The DMCA and the Cell Phone Unlocking Debate
28 Pages Posted: 2 Mar 2014
Date Written: March 7, 2014
This short essay, written for a practitioner audience, summarizes and analyzes the recent legal debate over "unlocking" a wireless mobile device for use on a competing wireless provider's network. The origin of the recent controversy lay with a regulation promulgated in late 2012 by the Librarian of Congress in the exercise of its statutory authority to create exemptions from liability under the Digital Millennium Copyright Act of 1998 (DMCA). The Librarian's 2012 regulation declared that users of cell phones (and other wireless devices) purchased beginning in 2013 would face possible DMCA liability for "unlocking" their devices. This pronouncement by the Librarian reversed DMCA exemptions the Librarian had promulgated in two previous rulemaking proceedings, which had shielded users from such liability. The Librarian cited changes in the market availability of authorized "unlocked" devices and the business needs of wireless providers as justifications for the change.
In response to the Librarian's 2012 rulemaking, Federal executive and legislative officials have taken steps to restore consumers' rights to "unlock" their wireless devices without fear of possible liability under the DMCA. The specific proposals vary widely, from a new voluntary commitment among wireless providers, made at the behest of the Federal Communications Commission, to permit such "unlocking" in a wider range of circumstances; to a proposed legislative revision that would dramatically limit the reach of the DMCA. The essay briefly summarizes the administrative and legislative responses that have been offered to address the Librarian's 2012 regulation and argues that the responses thus far would do little to prevent similar controversies over the DMCA's liability provisions from arising outside the specific context of "unlocking" wireless devices.
Keywords: DMCA, Digital Millenium Copyright Act, cell phones, wireless, copyright
JEL Classification: L96, K19, K20, O34
Suggested Citation: Suggested Citation