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Building on White House Petition Momentum, 'Fix the DMCA' Campaigns Get Rolling

BY Sarah Lai Stirland | Wednesday, March 6 2013

The White House has spoken on the issue of cell-phone unlocking. Now the petitioners who rounded up more than 114,000 signatures at the "We The People" site want Congress to take action to update the landmark digital copyright law that governs the issue. The interesting wrinkle is that the informal post-SOPA coalition has broken up into two factions.

Sina Khanifar, the San Francisco entrepreneur and co-founder of Open Signal, has gotten together with a group of digital rights advocates and entities in the startup world to launch a new campaign called "Fix the DMCA" to lobby members of Congress through Twitter and e-mail to in effect repeal the anti-circumvention section of the Digital Millenium Copyright Act, which was enacted in 1998.

Members of the group encouraging the public to weigh in with their members of Congress include the Electronic Frontier Foundation, Fight for the Future, Reddit, Mozilla and Y Combinator -- in essence, many of the players who were deeply involved in pushing Congress to block the passage of the Stop Online Piracy and the PROTECT IP Acts. Dozens of startup companies and O'Reilly Media are also lending their names to the effort, and the list is likely to grow since Khanifar is in Austin at SXSW.

Khanifar launched the campaign Wednesday from the Startup Bus he's been travelling in from San Francisco to the SXSW festival in Austin. It was on the bus that he built the advocacy software at Grassroots.io that is powering the advocacy campaign.

Meanwhile, former Republican congressional staffer Derek Khanna is promising his own reform-the-DMCA campaign at Fixcopyright.com, which hasn't gone live yet. But he's also making waves already through his writing, and through frequent appearances on television, online and on national and local radio programs, publicizing what free culture advocates have long criticized: The fact that citizens can incur criminal penalties and jail-time for using their consumer gadgets in ways not sanctioned by their makers.

"SOPA would have censored the Internet and curtailed technological innovation," Khanna recently wrote in the Atlantic. "It is easy to see why it inflamed millions of Americans. In this case, the government has banned broad categories of technologies --and broad categories of uses -- without any clear governmental interest. This is another extreme and unacceptable violation of personal freedom."

That is the message that Khanna is taking to the airwaves, appearing on the Mike Huckabee show twice to discuss the issue, and conducting dozens of local radio interviews.

The White House petitioners say that they don't agree on how to get lawmakers to update the DMCA, but it'a hard to discern any big differences between the two sides. They both want lawmakers to eliminate the triennial process overseen by the Library of Congress that decides who and what should not be subjected to criminal penalties.

Under current law, anyone in the United States who violates specific restrictions on their devices, like unlocking their cell phone while still under their contract with their carrier, could be subject to a $500,000 fine and a jail term of five years. The Copyright Office within the Library of Congress goes through a rule-making procedure every three years to decide what devices and purposes should be exempt from these rules.

Digital rights groups like the EFF and Public Knowledge have criticized these rules from the beginning, arguing that the intent behind the law is to stop people from stealing and pirating content, not the mere act of circumventing a technological barrier, or using a device in a way that the creators of the products don't approve. For their part, associations representing the blind and the deaf have had to fight for exemptions from the rules every three years. But as Khanna points out, the law was enacted years before consumer devices became part of Americans' everyday lives, and who now can feel the effects of these restrictions for themselves.

On Monday the White House responded to a "We The People" petition by agreeing that cell phone customers should have the right to unlock their devices without being subject to criminal penalties. That means that customers should not be forced to stick with their carrier with their mobile device and have the technical ability to switch to a carrier of their choice. The White House hedged the statement, however, by qualifying it, saying: "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."

Several lawmakers in Congress in the past 24 hours have followed suit, by either introducing legislation to exempt cell phone unlocking permanently, or expressing their support for such legislation. That includes the Chairman of the Senate Judiciary Committee Pat Leahy, a Democrat from Vermont. The judiciary committee has prime jurisdiction over copyright law.

But neither Khanifar nor Khanna think those proposals go far enough because consumers would still be locked in their carrier contracts. They'd only be able to unlock their cells phones after their contracts expire.*

And though consumers can pay higher prices for unlocked phones, Khanifar says that the carriers are covered by their early termination fees, and that the unauthorized unlocking of phones shouldn't be a criminal act.

The groups also think that advocates for the deaf and the blind shouldn't have to petition the government to break through digital locks protecting copyrighted content so that members of that community can access that information. They also don't want restrictions on the practice of jailbreaking devices, breaking locks on legally-acquired digital content, or on security researchers breaking through digital barriers for research purposes.

Khanna's proposal only differs from the larger coalition's in that he proposes a commission to make recommendations for a replacement process for the triennial rule-making procedures.

Congress has long supported the DMCA, and the advocates' campaign is sure to face stiff opposition from the entertainment industry, which helped to write the original law.

But one former congressional staffer said that parts of the advocates' proposals might catch on with lawmakers since the unlocking issue is a high-profile one that's received a lot of media attention, and presents an opportunity to prove to their constituents that they're all for getting rid of seemingly "dumb" laws.

"This is like manna from heaven, it's an easy issue" she said. "Congress needs a win, because they haven't been very popular lately."

*Khanna says that he's against the criminalization of consumers breaking contracts, not the private agreement between individuals and carriers.