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Digital Millennium Copyright Act (DMCA) Expands to Include Used Devices

Since 2014, ISRI, working with Stanford Law School students as part of the Juelsgaard IP and Innovation Clinic, has been taking part in proceedings at the U.S. Copyright Office to ensure that recyclers can reuse and resell consumer electronics without running afoul of copyright law. In 1998, Congress passed the Digital Millennium Copyright Act (DMCA).

by Jef Pearlman, Stanford Law School

 Among other things, the DMCA made it illegal to break encryption protecting copyrighted work. While this was originally intended to stop people from making unauthorized copies of music and videos, the law was written so that it applies even if no one is infringing copyright. Some companies have taken advantage of this, trying to use the DMCA to stop owners of electronics from accessing or modifying the encrypted software inside their own devices. Of particular relevance to ISRI members, they argue that decrypting the software on your phone or tablet—even if you’re just doing it to switch wireless carriers (called “carrier unlocking”)—runs afoul of the DMCA.

Luckily, Congress was aware of the potential for misuse of the DMCA, and added an escape hatch, albeit a burdensome one. Every three years, the Copyright Office holds a “triennial” proceeding asking the public what important and otherwise-lawful uses of copyright works are being prevented by the DMCA. Anyone who wants to—and has the time and resources—can petition for an exemption, making a showing to the Office that the DMCA is actually hampering the ability of the public to make use of these works. After a process that usually runs about 6-12 months, the Copyright Office recommends a set of exemptions, and the Librarian of Congress (who oversees the Copyright Office) makes a final call. If granted, the exemption making it lawful to break the encryption for specific, requested uses for three years until the next proceeding.

In 2012, the Librarian significantly narrowed its existing exemption for carrier unlocking. ISRI participated in a broad public effort to get Congress to restore the exemption, which it did—but set to expire again with the next triennial. So in 2014, with the assistance of the Clinic, ISRI filed its own request for exemptions to allow owners of used mobile phones and cellular-enabled tablets to carrier unlock those devices and reuse them on other networks. Clinic students drafted “comments” for filing at the Copyright Office, providing factual and legal support for the lawful unlocking of mobile devices. They also drafted reply comments, responding to opposition from a small number of manufacturers. The effort was successful, and in 2015, the requested exemptions were granted.

This year, ISRI is back at the Copyright Office, requesting that these exemptions be expanded to cover unused devices, such as overstock phones from large enterprise users, as well as devices that don’t fall squarely in one of the Office’s favored categories (phones, tablets, wearables, and hotspots). Because the Copyright Office simplified the process of renewing an exemption—in part based on comments and live testimony by Clinic students on behalf of ISRI—the Office has already recommended renewing the previous exemptions. ISRI and the Clinic are currently building a record to show that 1) cellular connectivity is being built into more and more consumer electronics; 2) the ability to recycle and reuse these devices, is just as important—and legal—as it is for mobile phones; and 3) it makes no difference whether the devices are “new” or “used.”

ISRI expects the process to continue through mid-2018. With the Clinic’s assistance, ISRI hopes to continue to ensure that its members can safely and lawfully make the best possible use of recycled consumer electronics.

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