Congressmen Agree on Phone Unlocking; Committee Narrowly Approves Bill
Congressmen Agree on Phone Unlocking; Committee Narrowly Approves Bill
Congressmen Agree on Phone Unlocking; Committee Narrowly Approves Bill

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    Even when they agree on what they want, Members of Congress excel at
    division and making a noncontroversial bill sound like the road to ruin.

    FACT: Ask every member of the House Judiciary Committee if
    they support the right of consumers to unlock their cell phones so they can
    change service providers and they will say yes.  All of them.

    And yet for two hours Wednesday, Committee members engaged
    in heated debate and ultimately voted by a small margin to move the simple four
    page bill (H.R. 1123) sponsored by Rep. Bob Goodlatte out of Committee and to
    the House floor for consideration and vote.  This should not have been a controversial committee mark up,
    but many Members of Congress continue to be concerned about what this bill means,
    rather than what it actually does.

    First, lets be clear about what the bill does.  H.R. 1123 allows consumers to legally
    unlock the phones they own, so they are able to change mobile services, take
    and use them outside the country, etc. 
    This would reverse the misguided 2012 decision by the Copyright office
    to no longer allow this exemption to the Digital Millennium Copyright Act, which
    previously had been allowed for years. 
    Over 114,000 Americans demanded that Congress and the President
    reinstate this exemption earlier this year, leading to the legislation that was
    voted on at Wednesday’s mark up. 
    The bill also makes it clear that with the exemption to unlock,
    consumers may get third parties to help them with the actual unlocking.

    However, what the bill doesn’t do is give us a permanent
    exemption for cell phone unlocking so we don’t have the same fight every year,
    and allow for hearings to discuss broader reforms around the unlocking rules of
    the DMCA.  The
    only bill that fixes
    this consumer issue permanently is the bipartisan H.R.
    1892, the Unlocking Technology Act sponsored by Rep. Zoe Lofgren.

    Despite the broad consensus on the weaker Goodlatte Bill,
    most committee Democrats (Reps. Lofgren and Suzan DeBene excluded) challenged
    and eventually opposed the bill based on concerns that had little to do with
    the substance of the narrowly written H.R.1123. 

    First, process concerns were raised based over an amendment that
    was offered by Reps. Jason Chaffetz and Lofgren the evening before the markup.
    Rep. Mel Watt claimed that the committee was “handing over” the task of writing
    the bill to Chaffetz and Lofgren. 
    This was of course absurd, considering that offering and amendments is central
    to the committee markup process and he offered his own amendment shortly after.

    Democrats, led by Rep.Watt, Rep. Jerrold Nadler, and Ranking
    Member John Conyers, also challenged that the bill allowed for other devices
    such as tablets to have the same exemption. However the language dealing with
    tablets matches the language in a previous version of the bill which Conyers
    and Watt endorsed, so perhaps they were just confused. To be clear, the bill
    asks the Copyright Office to investigate and rule on including tablets.

    Of course the truth around the controversy came out finally,
    as Democrats claimed that the high paid content industry lobby, including the
    MPAA, were concerned that this bill would lead to other exemptions for
    circumventing Technological Protection Measures (TPM) beyond cell phones that
    were wholly unacceptable.  This “slippery
    slope” argument fails to understand the law that was written to permit specific
    exemptions in the first place.   The DMCA sets up a process through the Copyright Office
    by which some exemptions may be allowed and others not.  Each is argued and decided through a “de
    novo” review taking in to account the facts of that individual exemption.

    There is nothing in H.R. 1123 that substantively impacts the
    MPAA or the high paid content industry lobby.  They do not provide mobile phone services, nor do they sell
    phone devices.  That so many
    Democrats fought for the views of this high profit industry at the expense of the
    concerns of millions of consumers is sad, and makes the relative courage of the
    bipartisan supporters of H.R. 1123 look more heroic than it actually was. 

    If Public Knowledge, and proponents of unleashing
    technological innovation for consumers like Rep. Lofgren have
    our way
    , we will see a dialogue and debate around the right to unlock and
    circumvent TPM generally in the coming months.  Chairman Goodlatte has said this topic should be a part of
    his ongoing review of copyright law. 
    However, fear of this debate is not a reason to undermine a simple,
    pro-consumer exemption like phone unlocking, which was uncontroversial until
    this week.  

    As the bill moves to the House floor and the
    Senate, lets hope more Members of Congress remember what this bill
    accomplishes, and not what future debates they are afraid to engage in.

    Original image by Flickr user (and our friend!) tvol.