The Library of Congress (LC) on Monday issued a statement arguing, in part, that allowing U.S. consumers to “unlock” their cellphones was not an issue that should be decided every three years using the library’s power to grant temporary exemptions to the Digital Millennium Copyright Act (DMCA).
“The [exemption] rulemaking is a technical, legal proceeding and involves a lengthy public process,” the statement reads. “It requires the Librarian of Congress and the Register of Copyrights to consider exemptions to the prohibitions on circumvention, based on a factual record developed by the proponents and other interested parties. The officials must consider whether the evidence establishes a need for the exemption based on several statutory factors.”
The statement goes on to note that LC’s powers do not allow it to create permanent exemptions to DMCA, and as designed by Congress, the LC’s rulemaking process “serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy.”
LC has been criticized for not using its exemption-granting powers to prevent the January expiration of a “legal shield” that permitted U.S. consumers to unlock their cellphones without fear of prosecution by corporate or government authorities.
On Monday, the LC’s statement was released in response to an Obama Administration statement (which was itself a response to an online consumer petition signed by 114,000 people on whitehouse.gov) that argued “consumers should be able to unlock their cell phones without risking criminal or other penalties. In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network. It’s common sense…”
LC’s Role in DMCA
Signed into law in 1998, the DMCA criminalized technology used to circumvent digital rights management (DRM) software or techniques, such as encryption and content scrambling methods used to prevent the copying of DVDs. A section of the law gives the Librarian of Congress the power to grant temporary exemptions to DMCA restrictions once every three years, when those restrictions are deemed a substantial impediment to fair use. For example, one regularly-renewed exemption makes it legal for software to bypass an ebook’s DRM access controls in order to enable an ereader’s read-aloud function in cases where no alternative audio source is legally available.
But in the case of cell phones, the Library of Congress initially reasoned that an exemption for unlocking was not needed.
“The evidence showed that the market has changed,” LC spokesperson Gayle Osterberg told NPR in a recent interview. “There are a wide variety of new phones that are already available unlocked, and cellphone carriers have relaxed their unlocking policies.”
With this statement, LC explains that it agrees with the Obama Administration that the issue has broad implications for telecommunications policy, and that “it would benefit from review and resolution in that context.” The statement later concludes that “as the U.S. Copyright Office has recognized many times, the 1201 rulemaking can often serve as a barometer for broader policy concerns and broader policy action. The most recent rulemaking has served this purpose.”
UPDATE (3/6/2013): Following statements by the Obama Administration and the Federal Communications Commission in support of allowing consumers to unlock their cellphones, U.S. Senator Amy Klobuchar (D-MN) yesterday said that she will introduce legislation this week in support of that goal. Sen. Klobuchar has a history of consumer advocacy in matters involving the telecom industry. She previously authored legislation called the Cell Phone Consumer Empowerment Act “to strengthen consumer protections in the wireless industry, including looking at allowing consumers to unlock their phones,” according to her website.
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