Want to “Unlock” That New Mobile Phone? The Rules Have Changed.

It’s a little-known fact that the Librarian of Congress has the power to determine if you can “unlock” your mobile phone/PDA in order to change the telephone/ISP service accessible on the device. You might not think a librarian could be that powerful, but it’s the law.

When Congress enacted the Digital Millennium Copyright Act (the “DMCA”) in 1998, it included provisions to prohibit circumvention of technological measures designed to protect access to copyrighted works. That aspect of the law was controversial in 1998 and remains so today. Copyright owners have concerns that without encryption, unauthorized copying and piracy will become even more rampant. On the other side of the fence, many believe that anti-circumvention technology is ineffective and that more open access is the better route as a matter of policy. In other words, should copyright law be used not just to protect against unauthorized copying, but also to restrict technological platforms?

The Librarian of Congress, currently James Hadley Billington, can establish exemptions to the prohibitions. The Librarian sets these exemptions every three years.

People who bought phones prior to the deadline of January 26, 2013 and those who previously unlocked their mobile phones are “grandfathered” in. In other words, a user who had previously unlocked a Verizon Blackberry to work on T*Mobile’s network would still be lawfully able to use it after the deadline.

When the Librarian announced the newest round of exemptions late last year, the exemption applicable for unlocking was set to end on January 26, 2013. The Librarian did establish or continue five exemptions effective after the date, including disability access to eBooks, “jailbreaking” of computer programs that enable wireless telephone handsets (not tablets) for interoperability of software, “ripping” excerpts of DVDs for limited purposes related to criticism or comment, and disability access.

Because mobile devices are already the means of enjoyment and use of content such as the Internet, interactive entertainment, gaming, and music, the copyright rules applicable to mobile devices are important to all of us.

In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.