How Not To Win in Washington

  In November, a young staffer named Derek Khanna won brief notoriety for writing a report for the House Republican Study Committee urging a change in copyright policy to favor consumers rather than rights holders. The effort got him fired, and earned his a fellowship at the Yale Law School’s Information Society Law Project.  Now Khanna is back with a manifesto, published by BoingBoing, entitles “Cellphone unlocking is the first step toward post-SOPA copyright reform.” Unfortunately, it betrays about as many misconceptions about how Washington works as an episode of “House of Cards.”

Phone unlocking should be allowed. But the issue is a very poor choice for a showdown on the future of copyright. First, hardly anyone understands what unlocking actually does. In the U.S., it is mainly useful for using an AT&T phone on the T-Mobile network (if the phone itself operates on all the frequencies used by the two semi-compatible carriers), or, more practically, for allowing the phone to work with a non-U.S. SIM card when outside the country. Early termination fees for subsidized phones bought on contract (unsubsidized phones should be sold unlocked and usually are) mean there’s little advantage to unlocking a phone while it is still in contract, and most carriers will unlock the phone for you once the contract is over. These realities make it hard to build up a lot of outrage over the Copyright Office’s failure to extend an exemption that allowed phone unlocking, and in fact, were a major consideration in the Library of Congress’ decision.

Understand the fight. Second, this proposed fight is based on what are, at best, half-true premises. The fact is, there is no law criminalizing phone unlocking–not as such, anyway. Section 1201 of the Digital Millennium Copyright Act makes it illegal to “circumvent a technological measure that effectively controls access to a work protected under this title,” and, for complicated legal reasons, unlocking a mobile phone constitutes circumvention. There is a provision for criminal penalties, but only for willful violation for commercial gain, and, notwithstanding those FBI warnings on DVDs,  criminal prosecutions for copyright violation are very rare and nearly nonexistent for consumers.

There are more problems with Khanna’s manifesto, summarized by him in this open letter to congress:

Dear Congress, Please remove these items from your DMCA contraband list (both for developing the technology, selling and using the technology):

• Technology for unlocking and jail-breaking (currently allowed for iPhone, not allowed for iPad).

• Adaptability technology for the blind to have e-books aloud (currently subject to triennial review by the Librarian of Congress – it’s legal to use the technology but illegal to develop or sell).

• Technology to back-up our own DVD’s and Blue-Ray discs for personal use (current law makes this illegal and injunctions have even been used to shut down websites discussing this technology).

Signed,  The people

As noted above, there is no DMCA contraband list. There is a blanket ban on circumvention, with the Librarian of Congress empowered to grant specific exemptions. All 4G iPads are sold unlocked, so they don’t need an exemption. Jail-breaking (modifying an iOS device to let it accept non-App Store software) is a separate issue from unlocking and it is not even clear that it is prohibited by DMCA. Apple has warned that jail-breaking will void the warranty on an iPhone or iPad, but has never claimed a copyright violation The exception for adaptive technology for the blind is the least controversial of all the DMCA waivers and does not seem to be under any threat. It would be good if Congress got around to including the exemption in law, but the practical effect would not be significant.

Looking backward. The suggestion regarding DVDs and Blu-ray (not Blue-Ray) is particularly odd and backward looking, given the fact that distribution through physical media  is slowly going away. The fight over the ripping of DVDs is one of the oldest disputes under DMCA. But the fact that courts found  DVD ripping, even for personal use, violated the law does seem to have stopped anyone from doing so for the past dozen years. Software that extracts video files from protected DVDs is readily available, and no one seems to be making any serious effort to stop it. Copying Blu-rays is someone more difficult, but mainly for technical rather than legal reasons.

I wrote at the time that an internet-based revolt killed the Stop Online Piracy Act that this fight was easy. The legislative process is designed for failure, especially in the current partisan environment, and this makes stopping legislation simple.The real challenge is to get something passed, and if we are going to make the effort, we might as well look to the needs of the future rather than the fights of the past.

The issues must be understandable and capable of drawing broad support. One thing worth fighting for is guaranteeing a right for purchasers to resell digital media. U.S. copyright law follows the first-sale doctrine; once you have bought a copyright-protected product, you can do anything you want with it it except reproduce it. But copyright owners have used technological means to prevent resale and as more and more media goes digital, first sale is effectively disappearing.  We need our first-sale rights restored (with reasonable protections for copyright owners to make sure that copied are being sold and not multiplied.)

Another area of concern for the future is protecting the potential of 3D printing. This is a bit tricky, because the current legal environment is actually favorable to 3D printing–there generally is no copyright protection for physical objects  other than works of art, but some assault on the technology seems likely. You have to be very careful about copyright legislation because of the real possibility you will end up worse off than before.

You also have to frame the fight correctly. Khanna somewhat oddly sees the phone unlocking issue as an infringement of the property rights of phone owners. In fact, this, like so many tough fights, is a case of rights in conflict: The rights of the intellectual property creator vs. the rights of phone owners. But framing this s a property rights issue is a formula for getting lost in the weeds of an arcane legal dispute.

It’s also worth consulting the history of DMCA adoption. The tech industry, represented mainly by Microsoft,  generally favored the law and, in particular, the anti-circumvention provisions because of the fear of software piracy. This was consensus, not “crony capitalism.” There are fights worth having, and Khanna is correct that the best strategy is the build a powerful coalition through small victories and the time to get started is now.