UPDATE: The DMCA and the limits of copyright

An interesting wrinkle emerged yesterday in the debate over consumers' ability to unlock mobile phones. If you read my post from last week, I described the recent change in the position of the Library of Congress on this issue and the expiry of the exemption in the DMCA that allowed users to unlock their phones.

What has changed since then is that just yesterday the White House responded to a petition on this issue, saying:

. . .if you have paid for your mobile device, and aren't bound by a service agreement or other obligation, you should be able to use it on another network. It's common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers' needs.

Additionally, the FCC weighed in:

The Copyright Office of the Library of Congress recently reversed its longstanding position and stated it is a violation of the Digital Millennium Copyright Act for consumers to unlock new mobile phones, even those outside of contract periods, without their wireless providers’ permission, and that consumers are subject to criminal penalties if they do.

From a communications policy perspective, this raises serious competition and innovation concerns, and for wireless consumers, it doesn't pass the common sense test. The FCC is examining this issue, looking into whether the agency, wireless providers, or others should take action to preserve consumers' ability to unlock their mobile phones. I also encourage Congress to take a close look and consider a legislative solution.

Even more interesting is that the Library of Congress responded to the petition, saying:

We also agree with the administration that the question of locked cell phones has implications for telecommunications policy and that it would benefit from review and resolution in that context.

The system of DMCA exemptions is the result of a process undertaken by the Library of Congress and the Register of Copyrights. As I've noted before, copyright law is supposed to govern creative works. Unfortunately, one of the problems of the DMCA's "anti-circumvention" language is that it allows copyright law to be twisted in ways that have nothing to do with copyright, thereby limiting competition and consumer choice.

Now that the White House and the FCC have both jumped into this discussion, we can hope that Congress will get involved and a more workable solution can be found.

The DMCA and the limits of copyright

I never would've thought I'd write a piece about copyright that would feature race cars and cell phones, yet over the weekend, I came across these examples of how copyright can affect us in unexpected ways. Both got me thinking about the Digital Millennium Copyright Act (DMCA) and how far we should be able to go to protect intellectual property.

As I've discussed before, the boundaries of intellectual property law are constantly being stretched, perhaps in ways that our Founding Fathers did not anticipate given rapid technological change or protectionism masquerading as capitalism. The US Constitution furthers the public interest through copyright law by creating a short-term monopoly that incentivizes authors of creative works to go on creating. Unfortunately, it is all too easy to take advantage of this in ways that are decidedly not in the public interest.

Notice-And-Removal

The first of these examples has to do with video of a horrible crash that occurred during a NASCAR race this past Saturday. A fan video of the crash and its painful aftermath was posted to YouTube quickly afterwards, and then just as quickly removed due to a DMCA "takedown notice", prompting cries of censorship and abuse.

While NASCAR may assert that it owns any fan-created material (as all major-league sporting organizations do), in fact the owner of the clip is the fan who created it. Despite NASCAR's statement saying that the video was taken down out of respect for the injured fans, because the protections afforded by copyright law are solely for the owners of creative works, the fact remains that it had no right to do so.

In order for the DMCA to be effective, it provides a "safe harbor" for intermediaries that allows them protection from copyright infringement claims resulting from the actions of others. For this protection to be effective, copyright owners must notify the intermediary quickly after becoming aware of the infringing use, and the intermediary must then act quickly to remove the infringing material.

The speed by which this system operates is what creates the potential for abuse. In order to receive protection under the DMCA, YouTube must immediately react to takedown notices, unfortunately without being able to check to see if the claim is legitimate in the first place. (Here's a link describing the process.)

The good news is that upon review, YouTube reposted the video after reaching the conclusion that the video was not infringing. But while the system allows for a review process, it takes place after the fact, and as a result, it is all too easy for an entity to stifle free speech or censor a video simply by sending a bogus takedown notice.

Anti-Circumvention

My other example has to do with the "anti-circumvention" language in the DMCA and how it relates to mobile phones.

When the DMCA was written, content owners wanted to ensure that laws existed so that the technological methods they used to protect their content couldn't legally be hacked. This is the language that allows for copy protection schemes and DRM.

Previously, the Library of Congress, the organization that oversees implementation of the DMCA, twice affirmed an exemption to this "anti-circumvention" language. This exemption allowed owners to legally unlock their phone, thereby allowing it to be used on different wireless networks. The exemption was allowed to expire recently. The troubling results of this change are described in this excellent piece from the Electronic Frontier Foundation (EFF).

Like spurious takedown notices, the DMCA is again being used in unintended ways; in this case ways that stifle innovation and limit consumer choice. Phone companies want to be able to control access to their networks, and allowing users to unlock their phones does the opposite. When you remember that copyright law (and thus the DMCA) is written to protect creative works, you can see how far phone companies are reaching in their efforts to make the ability to unlock a mobile phone illegal.

The Past And The Future

The DMCA became law in 1998 and in many ways, helped create the internet we currently know. Despite being vitally important to the DMCA, and great examples of how well thought out the law may be, these two provisions are problematic when used in abusive ways. I believe in protecting the work of artists, musicians and other creators of intellectual property, but we must find ways to ensure that the protections that allow them to be successful aren't used in instead to limit free speech or inhibit competition.