Unlocking Cell Phones Does Not Violate DMCA

Excerpt from:

[Federal Register: November 27, 2006 (Volume 71, Number 227)] [Rules and Regulations] [Page 68472-68480]

LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 Docket No. RM

2005-11 Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies
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  1. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

The Wireless Alliance and Robert Pinkerton proposed an exemption for "Computer programs that operate wireless communications handsets." The proponents of this exemption stated that providers of mobile telecommunications (cellphone) networks are using various types of software locks in order to control customer access to the "bootloader" programs on cellphones and the operating system programs embedded inside mobile handsets (cellphones). These software locks prevent customers from using their handsets on a competitor's network (even after all contractual obligations to the original wireless carrier have been satisfied) by controlling access to the software that operates the mobile phones (e.g., the mobile firmware).

Many reply comments were submitted in support of this exemption and only one reply comment provided any opposition to the proposal. Only two witnesses testified at the hearing on this issue: a representative of the principal proponent of the exemption and a representative of some copyright owners (none of whom operate wireless telecommunication services, manufacture wireless handsets or make bootloader or operating system programs for cellphones). It was undisputed that mobile handset consumers who desire to use their handsets on a different telecommunications network are often precluded from doing so unless they can obtain access to the bootloader or operating system within the handset in order to direct the phone to a different carrier's network. The evidence demonstrated that most wireless telecommunications network providers do not allow a consumer to obtain such access in order to switch a cell phone from one network to another, and that the consumer could not use the cell phone with another carrier, even after fulfilling his or her contractual obligations with the carrier that sold the phone. In order to switch carriers, the consumer would have to purchase a new phone from a competing mobile telecommunications carrier.

The obstacle that prevents customers from using lawfully acquired handsets on different carriers is the software lock. At least one wireless telecommunications service has filed lawsuits alleging that circumvention of the software lock is a violation of section

1201(a)(1)(A) and has obtained a permanent injunction (albeit by stipulation).

The Register has concluded that the software locks are access controls that adversely affect the ability of consumers to make noninfringing use of the software on their cellular phones. Moreover, a review of the four factors enumerated in 1201(a)(1)(C)(i)-(iv) supports the conclusion that an exemption is warranted. There is nothing in the record that suggests that the availability for use of copyrighted works would be adversely affected by permitting an exemption for software locks. Nor is there any reason to conclude that there would be any impact -- positive or negative -- on the availability for use of works for nonprofit archival, preservation, and educational purposes or on the ability to engage in criticism, comment, news reporting, teaching, scholarship, or research. Nor would circumvention of software locks to connect to alternative mobile telecommunications networks be likely to have any effect on the market for or value of copyrighted works. The reason that these four factors appears to be neutral is that in this case, the access controls do not appear to actually be deployed in order to protect the interests of the copyright owner or the value or integrity of the copyrighted work; rather, they are used by wireless carriers to limit the ability of subscribers to switch to other carriers, a business decision that has nothing whatsoever to do with the interests protected by copyright. And that, in turn, invokes the additional factor set forth in 1201(a)(1)(C)(v): "such other factors as the Librarian considers appropriate." When application of the prohibition on circumvention of access controls would offer no apparent benefit to the author or copyright owner in relation to the work to which access is controlled, but simply offers a benefit to a third party who may use 1201 to control the use of hardware which, as is increasingly the case, may be operated in part through the use of computer software or firmware, an exemption may well be warranted. Such appears to be the case with respect to the software locks involved in the current proposal.

The copyright owners who did express concern about the proposed exemption are owners of copyrights in music, sound recordings and audiovisual works whose works are offered for downloading onto cellular phones. They expressed concern that the proposed exemption might permit circumvention of access controls that protect their works when those works have been downloaded onto cellular phones. The record on this issue was fairly inconclusive, but in any event the proponents of the exemption provided assurances that there was no intention that the exemption be used to permit unauthorized access to those works. Rather, the exemption is sought for the sole purpose of permitting owners of cellular phone handsets to switch their handsets to a different network.

Because the Register has concluded that, in appropriate circumstances, a class of works may be refined by reference to uses made of the works, this issue can best be resolved by modifying the proposed class of works to extend only to "Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network."

On September 18, 2006, long after the comments had been submitted and the hearings had been conducted in this rulemaking, the Register received unsolicited submissions from CTIA - The Wireless Association (a nonprofit trade association that promotes the interests of the wireless industry, representing both wireless carriers and manufacturers) and TracFone Wireless, Inc. (which describes itself as "America's largest prepaid wireless company"). The submissions included the submitters' responses to written questions that the Copyright Office had submitted to the two witnesses who had testified at the March 23, 2006, hearing on the proposed exemption -- witnesses who had no relationship with Tracfone or CTIA. The submissions also contained arguments opposing the proposed exemption.

In the course of his consultation with the Register of Copyrights on this rulemaking, the Acting Assistant Secretary of Commerce for Communications and Information shared his concern that the record on this proposal appeared to be incomplete and stated that he was pleased that the Register had sought additional information (in the form of the written questions to the witnesses) to supplement the record.

Subsequently, he expressed to the Register his view that the CTIA and TracFone comments "afford you a complete record in which the views of both users and creators of content are currently represented," and urged the Register to consider those submissions in making her recommendation.

The Assistant Secretary's concerns are understandable, and the Register shares his desire that the views of both users and creators of content be represented in the rulemaking. However, complying with the Assistant Secretary's request and accepting the last-minute submissions of CTIA and TracFone would undermine the procedural requirements of this proceeding and of the rulemaking process in general. While it is preferable that all interested parties make their views known in the rulemaking process, they must do so in compliance with the process that is provided for public comment, or offer a compelling justification for their failure to do so. In this case, they have failed to offer such justification. CTIA (which counts TracFone among its members) was aware of this rulemaking proceeding and this request for an exemption as early as January or February,

2006. Yet it remained silent until September 18, long after the opportunities provided for comment and testimony had expired. Nor did it offer any explanation for its silence. If these extremely untimely submissions were accepted, it would be difficult to imagine when it ever would be justified to reject an untimely comment. Such a precedent would be an invitation to chaos in future rulemakings. Therefore, the late submissions of CTIA and TracFone have not been considered.
Reply to
Monty Solomon
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