[Infowarrior] - FW: Unlocking cell phones does not violate DMCA

[Richard Forno]

------ Forwarded Message
From: Monty Solomon <monty at roscom.com>

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
http://www.copyright.gov/fedreg/2006/71fr68472.html


5. 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.