Should jailbreaking gaming consoles, mobile phones and tablets be legalized?

consoles and phoneYesterday US copyright regulators opened up the floodgates for a public hearing (PDF) of proposals to change copyright law, including authorizing the cracking of tablets, DVDs, gaming consoles and mobile phones.

Every three years, the US Copyright Office mulls over requests to create temporary loopholes in the law that forbids circumventing encryption in the things we buy.

Changes to those loopholes have the potential to mean a lot to George Hotz.

Hotz is a hardware hacker known online as Geohot who owns a box full of Sony products. Per court order, they’ve been tucked away where he can’t tinker with them.

As Wired’s David Kravets writes, Sony last year dropped a PlayStation 3 jailbreaking lawsuit against Hotz in return for his promise to never again hack his game console or any other Sony product.

He told Wired that he hasn’t touched the components since the settlement.

Before the settlement of the civil suit, he was busy figuring out how to play homemade games on the Sony console, in violation of a law that forbids cracking encryption in hardware or software, even for legal purposes.

This will be the fifth time the office has heard requests to modify the law—the Digital Millennium Copyright Act (PDF)—since it was passed in 1998.

The DMCA criminalizes both the technology and the act of circumvention, regardless of whether doing so actually infringes on a copyright.
fish jailbreaking

Hotz is far from the only individual intent on the amendment hearings.

Proposed exemptions, previously granted but now expiring, include one for jailbreaking smartphones to run on a consumer’s choice of carriers, one that would allow DVD cracking of motion pictures for the purpose of educational or documentary commentary, and another that would allow consumers to hack e-books digital rights management to enable read-aloud features for the visually impaired.

Public Knowledge, a public interest group involved in intellectual property law, is also seeking the legalization of technology that lets users crack encryptions on movies and TV shows they own on DVD.

That would allow consumers to watch legally purchased movies on whatever device they want and to make backups of sticky/scratched-up/chewed-on/quickly brutalized children’s movies.

It just makes sense, given how comfortable we’ve gotten with copying copyrighted works we own from one medium to another, as is the case with CDs, writes Public Knowledge’s Michael Weinberg.

This is sometimes called 'space shifting' or 'format shifting.' For example, this is what you do when you rip a CD in order to create .mp3 files to transfer to your iPod.

Another example of this is when you transfer a movie from a DVD onto a laptop or a tablet device, like an iPad. However, there is one important difference between a movie on DVD and a song on a CD: unlike the CD, DVDs are encrypted. That means that while copying a song from a CD is a one step process (copy the file), copying a movie from a DVD is a two-step process (decrypt the file, copy the file).

Users are authorized to decrypt the movie in order to watch it, but are not authorized to decrypt the movie in order to copy it. As a result, that extra DVD step (decrypting) is illegal under the DMCA. That makes it impossible to copy DVDs the same way you copy CDs.

The proponents and foes of proposed DMCA changes are lining up predictably: industry groups are against, consumer rights and knowledge freedom proponents are for.

Industry groups argue against the changes on the grounds that their business models will be ruined, that all hell will break lose vis-a-vis cyberattacks on cell phone networks, and that illegal game copies will flower like dandelions.

Here’s how Sony attorney Jeffrey Cunard put it (PDF) in his comments to the Copyright Office:

If the exemption is granted, it is virtually certain that successful hackers, under the guise of the exemption, will create the tools that enable even novice users to make, distribute, download and play back illegal copies of games.

But as Wired’s Kravets points out, the 2010 court decision to allow mobile phone users to jailbreak smartphones most certainly didn’t squash Apple’s profits, in spite of what the company predicted.

Rather, it fostered a “vibrant alternative to the tightly constrained and capriciously run Apple App Store,” Kravets said.

He was referring to Cydia, a third-party app store for jailbroken iPhones, iPod Touches or iPads that recorded 4.5 million weekly users as of April 2011.

Cyberattacks didn’t run wild. Apple didn’t go broke.

If the new changes get accepted, will Call of Duty b**tard spawn careen across the PlayStations of a copyright wasteland?

Time will tell.

Stay tuned: Another hearing’s taking place in Washington, DC, next month, with final amendments likely due to be adopted by year’s end.

What do you think?

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