TechBriefing: Unlocking Mobile Devices & the DMCA

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What is unlocking?

Most phones and tablets sold by U.S. wireless carriers come “locked,” meaning their software prevents the user from enabling the full capabilities of the device.
Users can override these software locks by installing a new “bootloader” (essentially a new or modified operating system for the phone).This is generally called “unlocking” but is further divided (confusingly) into three more categories, depending on the purpose:
Unlocking enables the device to connect to the wireless networks of other (otherwise compatible) carriers;
Jailbreaking allows installation of apps that are not sold and distributed via the device’s stock app market (this is unnecessary on most Android devices);
Rooting means accessing “root” control to develop and install customized versions of the operating system (OS), an updated OS, a new OS, or new software requiring greater access to the device’s capabilities.

Carriers subsidize most devices, offering a lower upfront price in exchange for a two-year contract and a promise not to unlock the device. Such contracts are intended to allow carriers to recoup their subsidy, but may also curtail rooting and jailbreaking. Violating such contracts by unlocking your device might require paying an early termination fee if a user ends her contract, but is not a crime–except under the DMCA.

What’s the Law on Unlocking?

The Digital Millenium Copyright Act (“DMCA”) generally bans “circumvent[ing] a technological measure that effectively controls access to a [copyrighted] work.” Since unlocking, jailbreaking and rooting all involve overriding a technological measure that controls access to the phone’s (copyrighted) operating system, they’re prohibited under the DMCA–even though unlocking is either not infringement or fair use. That means that what would otherwise be merely a breach of a contract is, under the DMCA, both a crime and subject to large civil penalties (up to $2,500, or if willful and for purposes of financial gain, $500,000).
Congress recognized that the broad prohibition of technological circumvention could cause problems, so the DMCA allowed the Librarian of Congress, in consultation with the Copyright Office, to grant exemptions for three year periods if advocates of an exemption can satisfy a five-part test.
In 2006, the Librarian of Congress granted such an exemption for unlocking phones, and renewed it in 2010.
In October, 2012, the Librarian narrowed the unlocking exemption to no longer include the unlocking (for the purpose of switching carriers) of “new” phones purchased after January 26th, 2013–unless the carrier (that originally sold the phone) explicitly consents. ^{^[1]}
Current exemptions permit unlocking phones for jailbreaking (installing non-market apps) and rooting (for obtaining root access as a software developer or customizer). ^{^[2]}
The Librarian has denied requests for a similar exemption for tablets , arguing the class of devices was too hard to define. Thus, the DMCA has always prohibited tablet unlocking. ^{^[3]}

Discussion

What are the benefits of unlocking?

The Librarian of Congress itself has found unlocking does not contribute to piracy of copyrighted works–the original purpose of the DMCA.
Unlocking allows users to switch wireless carriers without buying new hardware. This should facilitate competition, thus indirectly lowering rates. It may also encourage carriers to offer an alternative tier of lower rates that do not include the premium generally charged to recoup an upfront subsidy for a new device.
Unlocking allows users to connect their phone to another carrier’s network without leaving their current provider—for example, if they travel overseas. (This generally also requires a new SIM card.) This means cheaper international calling and data service.
Unlocking allows experimentation and development of new and better mobile software in the user-built, open source community.
Unlocking allows users to update their operating system without having to wait for their carrier to push out the latest version of the OS–something that may take months or never happen at all for older phones. Thus, unlocking can make phones more secure.
The ability to unlock a phone increases its resale value.
Unlocking may be permitted under a service contract, or the contract may have already ended.

Will the revised exemption significantly curtail these benefits?

The practical effect of narrowing the exemption probably won’t be as draconian as feared:
Prohibitions on carrier unlocking will only apply to new phones.
Many carriers and retailers already provide unlocked devices or will unlock devices at the customer’s request.
Remaining prohibitions on tablet unlocking will almost certainly go unenforced, at least as far as individual device owners are concerned.

However, as the National Telecommunications and Information Administration (the White House’s principal advisor on telecom policy) noted in its letter ^{^[4]} encouraging the Librarian of Congress to extend the unlocking exemption, the narrower exemption means:
A device owner who loses her receipt will often be unable to unlock her phone.
A person who lawfully buys a used phone may be unable to unlock that phone if the buyer isn’t a subscriber of the carrier that originally sold the device.
There may be other practical circumstances where consumers can’t get their phones unlocked.

What are the larger issues at stake?

Should carriers and device manufacturers be able to use copyright law, in addition to contract law, to control how devices are used–even when those uses do not violate exclusive copyrights?
Should the DMCA permit the development, marketing, and sale of tools that help users unlock the devices they own for otherwise-lawful purposes?
Should the DMCA exemption authority remain with the Librarian of Congress? Or should congress amend the DMCA to specify exemptions?
Should DMCA exemptions remain specific to “classes of content” and adversely affected users? Or should a legislative exemption cover all circumvention activities not related to actual copyright infringement?

What was the DMCA supposed to do?
Congress wanted to help copyright holders protect their content from unauthorized reproduction with encryption or other technological methods ( e.g ., digital rights management). The DMCA made breaking those technological protections (or helping someone else do so) criminally or civilly actionable–just like reproducing or displaying the underlying copyrighted work. In physical property, that’d be like holding someone criminally liable for selling a lock pick or picking a lock as well as eventually walking through the door.

But unlocking a phone does not necessarily entail copyright violations. Unlocking means replacing a copyrighted bootloader (underlying software) with an open-source, uncopyrighted bootloader. Restricting unlocking has nothing to do with deterring piracy.

Who’s trying to fix this problem?
Lawmakers on both sides of the aisle responded to public concerns about the illegality of cell phone unlocking. The White House responded to a petition: “if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network.” ^{^[5]} A number of bills were proposed to fix this unusual quirk in the DMCA, including those by Democrats Rep. Zoe Lofgren and Sen. Amy Klobuchar, Democratic Senator Sen. Ron Wyden, and a bipartisan group including Sens. Leahy, Grassley, Franken, and Hatch. In June, the House Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the issue, ^{^[6]} which revealed strong bipartisan support for changing the law. The bills differ significantly in their approach, but their core theme is the same: cell phone unlocking should not be a copyright issue. Instead, the bills’ proponents argue that contract law alone should govern cell phone carrier interoperability.

Our Position & Recommendations

By policing behavior unrelated to copyright infringement, the DMCA is an unwarranted legislative intrusion into the common law of contracts.
We defend the right of mobile carriers to limit the interoperability of their devices by contract–which consumers are free not to accept. But the DMCA creates default rules for all mobile service contracts: unlocking will be forbidden and subject to large penalties unless the carrier decides to contract-out of the default. Defaults in contract law are emergent rules best determined case-by-case according to the intent and reasonable expectations of the parties. It the common law, not Congress or its Librarian, that is the best vehicle to determine these defaults organically.

DMCA Exemptions should be ”simple rules” rather than tech-specific carve-outs.
Congress decided to empower the Librarian of Congress to grant exemptions for three year terms, and each exemption is required to apply to a specific “class” of content (hence the phone-tablet distinction). That’s an awful lot of power, as well as difficult judgement-calls, to put in the hands of an unelected official otherwise absorbed in the appointment of a Poet Laureate or the maintenance of the world’s largest library. A simple rule to clarify DMCA application could be: “It shall not be a violation of this section to circumvent a technological measure … if the purpose of such circumvention is to engage in a use that is not an infringement of copyright.” ^{^[7]}

Congress should ensure broader exemptions do not encourage the development and distribution of circumvention tools for the purpose of copyright infringement.
A tool to make a cell phone interoperable or a tablet user-customizable might also be repurposed or misused in order to infringe copyrights. As in gun-control debates, existing laws may not be effective at reducing the undesirable collateral consequences of tools that have both legitimate and illegitimate uses, and increased regulation may only chill legitimate use while international or underground production of truly harmful tools goes unabated. A careful balance must be struck between permitting the tools of innovation and policing the tools of infringement.

Recommendations

Legalize unlocking of cell phones as well as tablets. Treat cell phone unlocking like other contractual relationships: allow companies to enforce their contractual rights.
Ensure that any fix prevents the Librarian of Congress from simply reinstating his/her interpretation at a later date.
Hold hearings on whether the exemption process needs to be reformed, especially the legal burden imposed on those advocating a new, or renewed, exemption–while minimizing the risk that circumvention tools will be used for infringing purposes.

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