Fix the DMCA! Repeal anti-circumvention and truly own your devices

Austin sez, "Last year the Librarian of Congress made it illegal to unlock your cell phone by changing the Digital Millenium Copyright Act (DMCA). This can lead to exorbitant costs to consumers traveling internationally and, perhaps more importantly, it is restricting our freedom in unfair ways. It also has odd implications like forcing the blind to file for exemption every three years in order to use third-party screen readers. After 100,000 people signed a petition on this issue, the White House responded in support of making these laws more fair. Sina Khanifar, who created that petition with support from Y-Combinator, Reddit, Mozilla Foundation, the Electronic Frontier Foundation and more has launched a website to educate the public on the issue and give them the tools to notify their representatives directly with their thoughts on the issue."

Fix the DMCA


  1. I still don’t understand the argument that the DMCA makes unlocking or jailbreak phones illegal.  The law, as written, very clearly only protects technological measures which control access to a copyrighted work and specifically define that as being ones which apply some process which takes a work which in some way scrambled or otherwise unreadable and makes it readable.  The locking mechanisms on cell phones are access-control mechanisms which control which network a cell phone can access.  That doesn’t fit the definitions in the DMCA at all.  The jailbreaking stuff is essentially the same.  It’s about control of the phone, not about access to copyrighted works.  It’s been previously found in court that, for example, breaking access control schemes related to printer ink and garages doesn’t constitute a DMCA violation.  Why would access control scheme for a phone?

    Is there some subtlety I’m missing here?

    And aren’t we then reinforcing the narrative that we need someone else’s permission to use our own devices even if the law doesn’t say that?  I’m not saying that the DMCA doesn’t have some parts which could greatly be improved upon, but I’ve never heard anyone coherently describe how it bans unlocking or jailbreaking cell phones.

    1. The subtlety you’re missing is that software can be copyrighted.

      To jailbreak a phone, somebody has to go on in there, look at the OS, and figure out how.  So all they have to to is protect the OS with second-rate DRM, and boom – to make jailbreaks possible, someone has to unscramble the unreadable in order to read a copyrighted work.

      1. The subtlety you’re missing is that this is not about duplicating and unauthorized distribution of software, but about interoperability which is permissible under the DMCA. I do not think that it is worth speculating on this. Someone should bring a test case and have a precedent set in court.

          1.  That’s true, but jailbreaking and unlocking doesn’t involve breaking DRM.  There’s no DRM scheme involved.  This is why I don’t understand why people like Cory keep saying that the DMCA makes it illegal.

      2. It is true that you could violate copyright in the process of figuring out how to unlock or jailbreak a phone.  But that wouldn’t make the actual act of jailbreaking or unlocking illegal.  There’s no “fruit of a poisoned tree” language in the statue.  If I were to illegally photocopy instructions about how to solve a rubik’s cube, it wouldn’t mean that I would be committing further copyright violation by solving the rubik’s cube.

  2. This might seem a dumb question, as least as far as the Usanian readership is concerned. I am not a Usianian and probably miss some of the nuances of your form of government.
    I am guessing that the Librarian of Congress doesn’t actually put books on shelves, but is s/he connected with the Library of Congress? What the hell has a Library got to do with interpreting and changing laws like this. I though interpretation was down to the Supreme Court and actually making the laws the role of Congress, not an employee thereof.

    1.  From the wiki:

      The Librarian of Congress can also announce any class of copyrighted works for which the Librarian has determined that certain noninfringing uses of those copyrighted works are, or are likely to be, adversely affected by the Digital Millennium Copyright Act’s prohibition against circumventing technological access protections on the works. That class of works will then be exempt from liability under the DMCA, subject to the conditions of the Librarian’s ruling, for the ensuing 3-year period.

      The LOC isn’t just a library. It’s connected to the Federal government, which is responsible for copyright law. It’s one of the reasons they can have mandatory deposit.

  3. *unnnh*

    must … complete … opensource … device … design … *urrgh* … stop this … regressive … movement … remind people of … *blurgh* … tape to tape recorders … eliminate evil … clawing … monstrous … media companies

    *bluch* or we’ll … all be … Beliebers … trapped in … spinning vortex … *hnnnnh* … of temporal … stasis …

  4. I may be missing something, but IIRC the change that the Librarian reverted makes it illegal only to unlock the subsidized cellphones that are still under contract. We can still unlock phones that we either bought without a subsidy or completed our contract with.  (I’m not sure what the law is if we buy a phone from somebody that defaulted on their contract, though.)

    I do believe that change shouldn’t have taken place: anyone that drops a subsidized-phone contract finds themselves hit with a $200+ bill in their lap, which in my mind is the equivalent of buying the phone regardless… It’s just that when fighting anything related to the legal system, it’s not a good idea to assume that adversaries will fail to use even minor unintentional fact-fudging to “prove” we’re clueless or BSing to get others’ support.  I’ve seen it happen too many times in articles or discussion forums, and reading the Atlantic “Accidental Betrayal of Aaron Swartz” article today was a hard reminder.

    All of that said, I find it frustrating that people help the greedy companies by getting the contracts when we don’t need them to buy really nice smartphones inexpensively!  I’m a disabled person on a low fixed income, yet the LG Marquee I just got as my first smartphone was $90 and came with a $50 Ting (carrier) credit.  Yeah, it’s not the newest tech, but it’s worth knowing I have full control and that I’m ‘supporting’ an org that puts its money where its mouth is in supporting our right to do what we wish with our devices or account. (OK, I can’t afford smartphone or web access with anyone else…but even if money wasn’t an issue, I’d rather support them for their ideals.)

    1.  people help the greedy companies by getting the contracts

      Completely right Xyzzy.

      There are lots of BB’ers and copyfighters who are more than willing to boycott the industries who never give up trying to DRM our lives.  And I support that completely.

      But some of those same people just don’t seem to be able to resist the shiny-thing allure of a new, dripping with apps, locked up tight smartphone.

      I can resist it just fine…….

  5. But don’t you get the right to unlock your phone if you pay the early contract termination fee?
    As I understand it, the only situation in which it is now illegal to unlock a phone is if the phone is subsidized and still under contract. If so, what’s the big deal? You only truly own something when you’ve finished paying for it.

    1. That’s my impression as well.  And the Librarian didn’t “make it illegal”, they control interpretation of the law on the executive level.  However, recent federal court rulings have held that if you are under contract on a subsidized phone, you do not own the phone fully.    (This is just like if you are under contract to pay for a car, or a house, or anything else, you do not own the product fully and so cannot make some determinations.)    So she changed the executive branch’s interpretation of the law to match what the court had ruled.  
      This is FULLY in line with how our checks and balances system of government works.

  6. It seems to me there’s a strong analogy to the War on Drugs.  No matter how many medical uses marijuana has, some fearmonger can accuse supporters of “wanting our kids to become heroin addicts” or some nonsense, and fear trumps everything.

    But the analogy is imperfect, because people aren’t afraid of the stealy pirates.  They may not approve of something that’s called illegal, but the fear just isn’t strong enough to prevent rational discussion.  Well, usually.

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