Excerpt from:
[Federal Register: November 27, 2006 (Volume 71, Number 227)]
[Rules and Regulations]
[Page 68472-68480]
LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 Docket No. RM
2005-11 Exemption to Prohibition on Circumvention of Copyright
Protection Systems for Access Control Technologies
http://www.copyright.gov/fedreg/2006/71fr68472.html
5. Computer programs in the form of firmware that enable wireless
telephone handsets to connect to a wireless telephone communication
network, when circumvention is accomplished for the sole purpose of
lawfully connecting to a wireless telephone communication network.
The Wireless Alliance and Robert Pinkerton proposed an exemption for
"Computer programs that operate wireless communications handsets."
The proponents of this exemption stated that providers of mobile
telecommunications (cellphone) networks are using various types of
software locks in order to control customer access to the "bootloader"
programs on cellphones and the operating system programs embedded
inside mobile handsets (cellphones). These software locks prevent
customers from using their handsets on a competitor's network (even
after all contractual obligations to the original wireless carrier
have been satisfied) by controlling access to the software that
operates the mobile phones (e.g., the mobile firmware).
Many reply comments were submitted in support of this exemption and
only one reply comment provided any opposition to the proposal. Only
two witnesses testified at the hearing on this issue: a representative
of the principal proponent of the exemption and a representative of
some copyright owners (none of whom operate wireless telecommunication
services, manufacture wireless handsets or make bootloader or
operating system programs for cellphones). It was undisputed that
mobile handset consumers who desire to use their handsets on a
different telecommunications network are often precluded from doing so
unless they can obtain access to the bootloader or operating system
within the handset in order to direct the phone to a different
carrier's network. The evidence demonstrated that most wireless
telecommunications network providers do not allow a consumer to obtain
such access in order to switch a cell phone from one network to
another, and that the consumer could not use the cell phone with
another carrier, even after fulfilling his or her contractual
obligations with the carrier that sold the phone. In order to switch
carriers, the consumer would have to purchase a new phone from a
competing mobile telecommunications carrier.
The obstacle that prevents customers from using lawfully acquired
handsets on different carriers is the software lock. At least one
wireless telecommunications service has filed lawsuits alleging that
circumvention of the software lock is a violation of section
1201(a)(1)(A) and has obtained a permanent injunction (albeit by
stipulation).
The Register has concluded that the software locks are access controls
that adversely affect the ability of consumers to make noninfringing
use of the software on their cellular phones. Moreover, a review of
the four factors enumerated in 1201(a)(1)(C)(i)-(iv) supports the
conclusion that an exemption is warranted. There is nothing in the
record that suggests that the availability for use of copyrighted
works would be adversely affected by permitting an exemption for
software locks. Nor is there any reason to conclude that there would
be any impact -- positive or negative -- on the availability for use
of works for nonprofit archival, preservation, and educational
purposes or on the ability to engage in criticism, comment, news
reporting, teaching, scholarship, or research. Nor would circumvention
of software locks to connect to alternative mobile telecommunications
networks be likely to have any effect on the market for or value of
copyrighted works. The reason that these four factors appears to be
neutral is that in this case, the access controls do not appear to
actually be deployed in order to protect the interests of the
copyright owner or the value or integrity of the copyrighted work;
rather, they are used by wireless carriers to limit the ability of
subscribers to switch to other carriers, a business decision that has
nothing whatsoever to do with the interests protected by
copyright. And that, in turn, invokes the additional factor set forth
in 1201(a)(1)(C)(v): "such other factors as the Librarian
considers appropriate." When application of the prohibition on
circumvention of access controls would offer no apparent benefit to
the author or copyright owner in relation to the work to which access
is controlled, but simply offers a benefit to a third party who may
use 1201 to control the use of hardware which, as is increasingly
the case, may be operated in part through the use of computer software
or firmware, an exemption may well be warranted. Such appears to be
the case with respect to the software locks involved in the current
proposal.
The copyright owners who did express concern about the proposed
exemption are owners of copyrights in music, sound recordings and
audiovisual works whose works are offered for downloading onto
cellular phones. They expressed concern that the proposed exemption
might permit circumvention of access controls that protect their works
when those works have been downloaded onto cellular phones. The record
on this issue was fairly inconclusive, but in any event the proponents
of the exemption provided assurances that there was no intention that
the exemption be used to permit unauthorized access to those
works. Rather, the exemption is sought for the sole purpose of
permitting owners of cellular phone handsets to switch their handsets
to a different network.
Because the Register has concluded that, in appropriate circumstances,
a class of works may be refined by reference to uses made of the
works, this issue can best be resolved by modifying the proposed class
of works to extend only to "Computer programs in the form of firmware
that enable wireless telephone handsets to connect to a wireless
telephone communication network, when circumvention is accomplished
for the sole purpose of lawfully connecting to a wireless telephone
communication network."
On September 18, 2006, long after the comments had been submitted and
the hearings had been conducted in this rulemaking, the Register
received unsolicited submissions from CTIA - The Wireless Association
(a nonprofit trade association that promotes the interests of the
wireless industry, representing both wireless carriers and
manufacturers) and TracFone Wireless, Inc. (which describes itself as
"America's largest prepaid wireless company"). The submissions
included the submitters' responses to written questions that the
Copyright Office had submitted to the two witnesses who had testified
at the March 23, 2006, hearing on the proposed exemption -- witnesses
who had no relationship with Tracfone or CTIA. The submissions also
contained arguments opposing the proposed exemption.
In the course of his consultation with the Register of Copyrights on
this rulemaking, the Acting Assistant Secretary of Commerce for
Communications and Information shared his concern that the record on
this proposal appeared to be incomplete and stated that he was pleased
that the Register had sought additional information (in the form of
the written questions to the witnesses) to supplement the record.
Subsequently, he expressed to the Register his view that the CTIA and
TracFone comments "afford you a complete record in which the views of
both users and creators of content are currently represented," and
urged the Register to consider those submissions in making her
recommendation.
The Assistant Secretary's concerns are understandable, and the
Register shares his desire that the views of both users and creators
of content be represented in the rulemaking. However, complying with
the Assistant Secretary's request and accepting the last-minute
submissions of CTIA and TracFone would undermine the procedural
requirements of this proceeding and of the rulemaking process in
general. While it is preferable that all interested parties make their
views known in the rulemaking process, they must do so in compliance
with the process that is provided for public comment, or offer a
compelling justification for their failure to do so. In this case,
they have failed to offer such justification. CTIA (which counts
TracFone among its members) was aware of this rulemaking proceeding
and this request for an exemption as early as January or February,
2006. Yet it remained silent until September 18, long after the
opportunities provided for comment and testimony had expired. Nor did
it offer any explanation for its silence. If these extremely untimely
submissions were accepted, it would be difficult to imagine when it
ever would be justified to reject an untimely comment. Such a
precedent would be an invitation to chaos in future rulemakings.
Therefore, the late submissions of CTIA and TracFone have not been
considered.
Monty Solomon (monty@roscom.com)