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House passes cellphone-unlocking bill with controversial limit on bulk reselling

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The House of Representatives has approved a bill to legalize cellphone unlocking, but the groups who pushed hardest for an unlocking bill are disappointed. On Tuesday, Rep. Bob Goodlatte's (R-VA) Unlocking Consumer Choice and Wireless Competition Act passed the House in a vote of 295 to 114. It now goes to the Senate, where Senator Patrick Leahy (D-VT) is the sponsor of a companion bill. If signed into law, it would allow consumers to "unlock" their phones to work with another carrier, temporarily reversing a decision made by the Librarian of Congress in 2012. But a last-minute amendment from Goodlatte bans unlocking phones "for the purpose of bulk resale," something that has led some former advocates to suspend their support in favor of a competing bill from Rep. Zoe Lofgren (D-CA).

Unlocking a cellphone without carrier approval is effectively illegal because of a section in the Digital Millennium Copyright Act that prevents circumventing content protection systems — this was meant to stop people from breaking DRM, but cellphone firmware is also covered under a technicality. For several years, copyright authorities granted an exemption, but the Librarian declined to renew it. When it expired in January of 2013, unlocking became a hot-button issue. President Obama voiced official support, and a number of Congress members brought bills that addressed the issue to varying extents.

"A bill designed to scale back overreaching copyright laws should not also endorse an overreach of copyright law."

Goodlatte and Leahy's bill was never the first choice of unlocking advocates: instead of permanently legalizing unlocking, it just extended the exemption, which would need to be reexamined anyways in less than two years. But it's been relatively uncontroversial, and so far, it's the only piece of legislation to have passed committee. The "bulk unlocking" amendment, added in late February, is meant to stop businesses from springing up to buy subsidized phones for cheap, unlock them, and sell them directly to consumers. Prepaid companies have protested this policy the most: TracFone, which sells phones at a deep discount in order to make money off minutes, has filed multiple lawsuits based on copyright claims.

But others argue that Goodlatte's amendment codifies letting copyright law regulate the virtually unrelated issue of phone unlocking. "The amended version fails to address the flawed law at the root of the unlocking problem," said Public Knowledge in a statement suspending its support. "A bill designed to scale back overreaching copyright laws should not also endorse an overreach of copyright law." It later said it was "disappointed" at the compromise.The legislation, the EFF says, sends the "dangerous signal" that "Congress is okay with using copyright as an excuse to inhibit certain business models, even if the business isn't actually infringing anyone's copyright." It also makes it harder to extend the lifespan of phones by creating businesses around unlocking.

Instead, Public Knowledge, the EFF, and others support Rep. Lofgren's Unlocking Technology Act, which both permanently legalizes cellphone unlocking and amends the DMCA to only ban breaking copyright protection when it actually facilitates copyright infringement. Cellphone users on major carriers will already find unlocking easier than it was a year ago: in December, the FCC brokered a voluntary agreement that would require companies to remove barriers for current and recent customers who had already fulfilled the terms of their contract.

The Verge
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