https://www.eff.org/press/releases/eff-seeks-widen-exemptions-won-last-dmca-rulemaking
In the exemption requests filed today, EFF asked the Copyright Office to protect the "jailbreaking" of smartphones, electronic tablets, and video game consoles
If you missed any of the many threads dealing with the hacking of the PS3, you probably have no clue to the Mama Robotnik reference. Suffice it to say, MR was basically vilified by a large number of people for donating money to support the right to jailbreak devices you own. Robotnik, as well as myself and many others, saw massive parallels between the smartphone exemption and videogame consoles. Others concluded, despite videogames never being asked for originally, that if no exemption was granted, then they are apples and oranges. Yesterday, the EFF agreed with those taking that stance and filed to have videogame consoles included in the exemption.
The good stuff (consoles) starts on page 19 of the request:
https://www.eff.org/sites/default/files/filenode/2012_dmca_exemption_requests_no_appendix.pdf
Anything bolded will be my emphasis for clarity.
III. Proposed Class #2: Circumvention Necessary for Jailbreaking Video Game
Consoles
Proposed class: Computer programs that enable video game consoles to execute lawfully
obtained software applications, where circumvention is undertaken for the sole purpose of
enabling interoperability of such applications with computer programs on the gaming
console.
However, their efforts to gain control over the device have occurred under the threat of litigation by console manufacturers, including claims under § 1201.
EFF sees the parallels:
In the 2009 rulemaking, the Copyright Office recognized that allowing users to decrypt and modify a devices firmware to enable the device to interoperate with lawfully obtained applications fosters fair use, competition and innovation. The same rationale applies to video game console jailbreaking for similar purposes of interoperability.
The technological restrictions on video game console jailbreaking do not protect the value or integrity of the copyrighted work; rather, they reflect a business decision to restrict the applications that users can run on the device.
Why it can hurt independent game development:
However, even if an independent game developer had the financial resources to pay for the official development kit, console manufacturers often refuse to license the software if the developer is not an established game company
Approval is also contingent on developers sharing a portion of the applications profits with the console manufacturer
The real purpose of restricting user's rights (hint: same as smartphones)
Console manufacturers have employed technological restrictions for the sole purpose of protecting a business model, leaving users unable to install applications and operating systems of their own choosing.
It appears that the process of console jailbreaking depends on defeating restrictions that at least one console manufacturer has argued are protected by § 1201(a)(1)s circumvention ban, thereby putting consumers who jailbreak their own consoles at risk of legal liability
Sony has maintained that this decryption and modification constitutes circumvention in violation of § 1201(a)(1), even if undertaken by console owners solely for the purpose of running legitimately obtained applications from independent sources.
Sonys known desire to litigate highlights the very real need for the proposed exemption to be granted in order to ensure that non-infringing, beneficial activities such as scientific research and creative software development continue to flourish on video game consoles.
Console manufacturers maintain that technical restrictions are necessary to limit the piracy of game content. However, the process of jailbreaking a console does not itself allow the console to play illegitimate copies of games.
This parallel argument smackdown delivered by the EFF and sponsored by Mama Robotnik and Co.:
In the previous rulemaking, the Register correctly determined that jailbreaking a smartphone for purposes of making operating systems interoperable with independently created applications is a non-infringing fair use. Conducting a similar analysis shows that the circumvention of DRM on video game consoles for the purpose of running independently created software is also a noninfringing fair use.
That conclusion applies equally well whether the device in question is a video game console or a smartphone and the fair use analysis for Proposed Class #2 is virtually identical to the fair use analysis for Proposed Class #1, above
As such, console jailbreaking, like smartphone jailbreaking, fits comfortably within
the transformative purposes found to be fair in the leading Ninth Circuit cases on fair use
I actually debated some using the
Sega case. Apparently the EFF also agrees here as well:
Congress has in fact recognized Segas finding of transformative quality of interoperability. When enacting the DMCA, Congress created § 1201(f) to explicitly protect reverse engineering and interoperability, and to ensure that the effect of [Sega] is not changed by the enactment of [the DMCA]. S. Rep. No. 105-190, at 32.
In the 2009 rulemaking proceeding, the Register noted the minimal
importance of the third factor, stating that In a case where the alleged infringement consists of the making of an unauthorized derivative work, and the only modifications are as de minimis as they are here, the fact that iPhone users are using almost the entire iPhone firmware for the purpose for which it was provided to them by Apple undermines the significance of this factor.210 Similarly, video game console jailbreaks feature only de minimis modifications
Opponents of an exemption for Proposed Class #2 may complain that jailbreaking video game consoles could create security or other risks that might affect the operation of the device. But the Register concluded in her previous recommendation that the fourth factor was not designed to protect manufacturers of smartphones from potential incidental damage
As with smartphones and tablets, console firmware protections have not been put into place by manufacturers seeking to protect the copyrighted console firmware. Rather, they exist to preserve various aspects of the manufacturers business interestsinterests that the Register have already determined to be unrelated to the purpose of this proceeding. See Section II.E.5 above for full analysis.
The proposal for the extension on smartphones, as well as the addition of tablets and videogame consoles will be heard in the spring of 2012. The decision should be handed out in October of 2012. Anyone accepting the right to jailbreak phones must also see how there is no difference between the phone exemption and the proposed videogame console exemption. Those claiming the phone exemption was for "unlocking" to move between carriers are either being willfully dishonest (that was a completely separate exemption existing years before the jailbreaking of phones exemption), or simply unaware of the facts.
Hail the EFF! Strike the trumpets for Mama Robotnik. Vindication shan't be denied!
