Leaked TPP Text Versus the USPTO Green Paper: Cell Phone Unlocking

The USPTO’s green paper on “Copyright Policy, Creativity and Innovation in the Digital Economy” surveys current copyright law and notes that there are several areas where reform may be welcome. In many of these areas, the USPTO green paper demonstrates an openness to discussion on these issues or support existing efforts and proposals. Despite this support in some areas for reform and despite the USPTO’s involvement in the Trans-Pacific Partnership (TPP) negotiating process, there are several areas where the United States’ position in the TPP could hinder such reform. One area concerns the circumvention of technological protection measures (TPMs) also known as “digital locks,” including to allow the unlocking of cell phones to allow consumers to take their phone from one carrier to another where they are no longer bound by a service contract. As the leaked text reveals, the United States’ position on TPMs would hinder reform designed to allow the unlocking of cell phones.

The USPTO green paper, while not specifying an particular solution, supports Congressional or regulatory attention regarding the issue of “ensuring that consumers have the ability to unlock their cell phones, subject to applicable service agreements.” In the most recent DMCA rulemaking process, which took place in 2012 and went into effect in January 2013, the Librarian of Congress refused to renew an exemption that would allow consumers to unlock their cell phones. After this refusal, a petition to the White House was launched and the Obama administration responded:

The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties. In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network. It’s common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers’ needs.

This is particularly important for secondhand or other mobile devices that you might buy or receive as a gift, and want to activate on the wireless network that meets your needs — even if it isn’t the one on which the device was first activated. All consumers deserve that flexibility.
The White House’s position detailed in this response builds on some critical thinking done by the President’s chief advisory Agency on these matters: the Department of Commerce’s National Telecommunications and Information Administration (NTIA).

[. . .]

The Obama Administration would support a range of approaches to addressing this issue, including narrow legislative fixes in the telecommunications space that make it clear: neither criminal law nor technological locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation.

Subsequently, Rep. Zoe Lofgren (D-CA) introduced a bill with bi-partisan co-sponsorship called the “Unlocking Technology Act.” This bill would allow the circumvention of a technological protection measure where circumvention is not done in a manner that would infringe copyright and would amend the DMCA to include the following language:

It shall not be a violation of this section to circumvent a technological measure in connection with a work protected under this title if the purpose of such circumvention is to engage in a use that is not an infringement of copyright under this title.

and that:

It is not a violation of this section to use, manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of facilitating noninfringing uses of works protected under this title by circumventing a technological measure that effectively controls access to that work, unless it is the intent of the person that uses, manufactures, imports, offers to the public, provides, or traffics in the technology, product, service, device, component, or part to infringe copyright or to facilitate the infringement of a copyright.

The Unlocking Technology Act would allow the unlocking of cell phones, but would also be broader and allow the unlocking of digital locks to facilitate a noninfringing use.

Although the USPTO green paper appears to support a solution to the cell phone unlocking problem, recently leaked text of the TPP shows that the United States is once again pushing for highly prescriptive measures regarding TPMs that include only a limited, closed list set of limitations and exceptions. The United States’ proposal appears to eliminate legitimate uses of many products simply by allowing a digital lock. Previously, the United States proposed making circumvention an “independent and separate” cause of action apart from any underlying copyright infringement and a similar provision still exists in the TPP text, opposed only by Chile.

The U.S. proposal in the TPP contains a mostly closed-list set of very narrow exceptions to circumvention of a TPM while also including a three-year rulemaking process mirrored on the DMCA’s process of permitting an administrative or legislative procedure to add additional limitations and exceptions for a three-year period. This process is often time and resource consuming, taking more than a year from the time a proponent issues his request and the time that the exemption is granted or denied. Furthermore, the U.S. proposal in the TPP goes beyond the DMCA by imposing a “substantial evidence” burden on proponents.

The USPTO green paper supports legislative or regulatory solutions to the issue concerning the unlocking of cell phones and acknowledges that “The Administration and Library of Congress agree that the DMCA rule-making process ‘was not intended to be a substitute for deliberations of broader public policy,” suggesting that a permanent solution may be needed rather than requiring proponents of this exemption to go through the DMCA rulemaking process every three years. If the United States proposal in the TPP is accepted, however, such a permanent exemption would violate the obligations under the TPP.

Despite the support for such a solution, the United States is one of only two countries wholly opposing more flexible approaches to TPMs:

Article QQ.G.12167: {Technological Protection Measures}
[CL/NZ/PE/VN/MY/BN/JP propose; AU/US oppose:
1. [PE/SG oppose: Each Party [VN propose: may] [VN oppose: shall] provide legal protections and remedies against the circumvention of effective technological protection measures in their domestic copyright laws where circumvention is for purposes of infringing the exclusive rights of copyright [NZ oppose: or related rights] owners.]

2. Each Party may provide that such protections and remedies shall not hinder or prevent uses of copyright or related rights protected material that are permitted under exceptions or limitations to the exclusive rights of copyright [NZ oppose: and related rights] owners, or the use of materials that are in the public domain.

[PE/SG: It is understood that nothing in this Article prevents a Party from adopting effective and necessary measures to ensure that a beneficiary may enjoy limitations and exceptions provided in that Party’s national law, in accordance with Article QQG16, where technological measures have been applied to a work, performance or phonogram, and the beneficiary has legal access to that work, performance or phonogram particularly in circumstances such as where appropriate and effective measures have not been taken by rights holders in relation to that work, performance or phonogram to enable the beneficiary to enjoy the limitations and exceptions under that Party’s national law.168]

3. Subject to each Party’s international obligations, the Parties affirm that they may
establish provisions to facilitate the exercise of permitted acts where technological
measures have been applied.]

165 Negotiator’s Note: CA is considering paragraph (f).
166 Negotiators’ Note: NZ/PE/CA/AU/MX/MY/BN/VN support in principle pending drafting consultations.
167 Negotiator’s note: SG/CA/MX is willing to consider a more flexible approach to TPM provisions.
168 Negotiator’s Note: MY/VN/CL does not object in principle but needs to reflect further on the language.
Although we applaud USPTO’s support of a legislative or regulatory solution to the cell-phone unlocking issue, we note that such a solution could be prevented or hindered by the text of the TPP. USPTO, as a member of the US delegation at TPP negotiating members, should take care to ensure that its support for reforms are not undercut in the TPP negotiations.

Although the Obama Administration phones claims to support consumer choice and ability to unlock phone, behind the secrecy of the TPP the White House is advocating for positions that would lock in current rules on digital locks and prevent permanent exceptions to circumvention of TPMs, including, for example, to unlock cell phones.

As Derek Khanna noted on Slate:

The worst part: While the White House was publicly proclaiming its support of cellphone unlocking, it was secretly negotiating a treaty that would ban it.

[. . .]

The leaked treaty draft shows that while the White House was championing restoring free market principles to phones, the U.S. proposed that the TPP lock in the process that allowed the Librarian of Congress to rule this technology as illegal through international law. This would make potential reforms like H.R. 1892 impossible.* It should be noted that Canada did submit an amendment proposal that could allow unlocking, but neither the United States nor any other country supported it.

But the TPP draft doesn’t stop there. It would ban numerous other technologies that have beneficial uses.

In particular, the legislation would ensure that jailbreaking—which is installing a different operating system, or altering the existing operating system, on your phone, tablet, or e-reader—would also be illegal without permission from the Librarian of Congress (making a permanent fix impossible,). What type of nation would arrest 23 million people for installing a different operating system, or altering an existing one, on their own device?