Jan 292013

In 1998 the Digital Millennium Copyright Act amended U.S. copyright law in a few key ways.  Of most relevance here is the additions it made to 17 U.S.C. §§1201 et seq., which includes the provision:

“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”  §1201(a)(1)(A)

If one does, they can be liable for damages, §1203(c), or, more saliently for this blog, fines of $500,000 and/or 5 years imprisonment for the first offense and $1,000,000 and/or 10 years for subsequent ones.  §1204(a).

The question here is, why?

Historically the “why” is that the US entered into a 1996 treaty obligating it to:

“provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law.”  WIPO Performances and Phonograms Treaty (WPPT), Article 18.

But why such a prohibition needed to be enshrined in copyright law at all, much less with criminal penalties, is a separate question, and one without a very good answer.  Copyright law already prohibits copying without permission and provides ample (if not more than ample) civil damages remedies.  It may be thought by some that the ease of copying digital media on digital devices requires further obstacles, such as technical measures, in order to temper the activity, but even if that were true, if the success of these technical measures as obstacles to copying depends on having their own law prohibiting their evasion, they aren’t really very effective as obstacles.  Moreover, if the behavior is so ordinary and common that legal sanctions have to be threatened in order to stop it, it’s time to re-evaluate whether the underlying action warrants legal prohibition at all.

In any case, even if one accepts the argument that copying the works of “performers or producers of phonograms” causes a harm so worth redressing by newly-created legal sanctions, it still does not follow that the prohibition against bypassing technological measures should apply to those bypassed for any other purpose, or that the act of bypassing them should be a criminally prosecutable offense.  Which returns us to the example of the cell phones.

In the United States cell phones are often locked to particular cell phone carriers, even for non-carrier-subsidized handsets that their owners funded the purchase of themselves.  Locking such devices is seemingly good for the carriers because it dissuades their customers from switching to other carriers, lest they need to purchase a whole new handset, but it’s certainly not good for customers because it ties them to carriers without those carriers needing to compete to keep their business.  On balance there is no redeeming policy value justifying such locking, and, moreover, there is no copyright interest that can legitimately sound in it either.  And yet, thanks to the DMCA, bypassing the technological measures locking cell phones may be just as illegal as bypassing the technological measures that prevent a song from being copied (an act that also may be completely justified and legal, but at least is more likely to implicate a copyright interest).

Now, the DMCA does have some exemptions to its prohibition.  Some are codified directly into the statute, and others are left to the Library of Congress to consider and carve out further exemptions for.  In previous years the Library of Congress had provided for an exemption to bypassing the locks on cell phones, but that exemption has now expired.

Theoretically such bypassing may also not be illegal: some courts have ruled that the DMCA’s prohibition on bypassing technological measures can only apply when there is an underlying copyright interest at stake, which doesn’t appear to be present in the case of unlocking cell phones.  But with the threat of a potential 5 year jail sentence and half a million dollar financial penalty, who would want to take the chance that they would ultimately be acquitted should an overzealous prosecutor try to charge them for unlocking those phones anyway?  The statute is slightly constrained in its application to unlocking “willfully” done and only “for purposes of commercial advantage or private financial gain,” §1204(a), so individual cell phone owners may be able to get away with unlocking their own phones, but they had better know how to do it themselves.  Should they pay someone to unlock their phones for them that party might easily find themselves at the receiving end of a prosecution.

It is also questionable how any sort of criminal sanction for any sort of bypassing of any sort technological measure for any sort of purpose is appropriate, under the copyright statute or otherwise.  While we may prosecute lock bypass in other contexts, copyright interests are not the sort of property interests criminal law has evolved to protect.  At most they can be infringed; they are not taken in any way analogous to an actual theft, and copyright law is perfectly capable of providing redress for any such infringements.  It doesn’t need the assistance of this artificial barrier to prevent copying, especially not one as heavy-handed as this one that chills any legitimate copying as much as it may any infringing  — or any other legitimate device access as well.  If a few codified carve-outs and periodic exemptions, and the temperance of prosecutors, are all that stand between people being able to use and access their content and devices as they have the right to and the possibility of prison, then something is gravely wrong with this law.

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