FCC Commissioner Pai Urges Congress ‘Permanently’ Fix Unlocking Exemption in DMCA
FCC Commissioner Ajit Pai urged Congress to “permanently” exclude cellphone firmware unlocking from the provisions of the Digital Millennium Copyright Act (DMCA). The librarian of Congress declined in October to renew a three-year exemption that excluded unlocking from prosecution under the DMCA, meaning consumers who unlock their mobile devices could face civil and criminal penalties. “This is a classic case of the government solving a problem that doesn’t exist,” Pai said Monday at a joint TechFreedom-Competitive Enterprise Institute event. Contract-law rights, including early termination fees, already ensure subscribers fulfill contracts with the carriers, he said. “Adding heavy-handed copyright penalties, including hefty criminal fines, marries the sledgehammer to the fly,” Pai said. Congress is already considering at least four bills that would address the issue -- the Unlocking Consumer Choice and Wireless Competition Act (HR-1123), the Unlocking Technology Act (HR-1892), the Wireless Device Independence Act (S-467) and the Wireless Consumer Choice Act (S-481).
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A permanent fix will ensure “we don’t need to have the exact same debate every three years,” Pai said. Any solution should “focus on the narrow issue at hand,” rather than tackling larger issues of whether there needs to be broader reform of the U.S. copyright system, he said. “Right now, there is wide support for removing cellphone unlocking from the ambit of copyright law,” Pai said. “If it becomes entangled with more controversial issues, there’s a pretty good chance that it'll get stuck in the starting blocks."
The solution shouldn’t give the FCC any additional authority, and should not interfere with current contract law, Pai said. “We shouldn’t restrict carriers’ ability to offer consumers better, cheaper, and faster options,” he said. The solution should also protect any company or individual who helps consumers unlock their cellphones, and should involve all wireless communications devices, Pai said. The DMCA’s anti-circumvention provisions “also target netbooks, tablets, personal digital assistants -- pretty much any mobile device,” he said.
Jerry Brito, senior research fellow at George Mason University’s Mercatus Center, said he thought the Unlocking Technology Act was an ideal solution. The bill would make unlocking illegal only when it’s done with the intention of violating copyrights on a device’s firmware, he said. Unlocking should be legal in all cases where copyright infringement is not the goal, said Chris Lewis, Public Knowledge director-government relations.
Phoenix Center President Lawrence Spiwak defended the Librarian of Congress’s decision to not renew the exemption, saying it was done because of the number of choices available to consumers. Rules to prevent a customer from unlocking a mobile device in violation of a contract with a carrier are “not unreasonable,” he said. Customers shouldn’t be allowed to unlock their cellphones in violation of a contract without penalty, but that penalty should be an early termination fee (ETF) “or whatever other remedy is specified in the agreement with their carrier,” said Ryan Radia, CEI associate director-technology studies. “If you move overseas, there’s no reason you shouldn’t be able to unlock your phone and pay the ETF. Doing so shouldn’t violate federal law.”