Friday, June 7, 2013
Ajit Pai, a commissioner of the Federal Communications Commission,wrote an interesting op-ed in yesterday's NYT. He argues that consumers should be allowed to unlock their phone when they permissibly (i.e. not in breach of any contract) switch carriers. Some of you might be wondering - Huh? Is that even illegal? Don't I own my phone? You're probably not alone. As Pai notes, the Library of Congress decided that unlocking your phone violates the Digital Millenium Copyright Act of 1998. (They basically removed an exception to the Act that permitted unlocking, as this article in the San Francisco Chronicle explains). But, you might wonder, what does copyright have to do with what you can do with your cell phone? A lot of people are wondering the same thing, but basically, software locks the cellphone to a specific network and the cell phone owner is a licensee of that software (and software is copyrightable). Okay, now you understand what this has to do with copyright but what does this post have to do with contract? Glad you asked. Pai's op-ed argues, "Let's go back to the free market. Let's allow contract law - not copyright or criminal law - to govern the relationship between consumers and wireless carriers." It's interesting given that this blog has spent the last couple of weeks discussing the need for government intervention due to boilerplate - and yet, here's an example of government intervention into boilerplate that is not actually helpful to consumers. Don't get me wrong - I'm not saying government intervention into boilerplate isn't a good thing sometimes (depends on what it is and how and why) - I just find it interesting that this example of government intervention is on an issue that protects businesses and hurts consumers. Of course it shouldn't be surprising since lobbyists for carriers are way better organized and have more money and influence than consumer advocacy groups. And that gets to the heart of what's the matter with using contracts as the solution since the same dynamic is at play in the world of private ordering (see symposium on Boilerplate and the book itself, for more details). Who knows what carriers might come up with in their contracts. Would they try to "license" instead of sell their phones? In a perfect world, the free market might function, well, perfectly and private ordering would be the order of the day. But we don't live in that world so an absolutist "no government intervention v. more government intervention" position doesn't work.