Wanted: a tinkerer’s charter

FOREIGNERS find it hard to believe that Americans—the most fiercely independent people on the planet—have not been allowed to tinker with their mobile phones. Using downloaded software to unlock them, so they can be employed on a different cellular network after existing contracts have expired, is punishable by a fine of up to $500,000 and/or five years in jail. (Unlocking a phone is not called “jail-breaking” for nothing!) Many Americans risk the penalties so they can use their phones on foreign networks while travelling abroad. Others do so to rid their phones of all the annoying craplets installed by their wireless carrier. Under federal law, doing such things has been illegal.

The good news is that this nonsense is about to end. A year or so ago, a “We the People” petition on the White House’s website garnered 114,000 signatures for reform of the law—more than enough to grab the Administration's attention, and to send a wake-up call to lawmakers for action. And so it did. On July 25th, Congress finally passed a bill which makes it legal for Americans to unlock their phones without repercussions. Several days later, President Obama signed The Unlocking Consumer Choice and Wireless Competition Act into law.

A victory, then, for common sense? Not entirely. Americans’ new freedom to unlock their phones so they can repair or modify them could be quashed next year. The Library of Congress—the agency responsible for interpreting matters concerning copyright to the legislature—decides every three years whether to grant, renew or withdraw special copyright exemptions for various groups of people (eg, researchers, teachers, artists and musicians, archivists and those with disabilities). The next triennial review is in 2015. It is possible, though one hopes unlikely, that the Library could reverse the exemption provided by last week’s law. Such a reversal has happened before.

Back in 2006, the Library decided that copyright was being applied inappropriately to mobile phones and granted owners exemption to certain aspects of the law. But in 2012, it concluded that phone users were adequately served—after manufacturers started making unlocked phones available to the public, albeit at high prices—and therefore no longer needed special exemption. Ever since, it has again been illegal for Americans to tinker with the way their phones work.

But why should copyright law be involved in something that ought to be a simple matter of consumer rights? Any rational interpretation would suggest that when people buy a piece of equipment—whether a car, a refrigerator or a mobile phone—they own it, and should therefore be free to do what they want with it. Least of all, should they have to seek permission from the manufacturer or the government.

Some context is needed to understand how the digital era has changed the notion of ownership. Buying a computer, for instance, confers ownership—or, at least, it does at present. But buying a computer program confers merely a licence to use the software. Ownership of the program remains with the person or company that created it. If one accepts that copyright protection is more appropriate for software (though many disagree), then it is not unreasonable to think that any intellectual property embodied in hardware ought to be covered by patents, trade secrets and design rights—and certainly not copyright.

Unfortunately, it is not that simple. Back in the 1990s, following the introduction of audio compression algorithms like MP3 and file-sharing websites such as Napster, recording companies witnessed an explosion in online piracy. Seeing it was their turn next, Hollywood studios joined forces to lobby Congress to prevent their films from likewise being ripped off. On the other side of the digital divide, internet-service providers and online companies were under threat of being sued every time someone used their services to share a copyrighted music track or video clip.

The unhappy outcome of all the lobbying was the Digital Millennium Copyright Act (DMCA) of 1998. To protect the online industry from litigation, “safe harbour” provisions built into the DMCA allowed content owners (film studios and record companies) to demand that any of their copyrighted material appearing on a website be taken down forthwith. If the online company complied promptly, the threat of litigation was dropped.

To keep Hollywood happy, language was included in the act (Section 1201) that made it illegal for anyone to “circumvent a technological measure that effectively controls access to a work protected under this title”. In other words, it was against the law to modify, repair or build tools to help circumvent, the “digital rights management” (DRM) techniques used to encode DVDs and other digital media.

Most DRM systems lock individual copies of digital media to a specific user or machine. However, bypassing the Content Scrambling System (the copyright protection used on DVDs) is so trivial technically that it practically invites piracy. Free software tools like HandBrake, DVDFab and DVD Shrink allow users to strip regional codes off DVDs and transfer their contents to hard-drives or other storage media.

The DMCA may have been a joke for pirate duplicating shops churning out illicit CDs and DVDs for the black market. But it was no laughing matter for people who had bought legitimate copies and merely wished to make back-ups, or to transfer one of their own disc's content to a smartphone, tablet or iPod for their personal enjoyment while on the move.

It would have been bad enough if the DMCA’s shortcomings had ended there. Unfortunately, the act’s drafters failed to appreciate the speed with which digital technology moves. For instance, the DMCA dates back to a time when DVDs were all the rage. But few people buy them nowadays, preferring to stream their digital content from Netflix and the like. As broadband speeds increase, even Blu-ray discs are heading that way. Yet, the rules about circumvention—enshrined in the DMCA for preventing copies being made of obsolete digital media—survive to haunt today’s devices.

An even bigger mistake by the DMCA’s drafters was to make the definition of circumvention so broad that it could be applied to practically any piece of equipment containing a digital controller—whether a car, a washing machine or a combine harvester—even when no copyright infringement was involved. While it was never intended to cover mobile phones, wireless carriers embraced the act as a way of locking customers into their networks. Websites offering to help people unlock their phones were sent DMCA notices, demanding they cease doing so or be prosecuted and shut down.

Companies in other industries have been quick to adopt similar anti-competitive practices—forcing customers, for instance, to buy their supplies and maintenance support from them alone. How soon before only official dealers can service and repair people’s cars and appliances? Independent service shops already complain that manufacturers withhold diagnostic software and digital manuals needed to fix customers’ products.

The answer, according to Sina Khanifar, an entrepreneur and digital-rights activist who initiated the White House petition, is simply to rewrite DMCA’s Section 1201, to tighten the definition of what exactly it is that is illegal to circumvent—or whether the circumvention provisions are, indeed, still needed now the job they were designed to do (protect DVDs from piracy) no longer exists. Meanwhile, it would be useful to have a clarification of what precisely the copyright rules on “fair use” apply to in the present digital age.

On his website FixTheDMCA.org, Mr Khanifar notes that pulling things apart, studying their workings and tinkering generally is what innovation is all about. Being able to do that freely is what made America great. It is worth remembering also that the original intention of copyright was to protect creativity and promote imaginative thinking. Many now fear it has begun to do the reverse. By all accounts, reform of the DMCA's catch-all circumvention fiat is long overdue.