Today, now more than before, it is illegal to modify a device you have bought with your own money.
Worse, even if you find a fault in your device that threatens your personal safety, your are still not allowed to fix that fault. On top of that and thus even worse, if that fault actually causes a problem, the entity that is active preventing your from fixing the problem is still not liable for any damages caused by that fault. All risk is on the consumer who owns the device, while all rights belonging to the company. The owner of the device is left with no rights, and has no effective power over the device.
Certainly no downvotes from me. I spent more than a decade on the "RMS is a dirty f'ing hippie who will bring down the wonderful open source movement with his intemperate antics." side of the argument too (though to be fair: I never bought into the "Copyleft is an unreasonable infringement on freedom" nonsense that some of my compatriots did).
The guy was right about basically everything. The anti-tivoization provisions that the FSF was talking about more than a decade ago, and that appeared in a usable license almost 6 tears ago, would absolutely have had a place in preventing this nonsense. Yet no one uses it, because RMS is a dirty f'ing hippie.
(And yes, I know the real world is complicated, and that corporate sponsors of copyleft development "refuse" to use the GPLv3 and cannot be convinced. The same thing was said about copyleft itself 15 years ago. The commercial world adapted. They'll figure this out too if we demand it.)
It's probably RMS's single mindedness and inflexibility that allowed the FSF to see this coming down the pipe. I now feel naive that I thought this was Chicken Little stuff and irrelevant to most users.
For the longest time, I used to think that rms was insane. Everybody did. It was just, "Oh, did you hear about Stallman's interview on [insert website/news/channel here]?" "No, what crap did he say now??"
I think now people are realizing how he was right. I don't agree with everything that comes out of his mouth, like the whole GNU/Linux thing, or how he uses an inferior computer because it doesn't have a proprietary BIOS. But, now we see the government in bed with Hollywood, we see them in bed with Big Business, and we see them in bed with the big tech companies.
Our government is a slut. The only way we can get it to do what we want and not what it wants is by expressing our opinions about it. rms may be quite vocal about his opinions, but without any sort of noise, the flame will die out. He knows this, and that's why we think he's crazy.
Too bad ~99% of the general masses and public have been irreversibly deceived by the bipartisan system to even think about a possible alternative (The Green Party, Libertarian movement, etc.).
RMS follows the archetype of the mad philosopher in the marketplace. Unpleasant appearance, unpleasant message, spends much of his time taking pot-shots at the respected players... but in the end people eventually figure out he was probably onto something. It is almost certain he will never be universally respected, but we will remember him.
Of course that is a bit of historic revisionism through selection bias, the people with a similar appearance who aren't onto something are soon forgotten, but I think it is becoming clear that RMS will not be playing that role.
Another important lesson especially for techies is that being right isn't enough. You also have to persuade people and sell your idea, and in some ways that is the hardest part. I have often thought rms should step down and let Eben Moglen do the talking.
This really would be ideal, but I'm not sure Moglen has the time to both run the legal effort and run the org and FSF legal really does an awesome job. I think maybe what the FSF needs more than anything is a NEW champion, someone younger perhaps without the baggage of RMS that would be able to relate to a new generation of devs without compromising the FSF agenda. I don't have any suggestions to this point. It might take a new organization to make this happen. I hate to suggest "forking" the FSF because that's probably the worst outcome short of a total dissolution, but they desperately need new voices.
Most people are living in houses with a bank loan but it would be considered ludicrous for the bank to decide what furniture you can buy for it or what colors you can paint the inside walls.
But I'm sure there is something in the contract that forbids you from making modifications that would drastically devalue your home. Otherwise they have no collateral for the loan. For example, I believe you can't just take a wrecking ball to your house and turn it into a parking lot.
I think you're right, but cell phones aren't collateral for anything. You can drop your phone into a vat of acid and your carrier won't care except to ask if you'd like to pay them $$$ for a new one.
Cell phone subsidies are not loans and they are not partial transfers of property. I buy a phone outright, and I get a cheap price on it because I simultaneously sign up for a service contract. That service contract doesn't change the fact that I now own my phone outright.
Mostly the law. Selling products compared to renting out products has a very different form of liability and risks. I am not a lawyer, and all that but...
If you buy a car, the seller of said car only has a very limited liability in case of faults. If the car breaks down, its up to the owner to fix it. However, if you rented a car, safety and repairs are on the company that rents the car out. This is how things worked until the 21th century
Selling or renting a product was supposed to be a trade off between liability and ownership. Companies made a choice, depending on risks/reward and if they wanted to effectively become a service company. With DRM however, liability is gone because the company do not claim property ownership, thus any product can now become a effectively rented product and never leave the control of the company.
I have no problem with a company that rents out products. I do however have a problem with companies that is exempted from liability while effectively renting out products under the pretense of selling products.
Renting doesn't always protect the renter from liability for a defective car. Often times, the renting agency has the renter sign away rights. What can you do about that? Go to a different agency. Oh wait, they all do that.
Did you sign an agreement when you purchased the hardware stating such? If it's the EULA, can you just not read/agree to it before you modify the phone? Also, EULA may be a contract but it's not law.
Contracts can require you to agree to things that are otherwise illegal for them to do. IANAL, but to give an extreme example, Motorola can't ask you to rob a bank in exchange for the ability to purchase a device. There are things such as the First Sale Doctrine (not necessarily applicable here, but still) that dictate limitations that a seller of a copy written entity (copyrights on a physical object, sigh). Such things could maybe render parts of a EULA moot depending on local laws. Again, IANAL.
In my experience, there actually is. Sadly, I think most people don't even read this, and even those that do (me) accept its unreasonable terms because they just need the device already and aren't finding free (libre) alternatives quickly.
If there is a market for a legally modifiable and open device couldn't a company sell that?
What's wrong with letting some (most) companies compete with their closed products while others compete with their open products? If you don't want a non-modifiable cell phone you have the option not to buy it.
The open device can be freely inspected by the big, closed players, who will inevitably find infringement of some trivial patent. Then there will no longer be an open device.
It would seem to me that the anti-circumvention provisions are facially unconstitutional. The provisions do not criminalize the distribution of copyrighted material, but instead of material which can help others bypass DRM. This is inconsistent with the standard of speech protection in the U.S. (that merely helping or encouraging others cannot be criminalized unless it is imminent lawless action). Of course, anti-circumvention tools can be as simple as a 64 bit key, or as complicated as an exploit payload.
The provisions are overly broad, especially in that they are permanent. If I released something not protected by copyright, but protected by DRM, any circumvention tools would remain criminal forever, unlike copyright which lasts "forever less one day". (MPAA joke)
I can think of so many reasons why these tools should not be criminalized. A circumvention tool in one context could be research or perfectly legitimate in another context. If I released software that could be circumvented with a key and it is illegal to distribute the key, what if the key was already used by some other software in a different way?
I believe one federal court ruled a key might not be criminal under the DMCA, but a different federal court ruled a large program could, so there's some conflicting precedent and we have a long way to go before the DMCA is shot down for any reason.
It perverts the idea behind copyright to enforce control, like this anti-circumvention provision.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
That's not how constitutional law works. The constitution doesn't grant permission to use copyright for that, but it doesn't say you can't either. In most cases, constitutional prohibitions are interpreted from explicit text ("Congress shall make no law..."), not from a simple omission.
And in any case a very reasonable interpretation is that the DMCA is simply providing legal teeth to the "securing ... the exclusive Right" part of that sentence, which would otherwise be impossible to secure (in both the old and new sense
of the word) in the digital age.
I'm not saying you can't make a constitutional argument here, but that it's hardly cut and dry. If you really want to hang your hat on the "unconstitutional" bit, I think you're going to need some actual judges to back you up before anyone takes you seriously.
Right, but in being right you point out the absolute wasteland of our government in that when a citizen cries "unconstitutional" he's ignored because of a technicality.
He, and I, don't support this law. Further, we don't support those who passed this law either knowing its abuses, or not caring to investigate. None of the "too busy, had to do something" excuses count because we, the people, supposedly to root of power in this country, were systematically ignored and silenced by government action when we spoke out against this type of law. A government that passes these laws is a government directly acting outside the powers granted by the people.
When we say unconstitutional we mean against the founding spirit of this country, that government is limited and responsible to the people.
If you have a better term than unconstitutional, suggest it, but we aren't discussing some technical quirk of this system as if we cared about the justifications others have made - we're discussing that it's poisoned and not serving those who feed it.
> When we say unconstitutional we mean against the founding spirit of this country, that government is limited and responsible to the people.
Fine. Just recognize that the rest of us use the same term to mean "incompatible with the constitution" and are going to get confused when you start changing the langauge without telling us.
Look, I think the DMCA is dumb too. But if I'm reading between the lines, what's really happening is that you actually want the DMCA to be "technically invalid" in the way that an unconstitutional law is. That is, you want the technical definition of "constitutional" for its impact but you want your looser "principles" definition for categorizing the DMCA. Sorry, but that's just bad logic. Stop it.
The law sucks, and there are few plausible ways to correct that. But stop with the constitutionality argument; it's not a get-out-of-jail-free card here.
There should be enough ground to deem it unconstitutional technically, and not just loosely a "bad" law. But I'm not a law scholar to spell all the details out. One of the areas where DMCA is seriously problematic was already pointed above - i.e. the issues of free speech and etc.
I think my meaning of unconstitutional carries all the weight it needs. A government not serving its people, especially knowingly, is not a valid government, and isn't making valid laws.
Handwaving, much? There's no universal and objective measurement for "government not serving its people." If there were, many problems of government and politics would be a heck of a lot easier.
I don't disagree with the sentiments about the badness of the DMCA, but it doesn't help anyone to trivialize the practical difficulties in establishing a well-functioning government.
There are many universal standards for a government not serving its people. Literally uncountably many. So yes, you're technically right that there is no one standard.
I don't mean to trivialize anything. But government starts with the consent of the governed. It's cool, sort of, that you feel you consent to this. But I don't. It's not that it isn't good enough soon enough, it's that we reward treacherous behavior so the system is never going to work for the people.
Of course not. Unconstitutional means something more like knowingly done without the authority and against the wishes of those you supposedly represent.
The things being done in the name of enforcing copyright and other monopolies are specifically stifling "The progress of Science and useful Arts".
This is the problem with copyright and patent law at all. We're not actually helping the creators, we're giving some of them (those who jump through certain hoops, and meet arbitrary requirements) a letter of marque with which to enforce the law on their own and presumably make enough justify the process. While intended to let a little guy claim his own these invariably wreak havoc in the wrong hands.
If we did what RMS suggested years ago we could be straight-up paying creators of popular works based on self-reported usage. And it would totally rid us of the need for DRM, and thus the need to legally support DRM, etc, by being based on a copying is encouraged because it helps the people model.
Of course we'd need administration to track the creator of certain things, like lolcats and other casual works, and pay them, and arbitrate ownership disputes when two people claim a work, etc, but that's just a fraction of the bureaucracy we already have in place.
The entire system of monopoly grants, and the bureaucrats (janitors, clerks, judges, and lawyers), the lawmakers, and the companies who exploit the cracks, can all just dry up and blow away if we decide to truly promote progress.
I really find the idea of our hardware not belonging to us to the fullest extent somewhat revolting. And not only hardware, but a lot of other things as well (looking at Monsanto for example).
Sorry, to say that, but imagine your car-maker of choice. Imagine during the last 50 or more years nobody would have been allowed to tune, to bodykit, to play with the car. What a interesting culture we would have lost.
Or imagine two guys named Steve would not have been allowed to tinker with hardware in 1976 (because the makers of the parts would not allow "unlocking" the hardware).
Where will we be, if our younglings will only see something with a display as a device for consuming, not for creating? What would a world look like, if it is ruled by "panem et circenses" (bread and circuses/games) like in ancient rome?
Is this really a world, to be a maker? Do we really wanna give our basic rights of possession and control (be it hardware or food) to some companies?
> Or imagine two guys named Steve would not have been allowed to tinker with hardware in 1976 (because the makers of the parts would not allow "unlocking" the hardware).
This example kinda goes against your argument since the Steves faced exactly the situation you're claiming might have stopped them.
The Steves who later founded Apple got their start with phone phreaking which was illegal at the time, despite being something you do with your own phone. But making it illegal didn't stop them -- it was more of a motivating factor.
We should emphasize that he essentially got away with the hacking, too. Incomplete coverage in the enforcement of a law bears no relation to the quality of that law.
Is it right to say that today's laws are far more scarier than 30-40 years ago? I mean, 5 years in prison for unlocking a phone, that a person paid money for and bought it? Making it a crime itself is absurd, and a full five years in prison for this?
This isn't the first time we've had this debate. In the 20th century, automakers tried to make it illegal for people to service their own cars (or hire third party mechanics to do it). The "right to repair" movement had to fight to have that right of ownership enshrined in law.
This time around, citizens/consumers are losing the computing device edition of the right to repair campaign.
Car companies attempted to void warranties if -any- work was done by not the dealer, effectively locking buyers in to the dealership as their only source of repairs. Congress had to pass a law telling them they weren't allowed to. http://en.wikipedia.org/wiki/Magnuson%E2%80%93Moss_Warranty_... is a good place to start.
Going through something like it in MA now. Car dealers are locking out third party repairs by obfuscating the diagnostics. People are attempting to make them share.
I hope you guys can see this- not sure how the Boston Globe's paywall works
>Massachusetts voters resoundingly passed the “Right to Repair” ballot question, meaning the new law requiring automakers to provide independent repair shops as well as dealers with easy access to the computer codes needed to diagnose complex car problems will need to be reconciled with compromise legislation passed after the ballots were approved.
Legislators could also decide to reapprove the compromise. The regulations are the first of their kind in the nation.
Under the ballot legislation, automakers are required to make diagnostic and repair information available to independent shops and dealers through a universal system by 2015. The compromise legislation, passed in July, gives automakers until 2018 to comply with new regulations.
Following that compromise, voters were initially urged to skip Question 1. But in recent weeks, AAA of Southern New England and other supporters began encouraging residents to cast a yes vote to ensure that Massachusetts consumers would have more choice when choosing who repairs their cars.
“We considered telling people to skip the question,” said Arthur Kinsman, a spokesman for the Right to Repair Committee, which backed the original effort to get the issue on Tuesday’s ballot. “The resounding response we got was that people still wanted to vote for this.”
‘’
Still, he recognized that passage of the ballot question creates issues, including what types of vehicles will be regulated by the law, what kind of penalties manufacturers will face if they do not comply, and what the deadline will be.
“We promised the Legislature we would work with them on any reconciliation that may take place,” Kinsman said. Still he said, the margin of victory proves similar bills should be passed in other states.
Opponents of the “Right to Repair” ballot question decried passage of the issue, saying it “creates confusion and uncertainty for automakers, repairers, and consumers.”
They say that complying with the new regulation by 2015 would be too onerous for most manufacturers and would probably result in higher sticker prices for cars. On Tuesday night, Daniel Gage, a spokesman for the Alliance of Automobile Manufacturers, one of the industry groups opposing the original Right to Repair bill, said they would ask legislators to reapprove the compromise.
“Automakers continue to support the negotiated Right to Repair compromise — previously agreed to by all parties — that became law prior to the election,” Gage said in a statement.
...a crime that’s punishable by up to 5 years in prison and half a million dollars in fines per incident.
It's time for some common sense sentencing caps if this is a possibility for merely tampering with an inanimate object. If it can't be proven that you actually harmed someone (and physical harm should carry far more weight than financial harm), the threat of any jail time at all should be easy to laugh off. Laws with such harsh potential sentences indicate an abuse of power by a privileged class.
I signed it, and called my parents and asked them to, but unfortunately, they said, "It doesn't affect me, why should I sign it? Besides, if it's illegal, it should stay illegal."
This kind of apathy is exactly what got us here in the first place. Ridiculous how everyone will simply bend over backwards to get their rights taken away from them.
No wonder real reformers like Gary Johnson never get a chance.
Didn't an author from Penny Arcade successfully get a visa or something like that to enter the US because of an online petition. IIRC he was trying to enter for business purposes but the US Gov't doesn't consider an online comic to be a viable business.
It was Dave from Cynanide & Happiness[0] who wanted to move from Northern Ireland to the US in order to work on their animated cartoons. He filed to get a work visa but the office didn't believe C&H worthy of it.
The biggest barrier for me is that I am fearful of the executive branch of the government having my directly-given opinions about subjects which may be controversial. How long before some analyst starts saying, "I bet people that care deeply about closing Gitmo, legalizing X, and dismantling Y are more likely to be domestic terrorists!" -- and then I end up on a no-fly list or something.
Great, only 40K more until they can ignore another petition! I'm guessing if 40 of Obama's corporate owners filed a petition the results would be slightly different.
Yes we've had online petitions in the UK for years of this kind and absolutely nothing at all gets done. Its the equivalent of sitting down and doing fuck all and making you feel happy doing it. Its another form of quelling dissidence from the lazy portion of the population.
Direct activism and martyrdom is about the only way to get a result unfortunately.
And don't go on about a vote - the population is by majority moronic dross unfit for breathing let alone voting. Don't expect miracles from monkeys.
Perhaps a natural disaster may redress the balance.
At the current rate of signatures it's going to just fail to get to the 100k. It's a really great petition because it's both popular with the public, as well as being an easy thing for the administration to change. Has there ever been a Whitehouse petition that was successful? Perhaps this could be the first.
So one the one side we have a bunch of people willing to... click a button on a web site. On the other we have companies willing to spend millions of dollars. Hard to decide who we should be listening to.
I think we have enough evidence at this point to conclude that simply spending lots of money will produce an outcome. There's no need to really worry about the small minority who will actually be clued in and care about the issue because they won't be enough to overcome everyone else who will simply do what the ads tell them to.
I have DMCA, record companies and movie studios that make me feel like a criminal despite having paid full price. I hate them with a passion. HATE THEM!
However, in this case I can totally see Motorola's argument. Not sure in your case, but most people don't pay full price for their phones, they buy it subsidized. The reason you're locked on AT&T (in your example) is that you buy a highly subsidized device in exchange for staying with them for x years. That's precisely why I buy unlocked phones and never sign contracts. But if you signed a contract then you should honour that contract.
Irrelevant, the phone should not be in question. If you break the contract, you will pay the contract breakage fee, the phone is not even considered. It doesn't have anything to do with the contract, it's just yet another way for the company to lock down the slaves.
Unlocking a phone doesn't end your cell phone contract, and subsidized phones come with an early termination fee if you choose to end your contract early.
I accidentally upvoted you without reading your entire post. Here's an honorary downvote:
-1
Anyway, your argument is again moot, because it doesn't matter if the phone is subsidized. You signed a contract to pay off the phone over the course of 2 years through the carrier. When you buy a car, financed, does the dealer say "We're not going to let you change the timing of the engine! You didn't pay us in full, so you can't do what you want to!"
No, they DO let you do what you want to, because that is your car. Not theirs. It's off their hands. Why should it be any different for mobile devices? Also, say you buy a locked phone off-contract, full price -- but it's still locked to AT&T, and you do use AT&T for one year, but then want to switch to T-Mobile. You've paid off the phone. AT&T agrees, and they don't charge you any early termination fees. Then, you want to unlock it to use it on T-Mobile, but wait! You can't, because the DMCA doesn't let you.
For what it's worth, the DMCA was definitely intended to include circumvention protections well beyond what was needed for copyright protection. It was commonly understood to extend into device locking, commsec and nontraditional drm - this is why you have exceptions to the anti-circumvention elements for security researchers for example. This doesn't make it right at all - but in no way was motorola "misusing" the DMCA as far as the drafters (lobbyists) were concerned.
Motorola may not have been misusing the DMCA, but the DMCA is a misuse of the law and a bloody embarrassment to the tech enthusiasts, programmers, and power users of the United States.
Remember that. The DMCA should be rewritten from the ground up, with new, innovative laws that effectively combat piracy without restricting freedom. And as far as I know, the only group qualified to do that, and who have the proper knowledge to do that, are us. All of us, in this forum. We know technology. And we know how to revise it.
Not some old Librarian of Congress. You know, I go onto any specialized forum for hobbying: car forums, technology forums, sports forums, to name a few, and I invariably, ALWAYS see at least one post about how the government is trying to prevent them from doing what they enjoy.
It's not right. And we shouldn't let law get abused by other laws, that get abused by other people.
It's not the federal government's job to "effectively combat piracy." Private companies should not be able to outsource the protection of their archaic business model to the government.
No doubt that carriers are behind Motorola's actions, even going back to 2005. It is easy to imagine AT&T requiring that manufacturers prosecute end-users who unlock phones to the full extent of the law, as a condition for certifying a device on their network. This new dictum from the Library of Congress[1] actually extends the law and most likely the obligations of device manufacturers.
During the days of the Bell monopoly, consumers faced similar restrictions on what they could connect to the network... I'm not that old, but I remember being stunned as a kid when I saw what could be accomplished simply by connecting my computer to the phone network.
At a time when the nation needs new engines of economic growth, it's a real shame to see communications policy that continues to protect the entrenched incumbents while shying away from promoting innovation.
P.S. There is also a White House petition to appoint Susan Crawford as chair of the FCC and she seems to be very in touch with these issues.
I would personally love to hear more about what the conclusion of this situation with Motorola was, and whether it ended up going any further. It honestly sounds from this description like Motorola decided to "reach" with the law, and got stubbed quickly enough that it decided this kind of argument wouldn't work.
I say that, because it simply isn't clear that the DMCA actually applies to the case of unlocking cell phones. It wasn't clear six years ago, it wasn't clear three years ago, and it is even less clear now after the exemption for unlocking cell phones has expired. Yet, we have all of this rhetoric about "legal vs. illegal".
To be clear, I find the DMCA really bothersome. I also run into it constantly with the things that I do (which all involve jailbroken devices, specifically such as the iPhone). However, I think we all need to be really careful as we approach these matters to not be part of the misinformation about these laws.
In this case, what has happened is that after six years of having a specific exemption for unlocking cell phones from the DMCA, the Copyright Office at the Library of Congress did not see it fit to renew the exemption under the rules that were established for them by Congress regarding what should be exempted.
Honestly, given those rules (which I, of course, disagree with! ;P), the Library of Congress seems to have made a pretty good argument, and seems to have given the situation a good deal of thought. Yet, there have now been articles blaming, in specific, the guy in charge of the Library of Congress for this, like it is somehow personally his fault. Shameful.
Now there's this petition. This petition is asking the White House to force the Library of Congress to do something that they do not have the right to do under the rules given them by Congress. Yes: they can reconsider the matter in another three years, but they cannot just "rescind this decision".
Given that this simply isn't going to happen (and it would be a horrible violation of our government's power separation if it somehow did), it then asks for the White House to champion a bill to make unlocking "legal". This is simply not going to help us against the DMCA, and is thereby a waste of time.
Why? Because the most efficient and "battle-tested" way of accomplishing that goal is to enact something similar to the Cell Phone Freedom Act that they have in Canada, and the way that is worded is "carriers must unlock devices if asked", not "users are allowed to circumvent digital locks to unlock their own handsets". This will be seen as "the same effect, but less conflict with our beloved DMCA".
Thereby, if we actually go down this route, and attempt to get this law, a lot of effort is going to be expended, a lot of lawmakers are going to feel like they satisfied the goals of the people responding to this petition, a lot of news will be printed about how they did just that, and in the end only one use case will benefit. (Ironically, not even the company of the guy who made this petition ;P.)
This petition also is based on some wording that has been going around which confuses people about what actually happened: the DMCA exemption actually still applies if you purchased your device before January 26th (or even if you purchase a used device after January 26th that was originally purchased before January 26th); it isn't the act of unlocking that is no longer exempt, it is devices purchased (new) after that date that are not exempt.
I want to return, however, for a second to this "does the DMCA even apply in this case" question, as I believe it to be of key important here. Four years ago, when the EFF first attempted to get the exemption on "jailbreaking" (not unlocking) cell phones, the opposition included Apple. Last year, for video game consoles, the opposition included Sony.
Seven years ago, when the Wireless Alliance managed to win their requested exemption on unlocking cell phones, there were no companies that had a stake in the matter who bothered to take part. In fact, this was specifically highlighted by the Library of Congress in their finalized recommendation. Motorola? They really just didn't seem to care.
> Objections to the proposed exemption were expressed by owners of copyrighted works other than the firmware to which the proponents desired access: The Joint Reply Commenters expressed concern about the potential effect of an exemption on separate copyrighted works that are downloaded and stored on handsets, such as ringtones, games, applications, photos and videos.
Yes: the people who actually had a problem with this were concerned with software piracy, not cell phone unlocking at all. These same "Joint Reply Commenters" simply tend to argue against all DMCA exemptions, and thereby their arguments seem to always be taken with the proverbial "grain of salt" as to whether their issues even apply in these matters.
These Join Reply Commenters did not lead with that argument, though; no: their "killer argument" was that the DMCA didn't apply to these matters, and that while they seemed to even agree that the business models of carriers was troublesome, that the correct forum to address these issues was not the DMCA exemption process, but maybe the FCC.
> At the outset, submitters have not demonstrated a causal link between § 1201(a)(1)(A) and the substantial adverse impact on access to copyrighted material which they allege. The threshold question, of course, is whether it would violate that provision for mobile phone users to do what the submitters advocate, and even whether anyone other than themselves has claimed that it is or might be a violation of § 1201(a)(1)(A). A close review of the submission itself does not dispel doubts on this issue, but rather reinforces them.
That's right: the only group in opposition of an exemption from the DMCA for the unlocking of cell phones didn't believe that if you attempted to use the DMCA in this matter, you would actually have an argument or be able to make a case. And, in fact, according to the OP, Motorola tried this argument in 2005, and gave up when presented with minimal resistance.
Meanwhile, the argument is even less clear today. A couple years ago, there was a case MGE vs. GE (yes, with General Electric as the defendant) wherein GE had come to own a company that had been doing unauthorized field service on a number of backup power units constructed by MGE, and in so doing was bypassing the devices' software protections.
This seems to be one of the few really big cases to go remotely high up that actually tests just how much power the DMCA has to keep you from doing things that are quite largely unrelated to copyright, such as unlocking a cell phone, and no less with GE as the defendant on "our side" (yay!). The Harvard Journal of Law & Technology published a digest.
> The Fifth Circuit held that the DMCA’s provisions apply to protections designed to prevent infringement of copyrighted material and not protection from mere access to that material.
> In so holding, the court limits the DMCA to those cases where a defendant circumvents a protection that is designed to prevent infringement of copyrighted material.
(Note: I have yet to go through all of the actual court opinion from that case; I have it on my todo list, but as I tend to have my hands full with other things, I haven't had the time to do so yet. That is why I am citing the Journal summary, rather than the actual opinion.)
Yes: this means that in this court's opinion, the DMCA couldn't actually apply in this situation anyway, not that we really expected it to at this point ;P. (Sadly, it is my understanding that the Fifth Circuit doesn't set a very far-reaching precedent; it is still valuable to at least part of our country, though. I would love to hear more about that from those "in the know".)
What I would really love to see, then, is a petition brought forward not by a company (or generally any non-law-trained citizen), and worded in a way that causes more confusion, but one brought forward by a law student, lawyer, etc.. I would love to see this petition ask for something the White House could theoretically do, and which would actually have an effect on the DMCA ;P.
However, as it stands, while you are more than welcome to sign this petition, I must maintain that it 1) overstates the facts of the situation, 2) incorrectly states the ramifications of the situation, 3) directly asks the White House to do something it doesn't have the power to do, and 4) falls back to an ask that wouldn't help us if we got it :(.
(Also, and really this should just be assumed: I do know that these petitions are mostly for show, and that it is unlikely for these petitions to actually do anything even if they were well done. However, I feel it is appropriate to analyze the potential results of these kinds of things given the assumption "what if they mattered".)
Saurik - so glad to have you here. Thank you for the very thoughtful post.
I've been trying to reach you via IRC for a few days now, find me on there if you have a minute (in the #iphone room).
You make a lot of very astute points, and I completely agree with most if not all of them. I deliberately kept the message in this post simple, to a degree due to pressure from the Atlantic (where the post was also replicated). But I very much agree with your analysis, and the fact that the larger issue is the anti-circumvention provision of the DMCA, and I would perhaps add, shrink wrap licensing.
I wrote the text of the petition very quickly after hearing the news about the unlocking exemption to capture some of the attention being given to it at the time. My immediate reaction was simply to protect unlocking given my own background with it, but after understanding the larger issues in more detail, I think the scope of the petition should have been written differently. That being said, I'd still like to get it to the full number of signatures, even if it doesn't deal with all the issues involved. In the very least, it shows that the public care about these sorts of policy decisions.
At this point, having been working on this in various forms (via writing, or promoting this petition), I'm now quite eager to figure out exactly what needs to change with the DMCA and to help promote a movement to change the law in a more meaningful way. Working more closely with the EFF, and perhaps Jennifer Granick at Stanford, seems like the best way to proceed. If you (or indeed anyone reading this) is interested in helping, please reach out. I'm in your IRC channel now, and accessible via email/GChat at sina.khanifar@gmail.com.
I'm not quite so cynical as to think these petitions couldn't possibly matter -- though I admit, evidence that they do is rather hard to come by -- but I think that if the Administration responds to one at all, they'll ask themselves "what is this petition actually trying to accomplish, and what can we do to further its goal?" I.e. even if they do feel prompted to do something, they won't feel bound at all by the specific policy proposal. This is Government 101; I don't think we need to worry about it.
The point of the petition, then, is simply to establish how many people care about the issue in the first place, at least enough to click on a web page.
Right; and in this case, I believe that "man, people really care about cell phone unlocking, maybe we should as well!" is more likely to cause the legislation similar the Canadian act ("carriers must unlock if asked", "carriers must be very clear about unlocks", etc.) than anything related tithe DMCA ;P. That's the problem with such a narrow focus: there are more direct solutions to this particular problem that are more likely than DMCA changes that seem to pacify the petition.
(You may have just been demonstrating the efficacy of a petition in the abstract, though, and not about this one in particular. I will then just say "noted", and point out that if this had been "dismantle the DMCA" or something, I would have lent my support to it, despite it being a White House petition ;P.)
While I agree that OWNERS of the hardware shouldn't be bound by arbitrary rules laid out by the service providers, you can still get your phone unlocked, but only from the carrier...At least with T-Mobile, it's free (to my knowledge) as long as your account is in good standing. The law still sucks though...
Funny, it's extremely easy to do outside of US. I can walk into most cell companies up here get a 3 year contract with a new phone, pay some fee ($10-75 or so depending on the carrier) and walk out with a fully unlocked phone on a 3 year contract.
Similar here in the UK. I bought an unlocked Nokia Lumia 710 for £99 new and am on a £20 a month giffgaff pay as you go service. 800 mins to any number, free calls to other giffgaff users, free texts to any network and unlimited data.
It's not easy, nor does it make financial sense. Only one 'major' carrier (T-Mobile, at less than 10% of the market) offers a discount on monthly contracts when you decline the subsidized phone. On AT&T, Sprint, or Verizon, you are throwing away a $300-400 discount that you're paying for anyway.
Only very recently, with Google's $300 Nexus 4 and improving prepaid GSM data plans has it even been feasible to avoid the lock-in when shopping for a smartphone.
Europe, Asia, and the developing world are far ahead of the US in terms of wireless competition.
How do these rules get enacted with no public discussion and no public debate. The effect of this ruling is to make criminals of thousands or tens of thousands of US citizens who purchased a phone. This should not happen without transparency. Here is another petition asking for an investigation.
Pretty sure the only real solution to this is going to be getting a congressman to support an amendment to the bill which would allow for cases where people would have the option of unlocking their phone. The other huge hurdle would be to have the carriers on board so they would be responsible for unlocking the phone.
Worse, even if you find a fault in your device that threatens your personal safety, your are still not allowed to fix that fault. On top of that and thus even worse, if that fault actually causes a problem, the entity that is active preventing your from fixing the problem is still not liable for any damages caused by that fault. All risk is on the consumer who owns the device, while all rights belonging to the company. The owner of the device is left with no rights, and has no effective power over the device.
Its absurd.