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Phone Unlocking: Not About Copyright

Earlier this week, the NTIA made good on the Obama Administration’s promise to push for a fix to the phone unlocking problem. NTIA filed a petition for rulemaking with the FCC, requesting that mobile carriers be required to unlock phones and other wireless devices upon request. The rule the NTIA proposes is clean and straightforward, and it would go a long way toward improving consumer choice in the market for mobile communications.

Perhaps the best feature of the NTIA’s approach is that it skips the absurd debate over copyright and DMCA exemptions and treats phone unlocking as what it is – a telecom issue. (To review: the DMCA contains provisions that prohibit circumvention of access control technologies, but allow the Copyright Office to grant exemptions. The Copyright Office recently declined to provide an exemption for mobile phone unlocking, triggering an active debate and promises from both Congress and the Administration to fix the problem.)

As CDT has said before, phone unlocking really shouldn’t be a copyright issue at all. Phone locks don’t protect any serious copyright interest; they just prevent users from switching mobile carriers while keeping their old phones. Accordingly, the NTIA petition simply asks the FCC to modify its rules that govern mobile carriers to require them to unlock devices, without a fee, upon request of the lawful owner. In-contract or out-of-contract, subscribers would have an easy path to unlocking (although contract terms like early termination fees might still apply). While the proposal would not resolve the DMCA issue that brought the issue to public attention in the first place, it would render the copyright angle effectively moot – because it would give consumers a way to unlock their phones without any risk of DMCA liability.

That would be a win for millions of U.S. mobile customers. Plus, the proposed rule specifically includes secondhand owners and non-profit distributors of donated phones. This means that beneficial lower-cost and charitable markets for used phones would function more easily, to the benefit of those who can’t afford more expensive options.

The downside to sidestepping the DMCA issue is that it still would not be clear whether consumers themselves have a legal right to unlock phones. That shouldn’t matter much if carriers unlock phones promptly on demand, but could become an issue if carriers were to make the unlocking process long and cumbersome.

CDT would certainly welcome a solution that put the DMCA question to rest. We have long believed that the DMCA should not be wielded as an obstacle to consumers’ choice of phones or mobile carriers. We likewise welcome a broader debate over copyright and anti-circumvention reform. But it is anyone’s guess how likely it is that Congress will be able to pass legislation to address the DMCA side of the unlocking issue. And so far, the lone bill to advance out of committee only offers a temporary solution. Meanwhile, the FCC has already promised action on the issue, and may move more quickly to enact a more permanent solution. The NTIA proposal is a good place to start and deserves strong consideration.