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

Filed Under: Apple, Law & order

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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Devices image courtesy of shutterstock

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

  1. John · 1238 days ago

    It's illegal?

  2. Jon Fukumoto · 1238 days ago

    I'm going to stay neutral on this subject with one exception: jailbreaking of iOS devices (iPhone, iPod Touch, iPad) can have serious consequences. Jailbreaking disables all security features and leaves it vulnerable to malware. I wouldn't be surprised if malware code gets injected into jailbreaking tools to infect jailbroken devices. Apple Inc. pointed out that jailbreaking any iOS device will VOID THE WARRANTY, as this is considered tampering. I would rather run software approved by Apple and avoid running software from questionable sources. Cyber criminals will take note of this and will write malware for jailbroken devices. You've been warned.

    • corrector · 1232 days ago

      Thank you for your stupid, useless apology of slavery. Now please disclose the fact you work for Apple and that you believe we are all morons.

      Of course jailbreaking does not disable all security. On the contrary, it makes it possible to secure the device, something that cannot be done without control.

  3. DoughnutUK · 1238 days ago

    Jusat try and stop me doing exactly what I want with my property. As long as it doesn't break any form of copyright, I will alter it as I see fit.

  4. Paul · 1238 days ago

    I remember in the 70's every LP sleeve had a printed warning that home taping music would "kill the music industry".
    Forty years later and the music industry still seems to be around.

    I will quite happily buy music from Itunes, now it is sensibly priced and I can play it on all my devices.

    This DVD issue just seems to be a rerun of what happened with music.


  5. Dan · 1238 days ago

    Should jailbreaking devices be legalized? Yes, and permanently! If you buy a piece of hardware, you should be able to do whatever you please with it. After all, you own it!

    Sony's attorney wants to assume that people will pirate software if jailbreaking is legalized, but the truth is that they will do it whether it is legalized or not. If people are willing to pirate software aren't they already breaking the law?

  6. billbobiguns · 1238 days ago

    This should be common sense... Once you purchase the device, it is your property. If you would like more functionality from your device and have the ability or know someone who does, then you should be able to alter your property in any way you choose. Likewise, the provider of the product would have recourse in the form of the voiding of warranty of their products once altered. It seems a simple solution to me...

  7. PinkiePie · 1238 days ago

    Yeah, I think jailbreaking devices should be legal. Having a phone locked to one network annoys me no end.

  8. pragmatist · 1238 days ago

    How about jailbreaking a DVD so I can actually watch it. THe constant upgrading of the encryption makes my legal player obsolete because it cannot play the DVD, or when it does, the playback is worse than a bad VHS.

    I understand the vendor wanting to protect their sales stream. But I should be able to play it on older as well as newer playback devices. (Or they should refund my money)

  9. Neil King · 1238 days ago

    It's bad enough with Apple allowing any App Developer to hoover up all your personal information and contacts, it's even worse now that Apple archives all your iMessages indefinitely and unencrypted

    To have any semblance of security (and therefore privacy), you MUST jailbreak your iPhone or iPad. Otherwise you're just waiting for your device to be hijacked the first time it visits a specific website, has its radios left on in public, or is physically left unattended for 30 seconds

    If Jailbreaking is to be outlawed, then Congress MUST force Apple to guarantee the users' security and privacy -- over and above whatever standard isn't being enforced now

  10. Randy · 1238 days ago

    When I purchase a DVD or CD I am actually purchasing the rights to listen to that music or watch that movie for life. It should not be limited to the lifespan of the delivery media (plastic disks). I should be allowed to make backups of the content to safeguard my investment in the programming.

    I should also be allowed to jailbreak cell phones and use any carrier I want. When GM sells me a car they don't dictate what brand of gas I put in the tank or what roads I'm allowed to drive on, why should Apple or anybody else dictate who I get my wireless service from?

    • Chester Wisniewski · 1237 days ago

      Interesting that you use the automobile industry in your example. It is another industry where the item you buy cannot be altered in certain ways, by law.

      You cannot turn back the odometer without breaching US Federal law, you also are restricted from modifying the emission controls and some ECM limitations.

      So it isn't entirely without precedent to be limited in the way you are allowed to use something you own.

      On that note, I disagree with all of that non-sense :) It's my PS3/iPod/Cadillac and I will do as I please with it.

      • Jam-Jul Lison · 1235 days ago

        That is different. Your not allowed to do so because it shows how many miles your car has. It allows others who might wish to buy the car to see how much it has been used and how much wear and tare it has. That sucks there are plenty of crooked used car dealers who unfortunately do just that.

    • corrector · 1232 days ago

      It should not be limited to the lifespan of the delivery media (plastic disks).

      Indeed, if a DVD has a scratch, do the big mafiamedia companies propose me to exchange it for the cost of the media?

      No, they expect me to repay the normal thing, as if I didn't had it in the first place.

      They cannot have it both ways: if broken disks are not replaced at nominal cost (with an unlimited time guaranty), then they have to allow backup copies.

      BTW, French law has allowed to make one backup copy of copyrighted software (even if software producer tells you not to make copies) for a long as I can remember.

  11. What other industry is granted license to prevent people using their own property for the sake of protecting their business model? I thought these people believed in the free market, but suddenly when the market no longer needs their behemothic structures to act as middle-men, the old way of doing things is to be imposed on it anyway. It is not (supposed to be) the job of legislation to revoke consumer rights in order to protect private profit. If these companies cannot adapt to the changing market, that's their problem.

    Recently I ran into the obstacles these companies put in the way of honest consumers who actually pay for their products. Our TV had broke, and we wanted to watch some DVDs in the meantime while waiting for it to be repaired. Unfortunately the DVD drive in our computer had some weird glitch that caused the sound to continually stutter on any disc we put in, but I thought of a solution: rip the discs and run them from the hard drive. It would have worked, except the discs were encrypted, so if I wanted to view what I had paid for, I was going to have to be willing to break the law. When consumers are put in that position, it doesn't take long before they figure they might as well just download stuff and not deal with the hassle, never mind the expense.

    This is where media companies continue to fail to grasp the core problem - they cannot compete with free as in beer, but refuse to even try to compete with free as in speech. They instead see the consumer as an enemy and the law as a bludgeon to keep squeezing profits out of people rather than earn them by giving people a reason to keep coming back beyond "otherwise we'll sue you".

  12. Nancy · 1238 days ago

    If I pay for something, it's mine and I should be allowed to do whatever I want to with it.

  13. Fit4purpose · 1237 days ago

    Just wondering...if Sony had spent on security 50% of the largesse they distributed to the lawyers who tried to prosecute George Hotz for tinkering with a computer they had sold him outright...I wonder whether they'd have had as many data breaches last year?

    You think that hardware makers would be proud that their devices were popular enough that people wanted to do more with them, even at the cost of their own time. Hiding behind "but it makes piracy easier" is a copout. Even "voiding your warranty" shouldn't be an automatic consequence of jailbreaking - the hardware shouldn't be so brittle that a dodgy piece of software can break it for ever.

    Anyway, it shouldn't be called "jailbreaking". It should be called "winning freedom by having an unsafe conviction overturned".

    • Greg · 1235 days ago

      I agree with you that jailbreaking should be allowed, I myself have a phone that have manditory applications hat I never use but won't let me uninstall unless I jailbreak it.

      I dissagree however about that voiding your warranty shouldn't be an automatic consequence. While I support jailbreaking, it does allow you to modify such things as cpu core clocks etc. these can cause overheating and legitimatly damage hardware just through the operating system. It doesn't matter how strong your software is, things like over-clocking (or having a virus that is allowed to run before os starts for recovery) can damage and render useless even the strongest of hardware.

  14. spryte · 1237 days ago

    Considering "I" BOUGHT my "device(s)". (full scale computers included too!!), if I do not particularly like the way they operate, I'll make them work the way I want (just the way I do with my car, stove fridge, tv...).

    Just because I may not agree with a few lines of the 60 PLUS pages of your legalese Terms of Use (which happens to be SEALED INSIDE the packaging of the device so I can't actually read it BEFORE I buy it), does make me guilty of anything should I decide to change the manner in which it does things.

    If you "Sell" me this item, it is now mine and I'll do whatever with it to make it run in the manner I see fit.

    Now if that is a problem for you as the seller, then perhaps YOU should just BE HONEST and say you won't SELL it but you'll "rent" or "lease" or provide it to me as a "Service or Subscription".

    But of course then you'd risk the loss of a '$ale"... because (you know) I'd never rent/lease under those conditions.

    I would be more than willing to discuss this in front of a judge, and abide by his/her decision.

    Just because you hide your true intentions, and have a huge legal department to harass legitimate consumers, does not mean you are right.
    Believe it or not, just because I enjoy the technology you provide and the few benefits it brings, does not mean I can't live without it.


  15. Davy · 1237 days ago

    Whatever happened to the old fashioned; if you buy it, its yours to do whateveryou want with it. These crooked business men have bought the politicians that are supposed to act for us. As many have said: it is easy to help the big boys against the little boys (us); it is difficult to help the little boys against the big boys. I understand in Iran ( the epitome of democracy) you can buy MS software and you get a disc in your hand whereas in the west you get nothing. Mind you beware American/ Israeli nukes.

  16. Robert Gracie · 1237 days ago

    it should be because it would give hackers the chance to explore what the games consoles can really do

  17. Nigel · 1237 days ago

    "Knowledge freedom" is a buzzword phrase I haven't seen before. It strikes me as one of those interesting metaphors that muddies the issue it addresses sufficiently to rationalize or justify scumbaggery...sort of like the way the Chinese "liberated" Tibet.

    I suppose it's intended to imply some sort of moral prerogative, but it's hardly that if it's used as a justification for theft of others' ideas and work --- a mode of behavior I have too often witnessed in some who sanctimoniously advocate the "free flow of information".

    Creativity is the source of progress, and its source is individuals. You can't socialize it "for the common good" under force of political law without killing it. If "free" (as in beer) is supposed to apply to people who create ideas and other intangibles for a living, it's back to the caves for this cheap, ungrateful, sorry species.

  18. Sum Guy · 1237 days ago

    As sated in article, but a very poor argument.
    "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."

    They have been doing it for years, nothing new. Legit new games are now being released as one time use. The hacked games cant be played online, and most have random crashes. Most users who play hacked games have constant issues with their systems, due to viruses from fakes. This is an awful lot of work to stop the 1% or less of the entire public who actually is doing illegal stuff. Most of us learn that it is easier and cheaper in the long run to just buy it. I never thought it was illegal to crack my phone. I just love to tinker.

    • Greg · 1235 days ago

      The problem with that arguement arises when publishers put so many hurdles in front of those trying to play the game that pirated becomes both easier and more reliable. See for example the recent issues with Diablo 3 and the 'always online DRM' which means you must CONSTANTLY be connected to Blizzards servers to play the game, even in single player, the issue with this is that when Blizzard does turn off their servers for the game, no-one will ever again be able to play it (not to mention the launch issue of people not being able to play for hours as the servers were overloaded). It comes to a point where DRM makes the ligitimate use harder than any illegal use.

      Note: I don't support illegal copies of games, just that publishers need to relize that their attempt to stanp it out may be pushing more people in that direction, if a game easy to buy and use legally, most people won't bother with the mixed bag that is pirated.

  19. Jack · 1237 days ago

    It used to be, when law was "common law" that you could generally say "you should know". However with the change in law and the technical knowledge required to change, modify or use a device make this not so clear. I feel that if I purchase a phone, I should be able to use it with any carrier. Also just learning sake, it's nice to look at some types of software to see how to use it properly or give an idea of how it technically works. I paid for a movie, that does not give the owner of the movie the ability to tell me what I watch it on! For the sake of the public and for a growing environment of technology and at a lower cost these items need to be 'unlocked' as to use and application. The predictions made about the overrun of stolen games and movies has show not to occur along with the iPhone being open to anyone's carrier. I and many others just don't buy it. Please allow 'breaking', 'cracking', 'jail breaking' or whatever the terms to be legal and supported.

  20. JustMe · 1236 days ago

    In 2010 the Library of Congress, which oversees the Copyright Office, made the decision to allow "jailbreaking" , an exemption from the 1998 federal law.

  21. Dan · 1235 days ago

    I think we're going about this in the complete wrong way - it doesn't need to be the same polarized DRM argument that has been going on for years. Simply put, it is totally unfair and, in my opinion an unethical rights violation, to force consumers into a particular operating system for their hardware when the manufacturer must purchase licensing from the software manufacturer. It's the equivalent of buying a PC with Windows installed and then being told it's illegal to run anything but Windows. I'm a prime example here - I'm completely fed up with Google's lack support for the end user; patching and updates are not evenly distributed and calling the company for support is a joke (they push the blame and do nothing). As a consumer I purchased a piece of hardware and it came preloaded with another company's OS and license for that OS - I should have the freedom to choose which OS I will run on my hardware, same as I do with my computer. If Google is not offering me the support it should, I should have the right to go elsewhere (such as the Mobile OS Ubuntu has developed that I cannot get due to the laws).

    • Dan · 1235 days ago

      Here's the alternative: legislative action that protects the rights of consumers AND the intellectual property of individuals and companies. There is no reason why my right to choose an operating system needs to be reliant on the right to decode DVDs for duplication purposes. If you're copying media then this encryption cracking is illegal - and should be. It comes down to the rights of the person who created it; it is there intellectual property to sell. But I purchased my hardware and the OEM licensed OS that came with it. I should be free to use whatever OS I want. If the issue comes down to breaking the encryption that prevents reloading of another OS, then laws need to be passed which prohibit this type of encryption from preventing user's right to choose.

  22. Jam-Jul Lison · 1235 days ago

    Things won't go any more rampant then they already are. People can already get past the decryption of dvds wth ease. People already are able to rip games, convert them to ISOs and play them back on emulators on their computers. Many already have ways to play burnt ps1 and ps3 games on their ps3's. Those with the backwards capability already have ways to do the same with ps2 games. Yet it hasn't effected sales. Most people who can afford to buy a game will buy it or at least rent it first if possible. It is those who can't afford it then tend to resort to such things. As for movies. Same thing. If someone knows a movie is good, they will buy it if they can afford it. If they don't have a lot of money they can afford to throw around, they will either rent it or download it first to see if it is any good. If it is, then later go back and buy it. Allowing the cracking of dvds isn't going to increase "piracy". I can't honestly see it having an effect on it one way or the other. The exception maybe being someone downloading a movie they already have but can't watch because of a damaged disc. Hell i recently had to download a copy of the game Zoo Tycoon Complete Collection because my DVD/CD drive is giving me problems loading disc. Since I couldn't get my game disc to load I had to resort to what they like to call "piracy". Eventually I will get a new DVD/CD drive but at the moment I am broke and out of work and I really love that game. I paid money for it. So why shouldn't I get to enjoy it? Just like people pay money for DVDs, Video Games and other things. Why shouldn't they get to do what they want with it?

  23. With no current strong competitors to the iPad, Sony has tossed their name into the hat. With their new, self-proclaimed “optimally designed” tablet

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About the author

I've been writing about technology, careers, science and health since 1995. I rose to the lofty heights of Executive Editor for eWEEK, popped out with the 2008 crash, joined the freelancer economy, and am still writing for my beloved peeps at places like Sophos's Naked Security, CIO Mag, ComputerWorld, PC Mag, IT Expert Voice, Software Quality Connection, Time, and the US and British editions of HP's Input/Output. I respond to cash and spicy sites, so don't be shy.