The Duct-Tape Approach To Fixing Broken Copyright Law Happens Again With Phone Unlocking

from the the-system-is-broken dept

Wed, Jul 16th 2014 2:14pm — Mike Masnick

If you follow the history of copyright law, it's truly about taking a ridiculous duct-tape approach to dealing with changes in technology. Basically, each time a new technology comes along that shows how the old laws are obsolete, lobbyists run to Congress and some sort of change is duct-taped on, often haphazardly, with little concern for either the unintended consequences or exploring how broken the system is in the first place. That actually makes things worse, because you have all these random "add-ons" that make copyright law make even less sense. When radio came along, we got some duct tape. When cable TV came along, we got some duct tape. When the internet came along, we got some duct tape. And not all of it made sense. There are still big fights going on today as everyone tries to sort out how the radio duct tape applies to the internet. And, of course, the Aereo fight was partly about whether or not the cable duct tape applies to the internet (leading to the Supreme Court turning duct tape into a duck).

We've discussed at length the ridiculous process by which cell phone unlocking was briefly declared legal under copyright law... and then magically became illegal due to a decision by the Librarian of Congress to rescind an exemption to the DMCA. After over 100,000 people signed a petition asking for it to be fixed, the White House told Congress to fix it -- but in true duct-tape fashion, decided that it should just add on some more duct tape by saying changes should be made to telecom regulations, rather than targeting the root of the problem: Section 1201 of the DMCA, better known as the anti-circumvention clause.

As we noted recently, after a year-and-a-half of a mix of fighting over this and a whole lot of nothing, the Senate came up with a compromise that isn't horrible, but doesn't do very much other than make it legal to unlock your phones again. The full Senate has now approved this. Of course, earlier this year, the House passed a dangerously bad bill to pretend that it was dealing with the problem as well, but it actually had some bad problems. The two houses will have to bring the bills into alignment now, and hopefully the Senate bill wins out.

However, as Tim Lee over at Vox points out, this is a huge missed opportunity because it's Congress taking that same duct tape approach yet again. Rather than actually fixing the underlying problem (a broken Section 1201), Congress has decided to pass a bill that duct tapes on "except for unlocking mobile phones... for now." This isn't surprising. Actually fixing Section 1201 would be a massive process that would lead to quite an insane fight from Hollywood (they love the anti-circumvention provision, because it allows them to DRM everything and create controls for themselves beyond what everything else in copyright law allows -- such as taking away fair use).

The other big stumbling block is that, thanks to bogus international trade agreements, doing something so simple as to actually fix this broken part of the DMCA that possibly made cell phone unlocking illegal... would likely violate more than half a dozen trade agreements. While Congress has the power to ignore those trade agreements if it wants, lobbyists love to go apeshit about anything that might "violate international agreements," as if suddenly Europe won't do business with us any more because we dare to let people unlock their mobile phones.

Either way, this one issue does a lot to show why copyright law continues to be such a mess. It's just a hack process, which new technology routes around... and Congress' response is just to duct tape on the next mess to "fix" the mistake, rather than look at the underlying reasons why the law is outdated and problematic. Hopefully you'll be able to unlock your mobile phones soon without worrying about breaking the law -- but that won't be true for other things, like modifying your video game console or other types of electronic devices. A sane world would get to the root of the problem and fix it, but this is Congress we're talking about, and no one thinks that's a sane world.

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Filed Under: 1201, anticircumvention, copyright, dmca, duct tape, exceptions, phone unlocking

32 Comments

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Violynne (profile), 16 Jul 2014 @ 12:23pm

"If it looks like a duct..."
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Anonymous Coward, 16 Jul 2014 @ 2:20pm

But duct tape is a lot like "the force". It has a light side, a dark side, and holds the universe together.
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Mason Wheeler (profile), 16 Jul 2014 @ 2:32pm

As noted here, the real problem is the anti-circumvention provisions of the DMCA. The DMCA lies at the root of everything bad about digital copyright in the modern age, and every newer abuse we've seen enacted or proposed builds upon it.

As I've said before, when a weed grows in your garden, there are two ways to get rid of it. You can cut it off at the ground, and it's gone... until it pops up again. Or you can rip it out by the roots, and then it's gone. The only way to truly fix copyright abuse is to rip it out by the roots: repeal and reverse the DMCA. Restore the sacred legal principles of Due Process and the Presumption of Innocence. Outlaw the use of DRM in any form for any reason. Make it crystal clear that the rights of people, not copyright owners, come first, and no one has any right whatsoever to infringe upon them until they have been proven guilty in a court of law.

Only when we've managed to accomplish this will we make any meaningful progress against copyright abuse. But as long as the root's still in the ground the same weed keeps popping up. We cut off SOPA and PIPA, and now we've got it growing right back as the TPP. Looks like we've just about managed to kill that one, but it'll grow back again soon enough (and it really didn't take long, did it?) unless we rip it out by the roots!

The DMCA must be repealed and reversed. Until then, we'll never accomplish anything meaningful in our fight against copyright abuse; all we'll be doing is more rounds of whack-a-mole.
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orbitalinsertion (profile), 16 Jul 2014 @ 2:44pm

A problem to a lesser extent is that, given the DMCA, why does it apply to phone operating systems? (And really, with Android, it rather violates the licensing for the kernel and the majority of the software used in the OS and for building it.)

But something that bothers me every time I read about this: Why the hell does the LOC magically have the power to say anything about this?
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jameshogg (profile), 16 Jul 2014 @ 2:59pm

Reactionary rationalisations. They are the duct tapes you are talking about.
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Mason Wheeler (profile), 16 Jul 2014 @ 3:04pm

Re:
Because the DMCA specifically says that the LOC does. Again, the DMCA is at the heart of the problem, and it needs to be repealed.
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Sheogorath (profile), 16 Jul 2014 @ 3:50pm

This is where EU anti-circumvention law wins
In the UK right now, it is illegal to remove or otherwise circumvent DRM except where it protects no copyrights. You gotta love European courts sometimes.
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E. Zachary Knight (profile), 16 Jul 2014 @ 3:55pm

Have you ever considered....
Have you ever considered the idea that this whole duct tape approach is nothing more than a big corporate handout to 3M to keep its duct tape business afloat?
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ChurchHatesTucker (profile), 16 Jul 2014 @ 3:57pm

Re:
It must be Duck Tape.
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Anonymous Coward, 16 Jul 2014 @ 4:05pm

DMCA
Drooling Mouth Cocksuckers Act!

We keep voting them in and rolling over when they command it. This is not going away folks.
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Sheogorath (profile), 16 Jul 2014 @ 4:24pm

Re: Have you ever considered....
Possibly, although 3M has no patent on duct tape and never did.
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Anonymous Coward, 16 Jul 2014 @ 4:52pm

right to use property
42 U.S. Code § 1982 - Property rights of citizens

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

United States v. Christopher Barry Greer...
United States Court of Appeals, Fifth Circuit. Aug. 13, 1991

¶61
Although the defendants' claims have some merit, the government is able to obviate these concerns by demonstrating successfully that the phrase "to hold" property under the statute can also mean "to use" property. See City of Memphis v. Greene...; Jones v. Alfred H. Mayer Co...

UNITED LEASING CORPORATION, et al.v. THRIFT INSURANCE CORPORATION, et al.

In Universal C.I.T. Credit Corp. v. Kaplan... this Court reiterated the elements of conversion, explaining that the tort encompasses "any wrongful exercise or assumption of authority... over another's goods, depriving him of their possession; [and any] act of dominion wrongfully exerted over property in denial of the owner's right, or inconsistent with it."

In general, a cause of action for conversion applies only to tangible property. However, many courts have recognized the tort of conversion in cases where intangible property rights arise from or are merged with a document, such as a valid stock certificate, promissory note, or bond.
Nevertheless, a cause of action for conversion does not encompass claims for interference with undocumented intangible property rights.
...
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Kronomex, 16 Jul 2014 @ 4:55pm

Corporations = money = compliant and greedy politicians and parties = control.
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crade (profile), 16 Jul 2014 @ 5:25pm

You are too generous.. I'd say the problems have a lot more to do with conflict of interest and bad intentions. They might be using duct-tape, but it's going to be with the intent of tacking on something to funnel money their way.. At best it will be under the guise of an attempted fix.
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crade (profile), 16 Jul 2014 @ 5:30pm

Re: Re: Have you ever considered....
And they can still sell duct tape? Like with no gov't issued monopoly at all?!? Mind Blown! What do they do.. like actually try to make people WANT to buy from them or something? WTF is this world coming to!
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Shmerl, 16 Jul 2014 @ 6:01pm

Just a reminder
Support the campaign for repealing DMCA 1201: http://fixthedmca.org

The problem is, this issue is more obscure to most people than "unlocking your phones is illegal" issue. That's why politicians get away with it - there isn't much attention to this given by the public.
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Shmerl, 16 Jul 2014 @ 6:03pm

Re: Just a reminder
And actually, there was a very decent bill proposed: https://en.wikipedia.org/wiki/Unlocking_Technology_Act
but it went nowhere so far.
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1st Dread Pirate Roberts (profile), 16 Jul 2014 @ 8:36pm

Let's go back to original copyright terms
Why don't we just shorten the term of copyright to what it used to be? The government has a nice history at

http://www.copyright.gov/circs/circ1a.html

May 31, 1790
First copyright law enacted under the new U.S. Constitution. Term of 14 years with privilege of renewal for term of 14 years.

Heck, I'd even be happy with the 1909 change.

July 1, 1909
Effective date of third general revision of the copyright law. Admission of certain classes of unpublished works to copyright registration. Term of statutory protection for a work copyrighted in published form measured from the date of publication of the work. Renewal term extended from 14 to 28 years.
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Whatever (profile), 16 Jul 2014 @ 10:19pm

it happens
It happens this way because changing the circumvention clause would re-open many cans of worms.

I think perhaps that was the goal, trying to use cell phones as a pry bar to get the law changed, so all the existing judgements, rulings, and such would go by the wayside and there would be a complete reset of everything in relation to circumvention. Knowing that this is what is in play, the "duct tape" method, as you call it, is the prudent way to handle a VERY narrow exception without having to tinker with the whole law and reset everything back to zero.
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techflaws (profile), 16 Jul 2014 @ 10:34pm

Re: it happens
and there would be a complete reset of everything in relation to circumvention
Which can only be good given how messed up the situation is.
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Whatever (profile), 17 Jul 2014 @ 12:05am

Re: Re: it happens
You would think it would be good, but not really. The issue would be throwing all the judgements (on both sides) into question and making people litigate similar situations all over again to come to some reasonable conclusion, for or against.

Worse yet, it's very likely that any re-write would be done to block any loopholes or exceptions created by current judgements, effectively slamming the door even harder.

It's sort of careful what you wish for, you might just get it.
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Ninja (profile), 17 Jul 2014 @ 5:17am

Re:
You may have a duck. I mean, a point. But does it SMELL like a duck?
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Graf, 17 Jul 2014 @ 6:37am

Not quite true
"as if suddenly Europe won't do business with us any more because we dare to let people unlock their mobile phones"

Here in the UK we can already unlock phones. IN fact there is a large industry of small local shops that offer this services. So being able to do has created income for local shops and the original value of the phones hasn't dropped, as people know they can sell them on without restrictions on what network they can be used on.

So if legislators truly wanted to create wealth, then allowing phones to be unlocked should help with this.
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Anonymous Coward, 17 Jul 2014 @ 6:54am

Re: Re:
It is certainly not on fire like a peasant, er duck!
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techflaws (profile), 17 Jul 2014 @ 7:20am

Re: Re: Re: it happens
I don't see any loopholes anybody is exploiting right now but I'm quite sure big business will have a hard time to ram through something like the anti-circumvention clause this time around.
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nasch (profile), 17 Jul 2014 @ 7:54am

Re:
Outlaw the use of DRM in any form for any reason.

That would be unnecessary and unjustified. There is no reason to interfere with anyone's right to develop and distribute whatever software they want. Just remove any penalty for bypassing DRM, and the problem goes away.
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nasch (profile), 17 Jul 2014 @ 7:57am

Re: Re: Re: it happens
The issue would be throwing all the judgements (on both sides) into question and making people litigate similar situations all over again to come to some reasonable conclusion, for or against.

Yeah, we should just keep this terrible law, because repealing it would be too inconvenient.
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Sheogorath (profile), 17 Jul 2014 @ 2:02pm

Re: Re: Re: Have you ever considered....
Way back when, in the dawn of mankind, 3M sold a product that they called 'duct tape', but which had no cloth in it unlike actual duct tape. Maybe that's the type they're selling now, or it may be that they changed its name to masking tape. I know they sell that.
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Sheogorath (profile), 17 Jul 2014 @ 2:06pm

Re: Not quite true
Here in the UK we can already unlock phones. IN fact there is a large industry of small local shops that offer this services.
Why bother? I just go to Carphone Warehouse or Phones 4 U to buy mobile phones that have never been locked to any network. The easiest problem to solve is one that never existed in the first place.
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Anonymous Coward, 17 Jul 2014 @ 7:07pm

Re: Re: Re: Re: it happens
And to think he spends a whole thread whining that people should have to campaign against laws they disagree with. Here, he just outright insists people should just suck it up.

And he says he's not a troll.
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nasch (profile), 18 Jul 2014 @ 8:05am

Re: Re: Re: Re: Re: it happens
And to think he spends a whole thread whining that people should have to campaign against laws they disagree with.

I would love to skim that if you happen to have a link.
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Anonymous Coward, 19 Jul 2014 @ 5:46pm

Re: Re: Re: Re: Re: Re: it happens
Here.
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