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Engadget Primed: making sense of the US’ new phone unlocking policy
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Primed goes in-depth on the technobabble you hear on Engadget every day — we dig deep into each topic’s history and how it benefits our lives. You can follow the series here. Looking to suggest a piece of technology for us to break down? Drop us a line at primed *at* engadget *dawt* com. On October 25, 2012, the US Librarian of Congress ruled that the act of unlocking your phone was no longer allowed under copyright law. The ruling, which has been severely criticized by consumer advocacy groups and tech enthusiasts across the country, declares that it’s a copyright violation if you unlock your phone without the permission of the carrier it’s locked to. Why would such an unthreatening action result in heavy fees and possible jail time? After the break, we’ll discuss what the ruling means for the future of the mobile industry, how it will impact consumers and if we should worry that our dentist’s uncle’s third cousin (once removed) is in trouble because he has an unlocked phone. What is unlocking? In short, some mobile operators in the US (primarily GSM networks) choose to include restrictions on each phone they sell that prevents you from being able to put in a SIM card from a different network. For instance, if you put a T-Mobile SIM in a locked AT&T phone, you’ll be greeted by a message telling you that your card isn’t supported and you won’t get any service. (You can dial 911, but that’s all.) Unfortunately, this restriction also includes operators around the world, so international travelers would be subject to outrageous roaming fees for calls, texts and data. Fortunately, you’re not completely stuck; most operators have policies that allow you to receive a code to unlock your device under specific conditions. Typically you need to be a loyal customer in good standing for a certain period of time, and you need to have a valid reason for unlocking it, such as going out of the country or being in the military. Regardless of the flexible policy many of them have, carriers are still the gatekeepers, and it’s up to them to decide whether or not you deserve the code to unlock your device. The ruling The Digital Millennium Copyright Act (DMCA), which was passed in 1998, states: “no person shall circumvent a technological measure that effectively controls access to a work protected under this title.” However, because Congress recognized that things can quickly change over the passage of time, the governing body added a provision that allows the Library of Congress (of which the Copyright Office is a branch) to provide exemptions to the law once every three years. Once proposals are submitted, hearings are held in DC and a select West Coast city the summer before the ruling. These hearings are the chance for each side of the debate to present evidence that supports their respective arguments. In this case, the question was whether or not the ability to unlock phones falls under fair use. After the hearings, the Register of Copyrights (the head of the Copyright Office, a position currently held by Maria Pallante) determines if these proposals should in fact become official, and submits those findings to the Librarian of Congress, who gets the final say. But the final decision isn’t permanent; once the three years are over, each exemption expires and needs to go through the same exact process. The Register makes a decision as if the evidence is being presented for the very first time. This is where the phone-locking issue comes in. In 2006 and 2010, the Register allowed an exemption which gave customers the ability to legally bypass the carrier to get their phones unlocked. In 2012, however, that same exemption was denied. If you purchased a locked handset after January 26th, 2013, the only way to legally remove that lock is if you get permission (and thus, a code) directly from your carrier. If the device was already unlocked when you bought it, you’re safe. In what way are phone locks tied in with copyright law? According to Tyler Ochoa, a professor of law at Santa Clara University and an expert in copyright law, “The work that’s protected by copyright in this case is the software that operates the phone. It’s protected by a technological measure, namely more software, that prevents you from getting access to the phone’s software without the permission of the copyright owner, which is typically the entity selling you the phone.” Essentially, these restrictions are considered part of the firmware or software of the device, and thus are a copyrighted work that cannot be circumvented. Section 1201 of the DMCA states: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” It’s a pretty broad section of law, which is likely why exemptions were granted to this particular issue, but phone locking can technically be applied to fit this rule. In terms of control, operators see subsidy locks as a way to control the investment they’ve made in individual customers, since they provide immediate discounts to the phone in exchange for a two-year commitment. An early termination fee (ETF) is assessed whenever customers breach their contracts, but the CTIA argues the subsidy is often larger than those fees. There’s also the possibility that customers choose not to pay the ETF and take a hit on their credit reports. But don’t we own the phones that we purchased with our own money? Can’t we do whatever we want with them? Ochoa argues that while we own our phones, we may not own the software that comes loaded on them — which, of course, includes digital locks. “That’s a technological protection measure, and you’re not allowed to hack around it without the authorization of the copyright owner,” he said. “The copyright owner says you don’t own your phone software, you license it. They say you’re actually leasing software instead of purchasing.” While we own our phones, we may not own the software that comes loaded on them. This argument is primarily based on the ruling for Vernor v. Autodesk, which holds that ”a software user is a licensee rather than an owner of a copy where the copyright owner (1) Specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.” In this case, phone users fall under the category of licensee, thereby leaving us at the mercy of the copyright owners. (How jailbreaking falls under the DMCA exemption and phone locks do not is another discussion altogether, but apparently there’s enough legal evidence to allow it.) Interestingly, Ochoa argues that carriers are not the actual copyright owners of the software that comes on locked devices — the manufacturers are. But what do they get out of the deal? “The manufacturers probably don’t care much one way or the other, except that carriers are their biggest customers,” he said. “If the carriers don’t want you to unlock it, then manufacturers will go along with that and say, ‘We don’t want you to unlock it either.’ If you buy your phone direct from the manufacturer, they’ll probably be willing to let you unlock it.” Arguments Why would the Register make such a decision? If the exemption was granted twice in a row, what’s lawfully different this time around? To answer that, we’ll first discuss the arguments made at the hearings (found here and here) — both for and against the exemption — and then explore the logic behind the decision. Pros: Four major companies fought for the exemption to be extended: Consumers Union, Youghiogheny Communications, MetroPCS and the Competitive Carriers Association. You may have heard of MetroPCS, a large prepaid carrier, but what about the other guys? Consumers Union is a nonprofit that publishes Consumer Reports magazine; the Competitive Carriers Association used to be known as the Rural Carriers Association and consists of more than 100 carrier members across the country; and Youghiogheny is a communications company based in Texas. Below are the proponents’ official arguments, as stated by the Federal Register: “Owners of mobile phones are also the owners of the copies of the computer programs on those phones and that, as owners, they are entitled to exercise their rights under Section 117, which gives the owner of a copy of a computer program the privilege to make or authorize the making of another copy or adaptation of that computer program under certain circumstances, such as to permit the program to be used on a particular machine.” “Ending the exemption will lead to higher device prices for consumers, increased electronic waste, higher costs associated with switching service providers and widespread mobile customer ‘lock-in.”’ “Some devices sold by carriers are permanently locked and because unlocking policies contain restrictions and may not apply to all of a carrier’s devices. Software locks are impediments to a competitive marketplace. Absent the exemption, consumers would be forced to continue to do business with the carrier that sold the device to the consumer in the first instance, or to discard the device.” “If enough customers have the ability and propensity to switch service providers in response to a change in price or non-price factors, then mobile wireless service providers will have an incentive to compete vigorously to gain customers and retain their current customers.” The proponents also reviewed some of the findings of the 2006 and 2010 cases. In those exemptions, they argued, the Register declared the practice of software locking a handset was limited to support a business model, rather than to protect access to a copyrighted work, and was “a business decision that had little to do with the interests protected under copyright law.” Cons: And in this corner was the CTIA, a trade association that represents all four national carriers, several regional networks and most major handset manufacturers. Because it’s such an important
source: http://www.engadgem/2013/02/20/engadget-primed-phone-unlock/
2013-02-20 12:21:21
Source: http://someim/2013/02/20/engadget-primed-making-sense-o/
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