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A Disconnect on Cellphone Unlocking Legislation

Martin Bureau/AFP/Getty Images

Another bill, offered by the two chairmen of the Judiciary committees, Sen. Patrick J. Leahy, D-Vt., and Rep. Robert W. Goodlatte, R-Va., would instead temporarily reverse the librarian of Congress’ decision on the cellphone unlocking exemption, while sending the issue back to the LOC for review after the normal period. The aide said the librarian is likely to revisit the issue within one year as part of an expedited review of whether the exemption should apply to tablet computers.

Backers of the Leahy-Goodlatte bill argue that it is the most straightforward way to legalize cellphone unlocking immediately, and they point out that its congressional support — including other influential Judiciary Committee members — gives it greater odds of passage than some of the alternatives. The bill would address the issue at the regulatory level without affecting the underlying statute, which Khanna labelled “a complete cop-out.”

“We would like to see a permanent fix to this,” Siy said. “The process has been a nightmare to go through every three years. We don’t think that’s a good permanent solution.”

A third bill, sponsored by Sens. Amy Klobuchar, D-Minn., Mike Lee, R-Utah, and Richard Blumenthal, D-Conn., would address the issue using telecom law by directing the FCC to issue rules that would require that wireless carriers permit subscribers to unlock their phones. Siy said the bill’s approach could help by preventing phone companies from locking mobile devices in the first place but would also leave the DMCA untouched.

However, Siy and his organization have consistently pushed for overhaul of the DMCA, which they argue is outdated and overly favors certain intellectual-property-based industries over others. Khanna was less certain about the need for dramatic action, but he also said there is an opening for “an enterprising legislator that introduces legislation that actually fixes the problem.”

He could be referring to Rep. Jason Chaffetz, R-Utah, who announced his intent to introduce legislation in the coming days to address the issue. Chaffetz has shown a willingness to side with the tech industry on copyright issues in the past, and an affinity for working with tech-savvy colleagues across the aisle. Other lawmakers who have spoken out in favor of legalizing unlocking mobile devices include House Oversight and Government Reform Chairman Darrell Issa, R-Calif., and Rep. Jared Polis, D-Colo.

Which road lawmakers ultimately choose to take will have a significant effect on both consumers looking to switch wireless carriers, as well as the future of copyright law. With even those writing the bills divided over their potential effect, it’s clear that deciding exactly how Congress will legalize cellphone unlocking will be even tougher than choosing a wireless carrier.

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