

Re:
On the contrary, it was a deft political maneuver that will surely secure her significant sums of money down the road. Dishonest and subversive but not moronic. Furthermore there very much was political will to fix things here which is why this subversive tactical strike on anything actually resembling an actual democratic process was executed in the first place.
[ link to this | view in thread ]
jupiterkansas (profile), 25 Feb 2014 @ 8:09am

Goodlatte's Top Contributors
Google
Comcast
Microsoft
Consumer Electronics Association
Recording Industry Association of America
National Cable & Telecommunications Association
Time Warner Cable
AT&T

Anymore this is the first place I go when I hear a representative's name to know who they're actually working for.
[ link to this | view in thread ]
John Fenderson (profile), 25 Feb 2014 @ 8:10am

Re:
Ok, then how about "they offered no explanation that actually makes sense."

#1: Not a copyright issue.
#2: Not a copyright issue.

So their entire argument for their action relies on things that have nothing to do with copyright law, despite the law they're working under being copyright law.

"The F.C.C. has the authority to regulate cellphone providers, so they could tell phone companies to stop preventing unlocking."

I'm not convinced this is so. This is about the DMCA. Since when does the FCC regulate issues of copyright law?
[ link to this | view in thread ]
John Fenderson (profile), 25 Feb 2014 @ 8:11am

Re:
I would argue that he has less of a history of being a moron and more of a history of being bought and paid for.
[ link to this | view in thread ]
Danny (profile), 25 Feb 2014 @ 8:18am

Suspension of the rules
If I remember correctly from time I worked in the House, bills scheduled on the suspension calendar are unamendable on the House floor.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 8:20am

Rep. Goodlatte, appears to be a sneaky, underhanded, sellout. The problem is, he's selling out Americans, for corporate kickbacks.
[ link to this | view in thread ]
Mike Masnick (profile), 25 Feb 2014 @ 8:29am

Re:
what a shame that those who have been effective in 'changing his mind' cant be exposed along with what was in it for Goodlatte personally.

The language almost certainly came from CTIA, the lobbying organization for the big mobile companies.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 9:20am

Whats the betting that this results in the situation where you can unlock your phone, but no one else can do it for you as part of a business? I suspect that that is the intent of the language added to the bill, as it would stop most people from getting their phone unlocked.
[ link to this | view in thread ]
That One Guy (profile), 25 Feb 2014 @ 9:50am

Intentional sabotage?
I can't help but wonder if this was entirely planned, where the bill seemed like it had good odds of passing, so one of the phone companies made an 'offer' to one of the politicians to slip in an 'extra' at the last second and either make the bill toxic enough not to pass, or neutralize any 'harm' it would have caused them should it pass.
[ link to this | view in thread ]
Ninja (profile), 25 Feb 2014 @ 10:07am

Re: Goodlatte's Top Contributors
Google is somewhat a surprise there since Android is built with the jailbreak switch easily usable by default.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 10:11am

Just another official with no honor or respect for the people who voted them in Rep. Goodlatte just another fraud who only has respect for money.
We really need to remove business from politics.
[ link to this | view in thread ]
Michael Donnelly (profile), 25 Feb 2014 @ 10:12am

Re: Re: Goodlatte's Top Contributors
Jailbreaking only opens up the operating system to user control.

The cell radio is always a separate physical component that can remain locked while the operating system is rooted.
[ link to this | view in thread ]
Ninja (profile), 25 Feb 2014 @ 10:24am

Re: Re: Re: Goodlatte's Top Contributors
Yeah I know, you usually need to flash only the OS. There are very rare cases where you need to upgrade the modem or any other components that are independent from the OS. Still, Apple is not even near and they are the ones most affected if you think about it, no?
[ link to this | view in thread ]
John Fenderson (profile), 25 Feb 2014 @ 10:25am

Re: Re: Goodlatte's Top Contributors
Jailbreaking != unlocking
[ link to this | view in thread ]
Mason Wheeler (profile), 25 Feb 2014 @ 10:50am

What it means to "own" a device that has been purchased is what's at stake here. The new addition to the bill puts the effort to stand up for the property rights of the owners of technology devices at risk.

This. This is why we need to not only get rid of anti-circumvention, but DRM itself. Its only purpose is to violate the fundamental property rights of a product's owner, and as such it ought to be treated as what it is--a hacking tool--and criminalized.
[ link to this | view in thread ]
kylewiens (profile), 25 Feb 2014 @ 10:55am

Re: What would help here is ...
You are correct, it's HR1123. We'd like a clean bill, like it came out of committee. Alternatively, we support HR1892, the Unlocking Act of 2013. http://beta.congress.gov/bill/113th-congress/house-bill/1892
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 11:01am

Has anyone queried Rep. Goodlatte himself regarding this change in his bill? Would be interesting to hear what he has to say...
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 11:45am

Re: Re: Re: Goodlatte's Top Contributors
They aren't even close to the same thing. They are two entirely different aspects when it comes to cellphones.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 11:46am

Re: Re: Goodlatte's Top Contributors
You don't have to jailbreak Android phones. There is no walled garden. Only a user perm that prevents sideloading of apps so that something cannot be accidentally installed without your permission.
[ link to this | view in thread ]
John Fenderson (profile), 25 Feb 2014 @ 12:26pm

Re: Re: Re: Goodlatte's Top Contributors
That's not exactly true. yes, you can side-load apps, but there's a million reasons why you'd want to jailbreak outside of that (being able to delete preinstalled apps, wanting to run system-level software such as firewalls, etc.)

The android jail exists and is very real. Stock Android allows for one-click jailbreaking, but most cell phone manufacturers remove this option on the version of Android they install. I had to jailbreak my Samsung in order to replace the OS with Cyanogenmod, for instance.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 12:48pm

Re: Re:
"#1: Not a copyright issue."

Wrong. The exceptions to the anticircumvention provision are to allow users to make noninfringing uses of copyrighted works. The copyrighted works in question is the cellphone software. If the software is licensed (and not sold), then whether a use is infringing is governed by the license. If the license says "you cannot unlock this software to use it with another network," then unlocking it to use it with another network is copyright infringement. The exceptions are only for NONinfringing uses.

"#2: Not a copyright issue."

If your argument were correct, then the Copyright Office should not have created this exception in the first place. They should simply have said, "If you want the right to unlock your cellphones, ask Congress or the F.C.C. to do it for you. It's not a copyright issue, so we can't do anything about it."

"So their entire argument for their action relies on things that have nothing to do with copyright law, despite the law they're working under being copyright law."

That's a non-sequitur. The Copyright Office is authorized to make temporary exceptions to anti-circumvention if anti-circumvention rules "adversely affect" consumers. Under that standard, a finding that the marketplace offers sufficient opportunity for consumers to get phones that are not locked is relevant. You might disagree with the finding of facts or the conclusion drawn from those facts, but your "things that have nothing to do with copyright law" is nonsensical.

The bottom line is that the Copyright Office was never given the legal authority to decide as a matter of permanent policy that consumers must have the right to unlock any locked phone that they buy. That's a matter either for Congress to decide or for the F.C.C. to decide.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 12:50pm

The bottom line on this issue is that nobody really cares about it but everybody has to pretend to care about it. Yes, it might be a matter of good policy to give consumers the right to unlock their phones. However, so few people actually are ever going to do it that when it comes down to it, no member of Congress is going to work very hard to make it happen.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 1:27pm

In December, the FCC worked out a voluntary deal with the phone companies to allow unlocking. This legislation is no longer even necessary for its original purpose.
[ link to this | view in thread ]
John Fenderson (profile), 25 Feb 2014 @ 1:37pm

Re: Re: Re:
" The exceptions to the anticircumvention provision are to allow users to make noninfringing uses of copyrighted works."

I understand what you're saying. But the entire point of noncircumvention is supposed to be about copyright, so of course that's what the exception would be meant for. However, this is an example of the DMCA being used for something totally unrelated to copyright, so it amounts to a load of hogwash.

" The copyrighted works in question is the cellphone software. If the software is licensed (and not sold), then whether a use is infringing is governed by the license"

Absolutely wrong. True, it's a licensing issue, not a copyright issue. However, the license cannot and does not expand the scope of copyright. If you violate the license, you've violated the license, not the copyright.

Unlocking the cell phone does not entail, nor has the purpose of enabling, any copyright infringement whatsoever. It's simply not a copyright issue.

"You might disagree with the finding of facts or the conclusion drawn from those facts, but your "things that have nothing to do with copyright law" is nonsensical."

I didn't follow your argument for how this has something to do with copyright. Why is my point nonsensical? I'm not disagreeing with the finding of facts or the conclusions drawn from them. I'm disagreeing with the relevancy of copyright law to this issue in the first place. It's not there, except that the law has been subverted and twisted to apply it to things where it clearly doesn't apply, such as this issue.

"The bottom line is that the Copyright Office was never given the legal authority to decide as a matter of permanent policy that consumers must have the right to unlock any locked phone that they buy."

Their actions give lie to this statement.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 2:23pm

Re: Re: Re: Re:
> Their actions give lie to this statement.

Explain.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2014 @ 3:00pm

Re: Re: Re:
#1:

Sorry; that's a contract issue, not a copyright issue. It's not a copyright issue.

#2:

Exactly. The problem is, the law on the books put this in the hands of the copyright office, which then has to enact "exclusions" stating "these use cases aren't copyright issues, so we shouldn't be handling them." When the sunset clause kicks in, the DMCA once again stops being just a copyright law.
[ link to this | view in thread ]
Anonymous Coward, 26 Feb 2014 @ 6:50am

Those who think that copyright law does not involve contract issues don't know anything about copyright law.
[ link to this | view in thread ]
btrussell (profile), 28 Feb 2014 @ 9:56am

Re: Re: Re: Re: Re:
"1. Developing case law made it unclear whether cell phone owners owned the software incorporated into cell phones or whether they were merely licensees."

If it is just a license, how is not using the software in violation (Unlocked, reformatted, install own OS)?
[ link to this | view in thread ]