Who says that Republicans and Democrats can’t work together? Last week, bipartisan legislation was passed by the Senate! The Unlocking Consumer Choice and Wireless Competition Act (S. 517) allows cell phone users—once their contract term with a service provider expires—the right to circumvent technology in order to use their existing phone with a new service provider. But wait, there’s more. The House passed bipartisan legislation (H.R. 1123) on the same topic on February 29th.Now we await the House to pass the Senate bill and on the way to the President for signature. Who said nothing gets done in Washington?
That’s the glass half-full story, now for the half-empty accompaniment. This legislation was only necessary because the Librarian of Congress, under the advisement of the U.S. Copyright Office, did not renew the exemption that allowed such circumvention in 2010. Instead the exemption was limited to “legacy” phones—those purchased before the rulemaking, making unlocking of newly purchased phones a violation of the anti-circumvention provision. The Register of Copyrights considered changes in providers’ policies that often allow unlocking as evidence that the unlocking provision was no longer necessary.
Now you might be saying, “Why the hell are we even talking about this?” Bear with me because there is a library connection.
Due to a provision in the Digital Millennium Copyright Act of 1998 (DMCA), people who can demonstrate that technological protection measures—used by rights holders to limit piracy—prevent lawful uses of digital content or technology can get a three-year exemption to circumvent. Hack away, my friend! Recently, the libraries have successfully proved that there is an adverse effect due to a technological protection measure—specifically the “content scrambling system” (CSS)—used by rights holders to lock DVDs, preventing faculty from extracting clips for use in the face-to-face classroom.
Again, you might be saying, “Why the hell are we even talking about this?”
Why do we spend so much time, energy, and money arguing for these tiny exemptions that are so detailed, prescriptive, and only last 3 years? Well, ALA and many others are saying much the same thing. I can’t imagine that anyone—even rights holders—involved in this process can think it is worthwhile. Consider the fact that piracy has not been deterred by the technological protection provision. Contemplate the absurdity of arguing for an exemption that you haven’t even exercised because, if you did so, you would be violating the law. Imagine going through this process every three years even to retain exemptions that were previously accepted. And after this long drawn out process—including a week-long public roundtable deliberation and a reply comment period, you have to wait another year for the Librarian of Congress to make his recommendation. It’s insane!
But, back to the glass half-full: The House Judiciary Subcommittee on the Court, Intellectual Property, and the Internet is conducting a wide scale review of the copyright law. One can anticipate that this loony triennial review process will be discussed and surely, improvements will be made. One can hope. I know I do.