Opening shots fired in coming battle over copyright reform

The earthquake in Copyright Land touched off by the Obama Administration’s unexpected embrace earlier this year of cellphone unlocking has produced its first serious aftershock. On Thursday, a bi-partisan group of four lawmakers in the House of Representatives introduced the Unlocking Technology Act of 2013 that would make it legal to circumvent access control technologies on copyrighted works for the purpose of making non-infringing uses of the work, such as unlocking your phone to move it to another network. It would also legalize the manufacture, sale, possession, and use of technologies primarily designed for facilitating non-infringing uses.

Both circumvention of access controls and trafficking in circumvention tools are currently illegal under Section 1201 of the Digital Millennium Copyright Act, regardless of the purpose of the circumvention. In the case of cellphones, the wireless providers that sell the use encrypted software to lock the phones to their network. Like all computer software, the code in those locks is copyrighted, and under the DMCA circumventing the encryption to modify the lock is illegal, even though modifying the lock itself is not.

While the new bill would certainly address the controversy of cellphone unlocking it would quite a bit farther than previous bills to deal will phone locks, and farther than the White House called for in its statement, both of which were narrowly targeted at allowing consumers to move their phones from one network to another.

As I noted at the time, however, once the White House put the question of circumvention in play, it would be difficult if not impossible to keep the debate focused on phone locks alone. The White House statement came just as political momentum was building for broad-based copyright reform, both in the U.S. and internationally. Once Congress began tinkering with the DMCA the pressure to go beyond mere tinkering would be impossible to forestall.

Two weeks after the White House issued its statement, in fact, the U.S. Register of Copyrights Maria Pallante gave testimony to the House Judiciary Committee on her office’s recommendations for comprehensive overhaul of U.S. copyright law. Among those recommendations:

 [C]larifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.

Since then, the chairman of the Judiciary Committee, Rep. Bob Goodlatte (R-VA) has given a speech at the Library of Congress vowing to undertake a “wide review” of copyright law to determine “whether the laws are still working in the digital age.”

The bill introduced this week, which was written by Rep. Zoe Lofgren (D-CA), represents the first attempt to capitalize on that broader momentum. Though nominally pegged to the Obama Administration’s call to address cellphone locks it clearly aims at a more substantial rewrite of Section 1201 of the DMCA.

That said, it’s unlikely the bill will end up becoming law in its current form. As a legislative manner, the bill is a place holder and a bargaining chip. Lofgren and her co-sponsors sit on the Judiciary Committee, and obviously are privy to Goodlatte’s plans for proceeding with his copyright review. By introducing her bill now, Lofgren is looking to shape the initial terms of the debate, and to make sure that the anti-circumvention rules are part of the broader discussion. At some point, if it goes anywhere, some version of the bill will likely be incorporated into a broader legislative package on copyright reform.