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New Copyright Rules Could Legalize Console Mods

by Adam Pavlacka on July 26, 2010 @ 3:22 p.m. PDT

Monday morning the copyright office at the Library of Congress published a set of six exemptions to existing federal law which prohibits the circumvention of copyright measures. Under the rules, activity which falls under the exemptions is explicitly legal and cannot subject the user to liability under the D.M.C.A. or other laws.

Monday morning the copyright office at the Library of Congress published a set of six exemptions to existing federal law which prohibits the circumvention of copyright measures. Under the rules, activity which falls under the exemptions is explicitly legal and cannot subject the user to liability under the D.M.C.A. or other laws. While most of the exemptions were standard fare, one in particular has garnered headlines across the web – the rule that allows "jailbreaking" or "rooting" of mobile phones.

The specific exemption includes: Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

Smartphones like Apple's iPhone or the many devices running Google's Android OS can only run manufacturer approved apps by default. If you want to install a program that didn't come with the device, you have to get it from the appropriate "App Store" on your smartphone. This puts a good deal of control in the hands of the companies that control the respective stores.

Apple, for example, has to approve every app that is available for the iPhone. If it doesn't like the app, it is not available for purchase in the iPhone App Store. There have been a number of reports of Apple preventing software from appearing in the store (the most well known incident is probably Apple's denial of the Google Voice app which led to a FCC inquiry), but also pulling software after it had already been approved. A recent example of this is this month's removal of iChatr from the App Store eight days after it was first made available.

With store owners acting as gatekeepers, the only solution available to users who wanted to run unapproved apps onto their devices has been to hack them. By default, the smartphones won't allow unapproved software to run, so hacking meant circumventing a digital protection system. And it is that circumvention that the law previously disallowed.

What makes this particular ruling so interesting however, is the reasoning used by the Register of Copyrights to justify the exemption to the Librarian:

On balance, the Register concludes that when one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses. Case law and Congressional enactments reflect a judgment that interoperability is favored. The Register also finds that designating a class of works that would permit jailbreaking for purposes of interoperability will not adversely affect the market for or value of the copyrighted works to the copyright owner.

Another key point in the argument was the Register's inability to determine if end users "owned" the specific copy of the system firmware in their device or merely "licensed" it. The Register also highlighted the fact that current case law is unclear on this matter. It is a point that first sale advocates have long held.The full text of the argument has been posted as a PDF by the Electronic Frontier Foundation, which argued for the exemption.

Now, what does all this have to do with video game consoles? Replace the words "telephone handset" with "video game console" and the implications become clear. Although the exemption in question does not apply to video game consoles, both the description of the App Store ecosystem and the reasoning used to justify running unapproved software should be familiar to console owners. With the iPhone's recent push into the gaming market and its positioning of the iPhone as a competitor to the Sony PSP and Nintendo DS, one could plausibly argue that the iPhone itself is a portable video game system.

The devices share similarities beyond just playing games. All three are portable. All three have some sort of wireless connectivity. The standard Nintendo DS offers in-game voice chat. With the exception of the original model of the Sony PSP, all PSP owners can make phone calls on their devices via Skype. Both the Nintendo DSi and the Sony PSP have their own versions of an App Store.

Most importantly, running unapproved software, or homebrew, on either the Nintendo DS or the Sony PSP requires the user to circumvent a digital protection system. While the methods for doing so are not identical to the methods used on the iPhone, they are conceptually similar, with the ultimate goal being the ability to execute unprivileged code that would otherwise be prevented from running by the system. Similar hacks also apply to the Nintendo Wii and older Xbox 360 systems with the JTAG vulnerability.

While the exemption has no immediate impact on video game consoles, it does set an important precedent with the reasoning used to justify the exemption. It also shows that the Federal copyright office formally recognizes the fact that running custom software is something that consumers not only want to do, but something that they feel they should be able to do with devices they own. It is one small step, but it could lay the groundwork for eventually legalizing console modding under the same rationale. Little decisions can have big impacts.
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