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Growing pressure in Congress to fix flaws in DMCA law

Since its inception in 1998, the Digital Millennium Copyright has been a touchstone for (digital) controversy. Finally, spurred by a flap over cell phone unlocking, politicians may be ready to act.

Sen. Ron Wyden this week introduced the first bill to amend the Digital Millennium Copyright Act's restrictions on cell phone unlocking. But advocacy groups want the offending part of the law completely repealed.
Sen. Ron Wyden this week introduced the first bill to amend the Digital Millennium Copyright Act's restrictions on cell phone unlocking. But advocacy groups want the offending part of the law completely repealed.
U.S. Senate

A once-obscure copyright law that the U.S. Senate unanimously approved in 1998 has finally irritated so many members of the public that Congress might bother to defang it.

It's not like the flaws of the Digital Millennium Copyright Act have remained a state secret for the last 15 years: it's been wielded to threaten Princeton security researchers, restrict replacement garage door openers, and jail a programmer who dared to create an e-book converter. One federal appeals court even invoked the law when banning "linking" to certain DMCA-offending Web sites.

Not one of those extrusions of Section 1201 of the DMCA, the so-called "anti-circumvention" portion that generally prohibits bypassing copyright protections, led to a politically quantifiable public outcry.

But when the Library of Congress recently declared (PDF) that cell phone unlocking would be illegal, and that anyone selling unlocking services would become a federal felon, the Internet's cadre of activists hit the roof.

A petition to the White House was created. A response from the White House -- agreeing that the prohibition was a bit nutty -- was received. Sen. Ron Wyden, an Oregon Democrat, introduced a DMCA-fix bill yesterday. And today, the Electronic Frontier Foundation, Y Combinator, Mozilla, and Reddit unveiled, which calls for "repealing section 1201."

Convincing the Reddit crowd of section 1201's many failings is a task bordering on the trivial, but persuading Washington officialdom to repeal a measure beloved by large and politically muscular copyright holders is far more difficult.

The last time mild amendments to section 1201, not even a full repeal, were proposed in Congress, copyright holders easily derailed the legislation. "It legalizes hacking," intoned the late Jack Valenti, head of the Motion Picture Association of America. And the Business Software Alliance warned that: "The DMCA provides important tools in the fight against piracy... Broad exemptions to the DMCA could undermine the core purpose of the act."

Which may be why Wyden's bill (PDF) is surprisingly limited. It doesn't repeal section 1201. It proposes only a modest change, saying a wireless device owner can use software "to connect to a different" network without running afoul of the law.

Derek Khanna, a former Republican Hill staffer who's now active on copyright reform, says Wyden's bill should go further (but not as far as repealing section 1201):

Senator Wyden's bill does not allow for accessibility technology for persons who are blind or deaf, allow for jailbreaking, or allow for computer science research. So there is clearly more work to get this bill to where it needs to be. There is no legitimate governmental reason for keeping these accessibility technologies illegal -- and we cannot continue to deny persons who are deaf and blind technology that can help them because of a law written before modern technology outlawing them by default. However, legislation changes, and this is an early draft -- so revisions and the committee process will hopefully make this good step into a better bill that actually fixes the problems identified here.

CTIA, which represents carriers including AT&T, Verizon Wireless, T-Mobile, and Sprint Nextel, lobbied the Library of Congress last year to prohibit cell phone unlocking and signaled this week that it will oppose tinkering with section 1201, let alone a full repeal.

Michael Altschul, CTIA's general counsel, wrote in a blog post on Monday that: "Customers have numerous options when purchasing mobile devices. They may choose to purchase devices at full price with no lock, or at a substantially discounted price - typically hundreds of dollars less than the full price - by signing a contract with a carrier. When the contract terms are satisfied, or for a reason that is included in the carrier's unlocking policy -- such as a trip outside the U.S. -- carriers will unlock a phone at their customer's request.

It's true, as Altschul pointed out, that nearly all phones -- including popular ones such as the iPhone 5 and the Samsung Galaxy S III -- are readily available in unlocked form. And a laser focus on the DMCA might seem misplaced when there are more serious civil liberties issues afoot, including warrantless drone surveillance by Homeland Security, which CNET reported over the weekend, and Attorney General Eric Holder's claim yesterday that the president has the authority to drone-kill Americans on U.S. soil.

On the other hand, not even the most pro-copyright members of Congress dreamed in 1998 that the DMCA would prohibit Americans from unlocking mobile devices they legally purchased. And it's probably true that if AT&T or Verizon has an objection to customers unlocking their own cell phones, most Americans would think of it as a private matter between the carrier and its customer, not a dispute that should involve the federal government.

Rep. Bob Goodlatte, Hollywood's favorite House Republican and the new chairman of the Judiciary committee, assured (PDF) his colleagues during the DMCA floor debate that section 1201 applied only to bypassing anti-copying mechanisms protecting "movies, songs or computer programs." Prohibiting Americans from unlocking their mobile devices was never mentioned.