This morning the House Judiciary subcommittee covering intellectual property is holding a hearing on cell phone unlocking, specifically a legislative proposal to restore the exemption under the DMCA that the librarian of Congress decided not to include last year.
That Congress is acting so quickly to fix the problem is encouraging, and we shouldn’t lose sight of that, but keep in mind that it’s very narrowly-tailored—the legislative exemption expires, leaving future determinations in the hands of the librarian—and it doesn’t address the DMCA itself at all. Sina Khanifar, one of the two people responsible for the public-relations campaign that brought us to this point, has said it doesn’t go far enough in an op-ed for USA today. Derek Khanna, the other one, was asked to prepare a written statement (embedded below) but he also criticized the lack of any IP critics testifying:
On Thursday, Chairman Goodlatte’s legislation will be before the House Judiciary IP Subcommittee. Unfortunately, while the wireless industry and others who have been against unlocking will be represented, there will be no witnesses at the hearing who have been part of our campaign for unlocking (however, Consumers Advocacy may be an advocate for the consumer on this issue). This is very disappointing news.
Ryan Radia has a pretty evenhanded take on the legislation:
By restoring the broad DMCA exemption for phone unlocking in force from 2006 to 2012, S.517 [the Senate analogue to the House bill] addresses the problem at hand without going too far. It neither forces carriers to help users unlock their phones, nor limits carriers’ ability to recover damages from subscribers who breach their contracts. Rather, the bill would simply shield users who unlock their cell phones from the DMCA’s harsh penalties. In striking this balance, S.517 deserves credit for aiming to solve a discrete problem with a narrowly-tailored solution.
But would S.517′s fix last? Given that “[n]othing in [the] Act alters . . . the authority of the Librarian of Congress under [the DMCA],” S.517 would presumably leave unchanged the substantial deferenceenjoyed by the Librarian regarding his decisions about which circumvention tools to exempt—including cell phone unlocking tools. If, three years from now, the Librarian boldly decides that his2012 decision to curtail the phone unlocking exemption was correct, and thus restores the language currently in force, Congress will be back at square one.
Also be sure to check out FCC commissioner Ajit Pai’s op-ed on the hearing in today’s New York Times.
Khanna’s full statement after the jump.