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Copyright Lawyer Update: The Unlocking Technology Act

By Eric Misterovich

Recently it seems that Congress has continually chiseled away at our ability to utilize the wide array of technology that we purchase. Both the Digital Millennium Copyright Act (DMCA) and the Computer Fraud and Abuse Act (CFAA) have created powerful statutory weapons that equip corporate technology producers with endless legal ammunition to protect their “legal monopolies.” That is why so many Internet pundits were caught off guard when the Unlocking Technology Act was introduced in the House just last week.


The proposed bill would allow circumvention of digital rights management (the right of manufacturers or copyright holders to control and manage technology after sale) so long as there is no personal intention to infringe any copyrights. More specifically, H.R. 1892 would amend Section 1201 of the DMCA to read:


It is not a violation . . . to use, manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of facilitating noninfringing uses of works protected under this title by circumventing a technological measure that effectively controls access to that work, unless it is the intent of the person . . . to infringe copyright or to facilitate the infringement of copyright.


So, in non-legal jargon, what exactly does this mean? Well, I am sure you have often wondered why you cannot simply buy an iPhone and then use it with whatever service you desire. Under the anti-circumvention provisions of the DMCA a person who owns an iPhone (or Galaxy, Droid, etc.) cannot use their own technical capacity to unlock the various defense mechanisms put in place by the manufacturer in order to switch services.


This is controversial because every other form of copyright law provides for a fair use defense, but the anti-circumvention provisions of the DMCA do not have such a defense. Courts have been split on the issue because a violation of anti-circumvention, in and of itself, is not technically copyright infringement. If the “Unlocking Technology” bill passes bi-partisan muster, it will allow users to unlock their phones and switch services without fear of the long-arm of the law. Moreover, individuals and businesses that create unlocking technology applications and software would be provided a safe harbor so long as they do not aid in the infringement of any registered copyrights.


Due to the novelty of the bill, not much information is truly available at this point. Subsequent legislative developments could subject it to change or major copyright lobbyists, like the RIAA, could exert their influence and have it dismissed. Despite these obvious truisms, it is encouraging to see Congress taking affirmative steps toward a more adept technological that is aligned with the tangible one we reside in now. As we all have come to know, property is “a thing or things belonging to someone.” It is about time that our cellphones, computers, and other technology were truly treated as our own possessions. The copyright lawyers at Revision Legal will continue to watch this area for developments.

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