Published by LawTechie - January 30, 2014 - LawTechie

JailbreakingIt has been a year since the Library of Congress ruled that jailbreaking your cellphone (unlocking it so that it could be used with multiple carriers) is illegal and punishable by fine of up to $500k, or 5 years in prison, or both. Derek Khanna, a former congressional staffer who had been at the forefront of underscoring the stupidity hypocrisy of that ruling has published an excellent article summarizing the issues and arguing for an immediate fix.

In brief:

It was a clear case of crony capitalism on behalf of some of the largest companies with the largest lobbying shops in Washington, DC.

The public outcry after the Librarian of Congress issued its rule was perhaps the largest online response to legislation since SOPA/PIPA. It led the White House, FCC and Members of Congress to condemn the ruling and to support cellphone unlocking.

Despite the fact that the ruling created uncertainty in the marketplace, forcing venture capital organizations to rethink or indefinitely delay investment in certain types of cellphone software startups, and despite the fact that we remain in an economic recession where any entrepreneurial movement is good movement, Congress has yet to fix the problem.

According to Mr. Khanna, the current Congressional deadlock is running up against the clock:

The Trans Pacific Partnership Treaty, which is being secretly negotiated by 400 industry representatives, affects 40% of US imports and exports and includes 12 countries. While the treaty has been shrouded in extreme secrecy… from leaked versions of the treaty we know that the US has been negotiating for a version of the TPP which would make any permanent solution on cellphone unlocking impossible.

While Mr. Khanna supports the current proposal by Congressman Bob Goodlatte (R-VA), H.R. 1123, to introduce a stop-gate measure to reverse the Library of Congress decision for another two years, and while I am sympathetic to the argument that a stop-gate measure is better than no fix at all, I would have to say that from an economic perspective this is simply not enough.

A stop-gate measure that expires in two years would do nothing to alley the concerns of venture capitalists who would still need to worry about any technology in which they invest millions becoming illegal again two years from investment. Thus a stop-gate measure would simply bring back jailbreaking for personal use with no effect on economic progress.

If Congress is serious about introducing measures to kick start the US floundering economy, a permanent fix to the Library’s terrible decision would be the ideal, bipartisan first step.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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