Bulk unlocking of cellphone and tablets for resale does not violate copyright law and should continue to be allowed, the Institute of Scrap Recycling Industries told the U.S. Copyright Office.
ISRI’s May 26 testimony came as federal officials consider whether to renew a three-year exemption allowing for the unlocking of mobile devices. Some mobile devices have software restricting them to one company’s network; “unlocking” them circumvents the restriction so they can be used on any carrier’s wireless network.
“It matters to ISRI because our electronics recyclers are in the business of reusing and re-selling cell phones and tablets into the marketplace,” Eric Harris, ISRI’s associate counsel and director of governmental and international affairs, told E-Scrap News. “Simply put, a locked phone has less value in the market than an unlocked phone.”
Under the Digital Millennium Copyright Act, the Librarian of Congress (the U.S. Copyright Office is part of the Library of Congress) determines whether unlocking of specific devices for specific purposes is permissible. In making the determination, the Librarian must decide whether somebody will be “adversely affected by the prohibition.” Those seeking exemptions must prove that they will be harmed without one. Approved exemptions last for three years.
In 2012, the longstanding Librarian, James Billington, opted to outlaw unlockings, prompting a public and industry outcry. Congress stepped in and, in summer 2014, passed a law restoring a broader exemption Billington had approved in 2010. But it wasn’t a permanent fix, Harris said.
Now, the ball is back in the Librarian’s court to decide whether to extend the exemption.
Harris believes the wording of the bill passed by Congress allows for bulk unlocking, but it doesn’t include explicit approval using the words “bulk unlocking.” In his testimony, he said any unlocking exemption must include “explicit language that permits recyclers to bulk unlock for the benefit of consumers and competition,” according to an ISRI press release.
“The language is still kind of dancing around it a little bit,” Harris said in an interview. “We just want to give that certainty to the marketplace.”
Public comments show the only opposition came from TracFone Wireless, a prepaid wireless service provider which seeks to ensure any exemption leaves it illegal for phone traffickers to buy new devices, immediately bulk unlock them and re-sell them.
ISRI believes its proposed exemption was carefully worded to avoid exempting traffickers from liability. TracFone disagrees.
It’s unclear when the Librarian of Congress will make a final decision.