Aurich Lawson
Just over two years ago, the US Copyright Office rejected a proposal to make it legal to jailbreak video game consoles to use legally obtained homebrew software. Today, hacking advocates and industry members are once again battling over the same proposed exception to the Digital Millennium Copyright Act as part of the copyright office’s regular review of “Section 1201 waivers.”
Proponents of the exemption argue that console owners should have more control over what software they can use on hardware they legally own. “Just as jailbreaking a phone — a practice recognized as valid by the Copyright Office — expands the functionality of the device, jailbreaking a console opens up a whole new world of possibilities for owners,” writes iFixit in a short support note. of the effort to legalize console jailbreaking. . “Consoles don’t have to be just a gaming platform. They contain a powerful computer, which can be easily and cheaply reused as a home media device or general computing device. But to use the console again, the system must be jailbroken.”
iFixit cites a few examples of legitimate uses for jailbroken consoles, from educators using consoles as low-cost TV-based classroom PCs to Air Force researchers using 1,700 looped-through PS3s as low-cost supercomputers. An exemption can also allow for more basic personal use, such as converting an Xbox into a home media center long after its use as a gaming console has ended.
The fact that jailbroken consoles can run pirated copies of copyrighted games shouldn’t affect whether this legitimate use for jailbreaking is legal, argues iFixit. Yes, jailbroken consoles can also be used to pirate games. But piracy is already a crime – whether or not the pirate defeats a technological security measure over firmware. And pirates will continue to pirate games – whether it is legal to own a “. to jailbreak console or not.”
iFixit is joined in its arguments by the Free Software Foundation, which argues that installing GNU/Linux on a console “should not be accompanied by the threat of legal action” if it does not infringe anyone’s copyrights. The effort also has the support of more than 1,600 public commenters who have submitted largely identical form letters through the Digital Right to Repair website. “Jailbreaking my game console should not be a crime,” reads the form letter. “Copyright should be used to prevent piracy, not limit consumer freedom. I jailbreak my gaming console to run software that is important to me. The hardware in gaming consoles can last a long time; jailbreaking empowers consumers like me able to reuse devices and use them longer and more effectively than the manufacturer ever intended.”
Industry says: Jailbreaking leads to piracy
On the other side of the debate before the Copyright Office are three entertainment industry heavyweights: the Entertainment Software Association (ESA), the Recording Industry Association of America (RIAA), and the Motion Picture Association of America (MPAA). These groups argue that jailbreaking a console necessarily means eliminating built-in access controls, increasing piracy and reducing incentives for publishers to create new copyrighted works for the systems.
Accessing and distributing illegal content is “a major reason users hack into their video game consoles,” the industry groups write, citing numerous ads and online discussions that want to jailbreak consoles specifically for this purpose. “There is abundant evidence that the main reason many users try to hack into video game consoles is not to create new and different works, but to avoid paying the usual costs of existing works or devices – which courts have recognized as commercial use… Without these access controls, copyright owners would be rightly concerned that their content could be easily violated, and the incentive to make such content available through the video game consoles would be greatly diminished.”
Further, the industry groups argue that the legitimate use cases for jailbroken consoles are not compelling enough to warrant a fair use exemption. Being able to use consoles as cheap computers is not a sufficient argument for an exception in a world where Moore’s Law is rapidly reducing the cost of computer hardware. Similarly, the groups argue, there are thousands of other devices that can already run Linux as an alternative operating system, and the mere inconvenience of not being able to run the operating system of their choice is not a significant burden for console owners.
Here we go again
The current arguments on both sides of the issue are very similar to those presented during the Copyright Office’s 2012 regulatory cycle. However, the parties on each side are a little different this time around; the EFF and Sony both submitted a letter in 2012, but have yet to participate directly in the discussion, for example.
In 2012, the Copyright Office squarely opposed the idea of legalizing console jailbreaking. Being able to play home-built games and software is not enough “transformative use” for a console to warrant an exemption, the US Register of Copyrights ruled. In addition, the Registry agreed with industry arguments that an exemption could have the substantial “real-world impact” of “reducing the value of, and affecting the market for, the affected code, because the compromised code no longer serves as a secure platform for the development and distribution of legitimate content.”
Jailbreaking a console is different from the now-legal process of jailbreaking a phone because, as the Registry puts it, making a console game is “a long and arduous process” compared to “the relative ease and low price of creating a smartphone application.” But even if that were not the case, “the evidence fails[s] in support of a finding that the inability to evade access controls on video game consoles has, or is likely to have, a significant negative impact over the course of the next three years on the ability to make non-infringing uses,” the Registry found. for that finding: only a few thousand people used the PS3’s “OtherOS” Linux install feature before Sony removed the capability in early 2010.
Is there reason to assume that the Copyright Office will come to a different conclusion now than in 2012? We struggle to think of any major events or legal theories in the past three years that might point to such a turnaround. Yet there is always a chance that the mere passage of time and additional consideration of the arguments will lead to a new result.
The Copyright Office will accept written submissions through May 1, and public hearings on the waivers will take place May 19 through May 21 in Washington, DC and Los Angeles.