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Los Angeles Copyright Infringement Attorney | Unlocking Cell Phones Unleashes Concerns with DMCA Provision

  • By: Robert Klein

While he was working for the the Republican Study Committee (RSC) in November 2012, Derek Khanna authored a policy brief entitled “Three Myths about Copyright Law and Where to Start to Fix it” that concluded with a call for reform. The Washington Post reported that reaction to the memo was enthusiastic, and Khanna said the American Conservative Union put it on their front page. Two weeks later, Khanna was told that he would be let go at the start of the next Congress.

This past January, Khanna garnered attention when he authored a different article for the Atlantic entitled “The Most Ridiculous Law of 2013 (So Far): It Is Now a Crime to Unlock Your Smartphone.” Khanna focused specifically on a provision of the Digital Millennium Copyright Act (DMCA) that made it illegal under of a recent ruling by the Librarian of Congress for people to unlock their cell phones—the idea of entering a security code that allows consumers to change service providers without having to buy a new phone. Khanna’s article was shared more than 50,000 times on Facebook and tweeted over 5,000 times. The popularity helped a White House petition to make unlocking cell phones legal accumulate the more than 100,000 signatures that earned a response from the Obama administration, which ultimately agreed that unlocking cell phones should not merit a fine of up to $500,000 and prison sentence of five years.

“In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones,” the Obama administration response said. “And 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.”

In a separate piece on the Atlantic last month, Khanna noted that the DMCA includes anti-circumvention provisions that prohibit anyone from circumventing the locks that control access to copyrighted works. He explained how, for instance, DVDs are protected by a Digital Rights Management (DRM) system that attempts to prevent anyone from making copies of movies, and the DMCA prohibits circumventing that type of protection system. “But unlocking a phone has nothing to do with copyright infringement, and using the DMCA to prosecute unlocking cell phones is not what the law was intended for,” Khanna wrote. “If Motorola’s interpretation of the DMCA were valid, companies would be able to create simple software security mechanisms that legally prevent a customer from using a device in any way except that in which the manufacturer intended.”

While multiple lawmakers have offered bills that would restore an exemption for cell phone unlocking, Khanna urged caution about some of the proposals in a piece he wrote for the technology website Techdirt on March 8. “The worst check the box approach would be to simply reverse the decision of the Librarian of Congress and provide a temporary ‘exception’ for three years and let the Librarian rule on this again in three years,” Khanna wrote.

This issue calls attention to how important it is to understand the intricacies of US copyright law, and Los Angeles business litigation attorney Robert G. Klein has over a quarter-century of experience handling a wide variety of complex copyright claims. You can find additional information about intellectual property on our website. If you need legal help with a copyright issue, fill out the form on this page or contact our firm at (323) 653-3900 to let our Los Angeles copyright infringement lawyer review your case.

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Robert Klein

About the Author Attorney Robert Klein is a former CPA and known for
finding creative solutions to complex business lawsuits.