Hacker News Reader

Comment by pg | Hacker News Reader

Does it strike anyone as odd the the Librarian of Congress is deciding critical technology policy? How did that happen? Is this just a random anomaly, or a sign of some sort of sneakiness?

View on HN

I found out the answer to this just yesterday in a different context. Here's how it was explained to me:

When those who opposed the impending passage of the DMCA realized they couldn't defeat it, they (mainly EFF at that point) decided to salvage what they could, which is to stick in a clause to allow the Librarian to decide exemptions. The *AA didn't try to shut that clause down because they thought it was basically a joke and would never amount to anything. But in reality the Librarian has indeed exercised some power, so it's considered a minor win for consumer advocates.

Until you realize that the LoC is basically deciding these things by executive fiat. Seriously, what has changed in the last few years that suddenly makes phone unlocking a threat to digital security when before it was just fine?

Nothing has changed except who's getting the money.

You are not looking at it in the same way the LoC is; instead, the question they pose is "has the situation changed sufficiently to no longer warrant maintaining an explicit exemption of a law--one that was instated by Congress and which we thereby must upheld and abide--for what we agreed six years ago was a dire and necessary reason?", and they felt the answer was "yes, while when we first put this exemption in place six years ago it was nearly impossible to purchase unlocked phones, it is now the case that numerous handset lines either come unlocked by default or have an option to purchase them unlocked, carriers have better policies with regards to unlocking them, and generally this is just no longer considered as much of a serious problem by users; we thereby no longer see the extreme necessity required in maintaining this explicit exemption: removing it will not cause the original problem to reappear".

What strikes me as more odd is how backward some of our laws are. Looking at the comments on that page I was amazed to read this one:

> "lol.. In Australia it's illegal to sell them locked (if they're factory locked then consumers only have to ask the carriers and they will unlock it on the spot free of charge)"

And this one...

> "...where I live they finally allowed us to unlock ours cellphones [...] it was fun seeing thousands of people trying to finally leave their company they hated to much (some cellphones carriers here are horrible). It has such a happy day lol. Now carriers have to try harder to get people to chose their company, because they can leave at any time, yaay! It's definitely a better system."

Ironic how Capitalism seems to function much better in other countries, even though the U.S. made Capitalism what it is today.

That's because too many in the US believe that free markets are defined by the lack of regulation rather than by the quality of regulation.

This is a regulation, though. A regulation on consumers. Anything that restricts freedom and choice is a regulation.

"Anything that restricts freedom and choice is a regulation"

A meaningless statement. Industry collusion (legal under free marketeerism), for example, is not a regulation.

But not a quality regulation.

>> "Ironic how Capitalism seems to function much better in other countries, even though the U.S. made Capitalism what it is today."

Plus 1000. In waaay to many cases, the government merely helps corporations deliver less value while extorting more money out of us for that lower value.

Consider cable monopolies, internet service monopolies, and many other examples.

In Capitalism, a business's proceeds should be based on its ability to deliver more value than other competitors ... not on its ability to get the government to help it strong-arm money out of people's pockets.

What's ironic is the companies and individuals that hide behind the excuse of capitalism for most of their ethically questionable activities are the same people who actively lobby to destroy free markets thus further leveraging their control over consumers.

Sometimes I wonder if Americans really live in a democratic and capitalist society, because sometimes it feels more like a dictatorship ran by the "megacorps" who crush any competition they can through excessive lobbying and abusing the various intellectual property mechanisms.

What's even more ironic is the "evil" communist nation of China has more of a free market due to their blatant disregard of intellectual property. Anyone can make any bit of hardware they want, sell it anywhere they want and shop keepers can charge whatever price they want.

I'm not saying that China's lack of control is is a good thing necessarily, China are too far in the opposite direction in my opinion. But I just love the perverse logic that the "land of the free" and the pioneers of capitalism is one of the most controlled and anti-consumer markets in the world.

The world is truly topsy-turvy.

The Australia remark is utter bullshit. From Wikipedia:

> In Australia, carriers can choose whether to SIM/Network Lock handsets or not and usually tend to only SIM/Network lock prepaid handsets. There does not appear to be any regulation or law on SIM locking in Australia.

Most phones can be unlocked for free by the carrier after a few years, but if you want it unlocked upfront (usually before passing n years or sometimes $k of credit in the case of prepaid phones), you'll have to pay the carrier.

Actually, you're incorrect, at least Optus[0]. All android handsets on contract are unlocked out of the box, and all iPhones are unlocked free of charge any time in the contract.

[0] I used to work for them up until this year

The Copyright Office (which also handles copyright registration) is part of the Library of Congress. Historically it made sense. http://www.copyright.gov/title17/92chap7.html

It's because of the way the DMCA is written; there's a vast scope for actions that are by default illegal and need 'exceptions'.

The LOC defining those exceptions instead of some agency setting administrative rules (which is normal procedure for things like this that are too specific and move too fast for congress) is just an artifact of the US gov't not having a clear agency to deal with tech issues like this.

I don't think it is so much a matter of the Librarian being given authority to decide as it is a matter of his office being responsible for interpreting the law as it is written. The Librarian has a ministerial role, not executive authority.

Partially, this situation may be attributed to the way in which the law has been written. Many laws charge agencies with rule making authority and this necessitates public input. If Congress does not delegate rule making to an agency, then interpretation is the only option.

(Edit)

The relevant section is Title IV clause 5.

http://en.wikisource.org/wiki/Digital_Millennium_Copyright_A...

Does it strike me as odd that our federal government continues to limit the autonomy and freedom of Americans right down to what we can do with our phones? No. Does is strike me as wrong? Absolutely.

I'm pretty sure the Register of Copyrights (http://en.wikipedia.org/wiki/Register_of_Copyrights) actually makes the decision / recommendation, and the Librarian of Congress just announces / rubber stamps it. Of course, the question still remains why this person is setting critical technology policy.

These days, wouldn't this be more the domain of the "copyright czar" (http://www.whitehouse.gov/omb/intellectualproperty), Victoria Espinel?

Something similar happens every time a patent is granted: One patent examiner makes industrial policy that is very difficult to overturn.

It could be worse. Here in Mexico, the goverment signed ACTA without the congress approval.

Reply on news.ycombinator.com