I would personally love to hear more about what the conclusion of this situation with Motorola was, and whether it ended up going any further. It honestly sounds from this description like Motorola decided to "reach" with the law, and got stubbed quickly enough that it decided this kind of argument wouldn't work.
I say that, because it simply isn't clear that the DMCA actually applies to the case of unlocking cell phones. It wasn't clear six years ago, it wasn't clear three years ago, and it is even less clear now after the exemption for unlocking cell phones has expired. Yet, we have all of this rhetoric about "legal vs. illegal".
To be clear, I find the DMCA really bothersome. I also run into it constantly with the things that I do (which all involve jailbroken devices, specifically such as the iPhone). However, I think we all need to be really careful as we approach these matters to not be part of the misinformation about these laws.
In this case, what has happened is that after six years of having a specific exemption for unlocking cell phones from the DMCA, the Copyright Office at the Library of Congress did not see it fit to renew the exemption under the rules that were established for them by Congress regarding what should be exempted.
Honestly, given those rules (which I, of course, disagree with! ;P), the Library of Congress seems to have made a pretty good argument, and seems to have given the situation a good deal of thought. Yet, there have now been articles blaming, in specific, the guy in charge of the Library of Congress for this, like it is somehow personally his fault. Shameful.
Now there's this petition. This petition is asking the White House to force the Library of Congress to do something that they do not have the right to do under the rules given them by Congress. Yes: they can reconsider the matter in another three years, but they cannot just "rescind this decision".
Given that this simply isn't going to happen (and it would be a horrible violation of our government's power separation if it somehow did), it then asks for the White House to champion a bill to make unlocking "legal". This is simply not going to help us against the DMCA, and is thereby a waste of time.
Why? Because the most efficient and "battle-tested" way of accomplishing that goal is to enact something similar to the Cell Phone Freedom Act that they have in Canada, and the way that is worded is "carriers must unlock devices if asked", not "users are allowed to circumvent digital locks to unlock their own handsets". This will be seen as "the same effect, but less conflict with our beloved DMCA".
Thereby, if we actually go down this route, and attempt to get this law, a lot of effort is going to be expended, a lot of lawmakers are going to feel like they satisfied the goals of the people responding to this petition, a lot of news will be printed about how they did just that, and in the end only one use case will benefit. (Ironically, not even the company of the guy who made this petition ;P.)
This petition also is based on some wording that has been going around which confuses people about what actually happened: the DMCA exemption actually still applies if you purchased your device before January 26th (or even if you purchase a used device after January 26th that was originally purchased before January 26th); it isn't the act of unlocking that is no longer exempt, it is devices purchased (new) after that date that are not exempt.
I want to return, however, for a second to this "does the DMCA even apply in this case" question, as I believe it to be of key important here. Four years ago, when the EFF first attempted to get the exemption on "jailbreaking" (not unlocking) cell phones, the opposition included Apple. Last year, for video game consoles, the opposition included Sony.
Seven years ago, when the Wireless Alliance managed to win their requested exemption on unlocking cell phones, there were no companies that had a stake in the matter who bothered to take part. In fact, this was specifically highlighted by the Library of Congress in their finalized recommendation. Motorola? They really just didn't seem to care.
> Objections to the proposed exemption were expressed by owners of copyrighted works other than the firmware to which the proponents desired access: The Joint Reply Commenters expressed concern about the potential effect of an exemption on separate copyrighted works that are downloaded and stored on handsets, such as ringtones, games, applications, photos and videos.
Yes: the people who actually had a problem with this were concerned with software piracy, not cell phone unlocking at all. These same "Joint Reply Commenters" simply tend to argue against all DMCA exemptions, and thereby their arguments seem to always be taken with the proverbial "grain of salt" as to whether their issues even apply in these matters.
These Join Reply Commenters did not lead with that argument, though; no: their "killer argument" was that the DMCA didn't apply to these matters, and that while they seemed to even agree that the business models of carriers was troublesome, that the correct forum to address these issues was not the DMCA exemption process, but maybe the FCC.
> At the outset, submitters have not demonstrated a causal link between § 1201(a)(1)(A) and the substantial adverse impact on access to copyrighted material which they allege. The threshold question, of course, is whether it would violate that provision for mobile phone users to do what the submitters advocate, and even whether anyone other than themselves has claimed that it is or might be a violation of § 1201(a)(1)(A). A close review of the submission itself does not dispel doubts on this issue, but rather reinforces them.
That's right: the only group in opposition of an exemption from the DMCA for the unlocking of cell phones didn't believe that if you attempted to use the DMCA in this matter, you would actually have an argument or be able to make a case. And, in fact, according to the OP, Motorola tried this argument in 2005, and gave up when presented with minimal resistance.
Meanwhile, the argument is even less clear today. A couple years ago, there was a case MGE vs. GE (yes, with General Electric as the defendant) wherein GE had come to own a company that had been doing unauthorized field service on a number of backup power units constructed by MGE, and in so doing was bypassing the devices' software protections.
This seems to be one of the few really big cases to go remotely high up that actually tests just how much power the DMCA has to keep you from doing things that are quite largely unrelated to copyright, such as unlocking a cell phone, and no less with GE as the defendant on "our side" (yay!). The Harvard Journal of Law & Technology published a digest.
> The Fifth Circuit held that the DMCA’s provisions apply to protections designed to prevent infringement of copyrighted material and not protection from mere access to that material.
> In so holding, the court limits the DMCA to those cases where a defendant circumvents a protection that is designed to prevent infringement of copyrighted material.
(Note: I have yet to go through all of the actual court opinion from that case; I have it on my todo list, but as I tend to have my hands full with other things, I haven't had the time to do so yet. That is why I am citing the Journal summary, rather than the actual opinion.)
Yes: this means that in this court's opinion, the DMCA couldn't actually apply in this situation anyway, not that we really expected it to at this point ;P. (Sadly, it is my understanding that the Fifth Circuit doesn't set a very far-reaching precedent; it is still valuable to at least part of our country, though. I would love to hear more about that from those "in the know".)
What I would really love to see, then, is a petition brought forward not by a company (or generally any non-law-trained citizen), and worded in a way that causes more confusion, but one brought forward by a law student, lawyer, etc.. I would love to see this petition ask for something the White House could theoretically do, and which would actually have an effect on the DMCA ;P.
However, as it stands, while you are more than welcome to sign this petition, I must maintain that it 1) overstates the facts of the situation, 2) incorrectly states the ramifications of the situation, 3) directly asks the White House to do something it doesn't have the power to do, and 4) falls back to an ask that wouldn't help us if we got it :(.
(Also, and really this should just be assumed: I do know that these petitions are mostly for show, and that it is unlikely for these petitions to actually do anything even if they were well done. However, I feel it is appropriate to analyze the potential results of these kinds of things given the assumption "what if they mattered".)
Saurik - so glad to have you here. Thank you for the very thoughtful post.
I've been trying to reach you via IRC for a few days now, find me on there if you have a minute (in the #iphone room).
You make a lot of very astute points, and I completely agree with most if not all of them. I deliberately kept the message in this post simple, to a degree due to pressure from the Atlantic (where the post was also replicated). But I very much agree with your analysis, and the fact that the larger issue is the anti-circumvention provision of the DMCA, and I would perhaps add, shrink wrap licensing.
I wrote the text of the petition very quickly after hearing the news about the unlocking exemption to capture some of the attention being given to it at the time. My immediate reaction was simply to protect unlocking given my own background with it, but after understanding the larger issues in more detail, I think the scope of the petition should have been written differently. That being said, I'd still like to get it to the full number of signatures, even if it doesn't deal with all the issues involved. In the very least, it shows that the public care about these sorts of policy decisions.
At this point, having been working on this in various forms (via writing, or promoting this petition), I'm now quite eager to figure out exactly what needs to change with the DMCA and to help promote a movement to change the law in a more meaningful way. Working more closely with the EFF, and perhaps Jennifer Granick at Stanford, seems like the best way to proceed. If you (or indeed anyone reading this) is interested in helping, please reach out. I'm in your IRC channel now, and accessible via email/GChat at sina.khanifar@gmail.com.
I'm not quite so cynical as to think these petitions couldn't possibly matter -- though I admit, evidence that they do is rather hard to come by -- but I think that if the Administration responds to one at all, they'll ask themselves "what is this petition actually trying to accomplish, and what can we do to further its goal?" I.e. even if they do feel prompted to do something, they won't feel bound at all by the specific policy proposal. This is Government 101; I don't think we need to worry about it.
The point of the petition, then, is simply to establish how many people care about the issue in the first place, at least enough to click on a web page.
Right; and in this case, I believe that "man, people really care about cell phone unlocking, maybe we should as well!" is more likely to cause the legislation similar the Canadian act ("carriers must unlock if asked", "carriers must be very clear about unlocks", etc.) than anything related tithe DMCA ;P. That's the problem with such a narrow focus: there are more direct solutions to this particular problem that are more likely than DMCA changes that seem to pacify the petition.
(You may have just been demonstrating the efficacy of a petition in the abstract, though, and not about this one in particular. I will then just say "noted", and point out that if this had been "dismantle the DMCA" or something, I would have lent my support to it, despite it being a White House petition ;P.)
I say that, because it simply isn't clear that the DMCA actually applies to the case of unlocking cell phones. It wasn't clear six years ago, it wasn't clear three years ago, and it is even less clear now after the exemption for unlocking cell phones has expired. Yet, we have all of this rhetoric about "legal vs. illegal".
To be clear, I find the DMCA really bothersome. I also run into it constantly with the things that I do (which all involve jailbroken devices, specifically such as the iPhone). However, I think we all need to be really careful as we approach these matters to not be part of the misinformation about these laws.
In this case, what has happened is that after six years of having a specific exemption for unlocking cell phones from the DMCA, the Copyright Office at the Library of Congress did not see it fit to renew the exemption under the rules that were established for them by Congress regarding what should be exempted.
Honestly, given those rules (which I, of course, disagree with! ;P), the Library of Congress seems to have made a pretty good argument, and seems to have given the situation a good deal of thought. Yet, there have now been articles blaming, in specific, the guy in charge of the Library of Congress for this, like it is somehow personally his fault. Shameful.
Now there's this petition. This petition is asking the White House to force the Library of Congress to do something that they do not have the right to do under the rules given them by Congress. Yes: they can reconsider the matter in another three years, but they cannot just "rescind this decision".
Given that this simply isn't going to happen (and it would be a horrible violation of our government's power separation if it somehow did), it then asks for the White House to champion a bill to make unlocking "legal". This is simply not going to help us against the DMCA, and is thereby a waste of time.
Why? Because the most efficient and "battle-tested" way of accomplishing that goal is to enact something similar to the Cell Phone Freedom Act that they have in Canada, and the way that is worded is "carriers must unlock devices if asked", not "users are allowed to circumvent digital locks to unlock their own handsets". This will be seen as "the same effect, but less conflict with our beloved DMCA".
Thereby, if we actually go down this route, and attempt to get this law, a lot of effort is going to be expended, a lot of lawmakers are going to feel like they satisfied the goals of the people responding to this petition, a lot of news will be printed about how they did just that, and in the end only one use case will benefit. (Ironically, not even the company of the guy who made this petition ;P.)
This petition also is based on some wording that has been going around which confuses people about what actually happened: the DMCA exemption actually still applies if you purchased your device before January 26th (or even if you purchase a used device after January 26th that was originally purchased before January 26th); it isn't the act of unlocking that is no longer exempt, it is devices purchased (new) after that date that are not exempt.
I want to return, however, for a second to this "does the DMCA even apply in this case" question, as I believe it to be of key important here. Four years ago, when the EFF first attempted to get the exemption on "jailbreaking" (not unlocking) cell phones, the opposition included Apple. Last year, for video game consoles, the opposition included Sony.
Seven years ago, when the Wireless Alliance managed to win their requested exemption on unlocking cell phones, there were no companies that had a stake in the matter who bothered to take part. In fact, this was specifically highlighted by the Library of Congress in their finalized recommendation. Motorola? They really just didn't seem to care.
> Objections to the proposed exemption were expressed by owners of copyrighted works other than the firmware to which the proponents desired access: The Joint Reply Commenters expressed concern about the potential effect of an exemption on separate copyrighted works that are downloaded and stored on handsets, such as ringtones, games, applications, photos and videos.
Yes: the people who actually had a problem with this were concerned with software piracy, not cell phone unlocking at all. These same "Joint Reply Commenters" simply tend to argue against all DMCA exemptions, and thereby their arguments seem to always be taken with the proverbial "grain of salt" as to whether their issues even apply in these matters.
These Join Reply Commenters did not lead with that argument, though; no: their "killer argument" was that the DMCA didn't apply to these matters, and that while they seemed to even agree that the business models of carriers was troublesome, that the correct forum to address these issues was not the DMCA exemption process, but maybe the FCC.
> At the outset, submitters have not demonstrated a causal link between § 1201(a)(1)(A) and the substantial adverse impact on access to copyrighted material which they allege. The threshold question, of course, is whether it would violate that provision for mobile phone users to do what the submitters advocate, and even whether anyone other than themselves has claimed that it is or might be a violation of § 1201(a)(1)(A). A close review of the submission itself does not dispel doubts on this issue, but rather reinforces them.
That's right: the only group in opposition of an exemption from the DMCA for the unlocking of cell phones didn't believe that if you attempted to use the DMCA in this matter, you would actually have an argument or be able to make a case. And, in fact, according to the OP, Motorola tried this argument in 2005, and gave up when presented with minimal resistance.
Meanwhile, the argument is even less clear today. A couple years ago, there was a case MGE vs. GE (yes, with General Electric as the defendant) wherein GE had come to own a company that had been doing unauthorized field service on a number of backup power units constructed by MGE, and in so doing was bypassing the devices' software protections.
This seems to be one of the few really big cases to go remotely high up that actually tests just how much power the DMCA has to keep you from doing things that are quite largely unrelated to copyright, such as unlocking a cell phone, and no less with GE as the defendant on "our side" (yay!). The Harvard Journal of Law & Technology published a digest.
> The Fifth Circuit held that the DMCA’s provisions apply to protections designed to prevent infringement of copyrighted material and not protection from mere access to that material.
> In so holding, the court limits the DMCA to those cases where a defendant circumvents a protection that is designed to prevent infringement of copyrighted material.
(Note: I have yet to go through all of the actual court opinion from that case; I have it on my todo list, but as I tend to have my hands full with other things, I haven't had the time to do so yet. That is why I am citing the Journal summary, rather than the actual opinion.)
Yes: this means that in this court's opinion, the DMCA couldn't actually apply in this situation anyway, not that we really expected it to at this point ;P. (Sadly, it is my understanding that the Fifth Circuit doesn't set a very far-reaching precedent; it is still valuable to at least part of our country, though. I would love to hear more about that from those "in the know".)
What I would really love to see, then, is a petition brought forward not by a company (or generally any non-law-trained citizen), and worded in a way that causes more confusion, but one brought forward by a law student, lawyer, etc.. I would love to see this petition ask for something the White House could theoretically do, and which would actually have an effect on the DMCA ;P.
However, as it stands, while you are more than welcome to sign this petition, I must maintain that it 1) overstates the facts of the situation, 2) incorrectly states the ramifications of the situation, 3) directly asks the White House to do something it doesn't have the power to do, and 4) falls back to an ask that wouldn't help us if we got it :(.
(Also, and really this should just be assumed: I do know that these petitions are mostly for show, and that it is unlikely for these petitions to actually do anything even if they were well done. However, I feel it is appropriate to analyze the potential results of these kinds of things given the assumption "what if they mattered".)