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The DMCA and Presidential Politics, Part 2 March 4, 2013

Posted by Bill Rosenblatt in Law, United States.
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A minor war of words broke out yesterday in the U.S. government over consumers’ rights to “jailbreak” (unlock) their mobile phones.  The White House and the FCC both made public statements in which they politely condemned the U.S. Copyright Office’s decision not to renew the DMCA 1201 exception for jailbreaking and stood in favor of unlocking mobile phones for the purpose of switching wireless carriers.

This is what happens when a government process that’s supposed to be confined to relatively arcane business interests spills over into the public sphere.  The question is, why are we even talking about this at all?

A little background for those who need it: the Digital Millennium Copyright Act of 1998 has two parts.  The part that has gotten most of the attention over the past few years is the second part (Title II, section 512), which includes the “notice and takedown” regime that online services have to follow to avoid copyright liability for files that users upload.  This part of the DMCA has been the subject of several recent high-profile litigations, such as Viacom  v. Google, EMI v. MP3Tunes, and UMG v. Veoh.

The first part of the DMCA, section 1201, makes it illegal to crack DRMs.  This law was originally used to go after DRM hackers such as those who distributed DVD ripping software, in cases such as Universal v. Reimerdes.  But that was many years ago.

Since then, we’ve only heard about how this law has been distended out of shape by the likes of makers of garage door openers and laser printer toner cartridges.  And soon after Apple ushered in the smartphone revolution with the introduction of the iPhone in 2007, the major wireless carriers appropriated it to cover mobile phone jailbreaking.  Let’s be clear: these are all abuses of a law that’s dubious to begin with.

There is a provision in DMCA 1201 that requires the U.S. Copyright Office — the agency that advises Congress on the copyright law — to conduct a “rulemaking” every three years to consider whether any exemptions to the anti-hacking law should be made.  Anyone may submit proposals for such exemptions, though the requirements are fairly rigid.  The Office evaluates the proposed exemptions and may approve some of them, but the approved exemptions only last three years, until the next rulemaking.  They must be proposed and approved again in order to last longer.

In 2009, the Copyright Office approved an exemption for mobile phone jailbreaking.  In the subsequent 2012 rulemaking, the Office chose not to renew it; instead they listened to wireless industry lobbyists who persuaded them that consumer choice and competition were doing fine, and therefore that jailbreaking wasn’t necessary.  The 2009 exemption expired at the end of January 2013.

An entrepreneur named Sina Khanifar decided to do something about this: he submitted a petition to the White House, through its We the People online petition system, which has a policy of responding to petitions that get over 100,000 signatures within 30 days.  The petition did cross that threshold, and the White House did respond.

It would be nice to do something to curtail these abuses of the DMCA.  Right now, the DMCA is only “useful” in that it keeps actual DRM hacks in the shadows and prevents things like a “Convert from Nook” option in your Kindle (or vice versa).

But does anyone seriously expect any results from the White House’s populist grandstanding on this issue?  The executive branch has no power to implement changes in the DMCA, and it’s unlikely that the FCC (also part of the executive branch) has any relevant authority either.  Only Congress can change the law, and the Copyright Office is Congress’s legal advisor.  The Office’s own statement on the matter (released via email, not yet available on the Office’s website) basically said “The White House is right, this is a bigger public policy matter than the arcane issues we usually deal with in these rulemakings” — in other words, that they’ve simply done their job according to the law.

The connection between mobile phone jailbreaking and the original intent of DMCA 1201 is tenuous at best.  Maybe Khanifar’s petition will spur Congress to act, but I’m not holding my breath.

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