US Government May Not Be Able To Fix Cell Phone Unlocking Problem

An anonymous reader writes "We recently discussed what appeared to be a positive response from the Obama administration on the legality of cell phone unlocking. Unfortunately, the Obama administration may not be able to do anything about it. It has already signed away our rights under a trade agreement with South Korea. Lawyer Jonathan Band, who works for the Association of Research Libraries, wrote, 'The White House position, however, may be inconsistent with the U.S. proposal in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the Korea-U.S. Free Trade Agreement (KORUS) and other free trade agreements to which the United States is a party. This demonstrates the danger of including in international agreements rigid provisions that do not accommodate technological development.'You can read more about this issue in a short eight page legal primer by Jonathan Band (PDF). An interesting, related note that the U.S.-KOREA FTA is possibly inconsistent with our domestic patent/drug law in the Hatch-Waxman Act as well. The trade agreement requires us to grant injunctions until the patent is invalidated as opposed to thirty months under current domestic law."

Comments

Re:It's not that difficult

[Attila Dimedici]

It is not clear to me from the article if the treaty specifies the list of exceptions to "circumvention prohibition" as the only exceptions allowable (which happen to be the same as the list in the DMCA) or if it merely specifies the list given in the DMCA (although my reading of the article causes me to believe it is the former). If by some chance the treaty is written in the latter manner, then it is simply a matter of Congress amending the DMCA.
Actually, under U.S. law, the KORUS free trade agreement is not actually a treaty. It is instead a "congressional-executive agreement". That is, rather than being signed by the President and ratified by a two-thirds majority of the Senate it was passed by simple majorities of both houses of Congress and signed by the President. Which means that under U.S. law it is no more binding than any other law. Congress may pass a law changing it at any time (as far as U.S. law is concerned).
I will restate this. The KORUS free trade agreement is not a ratified treaty, which would be negotiated by the President and ratified by a two-thirds majority of the Senate. It is no more "the law of the land" than any other law passed by Congress and, under U.S. law, may be amended by Congress at any time (subject to the same provisions as any other law). If Congress passes a law modifying the agreement (which is what this is, it is not actually a treaty), that modification supersedes the previous law (agreement). If South Korea was unaware of this, they should pay closer attention to U.S. law before signing an agreement with the U.S.

Re:Why not just ignore people who break the law?

[geoffrobinson]

Yes. You would probably like the following book, Three Felonies a Day: http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594035229/ref=sr_1_1?ie=UTF8&qid=1363180505&sr=8-1&keywords=three+felonies+a+day

Re:Why not just ignore people who break the law?

[realsilly]

Here is the link to the article or law that CastrTroy noted.

http://news.tripwheels.com/2013/02/11/international-driving-permit-required-for-florida/

Treaties are subordinate to laws, not the reverse

[gurps_npc]

Treaties are LESS powerful than Law, not more so. No treaty can make us do anything at all - countries break treaties all the time (see North Korea).

It is perfectly legal for the President to signa treaty that says "We will send all of our mushrooms to Canada."

Then Congress can pass a law that says "We will not send ANY mushrooms to Canada."

In such a case than it is illegal to send mushrooms to Canada, no matter what the treaty says. Canada can sue us in international court, and that court may assign sanctions to us, but they can not force us to send them all our mushrooms.