The Unlocking Technology Act, introduced in the House of Representatives as H.R. 1892, represented one of the more notable legislative efforts to roll back the expansive restrictions that the Digital Millennium Copyright Act (DMCA) and the Computer Fraud and Abuse Act (CFAA) had imposed on consumers’ ability to use technology they legally own. Though the bill did not pass, it marked a significant moment in the ongoing policy debate about the proper scope of digital rights management and the legal barriers that copyright holders and technology manufacturers have erected around products after sale.
Section 1201 of the DMCA, 17 U.S.C. § 1201, prohibits the circumvention of technological protection measures (TPMs)—commonly called digital rights management or DRM—that copyright holders use to control access to or copying of copyrighted works. The prohibition covers not just the act of circumvention but also the manufacture, sale, or distribution of tools primarily designed to circumvent TPMs.
When Congress enacted Section 1201 in 1998, the intent was to protect against piracy: prevent unauthorized copying of DVDs, protect software from unlicensed distribution, and generally give copyright holders control over their digital content. What Section 1201 actually produced was a legal framework that copyright holders and technology manufacturers have used to restrict consumer behavior far beyond traditional copyright protection—including behaviors that have nothing to do with piracy.
The legal controversy that gave the Unlocking Technology Act its most public moment was cell phone unlocking. Unlocking a cell phone—enabling it to work on a different carrier’s network—does not involve copying any copyrighted work, distributing any content, or engaging in any conduct that copyright law was designed to address. Yet the Librarian of Congress, exercising authority under Section 1201’s triennial rulemaking process, declined to renew an exemption for cell phone unlocking in 2012, making it technically illegal for consumers to unlock phones they had purchased outright.
The public response was significant. A White House petition demanding legalization of cell phone unlocking gathered over 100,000 signatures. The White House formally responded supporting legalization. The episode illustrated how Section 1201 had evolved from a piracy-prevention tool into a mechanism for manufacturers and carriers to maintain post-sale control over consumer electronics—a purpose far removed from copyright law’s core function of rewarding creative expression.
The Unlocking Technology Act proposed to amend Section 1201 to permit circumvention of technological protection measures so long as there is no personal intention to infringe any copyrights. This intent-based standard would have fundamentally reoriented Section 1201 from a strict liability regime—in which circumvention is unlawful regardless of purpose—to one that focuses on copyright infringement itself as the relevant harm.
Under the proposed standard, a consumer unlocking a cell phone, installing an alternative operating system on a device they own, or accessing a DVD they legally purchased on a device not authorized by the manufacturer would not face Section 1201 liability, because those activities do not involve any intent to infringe copyright. Only circumvention undertaken to facilitate actual copyright infringement would remain prohibited.
The bill also proposed to eliminate Section 1201 liability for tools and technology that have substantial non-infringing uses—borrowing the analysis from the Supreme Court’s secondary copyright liability jurisprudence established in Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984), which held that the sale of the Betamax VCR was not contributory copyright infringement because the device had substantial non-infringing uses.
The Unlocking Technology Act was one of several legislative proposals that arose from growing frustration with the DMCA’s reach. The Electronic Frontier Foundation and other digital rights organizations had documented numerous instances in which Section 1201 was used not to prevent piracy but to suppress competition, restrict security research, and prevent interoperability. Automotive manufacturers invoked Section 1201 to prevent independent mechanics from accessing vehicle diagnostic software. Printer manufacturers used it to prevent third-party ink cartridge manufacturers from creating compatible products. Medical device manufacturers cited it to prevent security researchers from identifying vulnerabilities in implanted devices.
The triennial rulemaking process by which the Librarian of Congress can grant temporary exemptions to Section 1201 has been consistently criticized as inadequate: it imposes a heavy burden on parties seeking exemptions, requires re-justification of exemptions every three years, and does not address the prohibition on distributing circumvention tools even when personal circumvention is exempt.
Although H.R. 1892 did not pass, subsequent legislative and regulatory action has addressed some of the most publicized concerns. The Unlocking Consumer Choice and Wireless Competition Act, enacted in 2014, legalized cell phone unlocking. The Copyright Office’s triennial exemption rulemakings have granted exemptions for various categories including security research on vehicles, medical devices, and certain software; repair and maintenance of devices; and certain interoperability uses.
But these exemptions remain narrow and time-limited, and the fundamental tension between Section 1201’s strict liability framework and consumers’ reasonable expectations about technology they own has not been resolved legislatively. Businesses and individuals who engage in activities that might implicate Section 1201 should consult a copyright attorney to ensure their conduct falls within available exemptions.
Revision Legal’s technology law attorneys advise clients on DMCA compliance, digital rights management issues, and copyright policy matters affecting technology businesses. Contact us today for a consultation.
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