US Government May Not Be Able To Fix Cell Phone Unlocking Problem 203
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."
I do not see a problem (Score:5, Interesting)
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?
IP legislation is a monster (Score:5, Interesting)
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 unlo (Score:4, Interesting)
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.
Why not just ignore people who break the law? (Score:5, Interesting)
It's not that difficult (Score:5, Interesting)
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 [wikipedia.org] and we've ignored that successfully for over a decade now.
What? Yes it can. (Score:5, Interesting)
>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.
Re:other countries have laws that phones must be u (Score:5, Interesting)
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.
US Government can do plenty (Score:4, Interesting)
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."
Re:Secret Treaty? (Score:3, Interesting)
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."
Comment removed (Score:5, Interesting)
Re:IP legislation is a monster (Score:5, Interesting)
America is the only country that went from barbarism to decadence without civilization in between.
-- Oscar Wilde