SHARING AMERICA'S TECH NEWS FROM THE VALLEY TO THE ALLEY
Today in the House Judiciary Committee, they’re holding hearings concerning cell phone unlocking, focused specifically on Rep. Goodlatte’s proposed bill, which actually seems to be the weakest of all the proposed bills. It doesn’t offer a permanent fix. It doesn’t fully tackle the problem. Actually, it barely tackles the problem, and serves only to punt the issue down the road. That is, it would “repeal” the rejection of the exemption to the DMCA for cell phone unlocking by the Librarian of Congress (if you don’t recall, the whole fight is because the DMCA ridiculously makes it illegal to circumvent “technology protection measures” even if the reason has nothing to do with infringing on someone’s copyright, but every three years, the Librarian of Congress gets to issue “exemptions”), but would allow the Librarian of Congress to revisit the issue at the next triennial review. It does nothing to address the actual problem, which is a ridiculous and broken anti-circumvention clause, section 1201 of the Copyright Act.
The hearing has four witnesses… and all are more or less lining up behind Goodlatte’s weak bill, some for better reasons than others. A few others haven’t been invited to speak, but have submitted written testimony as well. I’ll cover the remarks of the four speakers going in order of “reasonable” to “ridiculous” followed by two of the interesting written submissions.
When it came to written testimony, we’ll highlight two key ones. First is from the Library Copyright Alliance, which says what really needed to be said: that section 1201 of the DMCA is ridiculous, broken and in need of real reform:
Most significantly, the Section 1201 rulemaking is an exercise in legal theatre. All the parties to the rulemaking—those seeking an exemption, the rights holders, and the Copyright Office staff–acknowledge that it is unclear whether the rulemaking has any practical effect. This is because Section 1201(a)(1)(C) authorizes the Librarian of Congress to adopt exemptions to the Section 1201(a)(1)(A) prohibition on the act of circumventing a technological protection measure (TPM), but not to the Section 1201(a)(2) prohibition on the development and distribution of the technologies necessary to perform the circumvention. In other words, after receiving an exemption, a person might be legally permitted to perform the act of circumvention, but might have no lawful way of obtaining the technology necessary to perform that act.
Similarly, all the parties understand that what occurs inside the hearing room has no connection to the world outside it. In the last three rulemaking cycles, LCA has joined with other groups in seeking exemptions for educators and students to circumvent the TPMs on DVDs for the purpose of making educational uses of film clips. The rights holders know that the uses we seek will not harm their market in any way. They also know that whether the exemption is granted or rejected will have absolutely no impact on the level of infringement. This is because the technology necessary to circumvent the TPMs on DVDs is widely available on the Internet and easy to use. Nonetheless, the rights holders reflexively oppose the exemption or seek to narrow it so that it would be unusable. As a result, the discussions in the rulemaking descend into hyper-technical issues such as the quality of video necessary for effective pedagogy in different kinds of courses.
Moreover, in two rulemaking cycles, witnesses from the Motion Picture Association of America (MPAA) demonstrated how a person could camcord a film off of a high definition television. MPAA was attempting to show that a relatively high quality recording could be made without circumventing a technological protection measure. What it succeeded in proving, however, was the contradiction underlying its position. If one could obtain a high quality copy without circumvention, why use technological protection measures in the first place, and why should their circumvention be unlawful? Moreover, the MPAA was demonstrating how to camcord a film precisely at the same time it was asking Congress, state governments, and foreign legislatures to impose criminal penalties on camcording.
There’s more to it, but that’s a good snippet. It’s a shame that this more detailed view wasn’t included as a part of the actual hearing.
Similarly, we’ve got Derek Khanna’s submission which he discussed here yesterday. Khanna’s submission, alone among all of the testimony, actually delves into the details of what the actual problems are and how allowing people to actually own what they buy (what a concept!) is a good idea for consumers, for innovation and for business. It’s fairly comprehensive, and again, his voice would have been quite a useful addition to the actual hearing.
Banning technologies is an extreme step by government, a truly incredible reach of Federal power, and I would petition this body to be very careful in continuing to delegate the authority of what technologies to ban to a quasi-regulatory agent when, in these and many other circumstances, there is no compelling governmental interest.
This legislation, as currently crafted, does not reflect the input of the White House, former FCC Chairman, FCC Commissioner, scholars or outside groups such as R Street and FreedomWorks. Our campaign was about actually solving this problem and restoring a free market. Minor changes to this legislation would ensure that H.R. 1123 actually solves the problem it intends to address by permanently legalizing unlocking and allowing for businesses to sell the technology to consumers. Overall, our contention is that given the enormous benefits that phone unlocking provides to the consumer, phone unlocking should be made permanently lawful for the consumer to use, industry to develop and marketers to sell.
Hopefully, Congress will recognize that punting this and pretending there’s nothing wrong with section 1201 is the wrong way to go, but given the situation, it doesn’t seem like those in Congress are even open to considering that issue at this time.