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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."
KORUS does allow for administrative procedures like the DMCA's rule-making to adopt temporary exemptions, but not permanent ones. The challenge before Congress is to devise a permanent exception for cell phone unlocking that does not breach the obligations under KORUS and other similar free trade agreements
The US constitution allows temporary copyrights; Congress has managed to ignore the spirit of the constitution by extending copyright terms 20 years every 20 years. How about we just do the same with DMCA exemptions?
Palm trees and 8
It seems that these days IP legislation tries to swallow everything. Nothing is safe from IP laws.
It's time to reverse that trend, most of the DMCA should be considered unconstitutional anyhow. If someone sold me a device, why can't I tear it apart to see how it was built?
Patents and copyrights exist for making sure no one needs to keep trade secrets. The intent of those laws is to let people learn about the technical details behind the technology.
Having laws that restricts the liberty of learning goes against every principle of a civilized society.
other countries have laws that phones must be unlocked or the carriers must give out the unlock code.
We need to end carrier only phones and phones with all the carrier software forced on you that you have to hack your own phone to remove it you should have the choice of how much of the software that you want. Visual voice mail (good), a app that let's you see how many mins / data / txt of your plan that you used and uses there meter (good) other apps not so much.
There's a lot of laws on the books that are never enforced. There's roads where everybody drives 15 miles per hour over the speed limit and nobody ever gets a ticket because everybody knows that it's perfectly safe and that the limit is just set too slow. There was recently a law passed in Florida where all non-US citizens had to have an international driver's license to drive in the state. They forgot about all the Canadians who go there every winter. Once they realized the problem, they told all the cops to just ignore the law. This is just without even mentioning the completely ridiculous laws that are still on the books from hundreds of years ago. Just because a law is on the books, doesn't mean they have to enforce it. If there's no mandatory minimum punishments required as part of the trade agreements, judges could just let people off with a very small fine, and cops would learn that it wasn't worth their time to charge anybody for breaking the law.
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
Congress can pass the law; they have that power, and no mere treaty can take it away.
What happens, if Congress passes a law that is in conflict with the treaty is that the most recent of them is in effect in the US.
As for our international obligations, we have a few choices: We can withdraw from the treaty. We can seek to renegotiate the relevant part of the treaty. Or we can ignore the conflict. If we ignore it, there may be some enforcement mechanism intended to encourage us to do something, but depending on what it is, we may be able to ignore that too. After all, the US is in violation of the Berne Convention and we've ignored that successfully for over a decade now.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
>US Government May Not Be Able To Fix Cell Phone Unlocking Problem
The U.S. (FCC/FTC?) can STOP the problem of locked phones by issuing an order saying that locked phones cannot be sold starting 5 minutes from now. The phone manufactures will starting doing back-flips unlocking new and current phones so fast the earths spin might slow down some.
Carrier lock is simply a way for them to try to abduct more customers. I use abduct very purposefully here.
abduct [ab-duhkt] verb (used with object) 1. to carry off or lead away (a person) illegally and in secret or by force, especially to kidnap.
There is no technical or contractual reason to keep you locked. The OP is correct in that you sign a binding legal contract when entering a contract with a mobile carrier, but when that contract is up, they want you to stay, not run off to some n-contract or other carrier with the phone you purchased (albiet at a subsidy) from them. If their contract did not cover the subsidy discount on the phone, then they need to redo their math and stop devices that are now legally owned by others hostage.
In addition to this however, there is no incentive for handset makers to push to change it. If you cannot continue to use your phone on a carrier you like, what do you do? You purchase a new phone and the handset maker profits as well.
None of this fosters competition or aids the consumer. It is solely a self serving policy by those in (capitalistic) power.
Silence is a state of mime.
Even if a treaty forbids Congress from correcting DMCA, it should be easy to do something about it. FCC could ban the manufacture, sale, and trafficking in devices which transmit on licensed spectrum, if those devices require DMCA violations in order to repurpose.
That wouldn't be as good as repealing DMCA, but it would make DMCA irrelevant to this narrow case. Can't unlock iPhones? Ok, unlocking iPhones will remain illegal. But it'll also be illegal to sell locked iPhones. If someone wants a locked iPhone, sell 'em a locked iPod Touch instead, implement the phone functionality using wifi.
Of course: fuck the treaty. Repeal DMCA instead. And fuck all these narrow DMCA-amending proposals which are limited to "wireless devices."
"Believe me!" -- Donald Trump
It isn't secret anymore -- when they actually vote on it. But then there's no time to examine it, much less get public commentary, much less habe 6 months for people to think it over.
These are the same people who brought you the "we have to approve the health care bill to see what's in it."
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
Even before the contract ends,. you should be allowed to do whatever you want with the phone. If I sign the contract and decide I want to use my Nokia 3110. I should be allowed to do that.
The phone that I got with the deal I should be allowed to give to my kid to play games on. I should be able to sell it.
If I make more money on selling the phone then I did by paying you, then that pricing policy of yours is YOUR problem, not mine.
It is not just locking. Bundled sales is the other part that is bad for people.
Don't fight for your country, if your country does not fight for you.