THE FIGHT FOR MOBILE FREEDOM- THE DMCA CONUNDRUM.

Recently in the US, it became illegal for you to unlock your device outside the channels provided by your service provider. The exception from DMCA (Digital Millennium Copyright Act) granted by the Librarian of Congress regarding cellphone unlocking expired on January 26, 2013. So starting that day, anybody selling cellphone unlocking services can be subject to litigation under DMCA.

How did this happen?

If you look at the origin of DMCA, it was not even meant to regulate cellphone unlocking, it was mainly for protecting digital copyrights. However it has morphed into a tool for circumventing true mobile freedom. DMCA sets protection of copyrighted digital materials by criminalizing the circumvention of access control softwares and Digital Rights Management (DRM) tools. The key here is access control software- this is where cellphone unlock comes into the picture. Originally, access control softwares and DRMS were used to make sure nobody is able to gain access to copyrighted materials without the consent of the owner.

All wireless carriers who provide you with a subsidized device if you lock-in to a term have put in access control on your handset. The access control is in the limitation on your device that only their SIM Cards will work on the unit. This is the access control that is protected by DMCA from any circumvention. Starting January 26, 2013 if you buy a cellphone locked to a specific wireless carrier, you can only have it unlocked through them- the original owner of access control tool.

Who owns what?

The biggest question that has come out of this development is the question on who owns your device? With the most recent development, it seems like DMCA considers your wireless carrier as the owner of your device as they are deemed to be the only legal source of your unlocking solution. Yes you physically own your device but it seems like you have no actual freedom to chose which carrier to use. Why this ridiculous conundrum? Well it all starts with how the DMCA provisions have been abused by the wireless carriers.

In its very core DMCA seeks to protect digital copyrighted materials by making sure that the act of circumventing access controls to these materials are considered illegal. This gave content owners the right to impose access restrictions over their copyrighted materials and gives them added protection by making sure that the mere act of circumventing their control over the material is criminalized. So the question I have to the regulators is this- what digitally copyrighted material are these wireless carriers protecting with the cellphone unlock? The only answer I can think of: their Revenue stream. The only reason why wireless carriers lock your device is to ensure you use it with their service. Here is the rub- even without a real copyrighted digital material being protected by the unlock, DMCA still considers the act of circumventing this access control illegal. What this translate to is; the protection of your wireless carriers’ bottom line weights more than the protection of your mobile freedom.

Now some people will argue that getting a phone at a subsidy from a wireless carrier mens you do not own the device until your contract has ended. This is a very common argument from people who have either given up on mobile freedom or have been blinded by their wireless carriers. If this is true, is there anything in your service agreement that talks about your carrier leasing you the device? (The lease agreement analogy is usually what they use) If your wireless carrier does own your device, why do they usually tell you that it is your responsibility to get the device fixed or serviced outside the manufacturers warranty? How many times have you heard your service provider tell you that they do not own the phone and that you are fully responsible for it and charges that you incur with it? How many times have you been told by your service provider that they only provide wireless service and that they do not manufacture the phones? The way I see it, I sign a contract to stay with a certain service provider for 2-3 years in exchange for subsidy on a hardware. To me, the key is to retain service with them for x-amount of months- the device I use to access their service should be irrelevant. I understand the idea behind imposing a cancelation fee because there is clear loss in revenue. If i have my device unlocked, I still retain service with my wireless provider and still pay a fixed monthly plan, so there is no loss in revenue.

So what happens now?

If you are thinking about buying a new phone and want to enjoy the freedom of cellphone unlock, you have two choices: 1. Buy a factory unlocked device at full cost or 2. Buy a locked and subsidized one from your wireless provider and cross your fingers that they will let you unlock it. Although they say that consumers are still allowed to get their phones unlocked through their wireless provider, the reality is that most carriers have very restrictive rules for unlock (ie. Must be off contract, must be on an active account, etc.) If you have the money to spare I suggest getting a factory unlocked device at full cost and spare yourself the constraints of a wireless carrier. If you are living in the US and want to take a more active step in changing this ridiculous legislation then go sign this online pettition for the White House. I just hope the Obama administration will have enough political will left to even consider this pettition considering the kind of storm they expect to encounter in the next few months (ie. Debt ceiling, gun control, etc).