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With Online Petition, Activists Hope to Open a New Front For Copyright Reform

BY Sarah Lai Stirland | Wednesday, February 20 2013

A growing fight over what you are legally allowed to do with the electronic devices you buy is making strange bedfellows.

A petition on the White House's online petition site that asks the Obama administration to legalize "unlocking" mobile phones, or to take a device purchased through one carrier and reconfigure it to work on any carrier, has nearly 90,000 signatures and seems likely to clear the threshold of 100,000 signatures. The administration has pledged to answer any petition that gets at least that many signatures. The petition's author, entrepreneur Sina Khanifar, calls it the first step in a far more ambitious effort — reforming the Digital Millennium Copyright Act, a centerpiece of American intellectual property law that activists say has increasing ramifications for civil liberties, freedom of expression and business competition as more and more of daily life becomes digital. And that effort is forming alliances across partisan lines.

"[We want to] really push a grassroots movement to try and convince our Congress that changing the DMCA is a good idea, which is tricky because you're against the movie studios and the recording industry," Khanifar told me.

Last October, the federal Copyright Office decided, after a court decision and after hearing from the carriers' trade group CTIA, the Wireless Association, to roll back exemptions to the DMCA that cover unlocking phones. As a result, unlocking a phone without permission from the phone's carrier stopped being legal on Jan. 26. This creates value for carriers, who benefit from limits on consumer choice, but creates problems for people like Khanifar, 27, who frequently travels abroad. While in college, Khanifar started selling the service of unlocking phones for people who, like him, didn't want to pay exorbitant fees for using his cell phone abroad and would rather simply swap out his carrier's SIM card for a local one upon arrival in a foreign country.

Khanifar started the We the People petition to urge the White House to reverse the change. He found an ally in Derek Khanna, a former employee of the Republican Study Committee who lost his job after authoring a research report on copyright policy, and in Rep. Peter DeFazio, a Democrat who represents a House district in Oregon.

Khanifar is acting, in part, in response to past experience. In the fall of 2005, Motorola sent him a cease-and-desist letter for selling the unlocking software. Motorola's lawyers informed Khanifar that his service violated a federal copyright law, and that he faced a potential $500,000 fine and several years in jail. He never went to jail, thanks in part to digital rights lawyer Jennifer Granick, then of the Electronic Frontier Foundation. Granick represented Khanifar, but separately, she and the EFF later managed to persuade the Copyright Office to provide several exemptions to the anti-circumvention and unlocking provisions of the DMCA.

When the Copyright Office changed course last year, it rolled back exactly those provisions.

This infuriates Khanna, who is now a visiting fellow at Yale Law School and a copyright reform activist. He's published two articles about the issue, on The Atlantic late this January and in early February.

"This is just another example of crony capitalism," he said about the Copyright Office's decision.

The College Republicans have taken up the cause as well, Khanna told me Wednesday, urging its members on Twitter to sign the White House petition. Defazio's support also comes in the form of a Twitter message.

In a brief phone call, Khanna said that he expects many other prominent voices to come out in support of the petition, including the Tea Party group FreedomWorks.

While it's unlikely that the White House has the ability to directly direct the Copyright Office to 'rescind' the ruling immediately, both Khanna and Khanifar say that it's the first step in a longer process to change the DMCA.

If Congress fails to take action, the next time the White House can prevail upon the Register of Copyrights is during the next round of rule-making in two years, said Jonathan Band, of Policy Bandwidth in Washington, D.C. The National Telecommunications and Information Administration submits comments to the Librarian of Congress, who decides what is exempt from the DMCA's anti-circumvention and unlocking provisions, Band said. The NTIA's input is a statutory role for the administration in the rulemaking.

For Khanna, the We the People petition serves another important role: It forces the White House to take a position. When asked to do so in 2012, around the Stop Online Piracy Act, the White House came out against SOPA in a petition response before it was clear that the bill was not going to go anywhere. If the White House chose to do so, it could lend momentum to copyright reform efforts by releasing its response to this petition at a similarly crucial time. There's no guarantee as to who would sign a response, but it could be White House Intellectual Property Czar Victoria Espinel, as well as the White House Office of Science and Technology Policy.

"Most importantly, we're going to get them on record, their perspective on this going forward," Khanna said.

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