effective date of the exemption. The principle rationale for the much more limited exemption
was the following:
The Register further concluded that the record before her supported a finding that,
with respect to new wireless handsets, there are ample alternatives to
circumvention. That is, the marketplace has evolved such that there is now a wide
array of unlocked phone options available to consumers. While it is true that not
every wireless device is available unlocked, and wireless carriers’ unlocking
policies are not free from all restrictions, the record clearly demonstrates that
there is a wide range of alternatives from which consumers may choose in order
to obtain an unlocked wireless phone. Thus, the Register determined that with
respect to newly purchased phones, proponents had not satisfied their burden of
showing adverse effects related to a technological protection measure.^804This decision on the part of the Register proved to be the source of significant subsequent
controversy, and in Aug. 2014 the President signed The Unlocking Consumer Choice and
Wireless Competition Act (S. 517) restoring the 2010 exemption.^805
The six exempted classes of works in the 2012 ruling are the following:- “Literary works, distributed electronically, that are protected by technological
measures which either prevent the enabling of read-aloud functionality or interfere with screen
readers or other applications or assistive technologies in the following instances:
(i) When a copy of such a work is lawfully obtained by a blind or other person with a
disability, as such a person is defined in 17 U.S.C. 121; provided, however, the rights owner is
remunerated, as appropriate, for the price of the mainstream copy of the work as made available
to the general public through customary channels; or
(ii) When such work is a nondramatic literary work, lawfully obtained and used by an
authorized entity pursuant to 17 U.S.C. 121.”
- “Computer programs that enable wireless telephone handsets to execute lawfully
obtained software applications, where circumvention is accomplished for the sole purpose of
enabling interoperability of such applications with computer programs on the telephone
handset.” - “Computer programs, in the form of firmware or software, that enable a wireless
(^804) Id. at 65265.
(^805) “President Signs Bill Restoring Consumer Right to Unlock Mobile Handsets,” BNA’s Patent, Trademark &
Copyright Journal (Aug. 4, 2014), available as of Aug. 5, 2014 at
http://iplaw.bna.com/iprc/display/simple_doc_display.adp?fedfid=50888556&vname=ptdbulallissuesdib&jd=a0
f4c7w8w2&split=0#a0f4c7w8w2. The bill does not create a statutory right for consumers to unlock phones, but
merely reverses the Copyright Office’s prior regulatory decision and directs the Copyright Office to initiate a
rulemaking proceeding to determine whether any wireless devices in addition to cellphones should be included
in the unlocking exemption. Id.