Media Wonk

Cell phone Schadenfreude - December 13, 2006

The folks over at the MPAA are having a good chuckle over the lawsuit filed by Tracfone Wireless, a provider of low-cost pre-paid cell phones, against the Library of Congress.
The suit concerns the Librarian’s recent decision to permit circumvention of control codes that Tracfone and other providers use to “lock” the phones they sell you to a particular wireless service plan.
For the next three years, at least, you’ll be able to connect your Tracfone handset—or your Verizon, Sprint, T-Mobile or Cingular handset for that matter—to another service provider’s system without breaking the law.
Why would the MPAA care what you can or can’t do with your cell phone?
Because the Librarian of Congress’s ruling came as part of the Library’s third triennial review of the Digital Millennium Copyright Act’s prohibition on circumventing access control codes—something the MPAA cares about very deeply.
Every three years, the DMCA requires that the U.S. Copyright Office conduct a rulemaking to determine whether the law’s ban on circumventing access controls is unduly restricting the public’s ability to make fair use of copyrighted works, and if so, whether specific exemptions to the ban are warranted.
Under the procedure, the public is invited to submit suggested exemptions, which the Register of Copyright reviews and then makes recommendations regarding exemptions to the Librarian.
In the previous two rulemakings, in 2000 and 2003, the Librarian was pretty tight with the exemptions, which suited the MPAA just fine. But this year the Librarian was a little less Scrooge-like, granting an unprecedented four exemptions.
One of those concerned cell phone locks (the full list is here).
The MPAA got a kick out of the cell phone controversy because it cast the studios’ erstwhile DMCA adversaries at Verizon and other telecoms in the awkward role of defending the use of encryption to protect a business model—precisely the criticism many make of the studios’ use of access control—and opposing the proposed exemption.
“We actually agree with Verizon on this one because we don’t think it’s a DMCA issue,” one MPAA official told me. “It shouldn’t be part of this proceeding.”
For those coming in late, Verizon and the studios have been at odds since the telco began resisting efforts by copyright owners to use the DMCA to force ISPs to disclose the identity of their customers suspected of illegal file-swapping.
Since then, Verizon has frequently joined coalitions with CEA and other groups that have resisted efforts by the studios to expand the law’s scope.
Now that the phone lock exemption has been granted, the MPAA is having a fine old time watching the telcos dashing off to court to try to get the shoe off the other foot.
I’m not sure how long the MPAA will be laughing, though.
Up till now, the Copyright Office and the Librarian have mostly turned a deaf ear to complaints from DMCA opponents is being used in ways that have little to do with protecting the legitimate rights of copyright owners.
Instead, the Office has limited its triennial review strictly to the narrow statutory question of whether the law’s anti-circumvention provision is inhibiting fair use for a particular class of works.
With the latest review, however, the Office and the Librarian have clearly expanded the scope of their view, addressing questions of business models, anti-consumer behavior and other issues.
That could force the studios to defend a much larger territory next time.
More dangerous yet, it could signal Congress that it needs to take another look at how the DMCA is being used in the real world.
That’s a genie the studios probably don’t want out of the bottle.

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