Does Congress Mean to Enforce Particular Business Models with Copyright Law?
Does Congress Mean to Enforce Particular Business Models with Copyright Law?
Does Congress Mean to Enforce Particular Business Models with Copyright Law?

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    At a hearing on unlocking phones, some suggest that
    Congress added laws against circumventing access controls not just to fight
    piracy, but in order to protect particular business models. Businesses use this
    argument to justify using copyright law to criminalize activities that don’t
    actually infringe copyright.

    Up until last year, unlocking a cell phone so that it could
    be used with a different carrier was perfectly legal. That changed when the
    Librarian of Congress decided no longer to include it in a list of exceptions
    to the Digital Millennium Copyright Act (DMCA), which forbids the circumvention
    of technology that controls access to copyrighted works. The Librarian’s
    decision has sparked a great deal of controversy, and lead to several proposed
    bills that would once again make it legal to unlock cell phones. In a hearing
    before the House Judiciary Subcommittee on Courts, Intellectual Property and
    the Internet last Thursday, Congress heard testimony about one of these bills,
    and about the practice of unlocking phones.

    Subcommittee Vice Chairman Tom Marino began the hearing by
    framing the considerations on each side in terms of their effect on the market
    and existing business models, pitting the promise of a more competitive
    marketplace that phone unlocking allows against the ability of carriers to
    recover the cost of subsidizing phones.

    The focus is telling, because this was the primary positive
    argument presented for criminalizing the unlocking of cell phones – to protect
    a particular existing business model. Notably absent was the claim that
    unlocking cell phones in any way facilitated copyright infringement. 

    Representative Zoe Lofgren commented on this, stating that,
    “It’s not Congress’ role to tell people the business model they should use,”
    and that using criminal law to enforce a private contract is “just a misuse of
    the law.”

    One of the witnesses, however, had a very different tone.
    Stephen Metalitz, an attorney who has regularly represented large copyright
    holders on DMCA issues, claimed that Congress had intended not only to fight
    piracy, but to protect specific business models when it enacted the DMCA, and
    he cited the business models that have emerged since the DMCA was enacted.
    (Check out the 1:42-1:47 mark of the full hearing

    Is he right? Was the DMCA drafted in order to expand the
    ability of businesses to use criminal law to protect their business models?

    The answer is no. Section 1201, the anti-circumvention
    portion of the DMCA, specifically states that it is meant to have no effect on
    rights, limitations, or defenses to copyright infringement, including fair use.
    (See Section 1201(c) available here

    What’s more, the standard the
    Copyright Office uses
    in deciding which activities should be exempt
    is a simple two-part test:

    1. Does the activity infringe copyright, and
    2. Is the activity adversely affected by the DMCA?

    If the process for deciding on exceptions were perfectly
    effective, every activity that didn’t infringe copyright but that was
    threatened by the DMCA would be exempt. This legal design shows no intent by
    Congress to outlaw activities that would otherwise be non-infringing.

    Unfortunately, businesses don’t want you to unlock phones
    without their permission, and they can use the threat of prosecution under the
    DMCA to enforce rights they don’t have. The process for deciding on exception
    is complicated, and each activity is assumed to be illegal unless someone can
    compile sufficient evidence to prove that it shouldn’t be. Even activities that
    have previously been exempted, such as cell phone unlocking, have to be
    re-approved every three years de novo (meaning it is, once again,
    assumed to be illegal until proven otherwise).

    Inevitably, that means that many non-infringing activities
    won’t be exempt, simply for the lack of resources needed to prove that they
    should be. Moreover, the uncertainty of a de
    triennial review may prevent programmers and other innovators from
    creating new goods and services out of fear that their services may be outlawed
    by the next review.

    What Metalitz is doing is seizing upon flaws in the
    application of the law to support the idea that Congress intended to create and
    enforce the specific business models that have emerged since the law was

    Of course, as Representative Lofgren claimed, it’s
    inappropriate for Congress to try to enforce specific business models, and the
    only way to permanently protect non-infringing activities such as cell phone
    unlocking is by reforming Section 1201.

    Image by flickr user izqrdo.