March 5, 2013
Rhetoric aside, the Administration drew an under-appreciated and principled line in defending property rights in its deft partial support of the Free Culture petition to the White House to “make unlocking cellphones legal.”
For those paying attention to the whole Administration statement, the Administration included a critical caveat protecting property and contractual rights: i.e. one should be able to legally unlock a cellphone “if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation.”
The nuance here is huge. The Free Culture petitioners are seeking blanket freedom to “unlock’ a cellphone without regard of property rights or any penalty of law. They seek blanket freedom because the Free Software movement believes it is wrong for software to be proprietary, copyrightable, patentable, or commercial. In other words, this movement perversely defines “freedom” here as absolution from penalties for disrespecting others rights, either property or contractual.
The Administration agrees with the popular exceptions that the Free Culture movement has led with to gain political and media support, but apparently it has not been fooled that the organizers of the petition want much more absolution than the Administration wants to give them or constitutionally/legally can give to them.
Thus the Administration has embraced the pro-competitive exceptions that consumers who have fully paid for the phone and fulfilled their legal and contractual obligations, of course should be able to use it with other carriers. The competitive U.S. wireless marketplace already is awash with consumer freedom, opportunities and choices to buy unlocked phones and use them with the carrier of the user’s choice.
Simply, the petition says: “make cellphone unlocking legal;” and the Administration effectively has added important caveats: essentially “make (fully paid-for and owned-free-and-clear) cellphone unlocking legal.”
The critical nuance hear begs for an additional term to “cellphone unlocking” — like “Cellphone lockpicking” or “cellphone break-in”– to distinguish what type of behavior will and should remain illegal.
In a nutshell, if one has honored one’s legal obligations to others, one should be free to unlock their phone/property because they indeed own the lock and the key. However if one has not honored one’s full-payment and legal obligations to others, one may have the phone in one’s possession, but one does not legally own the key to unlocking all the commercial value in the mobile device. Most everyone understands legally and morally that there is a huge difference between legally acquiring the key to unlock something of value and breaking into property without permission. The core cleave of this cellphone issue is just that simple.
The whole copyright-neutering strategy here is really PR, (explained guilelessly by Derek Khanna here) to lead with the popular exception and then publicly imply/assert that support for the exception means support for their entire agenda for neutering digital information property rights. Remember, the copyright neutering movement misrepresented opposition to a proposed DNS-blocking provision in the House SOPA bill last year, as opposition to all Congressional efforts to address anti-piracy enforcement.
Free Culture’s cynical and deceptive public policy strategy depends on the media not holding them accountable to the facts or understanding the context, strategy or goals behind their efforts. Tellingly, only the National Journal reported the “balanced” takeaway here: Administration’s “Stance on Unlocking Cell Phones Comes with a Very Big Catch.”
It is beyond ironic that the commercial media, whose livelihood literally depends on copyright protection and commercial monetization of their news product, apparently can’t seem to ask the anti-copyright movement any tough questions or provide much context/perspective beyond the Free Culture movement’s slick stagecraft.
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Defending First Principles Series
Part 1: Debasing Free Speech as No-Cost Speech
Part 2: The Copyright Education of Mr. Khanna
Part 3: A Conservative-Libertarian Rift on Copyright Reform?
Part 4: Why Conservatives Should Be Skeptical of Copyright Reform
Part 5: Copyright Reform or Neutering? Depends If Baby’s Thrown Out with Bathwater?
Part 6: Net Neutrality’s Misrepresentation of Free Speech
Part 7: Exposing the Copyright Neutering Movement’s Biggest Deceptions
Part 8: Mr. Khanna’s Call to Arms over Cellphone Unlocking Is More Copyright Misrepresentation