UPDATE: The DMCA and the limits of copyright

An interesting wrinkle emerged yesterday in the debate over consumers' ability to unlock mobile phones. If you read my post from last week, I described the recent change in the position of the Library of Congress on this issue and the expiry of the exemption in the DMCA that allowed users to unlock their phones.

What has changed since then is that just yesterday the White House responded to a petition on this issue, saying:

. . .if you have paid for your mobile device, and aren't bound by a service agreement or other obligation, you should be able to use it on another network. It's common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers' needs.

Additionally, the FCC weighed in:

The Copyright Office of the Library of Congress recently reversed its longstanding position and stated it is a violation of the Digital Millennium Copyright Act for consumers to unlock new mobile phones, even those outside of contract periods, without their wireless providers’ permission, and that consumers are subject to criminal penalties if they do.

From a communications policy perspective, this raises serious competition and innovation concerns, and for wireless consumers, it doesn't pass the common sense test. The FCC is examining this issue, looking into whether the agency, wireless providers, or others should take action to preserve consumers' ability to unlock their mobile phones. I also encourage Congress to take a close look and consider a legislative solution.

Even more interesting is that the Library of Congress responded to the petition, saying:

We also agree with the administration that the question of locked cell phones has implications for telecommunications policy and that it would benefit from review and resolution in that context.

The system of DMCA exemptions is the result of a process undertaken by the Library of Congress and the Register of Copyrights. As I've noted before, copyright law is supposed to govern creative works. Unfortunately, one of the problems of the DMCA's "anti-circumvention" language is that it allows copyright law to be twisted in ways that have nothing to do with copyright, thereby limiting competition and consumer choice.

Now that the White House and the FCC have both jumped into this discussion, we can hope that Congress will get involved and a more workable solution can be found.