[Congressional Record Volume 160, Number 31 (Tuesday, February 25, 2014)]
[House]
[Pages H1904-H1913]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
UNLOCKING CONSUMER CHOICE AND WIRELESS COMPETITION ACT
Mr. GOODLATTE. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 1123) to promote consumer choice and wireless competition by
permitting consumers to unlock mobile wireless devices, and for other
purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 1123
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Unlocking Consumer Choice
and Wireless Competition Act''.
SEC. 2. REPEAL OF EXISTING RULE AND ADDITIONAL RULEMAKING BY
LIBRARIAN OF CONGRESS.
(a) Repeal and Replace.--As of the date of the enactment of
this Act, paragraph (3) of section 201.40(b) of title 37,
Code of Federal Regulations, as amended and revised by the
Librarian of Congress on October 28, 2012, pursuant to the
Librarian's authority under section 1201(a) of title 17,
United States Code, shall have no force and effect, and such
paragraph shall read, and shall be in effect, as such
paragraph was in effect on July 27, 2010.
(b) Rulemaking.--
(1) In general.--The Librarian of Congress, upon the
recommendation of the Register of Copyrights, who shall
consult with the Assistant Secretary for Communications and
Information of the Department of Commerce and report and
comment on his or her views in making such recommendation,
shall determine, consistent with the requirements set forth
under section 1201(a)(1) of title 17, United States Code,
whether to extend the exemption for the class of works
described in section 201.40(b)(3) of title 37, Code of
Federal Regulations, as amended by subsection (a), to include
any other category of wireless devices in addition to
wireless telephone handsets.
(2) Timing of rulemaking.--(A) If this Act is enacted
before June 1, 2014, the determination under paragraph (1)
shall be made by not later than the end of the 9-month period
beginning on the date of the enactment of this Act.
(B) If this Act is enacted on or after June 1, 2014, the
determination under paragraph (1) shall be made in the first
rulemaking
[[Page H1905]]
under section 1201(a)(1)(C) of title 17, United States Code,
that begins on or after the date of the enactment of this
Act.
(c) Unlocking at Direction of Owner.--
(1) In general.--Circumvention of a technological measure
that restricts wireless telephone handsets or other wireless
devices from connecting to a wireless telecommunications
network--
(A)(i) as authorized by paragraph (3) of section 201.40(b)
of title 37, Code of Federal Regulations, as made effective
by subsection (a), and
(ii) as may be extended to other wireless devices pursuant
to a determination in the rulemaking conducted under
subsection (b), or
(B) as authorized by an exemption adopted by the Librarian
of Congress pursuant to a determination made on or after the
date of enactment of this Act under section 1201(a)(1)(C) of
title 17, United States Code,
may be initiated by the owner of any such handset or other
device, by another person at the direction of the owner, or
by a provider of a commercial mobile radio service or a
commercial mobile data service at the direction of such owner
or other person, solely in order to enable such owner or a
family member of such owner to connect to a wireless
telecommunications network, when such connection is
authorized by the operator of such network.
(2) No bulk unlocking.--Nothing in this subsection shall be
construed to permit the unlocking of wireless handsets or
other wireless devices, for the purpose of bulk resale, or to
authorize the Librarian of Congress to authorize
circumvention for such purpose under this Act, title 17,
United States Code, or any other provision of law.
(d) Rule of Construction.--Except as provided in subsection
(c), nothing in this Act alters, or shall be construed to
alter, the authority of the Librarian of Congress under
section 1201(a)(1) of title 17, United States Code.
(e) Definitions.--In this Act:
(1) Commercial mobile data service; commercial mobile radio
service.--The terms ``commercial mobile data service'' and
``commercial mobile radio service'' have the respective
meanings given those terms in section 20.3 of title 47, Code
of Federal Regulations, as in effect on the date of the
enactment of this Act.
(2) Wireless telecommunications network.--The term
``wireless telecommunications network'' means a network used
to provide a commercial mobile radio service or a commercial
mobile data service.
(3) Wireless telephone handsets; wireless devices.--The
terms ``wireless telephone handset'' and ``wireless device''
mean a handset or other device that operates on a wireless
telecommunications network.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Virginia (Mr. Goodlatte) and the gentleman from Virginia (Mr. Scott)
each will control 20 minutes.
parliamentary inquiry
Mr. POLIS. Mr. Speaker, I have a parliamentary inquiry.
The SPEAKER pro tempore. The gentleman will state his parliamentary
inquiry.
Mr. POLIS. I don't believe there is a rule for this bill. Is there a
rule for this bill?
The SPEAKER pro tempore. The Chair is referring to a standing rule of
the House.
Mr. POLIS. Mr. Speaker, I claim the time in opposition.
The SPEAKER pro tempore. Is the gentleman from Virginia in favor of
the motion?
Mr. SCOTT of Virginia. Mr. Speaker, I am in favor of the motion. I am
not opposed to the bill
The SPEAKER pro tempore. On that basis, pursuant to the rule, the
gentleman from Colorado (Mr. Polis) will control the 20 minutes in
opposition.
The gentleman from Virginia (Mr. Goodlatte) is recognized.
General Leave
Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include extraneous materials on H.R. 1123, currently under
consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may
consume.
Last winter, due to an expired exemption to existing law, consumers
lost the legal right to unlock their cell phones so that they could use
them on a different wireless carrier. Outraged consumers flooded
Congress and the White House with complaints over this change in policy
that resulted in reduced marketplace competition.
In response to this impact on consumers, a bipartisan group of House
Judiciary Committee members introduced H.R. 1123, the Unlocking
Consumer Choice and Wireless Competition Act. The legislation
reinstates the prior exemption to civil and criminal law for unlocking
cell phones for personal use. It also creates an expedited process to
determine whether this exemption should be extended to other wireless
devices such as tablets.
When this legislation is enacted, consumers will be able to go to a
kiosk in the mall, get help from a neighbor, or see a wireless carrier
to help unlock their cell phone without any risk of legal penalties.
This is not the case today, which is why this legislation is necessary.
H.R. 1123 is supported by such diverse groups in the cellular
industry, from the large carriers of CTIA to the small carriers of the
Competitive Carriers Association.
Although these two groups announced a private sector agreement in
December on unlocking based upon this same legislation, that agreement
cannot eliminate the potential of civil and criminal sanctions for
consumers who unlock their cell phones. So the need for the legislation
remains. Even Consumers Union supports this critical legislation.
{time} 1600
The committee has been aware of law enforcement concerns regarding
the explosive growth in smartphone thefts. Efforts by criminals to
undertake bulk unlocking and transfers of stolen phones are a growing
concern in America. Smartphones seem to have become crime magnets in
many cities across America.
Because the policy issue has always focused on the ability of
consumers to unlock their phones, the legislation is similarly focused
on individual consumer unlocking without raising law enforcement
concerns. Why would it make sense for Congress to enable criminal gangs
to more easily make money off stolen phones instead of simply solving
the main issue of consumers being able to unlock their own phones?
Some would like this legislation to go even further. However, I hope
all can agree that this is a good start and a solid piece of
legislation that will empower consumer choice.
I urge my colleagues to support this important proconsumer
legislation, and I reserve the balance of my time.
Mr. POLIS. Mr. Speaker, I yield myself such time as I may consume,
and I rise in opposition to the Unlocking Consumer Choice and Wireless
Competition Act.
I support the sentiment behind this bill, and I support the version
that was reported out of the Judiciary Committee. However,
unfortunately, an important change that I will discuss to the detriment
of this bill was added last week, just prior to this bill being brought
to the floor.
The gentleman from Virginia (Mr. Goodlatte) gave some background with
regard to why a bill is necessary. Ever since the Library of Congress
ruled last year that unlocking your cell phone violates copyright law,
there have been a number of us on both sides of the aisle who have
worked to ensure that consumers have the right to unlock their wireless
devices and use their property as they see fit.
I am proud to be a cosponsor of Congresswoman Lofgren's bill, the
Unlocking Technology Act of 2013, which gives consumers the right to
unlock their devices on a permanent basis.
Before I came to Congress, I was an entrepreneur who started a number
of businesses, and I understand firsthand the importance of allowing a
free market to thrive and to create a positive environment for
businesses and consumers alike.
Allowing consumers to unlock their cell phones, which are their own
personal property, can spur competition, allowing new start-up carriers
to succeed, lowering prices, and increasing service options for all
cell phone users.
To be clear, this is a separate issue from being contractually bound
to use a certain provider for a certain period of time. Many Americans
choose to enter into a long-term contract in exchange for discounts or
free cell phones.
That is not the issue being discussed today, and I don't think there
is a problem from either side of the aisle about those consensual
contracts.
Rather, we are talking about unlocking cell phones that are not
contractually bound to a certain service
[[Page H1906]]
provider. This has been an issue within our trade agreements.
I have recently drafted bipartisan letters to the United States Trade
Representative, with Representative Massie, expressing concern that the
leaked text of the Trans-Pacific Partnership agreement would
potentially make any permanent fix to unlocking cell phones illegal.
Now, this bill is not a permanent fix. This bill would make clear
congressional intent consistent with the optional agreement between the
companies that they have reached. However, the last-minute change that
was made in this bill, different from the bill that was passed out of
committee, puts a real poison pill in this bill for consumer advocates,
such as myself.
The bill adds the language that nothing in this subsection shall be
construed to permit the unlocking of wireless handsets or other
wireless devices for the purpose of bulk resale or to authorize the
Librarian of Congress to authorize circumvention for such purpose or
any other provision of law.
Now, while this gives, again, at least a patina of deniability that
the bill is making a statement in one way or the other, the statement
certainly implies that Congress believes that bulk unlocking is, in
fact, illegal.
Now, why is bulk unlocking important? When it comes to the actual
technical skills necessary, many consumers are not going to be
unlocking their phones themselves. There needs to be a market in
unlocked phones for consumers to have the full ability and to be
empowered to choose the provider of their choice.
This bill does weigh in, with congressional intent, against the
creation of a dynamic marketplace that increases consumer choice and
options.
I think, without this clause, this was a bill that made it clear that
we can't use the Digital Millennium Copyrights Act to interfere with an
issue that is unrelated to copyright, but with this clause, it suggests
that perhaps the DMCA's clauses can be used for noncopyright issues if,
perhaps, somebody doesn't like the motive behind the unlocker.
So, as a result of this change, a number of organizations have
withdrawn their support: iFixit, the Electronic Frontier Foundation,
Public Knowledge, Generation Opportunity, and FreedomWorks.
I hope to be able to continue to work with colleagues on both sides
of the aisle to improve this bill, but with the current language, I do
not believe, at this point, that this bill is a step forward for
consumers.
I reserve the balance of my time.
Mr. GOODLATTE. Mr. Speaker, at this time, it is my pleasure to yield
3 minutes to the gentleman from California (Mr. Issa), the chairman of
the Oversight and Government Reform Committee.
Mr. ISSA. I thank the chairman.
Mr. Speaker, when I was alerted as to this change, like Mr. Polis, I
asked, What will be the impact? And, at first glance, I was concerned
that it could be a poison pill, that it could limit the ability, for
example, for somebody to take trade-ins of thousands of phones and
unlock them, but I found no such case because they are buying from an
individual.
At that moment, they choose to unlock it as part of the arrangement,
and you now have an unlocked phone. There is no prohibition on buying
500 unlocked phones and selling 500 unlocked phones.
As a matter of fact, when I went through the language of bulk sales,
I could find essentially no possible business plan that would require
the unlocking of bulk phones, except as to buying from a wholesaler who
did not intend them to be unlocked, intended them to be sold
individually, unlocking them, and then selling them off to another
party.
Any transaction in which the product gets to an individual or in
which unlocking occurs at the time of the individual is fully covered
by this bill.
So although I did share the concern of the gentleman from Colorado
(Mr. Polis) that there was a scenario in which somebody would not be
able to unlock a phone, I discovered that there was nothing that the
consumer would be affected by that could possibly affect this.
For example, let me say that, hypothetically, I am that individual,
that company, and Mr. Polis and I have something in common, which is we
both ran companies. If I am an individual and I want to buy 1,000
locked phones, there is going to be an easy unlock capability. Third
parties are going to be able to provide the unlock capability.
I can buy 1,000 locked phones or 100,000 locked phones. I can sell
them to somebody else, who sells them to somebody else. Anytime that
company or individual is down to the end user who wants to unlock a
phone, that capability is there.
Mr. Polis is one of the most intelligent and knowledgeable and
trained people in this area of anyone in Congress, but if we go through
each of the workarounds that we, in business, would do, I can find no
scenario whatsoever in which this would stop the consumer from
receiving an unlocked phone, if they chose to, even if, in the interim
basis, there were many transactions of 10 or 100,000 phones of bulk
sale.
It does not prevent the sale of unlocked bulk phones being sold and
resold. It does not prevent the bulk sale of locked phones. So you only
have to ensure, as I understand the law--and I have checked it against
the language--that the unlocking occurs in support of the consumer.
So though I share the opposition's concern, I believe--I have looked
through, vetted it, and like Mr. Polis, as a businessman, I have found
that it stops no business plan and hurts no consumer.
I thank the chairman for bringing this legislation. I urge its
support.
Mr. GOODLATTE. Will the gentleman yield?
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. GOODLATTE. Mr. Speaker, I yield an additional 1 minute to the
gentleman from California.
Mr. ISSA. I yield to the gentleman from Virginia.
Mr. GOODLATTE. I thank the gentleman for yielding.
Mr. Speaker, on the very point that the gentleman from California
just raised, I will submit a letter for the Record from the Small
Business & Entrepreneurship Council, representing many small businesses
and entrepreneurs around America and endorsing this legislation.
I would also like to note that the Consumers Union of America and the
Competitive Carriers Association, which are the small
telecommunications companies that have to compete with the big
behemoths, would both be concerned about their ability to compete in
this very area; but they both support this legislation as well, the
Consumers Union representing consumers and small businesses, and the
SBE representing small businesses and entrepreneurs.
SBE Council,
Vienna, VA, February 24, 2014.
Hon. Bob Goodlatte,
Chairman, Committee on the Judiciary, Washington, DC.
Dear Chairman Goodlatte: The Small Business &
Entrepreneurship Council (SBE Council) is pleased to support
H.R. 1123, the Unlocking Consumer Choice and Wireless
Competition Act of 2013. Entrepreneurs require flexibility to
successfully run their businesses, and they certainly support
the freedom and choice provided by H.R. 1123.
H.R. 1123 repeals a Library of Congress (LOC) rulemaking
determination regarding the circumvention of measures
controlling access to copyrighted software on wireless
telephone handsets for the purposes to connecting to other,
different wireless handsets. This means entrepreneurs and
small businesses can easily switch to another carrier once
their contracts expire on their cell phones or tablets.
H.R. 1123 is a common sense measure that aligns government
policies with the flexibility the 100,000 members of SBE
Council need. We look forward to working with you to advance
H.R. 1123.
Sincerely.
Karen Kerrigan,
President and Chief Executive Officer.
____
National Fraternal Order of Police,
Washington, DC, February 24, 2014.
Hon. Robert W. Goodlatte,
Committee on the Judiciary, House of Representatives,
Washington, DC.
Dear Mr. Chairman, I am writing on behalf of the members of
the Fraternal Order of Police to advise you of our support
for H.R. 1123, the ``Unlocking Consumer Choice and Wireless
Competition Act,'' which has been favorably reported by your
committee and is scheduled to be considered by the House
later this week.
Law enforcement agencies across the country, and especially
in large urban areas, have been experiencing an increase in
the number of crimes that involve stolen wireless devices.
Often, smartphones are stolen from consumers and then sold to
the criminal
[[Page H1907]]
equivalent of an aggregator who unlocks them in bulk and
attempts to sell them domestically or abroad. The ability to
unlock these devices is a critical part of criminals' ability
to resell them at a profit.
For this reason, as Congress contemplates legislation to
facilitate lawful unlocking by individuals, either for
themselves or for devices on a family plan, we urge you to
retain the prohibition on bulk unlocking consistent with both
the 2010 and 2012 decisions from the Copyright Office. We
believe that maintaining this prohibition will reduce
smartphone thefts because the criminal sale of these devices
will no longer be as profitable.
Thank you as always for considering the views of the more
than 330,000 members of the Fraternal Order of Police. If I
can provide any more information on this issue, please do not
hesitate to contact me or Executive Director Jim Pasco in my
Washington office.
Sincerely,
Chuck Canterbury,
National President.
Mr. POLIS. I yield 3 minutes to the gentleman from Virginia (Mr.
Scott).
Mr. SCOTT of Virginia. I thank the gentleman for yielding.
Mr. Speaker, the inability to unlock cell phones means that the
original wireless carrier has an unfair and unnecessary competitive
advantage. In many instances, the sole purpose of locking a cell phone
is to keep consumers bound to their existing networks.
Consumers often buy a new cell phone as part of their initial
purchase of service from a carrier's wireless network. Because the
phone is locked into that carrier's network, at the end of the first
term of service, the consumer is forced to stay with that provider,
sometimes at a higher rate, or being stuck with a useless locked phone.
Allowing a phone to be unlocked will allow a consumer to keep his
phone and switch carriers to a more appropriate, affordable, or
suitable plan and have that opportunity, without having to purchase a
new phone. So I support H.R. 1123, as amended, as it will restore a
consumer's ability to unlock their cell phones.
Now, obviously, allowing millions of consumers who wish to unlock
their cell phones and switch to another provider, obviously, that has
widespread support. The White House, the Federal Communications
Commission, and others that the chairman of the committee have
mentioned have all urged Congress to allow cell phone unlocking.
The bill, as amended, makes improvements to the bill as reported by
the Judiciary Committee. The new language in the bill makes it clear
that the sole purpose of the bill is to allow unlocking in order to
switch carriers.
This bipartisan legislation enhances consumer choice in the cell
phone market, and accordingly, I urge my colleagues to support the
legislation.
Mr. GOODLATTE. Mr. Speaker, at this time, it is my pleasure to yield
2 minutes to the gentleman from Utah (Mr. Chaffetz), a member of the
Judiciary Committee.
Mr. CHAFFETZ. I thank the gentleman from Virginia, Chairman
Goodlatte, for his leadership on this issue.
We woke up one day, Mr. Speaker, and the Library of Congress--the
Library of Congress--decided that, if you unlocked your cell phone,
that that would be a felony--a felony.
You go and buy a mobile phone. It is your phone. You own it. The
current law on the books today, if you go to unlock that phone, you
have committed a felony in the United States of America.
You have got to be kidding me. It is a felony to unlock your cell
phone?
This bill today is short, sweet, and is simple. It is not a big,
broad review of the DMCA. We are just trying to do something simple. We
have an opportunity to make sure that that good person at home who
wants to unlock their phone doesn't commit a felony. It is that short.
It is that sweet. It is that simple.
I stand with Representatives Lofgren, Polis, and others who want to
look at this bigger, broader reform. But for today, could we please
just make sure that it is not a felony to unlock your own phone? My
goodness. We can do that. We can do that.
I urge a ``yes'' vote on this bill. I appreciate the chairman's
leadership. Let's get this done. Vote ``yes.''
Mr. POLIS. Mr. Speaker, I yield myself such time as I may consume.
In listening to the gentleman from California (Mr. Issa), there was a
discussion of to what degree does this language interfere with
potential and existing business models, and I agree with them. There
are many workarounds. I think the danger here is invoking the language
of copyright in an unrelated area.
To quote from Public Knowledge: this new language, even if Congress
believes that bulk unlocking is a problem, it is clear that it is not a
copyright problem. Just as individual unlocking is not a copyright
problem, a bill designed to scale back overreaching copyright laws
should not also endorse an overreach of copyright law.
I have a full statement from Public Knowledge that I will submit for
the Record, Mr. Speaker. And as put by the Electronic Frontier
Foundation, by expressly excluding bulk unlocking, this new legislation
sends two dangerous signals: one, that Congress is okay with using
copyright as an excuse to inhibit certain business models, even if the
business isn't actually infringing on any of its copyrights; and, two,
that Congress still doesn't understand the collateral damage section
1201 is causing.
For example, bulk unlocking not only benefits consumers, but it is
also good for the environment. Unlocking allows reuse, and that means
less electronic waste. I will be submitting the Electronic Frontier
Foundation statement into the Record.
Again, the bill, as it passed committee, didn't weigh in on these
matters of bulk unlocking and was satisfactory to consumer advocacy
groups, including those that have now come out in opposition to this
underlying bill.
Many of the arguments that the gentleman from Virginia (Mr.
Goodlatte) made about the potential use of phones for criminal purposes
may, in fact, be valid arguments and may, in fact, deserve policy
responses, but not within the realm of copyright law.
They deserve appropriate attention within the realm of criminal law
and perhaps might prevail upon the expertise of both of my colleagues
from Virginia, who know far more about these matters than I.
But if there need to be harsher penalties or more enforcement within
criminal law with regard to the illegal use of cell phones, whether
locked or unlocked, or illicit transactions, that would be an
appropriate venue.
{time} 1615
But invoking copyright law is a very dangerous precedent for an
unrelated area. We did reach a bipartisan consensus on this bill in
July, but at the last minute after the bill was marked up and reported
out, this new language was added to the bill that would have negative
effects on consumers' ability to unlock their phones.
The new language specifically states that the bill does not apply to
bulk unlocking. Now, that signals that Congress believes that it is
illegal for companies, including many small businesses and start-ups,
to unlock cell phones in bulk, again, as Mr. Issa pointed out, not
binding language, not something that immediately would be used to
prosecute a small business, but it would create greater uncertainty--
not less uncertainty--around unlocking of cell phones in bulk, which
could make it more difficult for consumers to buy an already unlocked,
used cell phone. Again, since many consumers lack the technical
expertise themselves to unlock cell phones, we want to ensure that they
have availability to purchase unlocked cell phones and use them with
the carrier of their choice.
Again, this is an inappropriate use of copyright law to bar small
businesses and large businesses from unlocking devices when it has
nothing to do with making illegal copies of protected works, the
purpose of copyright law. Again, if there is a criminal problem, we
should address that within the realm of criminal law and enforcement,
not within the realm of copyright.
My colleague, Congresswoman Lofgren, offered compromise language to
Chairman Goodlatte, but she reports back that this language was
rejected because it was provided too late in the process. Again, I wish
that Congresswoman Lofgren and others were brought in earlier in the
process. I think there was the general assumption among the advocates
on my side of the bill and that encourage more consumer choice that the
bill, as reported
[[Page H1908]]
from committee, would be the bill that was considered on the floor, as
is traditionally done.
Unfortunately, we are not voting on that bill that had that
bipartisan consensus in committee. The bill has changed, and the bill
now can be perceived as picking sides with regard to congressional
intent of application of copyright law for bulk unlocking, something
that many of us see as a negative precedent with regard to consumer
choice and overreach of using copyright law to protect incumbent
advantages.
But, Mr. Speaker, it is never too late to reach a compromise. There
is no rush to bring this bill to the floor today. There is a temporary
agreement in place which offers consumers the same protections that are
considered under this bill, and I hope that the chair and ranking
member consider working to improve this bill so that it can pass this
body unanimously. It doesn't need to be a controversial bill.
I fear that the bill currently before us, while, again, it enshrines
some of the current protections that protect consumers that Mr.
Chaffetz talked so passionately about, also, unfortunately, weighs in
in applying copyright law in an unrelated area that can have the effect
of restricting consumer choice.
I reserve the balance of my time.
Rep. Goodlatte Slips Secret Change Into Phone Unlocking Bill That Opens
the DMCA Up for Wider Abuse
(By Mike Masnick)
As you may recall, there's been a ridiculous (on many
levels) fight concerning the legality of ``unlocking'' mobile
phones. Let's go through the history first. Because of
section 1201 of the DMCA, the ``anti-circumvention''
provision, companies have been abusing copyright law to block
all sorts of actions that are totally unrelated to copyright.
That's because 1201 makes it illegal to circumvent basically
any ``technological protection measures.'' The intent of the
copyright maximalists was to use this section to stop people
from breaking DRM. However, other companies soon distorted
the language to argue that it could be used to block certain
actions totally unrelated to copyright law--such as unlocking
garage doors, ink jet cartridges, gaming accessories . . .
and phones. There have been court cases about a number of
these issues, with (thankfully) many courts ruling against
this kind of abuse, though it still happens.
Separately, every three years, the Librarian of Congress
gets to announce ``exemptions'' to section 1201 where it
feels that things are being locked up that shouldn't be. Back
in 2006, one of these exemptions involved mobile phone
unlocking. Every three years this exemption was modified a
bit, but in 2012, for unexplained reasons, the Librarian of
Congress dropped that exemption entirely, meaning that
starting in late January of 2013, it was possible to
interpret the DMCA to mean that phone unlocking was illegal.
In response to this there was a major White House petition--
which got over 100,000 signatures, leading the White House to
announce (just weeks later) that it thought unlocking should
be legal--though, oddly, it seemed to place the issue with
the FCC to fix, rather than recognizing the problem was with
current copyright law.
Following this, a slew of new bills were introduced in
Congress, many of which attempted to narrowly deal with the
specific issue, while leaving the larger issues untouched.
Many of these bills were incredibly problematic, though
eventually the consensus seemed to get behind one bill before
. . . nothing. Fast forward a year and nothing has changed,
though the main bill, supported by Rep. Goodlatte, called the
Unlocking Consumer Choice Act, is scheduled to go to a vote
on Tuesday. It had gone through the basic markup process and
some adjustments had been made to make it a good first step
towards fixing problems.
As of last week, a bunch of folks, who were concerned about
the issues with unlocking and how Section 1201 was a problem,
were supportive of this bill and were expecting to publicly
speak out in favor of getting the bill passed. Except . . .
late last week, with no explanation whatsoever, and no
consultation with others even though the markup and Judiciary
Committee process had already concluded, Rep. Goodlatte
slipped into the bill a little poison pill/favor to big phone
companies, adding a seemingly innocuous statement as section
(c)(2):
No Bulk Unlocking--Nothing in this subsection shall be
construed to permit the unlocking of wireless handsets or
other wireless devices, for the purpose of bulk resale, or to
authorize the Librarian of Congress to authorize
circumvention for such purpose under this Act, title 17,
United States Code, or any other provision of law.
While this gives Goodlatte and other maximalists some sort
of plausible deniability that this bill is making no
statement one way or the other on bulk unlocking, it
certainly very strongly implies that Congress believes bulk
unlocking is, in fact, still illegal. And that's massively
problematic on any number of levels, in part suggesting that
the unlocker's motives in unlocking has an impact on the
determination under Section 1201 as to whether or not it's
legal. And that's an entirely subjective distinction when a
bill seems to assume motives, which makes an already
problematic Section 1201 much more problematic. Without that
clause, this seemed like a bill that was making it clear that
you can't use the DMCA to interfere with an issue that is
clearly unrelated to copyright, such as phone unlocking. But
with this clause, it suggests that perhaps the DMCA's anti-
circumvention clause can be used for entirely non-copyright
issues if someone doesn't like the ``motive'' behind the
unlocker.
Given that, both Public Knowledge and EFF have pulled their
support for the bill. As Public Knowledge noted:
``The new language specifically excluding bulk unlocking
could indicate that the drafters believe that phone unlocking
has something to do with copyright law. This is not a
position we support. Even if Congress believes that bulk
unlocking is a problem, it's clear that it's not a copyright
problem, just as individual unlocking is not a copyright
problem. A bill designed to scale back overreaching copyright
laws should not also endorse an overreach of copyright law.''
EFF made a similar statement:
By expressly excluding [bulk unlocking], this new
legislation sends two dangerous signals: (1) that Congress is
OK with using copyright as an excuse to inhibit certain
business models, even if the business isn't actually
infringing anyone's copyright; and (2) that Congress still
doesn't understand the collateral damage Section 1201 is
causing. For example, bulk unlocking not only benefits
consumers, it's good for the environment--unlocking allows
re-use, and that means less electronic waste
Two members of Congress who have been closely associated
with these issues, Reps. Zoe Lofgren and Anna Eshoo, also
pulled their support of the bill late Monday as well,
expressing their clear outrage at how this change was slipped
in after the fact, in a letter sent to their colleagues in
the House:
After this bill was marked up and reported out of
committee, a new section was added to the bill without notice
to or consultation with us. . . .
They furthermore point out that it's ridiculous that
Congress is not fixing the broken anti-circumvention parts of
the DMCA, and could possibly be strengthening them with this
sneaky change of language:
In his concurring opinion in Lexmark v. Static Control
Components, Judge Merritt wrote: ``We should make clear that
in the future companies like Lexmark cannot use the DMCA in
conjunction with copyright law to create monopolies of
manufactured goods for themselves . . .'' The court's holding
prevented Lexmark from using dubious copyright claims and an
overboard reading of 17 USC 1201--the same section the
Unlocking Consumer Choice Act alters--to prevent third
parties from creating competing printer ink cartridges. The
issue is similar here.
____
Unlocking To Get a Vote in Congress, but the Bill Is Flawed
(By Troy Wolverton)
Congress on Tuesday is expected to take up the issue of
cell phone unlocking. But what started out as an effort to
restore consumer rights may end up being a setback to
consumers.
While consumers may soon be able to legally unlock their
cell phones again, the bill that would temporarily restore
that right would essentially prohibit companies from making a
business doing the same thing. In other words, while you
could legally unlock your own cell phone--if you can figure
out how to do it--you might have a difficult time buying an
already unlocked used cell phone--because few of them would
be on the market.
That wasn't how the bill, H.R. 1123, was originally written
or what it stated when it was voted out of committee.
Instead, the bill simply would have set aside for the next
year or so a regulatory ruling from last year and allowed
anyone--consumer or business--to unlock cell phones
individually or in bulk.
But late last week, new language barring bulk unlocking was
added surreptitiously to the bill. Although the new language
wasn't subject to any hearings or public debate, it's
included in the bill that will be voted on by Congress.
What's worse is that the bill will apparently be voted on
using a special procedure that would essentially bar both
debate on the floor of the House and amendments to the bill.
The change to the bill was so substantial that Derek
Khanna, a former Republican congressional staffer who started
the campaign to reverse the regulatory ruling on unlocking
and has worked for the past year to keep the issue alive, has
become lukewarm on the bill, calling the new language
``troublesome.'' While he's still backing the bill, Khanna
expressed hope that the Senate, when considering the issue,
would work on a bill without the bulk unlocking ban.
Other former backers have now dropped their support for the
unlocking bill. Among them: the Electronic Frontier
Foundation, consumer advocacy group Public Knowledge and
local Democratic representatives Anna Eshoo and Zoe Lofgren.
``We're all for phone freedom and we wish we could support
the bill. Unfortunately, however, the costs for users
outweigh the benefits,'' the EFF said in statement.
Cell phone manufacturers and carriers frequently use
software to bind or lock devices
[[Page H1909]]
to particular networks. The locks are meant to make it
difficult for consumers to take their devices with them to
another carrier. Manufacturers and carriers say the locks are
important to their businesses, allowing them to develop
exclusive devices that can attract or retain consumers.
Consumer advocates, meanwhile, basically view them as tools
that thwart competition in the marketplace and prevent
consumers from being able to fully control the devices they
own.
The locks are protected by an obscure portion of U.S.
copyright law that forbids consumers and businesses from
tampering with protections put in place by intellectual
property owners to protect their works--even when what they
want to do with those works is completely legal or covered by
fair use.
The Librarian of Congress is charged with reviewing, every
three years, potential exemptions to that copyright
provision. Starting in 2006, the Librarian recognized an
exception for cell phone unlocking.
But in late 2012, the Librarian, citing the growing number
of unlocked devices on the market, announced that the
exemption would be revoked. Early last year, unlocking cell
phones again became illegal.
Ever since, consumers and their advocates have pressed
policy makers to overturn the Librarian's ruling. A petition
to President Obama last year, for example, received more than
114,000 signatures in a little more than a month.
At its base, the dispute over unlocking is about whether
copyright law can be twisted to forbid otherwise legal
activities. The copyright provision that prohibits the
breaking of software locks was written as the age of digital
information was just starting to take off. One of the
features of digital information is that computers can be used
to make perfect copies of originals. There was a real fear on
the part of copyright holders that the market for their goods
would be undermined by a flood of perfect digital copies of
their works. Why buy a song from Apple if you can simply
download the same one for free from Napster? The provision
was written to allow copyright holders to protect their works
from this kind of illicit mass copying.
But since then, the provision has been used to thwart all
kinds of otherwise legitimate activities. Not only has the
unlocking of cell phones been impeded by the provision, but
so too have things like the ``jailbreaking'' of iPads so that
they can run programs not approved by Apple, the making of
printer cartridges by companies other than the printer
manufacturer, and reporting on security vulnerabilities.
Advocates for a renewed right of unlocking generally oppose
this kind of restrictive view of copyright. They'd like
Congress or regulators to recognize that, in general,
breaking software locks is OK if the intention is to do
something legal, something that might be covered under fair
use or other consumer rights.
What those advocates find objectionable about the bulk
unlocking bar in the new bill is that it represents something
of a Congressional imprimatur for the more restrictive view
of copyright, one in which copyright law can be used to ban
business practices that have nothing to do with making
illicit copies of protected works.
As Eshoo and Lofgren put it in a joint statement today:
``Congress should work to roll back abusive practices that
use copyright law to prevent owners from having control over
the devices they lawfully own. What it means to `own' a
device that has been purchased is what's at stake here. The
new addition to the bill puts the effort to stand up for the
property rights of the owners of technology devices at
risk.''
Eshoo, Lofgren and other backers of unlocking have put
their hope in a broader bill co-authored by the two that
would grant a permanent right for consumers and businesses to
unlock phones, but to circumvent software locks if the intent
is to do something non-infringing.
As I wrote in my column today, I think that bill is a long
shot, given the current dysfunction of Congress. Instead, I
argued that the Federal Communications Commission should
simply step in now and bar the locking of cell phones to
particular carriers.
____
[From washingtonpost.com, Feb. 21, 2014]
Here's What Reformers Say Is Missing From Congress Cellphone Unlocking
Bill
(By Timothy B. Lee)
Almost everyone agrees that unlocking your cellphone should
be legal. But crafting legislation to give consumers the
freedom everyone agrees they should have is surprisingly
difficult.
The debate over cellphone unlocking started about a year
ago, when a ruling by the Library of Congress suggested that
unlocking your cellphone to take it to another wireless
carrier could run afoul of copyright law. That triggered a
grassroots backlash, prompting members of Congress and even
the White House to support overruling the Librarian's ruling.
But crafting legislation to permit cellphone unlocking has
been surprisingly complicated. Rep. Bob Goodlatte (R-Va.),
the chairman of the House Judiciary Committee, has introduced
legislation permitting consumers to unlock their cellphones.
But that legislation has gotten lukewarm support from public
interest groups who say it doesn't go far enough in
recognizing consumer rights.
On Friday, the advocacy group Public Knowledge announced it
was withdrawing support from Goodlatte's bill after the
chairman introduced a new version. The new version includes
language permitting individuals to unlock their cellphones.
But the legislation states that ``nothing in this subsection
shall be construed to permit the unlocking of wireless
handsets or other wireless devices, for the purpose of bulk
resale.''
The problem, according to Public Knowledge's Sherwin Siy,
is that the DMCA shouldn't apply to phone unlocking--``bulk''
or otherwise--in the first place. The DMCA was supposed to be
about preventing piracy, not limiting what consumers do with
their gadgets. The new Goodlatte bill ``doesn't prevent bulk
unlocking but it certainly seems to suggest Congress thinks
it's already prohibited,'' Siy says. That could be a step
backwards.
The issue has significance well beyond cellphones. More and
more of the products in our daily lives have computers
embedded in them. If it's illegal to unlock your cellphone,
it might be illegal to modify or repair a wide variety of
other products. For example, all modern cars have computers
embedded in them, and repairing a car increasingly requires
accessing its onboard software. Could car manufacturers
invoke the DMCA to prevent unauthorized repair work?
An aide to the judiciary committee insists that critics
like Siy are over-reading the legislation. The bill is
intended to allow cellphone unlocking, the aide says, without
affecting broader questions about the scope of the DMCA.
Those broader issues will be tackled later, as part of a
broader review of U.S. copyright law.
But the current furor over cellphone unlocking represents a
rare opportunity to craft DMCA reform that could actually
pass Congress. If Congress passes narrow legislation fixing
only the most obvious abuse of the DMCA, there might not be
enough political capital left for a broader reform later on.
The Electronic Frontier Foundation, another public interest
group that favors overhauling the DMCA, shares Siy's concern.
``We are deeply concerned that the bill has new language
excluding bulk unlocking,'' EFF's Corynne McSherry says.
``Unlocking, whether individually or in bulk, makes reuse and
repair possible, and is a public benefit. It should be
clearly lawful.''
Mr. GOODLATTE. Mr. Speaker, I yield myself 1 minute to say to the
gentleman from Colorado, I understand that you would like to see
copyright law changed. But the fact of the matter is this is copyright
law, and so the fact of the matter is right now consumers cannot
legally unlock their phones, and we need to fix that problem. We have
been working to do it.
I have worked very closely with the ranking member of the full
committee and the ranking member of the subcommittee on the Judiciary
Committee so that this change that was made is bipartisan. It should
come as a surprise to no one because we, in fact, discussed this during
the markup of the bill in the committee. When we did discuss that, we
said we would continue to work with Members moving forward, and we came
up with language that is bipartisan.
It is also supported, by the way, by Senator Leahy and Senator
Grassley in the United States Senate. This is a bipartisan and
bicameral compromise to move this legislation forward to address the
concerns of organizations like the American Consumers Union supporting
this legislation, the Small Business & Entrepreneurship Council, the
Competitive Carriers Association, the CTIA, and also, importantly----
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. GOODLATTE. I yield myself an additional 30 seconds. I will read
very briefly from the letter from the National Fraternal Order of
Police.
It says: ``As Congress contemplates legislation to facilitate lawful
unlocking by individuals, either for themselves or for devices on a
family plan, we urge you to retain the prohibition on bulk unlocking
consistent with both the 2010 and 2012 decisions from the Copyright
Office. We believe that maintaining this prohibition will reduce
smartphone thefts because the criminal sale of these devices will no
longer be as profitable.''
I reserve the balance of my time.
Mr. POLIS. Mr. Speaker, I would like to yield 2 minutes to the
gentleman from Virginia (Mr. Scott) for purposes of a colloquy.
Mr. SCOTT of Virginia. Mr. Speaker, I would like to engage the
chairman in a colloquy.
Mr. Chairman, am I correct that this legislation is meant to preserve
the Registrar of Copyrights' findings on bulk resale of new phones in
both the 2010 and 2012 rulemakings and is not intended to apply to used
phones?
Mr. GOODLATTE. Will the gentleman yield?
Mr. SCOTT of Virginia. I yield to the gentleman from Virginia.
[[Page H1910]]
Mr. GOODLATTE. That is correct. This legislation is not intended to
impair unlocking related to family plans consisting of a small number
of handsets or of used phones by legitimate recyclers or resellers. The
objective of this savings clause is to make it clear that the
legislation does not cover those engaged in subsidy arbitrage or in
attempting to use the unlocking process to further traffic in stolen
devices.
Mr. SCOTT of Virginia. Thank you, Mr. Chairman.
Also, I think you have indicated that the Fraternal Order of Police
is supportive of this provision as well?
Mr. GOODLATTE. That is correct.
Mr. Speaker, at this time, it is my pleasure to yield 2 minutes to
the gentleman from Georgia (Mr. Collins), a member of the Judiciary
Committee.
Mr. COLLINS of Georgia. Thank you, Mr. Chairman.
Mr. Speaker, again, as we come here to talk about this, I join and
associate myself with the gentleman from Utah and also the other
comments that have been made here. We are looking to protect consumers.
I enjoy the opportunity to go forward and look at an issue which we are
supportive of: consumer choice.
As a member of the Judiciary Committee's IP Subcommittee, I believe
if a consumer has met their contractual obligations with a service
provider, then they should have the right to unlock and use the device
with another carrier.
Our Nation's intellectual property law should prioritize three
things: innovation, creation, and competition. Frankly, holding
consumers hostage to their carrier fails to pass the smell test in this
category.
We live in an age where consumers want choice, access, and freedom.
Although carriers may have to evolve and develop to address the changes
that this legislation may have on their business models, I am confident
that any changes made will only better serve the consumer and promote
competition.
It is with that in mind that I understand the gentleman from
Colorado, and I understand the thought, because I actually had passed
and do support the larger measure that came out of the Judiciary
Committee. But also, in taking into account, there is a process here in
which I believe that immediate help to consumers is the bigger issue
and would be willing and will work, as I have stated before, for the
larger measures that have been talked about here before. However, to
hold this bill as it is and say this is not something to move forward
on I can't accept and would urge all Members to accept this bill. It is
a process of moving forward.
I do not believe that there is picking sides here. In fact, what I
believe is happening here is we are protecting consumers and moving the
discussion down the line. That is what we are sent here to do, and I
believe this is a good balance between the two.
I respect the gentleman from Colorado and, Mr. Speaker, believe that
we can work further on this, but this is a bill that needs to be passed
today so we can move on and protect our consumers.
Mr. Chairman, I appreciate your work and the work of the committee in
doing so. This is a matter of consumers, this is a matter of choice,
and we need to make sure that this body stands for that.
Mr. POLIS. I would like to inquire, Mr. Speaker, as to how much time
remains on both sides?
The SPEAKER pro tempore. The gentleman from Colorado has 7\1/2\
minutes remaining. The gentleman from Virginia has 8 minutes remaining.
Mr. POLIS. I yield myself such time as I may consume.
Again, there seems to be some strong, bipartisan consensus here that
there remains more work to be done. As Representative Chaffetz said, we
do need a long-term solution. We need to ensure that any solution we
enter is not compromised by our Nation's trade agreements to ensure
that consumers are protected in control of their own devices in
choosing the plan that they desire.
The language in question that was added after the bipartisan
consensus was reached in committee is not operative language. It is not
language that criminalizes something that wasn't criminal before or
proactively bans the bulk sale of phones. What it does explicitly do is
establish some degree of congressional intent.
Perhaps this colloquy between the two gentlemen from Virginia helped
roll back a part of what could be read in the congressional intent of
this language, and I am appreciative of that effort. However,
congressional intent could, nevertheless, be construed that there is an
imprint, there is a congressional desire to use a more restrictive view
of copyright, one in which copyright laws can be used to ban business
practices that have nothing to do with making illicit copies of
protected works.
Copyrights are a very important area of law. It is meant to protect
the creator of a work from having their work ripped off and sold and
others profit at their expense. However, it is difficult to see, and
this is why so many of us were critical of the Librarian of Congress'
initial decision. It is very difficult to see what the nexus is between
unlocking cell phones and copyright.
By adding this language in, it adds some degree of congressional
perception that copyright law can be what many of us feel to be abused
in this manner that reduces consumer choice and does not protect any
legitimate creator of a work. Again, to the extent there are concerns
from police and law enforcement officials with regard to how unlocked
or locked cell phones are being used for transactions that are
otherwise illegal, that is a question of criminal law and enforcement
and something that I would hope to be certainly supportive of efforts
within Judiciary or Homeland Security or other committees to ensure
that we reduce crime across all of those. But let's not give the
court's ruling on these actions a reason to think that perhaps Congress
condones them.
Again, having my colleagues on both sides of the aisle on the Record
talking about how this bill is simply a first step and how we need to
go further and, of course, not backing away from the initial committee
markup of the bill, it is certainly also helpful in establishing
congressional intent. And that is really what we are talking about
here. We are not talking about binding language where before this bill
passes somebody doesn't go to jail, after this bill passes they do. We
are talking about potential use and precedent going forward with regard
to how copyright law can, from my perception, be misapplied to reduce
consumer choice in areas that are unrelated to the purpose of copyright
protection.
That is why I continue to stand in opposition to this bill, certainly
appreciating the step forward of enshrining in law potentially that it
is no criminal penalty for an individual unlocking their own cell
phone. But, again, we want to make sure it doesn't happen at the
expense of moving the entire discussion in the wrong direction.
An opinion in yesterday's L.A. Times was headlined, ``The House's
cell phone unlocking bill: Thanks but no thanks.'' I would like to
submit the L.A. Times op-ed into the Record, Mr. Speaker.
I reserve the balance of my time.
[From the Los Angeles Times, Feb. 25, 2014]
The House's Cellphone Unlocking Bill: Thanks But No Thanks
(By Jon Healey)
How hard can it be for Congress to make it legal for
consumers to switch mobile networks without having to buy a
new phone?
Too hard, evidently.
The House is scheduled to vote Tuesday on a bill that was
supposed to clear the way for consumers to unlock the phones
they buy from wireless companies after they've fulfilled
their contracts. But the measure, which was modest to begin
with, has been rendered irrelevant by voluntary agreements on
unlocking that the Federal Communications Commission obtained
from the wireless companies. The bill was also changed at the
last minute in a way that arguably weakens consumers'
ownership rights, prompting some consumer advocates and
Democrats to withdraw their support.
The current version is so bad, consumers would be better
off if Congress did nothing at all.
At issue is a dubious interpretation of copyright law that
deters people from moving their phones from one network to
another. Each mobile carrier typically sells phones with
electronic locks that prevent them from being reprogrammed to
work on rival carriers' networks. The U.S. Copyright Office,
acting through the Librarian of Congress, ruled in 2012 that
removing the locks violated the 1998 Digital Millennium
Copyright Act, which forbids the circumvention of
technologies that protect copyrighted works.
The ruling was bizarre, considering that the locks inside
phones don't protect against
[[Page H1911]]
software piracy; their only real purpose is to protect the
mobile carriers' business model. And the carriers have (and
use) better tools to recover the subsidies they put into the
phones they sell, most notably contracts that impose hefty
early termination penalties.
The 1998 law requires the Librarian of Congress to revisit
the anti-circumvention rules every three years, which means
the Electronic Frontier Foundation and other consumer
advocates can try to set things right in 2015. Sadly,
however, the default interpretation of the cellphone locks is
that they are covered by the anti-circumvention ban.
The Copyright Office's decision, which took effect early
last year, led more than 100,000 people to petition the White
House for help. Tech-friendly lawmakers lined up to offer
bills, including an elegantly simple one by Sen. Amy
Klobuchar (D-Wis.) that would require mobile companies to let
customers unlock the wireless devices they buy, and a more
sweeping proposal by Sen. Ron Wyden (D-Ore.) to exempt
wireless device unlocking from the anti-circumvention ban.
The best of the bunch was a bill by Rep. Zoe Lofgren (D-San
Jose) and a bipartisan group of co-sponsors to limit the 1998
law's anti-circumvention rules to locks that protect against
piracy. That bill also would have declared that it was not
copyright infringement for the owner of a mobile device to
unlock it for the purpose of switching to another network.
The House, however, is scheduled to take up a different
measure Tuesday afternoon, H.R. 1123 by Judiciary Committee
Chairman Bob Goodlatte (R-Va.) and co-sponsors from both
parties. As introduced, it would simply have replaced the
Copyright Office's 2012 ruling with its decision in 2010 that
cellphone owners could unlock their phones without running
afoul of copyrights. It also would have called on the
Librarian of Congress to decide within a year whether to
extend the exemption to all other locked wireless devices,
such as tablets.
The relief offered by the bill would have remained in
effect only until the Librarian of Congress reviewed the
anti-circumvention rules again in 2015, so it hardly seemed
worth the effort. The version that the House is slated to
vote on Tuesday also includes a new provision effectively
barring devices from being unlocked in bulk for the purpose
of reselling them.
The latter change disturbed Lofgren (a member of
Goodlatte's committee) and fellow Silicon Valley Democrat
Anna Eshoo, who accused Republicans of adding the provision
in secret after the Judiciary Committee approved the bill.
The proposed ban on unlocking for the sake of resale, they
argued in a letter to colleagues Monday, is an inappropriate
use of copyright law to stop people from disposing of the
devices they buy as they please.
``Congress should work to roll back abusive practices that
use copyright law to prevent owners from having control over
the devices they lawfully own,'' Lofgren and Eshoo wrote.
``What it means to 'own' a device that has been purchased is
what's at stake here. The new addition to the bill puts the
effort to stand up for the property rights of the owners of
technology devices at risk.''
Public Knowledge, a technology advocacy group, agreed.
``Even if Congress believes that bulk unlocking is a problem,
it's clear that it's not a copyright problem, just as
individual unlocking is not a copyright problem,'' said
Sherwin Siy, the group's vice president of legal affairs. ``A
bill designed to scale back overreaching copyright laws
should not also endorse an overreach of copyright law.''
Both Public Knowledge and the Electronic Frontier
Foundation withdrew their support for the measure after the
new provision was disclosed last week.
The House plans to bring up HR 1123 under an expedited
procedure that forbids amendments but requires a two-thirds
vote to pass. With some luck, Lofgren and Eshoo can rally all
the supposedly tech-friendly members in the chamber to knock
the bill off track.
As you may recall, there's been a ridiculous (on many
levels) fight concerning the legality of ``unlocking'' mobile
phones. Let's go through the history first. Because of
section 1201 of the DMCA, the ``anti-circumvention''
provision, companies have been abusing copyright law to block
all sorts of actions that are totally unrelated to copyright.
That's because 1201 makes it illegal to circumvent basically
any ``technological protection measures.'' The intent of the
copyright maximalists was to use this section to stop people
from breaking DRM. However, other companies soon distorted
the language to argue that it could be used to block certain
actions totally unrelated to copyright law--such as unlocking
garage doors, ink jet cartridges, gaming accessories . . .
and phones. There have been court cases about a number of
these issues, with (thankfully) many courts ruling against
this kind of abuse, though it still happens.
Separately, every three years, the Librarian of Congress
gets to announce ``exemptions'' to section 1201 where it
feels that things are being locked up that shouldn't be. Back
in 2006, one of these exemptions involved mobile phone
unlocking. Every three years this exemption was modified a
bit, but in 2012, for unexplained reasons, the Librarian of
Congress dropped that exemption entirely, meaning that
starting in late January of 2013, it was possible to
interpret the DMCA to mean that phone unlocking was illegal.
In response to this there was a major White House petition--
which got over 100,000 signatures, leading the White House to
announce (just weeks later) that it thought unlocking should
be legal--though, oddly, it seemed to place the issue with
the FCC to fix, rather than recognizing the problem was with
current copyright law.
Following this, a slew of new bills were introduced in
Congress, many of which attempted to narrowly deal with the
specific issue, while leaving the larger issues untouched.
Many of these bills were incredibly problematic, though
eventually the consensus seemed to get behind one bill
before... nothing. Fast forward a year and nothing has
changed, though the main bill, supported by Rep. Goodlatte,
called the Unlocking Consumer Choice Act, is scheduled to go
to a vote on Tuesday. It had gone through the basic markup
process and some adjustments had been made to make it a good
first step towards fixing problems.
As of last week, a bunch of folks, who were concerned about
the issues with unlocking and how Section 1201 was a problem,
were supportive of this bill and were expecting to publicly
speak out in favor of getting the bill passed. Except... late
last week, with no explanation whatsoever, and no
consultation with others even though the markup and Judiciary
Committee process had already concluded, Rep. Goodlatte
slipped into the bill a little poison pill/favor to big phone
companies, adding a seemingly innocuous statement as section
(c)(2):
No Bulk Unlocking--Nothing in this subsection shall be
construed to permit the unlocking of wireless handsets or
other wireless devices, for the purpose of bulk resale, or to
authorize the Librarian of Congress to authorize
circumvention for such purpose under this Act, title 17,
United States Code, or any other provision of law.
While this gives Goodlatte and other maximalists some sort
of plausible deniability that this bill is making no
statement one way or the other on bulk unlocking, it
certainly very strongly implies that Congress believes bulk
unlocking is, in fact, still illegal. And that's massively
problematic on any number of levels, in part suggesting that
the unlocker's motives in unlocking has an impact on the
determination under Section 1201 as to whether or not it's
legal. And that's an entirely subjective distinction when a
bill seems to assume motives, which makes an already
problematic Section 1201 much more problematic. Without that
clause, this seemed like a bill that was making it clear that
you can't use the DMCA to interfere with an issue that is
clearly unrelated to copyright, such as phone unlocking. But
with this clause, it suggests that perhaps the DMCA's anti-
circumvention clause can be used for entirely non-copyright
issues if someone doesn't like the ``motive'' behind the
unlocker.
Given that, both Public Knowledge and EFF have pulled their
support for the bill. As Public Knowledge noted:
``The new language specifically excluding bulk unlocking
could indicate that the drafters believe that phone unlocking
has something to do with copyright law. This is not a
position we support. Even if Congress believes that bulk
unlocking is a problem, it's clear that it's not a copyright
problem, just as individual unlocking is not a copyright
problem. A bill designed to scale back overreaching copyright
laws should not also endorse an overreach of copyright law.''
EFF made a similar statement:
By expressly excluding [bulk unlocking], this new
legislation sends two dangerous signals: (1) that Congress is
OK with using copyright as an excuse to inhibit certain
business models, even if the business isn't actually
infringing anyone's copyright; and (2) that Congress still
doesn't understand the collateral damage Section 1201 is
causing. For example, bulk unlocking not only benefits
consumers, it's good for the environment--unlocking allows
re-use, and that means less electronic waste
Two members of Congress who have been closely associated
with these issues, Reps. Zoe Lofgren and Anna Eshoo, also
pulled their support of the bill late Monday as well,
expressing their clear outrage at how this change was slipped
in after the fact, in a letter sent to their colleagues in
the House:
After this bill was marked up and reported out of
committee, a new section was added to the bill without notice
to or consultation with us. . . .
They furthermore point out that it's ridiculous that
Congress is not fixing the broken anti-circumvention parts of
the DMCA, and could possibly be strengthening them with this
sneaky change of language:
In his concurring opinion in Lexmark v. Static Control
Components, Judge Merritt wrote: ``We should make clear that
in the future companies like Lexmark cannot use the DMCA in
conjunction with copyright law to create monopolies of
manufactured goods for themselves . . .'' The court's holding
prevented Lexmark from using dubious copyright claims and an
overboard reading of 17 USC 1201--the same section the
Unlocking Consumer Choice Act alters--to prevent third
parties from creating competing printer ink cartridges. The
issue is similar here.
Congress should work to roll back abusive practices that
use copyright law to prevent owners from having control over
the devices they lawfully own. What it means to ``own'' a
device that has been purchased is what's at stake here. The
new addition to the bill puts the effort to stand up for the
property rights of the owners of technology devices at risk.
It is sad that the bipartisan consensus reached during
mark-up in the Judiciary
[[Page H1912]]
committee to improve the law has been destroyed by a secret
decision of the majority after the bill was reported out.
Unfortunately, the bill was deemed so uncontroversial that
it's been listed on the suspension calendar of the House,
which is where non-controversial bills are put to ensure
quick passage. That means that, not only did Goodlatte slip
in a significant change to this bill that impacts the entire
meaning and intent of the bill long after it went through the
committee process (and without informing anyone about it),
but he also got it put on the list of non-controversial bills
to try to have it slip through without anyone even noticing.
Either way, it seems that even if the bill does pass, it
won't do anything to fix a very broken part of the DMCA and,
in fact, could make it somewhat worse. Politics as usual when
it comes to anything having to do with copyright.
Mr. GOODLATTE. Mr. Speaker, I am the last speaker remaining on our
side. I believe I have the right to close, so if the gentleman has
anything else he would like to say.
Mr. POLIS. Mr. Speaker, I am prepared to close, and I yield myself
the balance of my time.
I am heartened by the discussion on both sides of the aisle with
regard to the path forward. I wish we could be at a better place today.
I think we had a bill that was reported out of committee that would not
have engendered, I don't believe, any degree of controversy here on the
floor of the House.
We have now moved to a place where the bill does invoke some degree
of appropriate controversy and some degree of appropriate opposition. I
would advance that it is never too late to reach a compromise, either
before this bill is voted upon--perhaps my colleague, Mr. Goodlatte,
will be willing to consider Ms. Lofgren's language change--or after
this bill passes. I think that we would all agree that this issue is
not one in any way, shape, or form that is being put to bed here today.
I would hope that, as a guiding principle, Members on both sides of
the aisle look to consumer choice and the power of markets to achieve
the best outcome and ensure that incumbents don't seek to co-opt
copyright law to the detriment of our economy and the detriment of
consumer choice.
{time} 1630
Again, this bill has language that can be construed as applying
copyright law in another area and having a congressional blessing to do
so, which is why I encourage my colleagues to join Electronic Frontier
Foundation, Public Knowledge, Generation Opportunity, FreedomWorks, and
iFixit, and some of those very organizations that were in the forefront
of proposing that we pass a bill that allows unlocking that have since
withdrawn their support from this bill because of the last-minute
changes, which I saw for the first time yesterday and that I wish this
House had a bigger opportunity to vet, perhaps bringing this bill
forward under a rule if the suspension motion fails.
If a third of the Members of the House oppose, we would have an
opportunity to remedy this bill under a rule that was hopefully
structured to allow for compromise language that would then allow the
bill to proceed with near unanimity. I hope my colleagues on both sides
of the aisle see that as an opportunity, certainly not as a rebuke to
the chair and ranking member on the committee. We appreciate the
direction and the intent behind this bill, their desire to make sure
that Americans know that they are not under duress or a criminal threat
if they are unlocking their own cell phone. That is a sentiment that
both the chair and the ranking member have echoed passionately, but I
think we can do better with regard to ensuring that this bill is also
not a precedent for the use of overreaching copyright law and a
congressional blessing to do so in a way that hampers the trade, the
bulk trade of unlocked cell phones which offer great potential benefits
to the marketplace and to consumers.
So I urge my colleagues to vote ``no'' on this suspension bill, to
consider working with both sides to get to ``yes,'' and to move in a
direction that we look at as a guiding principle, ensuring that
consumers and the marketplace are allowed to fully operate without the
co-option of copyright law to protect incumbents.
I yield back the balance of my time.
Mr. GOODLATTE. Mr. Speaker, I yield myself the balance of my time.
I would just say to the gentleman from Colorado, I understand his
larger aspirations with regard to changes in copyright law. The
committee recognizes that our copyright laws have not been amended in
40 years, and that we are conducting a comprehensive review. We have
held many hearings on copyright issues already. We have many more
planned, and we are going to continue that work, but this small bill to
protect the rights of consumers on cell phone unlocking does not meet
his aspirations to try to use it as a vehicle for greater things being
done here because it is intended to be a narrow fix to a problem that
was created when the Register of Copyrights did not take the necessary
steps to allow the continued unlocking of cell phones.
So it has taken a great deal of bipartisan work on the part of the
ranking member and myself; the ranking member of the subcommittee, who
had objections to the bill as reported out of the committee, has since
left Congress, and the new ranking member has signed off on the change
that was made here to bring organizations like the Fraternal Order of
Police into acceptance of this, and we still have the support of
important consumer organizations, like Consumers Union, as well as the
cell phone industry organizations. As a result, this legislation needs
to move forward as it is today.
The savings clause that the gentleman objects to is meant to make it
clear that this is focused on consumers and not on the larger issues.
If enacting in one area as we are in this very narrow, targeted bill,
we sent a signal in another area, and a signal is what the gentleman
identifies, we would never enact anything. So it is important that we
address what is in this bill, the language that was worked out in the
committee, that was discussed in the committee, that was then worked
out further as the bill was reported to the floor, and pass this
legislation today, and we can work on these broader issues in the
future, but in the meantime, we need to protect the rights of our
consumers to unlock the phones that they own when they purchase a used
cell phone.
Ms. LOFGREN. Will the gentleman yield?
Mr. GOODLATTE. I am happy to yield briefly to the gentlewoman.
Ms. LOFGREN. I appreciate the gentleman yielding. I was delayed at
the airport. I just wanted to indicate my opposition to the bill since
it has been changed, noting that Public Knowledge in the Los Angeles
Times said today that we would be better off doing nothing than the
bill as changed. I have talked to the chairman about this, but I wanted
to make my position clear. If we do not pass this bill because of the
Obama administration's deal with the telecoms, consumers will still be
able to unlock their phones. This is a step backwards.
I very much appreciate the gentleman's courtesy in yielding.
Mr. GOODLATTE. Reclaiming my time, what the gentlewoman says is,
indeed, true; that there is a private agreement, but that private
agreement cannot and does not mitigate the fact that the act of
unlocking a cell phone carries with it a felony penalty under the law,
and that is absolutely ridiculous. So this legislation needs to be
passed, and we can then move on to have the larger debate about the
importance of cell phone unlocking--or rather, section 1201 of the
DMCA, and other issues as we move forward on various copyright issues
in the committee, but now is not the place, now is not the time to have
that debate.
This simple, bipartisan legislation should be passed by the House. I
urge my colleagues to support the legislation.
I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Virginia (Mr. Goodlatte) that the House suspend the
rules and pass the bill, H.R. 1123, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. POLIS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion will be postponed.
[[Page H1913]]
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