The Librarian Of Congress Gets To Decide Whether Americans Can Unlock Their Phones. And He Says No.

It's common practice among those who travel internationally to unlock a smartphone so that it will work with SIM cards from multiple service providers. That's the best way to get around massive roaming fees that would otherwise be assessed by your home provider. But come tomorrow, in the United States at least, this will be illegal. Here's why.

Every few years, the U.S. Librarian of Congress signs off on exceptions to the Digital Millenium Copyright Act, a far reaching bill passed in 1998 that, among other things, makes it illegal for consumers to circumvent any barriers that manufacturers put up around their copyrighted material. Recommended exemptions find their way to the Librarian via the U.S. Copyright Office, but he makes the final decision.

In 2006, he approved an exemption that allowed consumers to unlock their phones. In 2010, he renewed the exemption. Last year, he let it expire but provided a 90 day grace-period for the benefit of people who still wanted to unlock legacy phones. After today, unlocking a smartphone without the maker's approval will be a criminal offense, even if the contract on the device has expired.

Explaining the reasoning behind the decision (pdf), the Librarian of Congress and the Register of Copyrights said that they were most concerned about who legally owns the software on a smartphone once it has been purchased. While acknolowledging that court rulings have muddled the issue, the exemption ultimately takes the position that most customers purchase a license to the software rather than full ownership.

From the Librarian's statement:

Since the Register rendered her 2010 Recommendation, the case law has evolved. In 2010, the Ninth Circuit issued its decision in Vernor v. Autodesk, Inc., 621 F.3d 1102 (9th Cir. 2010), holding that ‘‘a software user is a licensee rather than an owner of a copy where the copyright owner: (1) Specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.’’
 

They have also stated that there are enough unlocked smartphones in the U.S. from competing manufacturers to avoid undue burden on the consumer. But one has to wonder whether this will remain the case when it becomes illegal to unlock a phone yourself.

With this round of exemptions, the Register of Copyright and the Librarian of Congress, neither of which are elected positions, have significantly changed technology policy in the U.S. And in doing so, they have pushed these policies in the opposite direction of the tack other countries have taken. Last week, in Chile, it became illegal for companies to SIM-lock their phones. And in France, a company must unlock a phone on request if the customer has owned it for more than 6 months. For years now, it has been illegal for phone companies in Brazil to tether handsets to service contracts.

These contracts have been the main defense of the phone companies, whose business model involves selling phones at a reduced rate and then subsidizing the cost by binding their customers in long-term service contracts. With the elimination of these subsidies, phone prices would likely go up, as seems to be happening in Brazil.

But that may not stop people who believe they have a right to shop around for service providers. yesterday, two days ahead of the new regulation taking effect in the United States, activists started a White House petition asking the Obama administration to get behind a bill that would permanently legalise phone unlocking. If 100,000 people sign by February 23, they will be guaranteed a response from the administration.

You might want to unlock while you can.

Image: Confident Technologies

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