Say Goodbye to your DMCA Smartphone Unlocking Protection
Unfortunately, the DMCA reaches into our pockets and handbags — even if you’re not in the United States much of the rules impact your life. You see, the DMCA is essentially a roll-up of two international treaties having to do with copyright protections and fair use, and codified into U.S. Law. Other countries have similar laws all based on the same core treaties.
Today is the day when the Librarian of Congress’ new Digital Millennium Copyright Act rules go into effect. Depending on which news source you read, the sky is either falling, or everything is smooth sailing. We talked a bit about this year’s changes earlier, but since then there have been some new interpretations of the exemptions and rule changes. Before we get into those, why are the DMCA rules changing? One of the provisions in the DMCA is that every three years the Librarian of Congress must review the list of exemptions and issue changes, if needed, at that time.
This round of changes was announced earlier but some of them only went into effect today. Specifically considering rooting and unlocking — there’s an important distinction there which we’ll get to in a moment.
The DMCA covers smartphones, tablets, and even flip phones. They all fall under the definition of “wireless devices”. The Librarian of Congress denied the distinction between these devices, but did not deny the protection given to them. Theoretically a walkie talkie falls under this definition and would thereby be similarly protected.
Who is protected? And from what?
It’s also important to establish the people that are being “protected” by the DMCA. It’s not you or I, rather it’s the copyright holders — in this case, the carrier and/or device maker. As such, the DMCA tells those people if they are protected (through the use of legal action against an infringer) for a violation defined in the law.
Prior to these rule changes, copyright holders were not protected against developers and users rooting and/or unlocking their devices. Why? Unlocking was seen as a fair use to ensure interoperability of devices across carriers. Now, however, the powers that be feel that there are an adequate number of devices from which we (the end users) can choose.
To clarify, Mitch Stoltz, an attorney for the Electronic Frontier Foundation opined:
“What’s happening is not that the Copyright Office is declaring unlocking to be illegal, but rather that they’re taking away a shield that unlockers could use in court if they get sued.”
Now, if we unlock our devices, we no longer have that argument to use in our favor in court. However, there’s no obligation for carriers or manufacturers to take anyone to court. The can sue us if they want, but they don’t have to. When a case does go to court, the court will interpret the old protections versus the new protects and will deem whether or not the act of unlocking a smartphone somehow infringed on someone’s copyright. I’m not a lawyer or a judge, but I find that highly unlikely — at least when we’re talking about one person unlocking their own phone.
Who is more likely to be hit by lawsuits? People who develop and distribute the tools to unlock phones. They’re the bigger target, and they’re the ones that would best be made to serve as an example.
What exactly is unlocking?
That’s a good question. To us in the tech industry, “unlocking” means a method by which we can use a device that was previously restricted to use on one particular carrier on another carrier. This is sometimes called SIM or CID unlocking.
Rooting, however, is not necessarily “unlocking” in this context. Nor is “OEM unlocking”, unless by doing so you’re somehow removing the restriction that a device may only be used on a particular network.
Should you worry?
Unless you are trying to move a phone branded for use on one carrier to another, AND also employs a technological lock to “prevent” you from using it on another carrier, no, you probably don’t need to worry.
If you are trying to move a “carrier locked” phone from it’s original carrier to another one, all you need to do is visit the original carrier and ask them to unlock it so you can use it on another carrier. If you’re not cancelling your contract with them (for example, if you’re just selling your phone to someone else), they probably won’t mind. If you’re cancelling your contract and they don’t want to unlock it because you haven’t completely “paid for your device”, remind them that’s what early termination fees are there to cover, and you’re not objecting to paying those fees. Again, the carrier shouldn’t have a problem unlocking the phone for you.
That’s a lot of “shoulds” and carriers may decide to be “unhelpful”, but ideally, you’ll be just fine.
There will be another set of changes to the DMCA’s rules in another three years and the landscape may change significantly between now and then. Moving forward, before you get a new phone, ask the sales person if it’s locked or unlocked. If it’s locked, ask them if they’ll unlock it before you buy it. Before they have your cash they’re much more likely give you what you ask for to “seal the deal”. Will it work all the time? Not necessarily. Will it help you if you already have a phone that’s under contract? No. But now you know what the restrictions are and what impact they’ll have on your decisions. Use that information wisely.