Heading for a Hollow Victory on Phone Unlocking

Photo of chained phoneThe news that the ranking Republican and Democratic members of the house Judiciary committee plan to introduce legislation to legalize the unlocking of mobile phones by consumers greatly increases the chances that Congress will reverse the refusal of the Library of Congress’ Copyright Office to approve the practice. But despite the excitement among tech activists, the victory is likely to be largely meaningless in practice. The only real beneficiaries will be owners of very new phones who are looking to use them on foreign networks without paying exorbitant roaming charges.

The problem is that while altering the software that ties a phone to a specific network removes artificially barriers to interoperability, formidable technical barriers remain in place. The convergence of fourth-generation networking technology on a standard called LTE was supposed to ease or eliminate the problem, but if anything, it has made matters worse. The problem is that U.S. carriers are all implementing LTE differently, specifically on different frequencies, and phone makes have not been able (or perhaps willing) to incorporate enough radios to make the phones interoperate. For example, Apple sells different LTE iPads for Verizon and AT&T and even though they are sold unlocked, they cannot be used on each other’s networks.

Verizon and AT&T are both rolling out LTE on spectrum in the 700 MHz band formerly used for analog television. But they are using different portions of the  band. And the Federal Communications Commission has not required AT&T and Verizon to act to make their networks or their phones compatible, although it would take no great technical effort to do so. Sprint is deploying LTE at the same 1900 MHz frequency it uses for existing 3G and voice services. T-Mobile will be offering services at 1700 MHz. This means that no two carriers are offering compatible services.

If you are willing to forgo LTE, you can get some partial compatibility. AT&T and T-Mobile phones will work on each other;s networks, though you can’t count on the fastest data performance. Those phones can change networks simply by swapping SIM cards. You should be able to get an unlocked Verizon phone registered on the Sprint network, and vice versa, but performance of a Sprint phone on Verizon may suffer if the phone does not support Verizon’s 800 MHz service. And giving up LTE means giving up a lot.

In other words, the hubbub over phone unlocking has been disproportional to what is likely to be achieved. Consumers may win a purely symbolic victory, but in practical terms, their phones will be as locked as ever. The time to have made a fuss was back in 2007, when the FCC was setting the rules for the 700 MHz auction. Everyone knew going in that AT&T and Verizon were going to emerge as the winners, and required interoperability of  their LTE services would have made a huge difference. But that ship has now sailed.

The carriers will make a big show of opposing any unlocking legislation. I think they do this partly because they simply do not like being told what to do and partly to keep their lobbyists in practice. In fact, the bill that is likely to emerge from the Judiciary leadership will require them to do things they are mostly or entirely already doing. It will be a feel-good victory for advocates, but it will change little or nothing.



It’s Time To Fix DMCA Takedowns

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A few days ago, a teacher posted a copyright Pearson Education personality inventory on a blog at Edublogs.org. Pearson served a Digital Millennium Copyright Act notice, which set off a series of events that led to nearly 1.5 million student and teacher blogs going temporarily dark after Edublogs’ hosting service took its servers offline. (You can read the details of the affair in this Techdirt account. By Oct. 16, Edublogs was back up, apparently with a new hosting service.)

My purpose isn’t to defend or attack Pearson–plenty of others have done that–or even to rail against DMCA, which is full of both useful and ridiculous provisions. But its clear that a section of the law that was created to protect web sites hosting third-party content has gone off the rails.

DMCA requires site operators to take down copyright-infringing material at the request of the copyright holder. The key language, known as Section 512 or the safe harbor provision, is part of a compromise that bars infringement claims against sites such as YouTube as long as they make good-faith efforts to keep infringing content out and comply with takedown notices. It was this provision that allowed YouTube to fend off a suit by Viacom (still wending its way through appeals) charging massive copyright infringement. Without it, the whole idea of user-generated web content would long ago have collapsed under an assault of copyright suits.

But there are problems with the whole DMCA takedown process and they are getting worse. To ensure safe harbor protection, many sites have turned to algorithms that hunt for infringing content and these programs make mistakes, lots of them. For example, YouTube blocked posts of Michele Obama’s speech to the Democratic National convention because the address had been carried in copyrighted network broadcasts.

Content owners also use algorithms to hunt for infringement, and these too have caused trouble. Earlier this month, a Microsoft infringement-hunter went a bit crazy and sent Google 440,000 takedown requests, including pages posted by Wikipedia, the BBC, and the U.S. Environmental Protection Agency.

Aggressive copyright enforcement backed by takedown requests has targeted political advertising.  Some of this is legitimate, if perhaps unwise;  copyright holders have the right to disapprove the use of their material in ads.  But much, including network objections to the use of news clips and BMG’s attempt to block airing of ads featuring President Obama singing an Al Green song, stomp on the fair use exemption built into copyright law. (The Center for Democracy & Technology has a good analysis of the problem. It was written during the 2010 election season, but applies as well to this year.)

On the whole, the Section 512 and the DMCA takedown process has worked reasonably well at balancing interests, but there is evidence that the playing field is starting to tilt toward rights holders. I think some relatively  modest reforms are needed to restore balance (even though I am always reluctant to propose any copyright law changes on the principle  that the law almost always emerges from Congress in worse shape than it went in.)

First, we need a way to minimize collateral damage. Takedowns should be limited to to pages containing infringing material and the practice of taking down whole sites because of a small amount of potential infringement must stop. In the case of Edublogs, the takedown came after the site operator, wpmu.org, had blocked the offending post but had accidentally left a copy in a server cache. The  hosting service just did the quickest and simplest thing and pulled down the whole site.

Second, the practice of making sweeping takedown requests at the least hint of infringement needs to be reined in by penalizing false or overbroad claims. Section 512(f) of DMCA makes it possible to recover damages for a takedown that “knowingly materially misrepresents” a claim. But the law sets a very high bar for such recovery and it simply is not a viable alternative for a blogger, or anyone much smaller than YouTube, to bring a damages case against, say, Warner Bros. We need a more effective way to discourage over broad takedown requests and to compensate victims of false claims.

Copyright law, and intellectual property law in general, is all about striking a balance, weighing the rights of content producers against those of users and consumers. In recent years, the debate has been dominated by copyright maximalists, who want to restrict fair use into oblivion, and minimalists, who believe copyright is evil in principle or who think that fair use is whatever use they wish to make. Both are wrong, and they stand in the way of reasonable solutions.





Copyright and 3D Printing: A Fight the Makers Can Win

Will homemade 3D objects be the next intellectual property battleground. Perhaps, bit this time the fight will be very different because the makers, not the owners, have the legal high hand.

Photo: MakerBot Replicator
The MakerBot Replicator

3D is one of most exciting technologies to emerge in a long time. Machines using inkjet-like technology lay down precise layers of material. If you can create a file describing an object, and programs such as Autocad and Mathematica can do this automatically, you can print it.

High-end printers can create objects in aluminum, stainless steel, and ceramic. Simpler units, such as the $2,000 MakerBot Industries Replicator can print objects in two colors of ABS plastic.

The Pirate Bay blog waxed rhapsodic about the prospect:

We believe that the next step in copying will be made from digital form into physical form. It will be physical objects. Or as we decided to call them: Physibles. Data objects that are able (and feasible) to become physical. We believe that things like three-dimensional printers, scanners and such are just the first step. We believe that in the nearby future you will print your spare parts for your vehicles. You will download your sneakers within 20 years.

But it turns out that replicating objects is far from piratical for the simple reason that no existing form of intellectual property protection covers most physical objects. The only 3D objects off any sort on the Copyright Office’s list of protected works are sculptures and architecture. You can trademark something like the Nike swoosh and the concept of trade dress provides some protection to designs, but the fashion industry learned decades ago that neither copyright nor trademark could stop design knockoffs, such as a mass market version of a couturier dress. Patents could provide limited protection but it is very hard to use a patent to protect a part.

In the past, this gap in IP coverage wasn’t much of an issue. Skilled machining and toolmaking were too expensive for knockoff parts to be economic. Only where there was a opted rial for large sales, such as automotive crash parts that mimicked original body panels, did copying parts make sense.

The coming of 3D printers and other equipment, such as inexpensive computer numerically controlled (CNC) machine tools has drastically changed the landscape. I think it is unlikely that printed objects will ever be cheaper than standard mass production, but scanning and printing replacement parts, profitable items for many manufacturers, will become common.

I’m sure there will be attempts to restrict scanning and copying of physical objects. (Efforts to win copyright protection for objects such as laser printer toner cartridges by embedding chips with ostensibly copyrightable code have failed miserably in the courts.)But one important lesson of the (so far) successful fight against the Stop Online Piracy Act is that it is a lot easier to stop a law than to pass one. This time the makers sand a good chance of winning.