FOREIGNERS find it hard to believe that Americans—the most fiercely independent people on the planet—have not been allowed to tinker with their mobile phones. Using downloaded software to unlock them, so they can be employed on a different cellular network after existing contracts have expired, is punishable by a fine of up to $500,000 and/or five years in jail. (Unlocking a phone is not called “jail-breaking” for nothing!) Many Americans risk the penalties so they can use their phones on foreign networks while travelling abroad. Others do so to rid their phones of all the annoying craplets installed by their wireless carrier. Under federal law, doing such things has been illegal.
The good news is that this nonsense is about to end. A year or so ago, a “We the People” petition on the White House’s website garnered 114,000 signatures for reform of the law—more than enough to grab the Administration's attention, and to send a wake-up call to lawmakers for action. And so it did. On July 25th, Congress finally passed a bill which makes it legal for Americans to unlock their phones without repercussions. Several days later, President Obama signed The Unlocking Consumer Choice and Wireless Competition Act into law.
A victory, then, for common sense? Not entirely. Americans’ new freedom to unlock their phones so they can repair or modify them could be quashed next year. The Library of Congress—the agency responsible for interpreting matters concerning copyright to the legislature—decides every three years whether to grant, renew or withdraw special copyright exemptions for various groups of people (eg, researchers, teachers, artists and musicians, archivists and those with disabilities). The next triennial review is in 2015. It is possible, though one hopes unlikely, that the Library could reverse the exemption provided by last week’s law. Such a reversal has happened before.
Back in 2006, the Library decided that copyright was being applied inappropriately to mobile phones and granted owners exemption to certain aspects of the law. But in 2012, it concluded that phone users were adequately served—after manufacturers started making unlocked phones available to the public, albeit at high prices—and therefore no longer needed special exemption. Ever since, it has again been illegal for Americans to tinker with the way their phones work.
But why should copyright law be involved in something that ought to be a simple matter of consumer rights? Any rational interpretation would suggest that when people buy a piece of equipment—whether a car, a refrigerator or a mobile phone—they own it, and should therefore be free to do what they want with it. Least of all, should they have to seek permission from the manufacturer or the government.
Some context is needed to understand how the digital era has changed the notion of ownership. Buying a computer, for instance, confers ownership—or, at least, it does at present. But buying a computer program confers merely a licence to use the software. Ownership of the program remains with the person or company that created it. If one accepts that copyright protection is more appropriate for software (though many disagree), then it is not unreasonable to think that any intellectual property embodied in hardware ought to be covered by patents, trade secrets and design rights—and certainly not copyright.
Unfortunately, it is not that simple. Back in the 1990s, following the introduction of audio compression algorithms like MP3 and file-sharing websites such as Napster, recording companies witnessed an explosion in online piracy. Seeing it was their turn next, Hollywood studios joined forces to lobby Congress to prevent their films from likewise being ripped off. On the other side of the digital divide, internet-service providers and online companies were under threat of being sued every time someone used their services to share a copyrighted music track or video clip.
The unhappy outcome of all the lobbying was the Digital Millennium Copyright Act (DMCA) of 1998. To protect the online industry from litigation, “safe harbour” provisions built into the DMCA allowed content owners (film studios and record companies) to demand that any of their copyrighted material appearing on a website be taken down forthwith. If the online company complied promptly, the threat of litigation was dropped.
To keep Hollywood happy, language was included in the act (Section 1201) that made it illegal for anyone to “circumvent a technological measure that effectively controls access to a work protected under this title”. In other words, it was against the law to modify, repair or build tools to help circumvent, the “digital righ
