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
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.