Cell Phone Unlocking to Get a Reprieve Under Proposed Senate Bill
The first is to overturn the LOC decision to drop the cell phone unlocking exemption from the DMCA for the next two years. The second is the requirement for the LOC to determine whether to extend the exemption. It’s worth noting that nothing in the bill requires the Librarian to continue to keep the exemption in place the next time it comes up. What this means is that the LOC could decide to drop the cell phone unlocking exemption again in two years, putting us right back where we are now. Public Knowledge pointed this out in a prepared statement sent to the media on March 11. "We're glad that Chairman Leahy recognizes that the Library of Congress' decision was untenable. However, this only serves as, at best, a three-year band-aid on the larger problem. Furthermore, the bill does not require that the Library reach a different decision on unlocking,” Chris Lewis, Public Knowledge’s vice president of government affairs said in the statement. But will the Librarian of Congress dare to repeat the same action? Remember, the Library of Congress is a creature of the legislative branch of government. While the President can’t order the Librarian of Congress to change the decision, The Senate and the House can. The Librarian works for them, after all.It’s extremely unlikely that the Librarian will risk the ire of Congress by making the same mistake again. But he could. While there have only been 13 Librarians of Congress since the institution was founded in 1800, that doesn’t mean that there couldn’t be a 14th. It would seem that the reason the Leahy bill doesn’t simply order the change in interpretation and have it stay that way is more to respect the office of the Librarian than anything else. Congress has told the LOC what it wants done on no uncertain terms. I don’t think the Librarian would go against the clear intent of Congress even if that prerogative technically exists.
Perhaps more important from the Librarian’s view is the fact that the author of the DMCA, Senator Leahy, is telling the LOC that the interpretation of the law was wrong. The fact that the bills enjoy strong bipartisan support and the support of the White House should be as strong a message as there could be that the cell phone unlocking decision was a dumb move. While the Librarian of Congress may have caved in to lobbying pressure from a couple of big cell phone companies, the Librarian’s hands are now being very thoroughly slapped.