Beyond Unlocking: Don’t Let Them Kill the First Reasonable Copyright Reform Bill

A funny thing happened on the way to Congress yesterday. For once, lawmakers introduced a common-sense bill — the Unlocking Technology Act of 2013.

Kids access technology with Unlocking Technology Act of 2013

If passed, the bill would give Americans freedom to do what they need — unlock, repair, maintain, modify — with the devices they own, whether cellphone or car. “Own” being the operative word, because, as I’ve argued here before, it’s no longer obvious who owns our stuff when we live in an age where physical objects are also digital and require access to information (such as service manuals).

With such a common-sense bill, you might assume that Congress will make a rational decision to guarantee our rights — especially when introduced by a bipartisan coalition of representatives: Zoe Lofgren (D-CA), Thomas Massie (R-KY), Anna Eshoo (D-CA), and Jared Polis (D-CO).

But don’t kid yourself: this is an uphill battle.

Technology advocates don’t have a great record of legislative wins compared to the deep-pocketed carriers and content lobbyists who are masters of playing the long game. The most likely course of action is a stopgap solution — like a Leahy bill that scores political points but fails to solve anything — so it’s important that we voice our support, now.

This isn’t the first bill in Congress to tackle the problem of cell phone unlocking. Unlocking — a tweak that allows consumers to modify the software on their devices and move cell phones to different carriers — is a common resort for international travelers, including military servicemen, who unlock devices to avoid exorbitant roaming fees while abroad. The practice was deemed illegal by The Librarian of Congress and banned early this year.

However, once the White House threw its support behind legalization efforts, no less than three other bills have been introduced in the Senate. All of them have been lackluster, since not one made any meaningful reforms to the Digital Millennium Copyright Act (DMCA), a massive copyright protection law passed in 1998 whose provisions made cellphone unlocking illegal in the first place.

The Unlocking Technology Act, however, is not a band-aid: It’s a solution. It’s the first serious effort by Congress to make a permanent change on the unlocking front. And, instead of eschewing the problems with copyright as the Leahy bill does, it meets them head on.

Here’s how this bill is different from the others. It would allow all consumers to circumvent the digital locks on their mobile devices. Anyone could access and modify software on their devices, in the same way they already modify and repair hardware.

Importantly, it would also protect the engineers and entrepreneurs who create tools that allow consumers to unlock their phones. This is a particularly huge distinction and major departure from other bills. Most people don’t write their own software. If you need to unlock your phone, odds are you’d go online and download a software program that does it for you.

Without the changes in the current bill, the developers who made that software face harsh penalties — up to 5 years in jail and a $500,000 fine for distributing unlocking software. “There is little point in making a technology lawful for person[al] use but keeping it illegal to develop,” writes Derek Khanna, a vocal proponent of cell phone unlocking and copyright reform. He also points out that the new bill recognizes such “pro-free market technology” as “pro-innovation.” Makes perfect business sense.

In fact, the careful wording of the proposed law makes sense for stakeholders on both sides of the debate. It doesn’t just protect object owners — it protects copyright holders from threats, too. The bill states that unlocking is only allowed “if the purpose of the circumvention is to use a work in a manner that is not an infringement of copyright.”

Violating copyright by bootlegging movies and music will remain illegal, as will bypassing digital locks for the purpose of copyright violation. The new law would guarantee digital rights for researchers, repair shops, and consumers while preserving the intellectual property rights of authors and musicians. Importantly, it would continue to guarantee artists’ rights to earn a living from their work.

In other words: Besides protecting copyright holders and legalizing jailbreaking and unlocking all mobile devices, the Unlocking Technology Act opens the door to wider, much-needed copyright reform.

Yet it’s precisely this “broader approach” that could also “create more opposition,” as Sherwin Sly of advocacy group Public Knowledge told me. He remains hopeful, as do I, but we can’t afford to forget that there are a lot of entrenched interests here.

Clearly, copyright is broken. The reason the DMCA prevents us from unlocking our phones in the first place “has nothing to do with the cellphone industry, and everything to do with poor lawmaking,” points out Sina Khanifar, the copyright activist who first thrust the unlocking controversy into the national spotlight. “The DMCA was meant to stop piracy, but because of vague language the law has been misappropriated to keep all manner of devices locked down, including cell phones.”

The side effects of the DMCA include farmers who can’t maintain their equipment, independent mechanics who struggle to fix the latest cars, and even scientists who can’t install Linux on game consoles to build affordable supercomputer clusters for research purposes. Other unintended, stifling side effects include making the visually impaired petition every three years for the right to use screen reader technology for e-books: They live with the fear that their right to read could be arbitrarily taken away by the Librarian of Congress.

So the Unlocking Technology Act is exactly the sort of reform that the DMCA needs. But without public support, bills have a tendency to get lost in committee, voted down, or passed over for easier-to-pass, less rigorous legislation.

We can’t let that happen. It’s crucial that Congress recognize the significance of this act, but that will only be possible if the public is vocal in their support. The time to speak up is now.

This article was also published on Wired.