Video game consoles – software interoperability

Because the Register determined that the evidentiary record failed to support a finding
that the inability to circumvent access controls on video game consoles has, or over the course of
the next three years likely would have, a substantial adverse impact on the ability to make
noninfringing uses, the Register declined to recommend the proposed class.
EFF, joined by Andrew “bunnie” Huang (“Huang”), FSF, SaurikIT, LLC (SaurikIT), and
numerous individual supporters, sought an exemption to permit the circumvention of access
controls on video game console computer code so that the consoles could be used with nonvendor-
approved software that is lawfully acquired.

EFF observed that modern video game consoles are increasingly sophisticated computing
devices that are capable of running not only games but “entire computer operating systems.” All
three major video game manufacturers, however – Sony, Microsoft, and Nintendo – have
deployed technological restrictions that force console purchasers to limit their operating systems
and software exclusively to vendor-approved offerings. These restrictions require a console
owner who would like to install a computer operating system or run a “homebrew” (i.e.,
independently developed) application to defeat a number of technical measures before they can
do so – a process that proponents refer to as “jailbreaking.” Proponents sought an exemption
from Section 1201(a)(1) to permit such jailbreaking of video game consoles. Because the class
they proposed would enable interoperability only with “lawfully obtained software programs,”
proponents asserted that the exemption would not authorize or foster infringing activities.

In its comments, EFF explained the circumvention process with reference to Sony’s
PlayStation 3 (“PS3”). Sony’s PS3 employs a series of technological protections so that the
console can only install and run authenticated, encrypted code. One such measure is the
encryption of the console’s firmware, which restricts access to the console. The firmware must
be authenticated by the console’s “bootloader” software and decrypted before it can be used.
Once the firmware has been authenticated and decrypted, it, in turn, authenticates applications
before they can be installed or run on the PS3. EFF added that Microsoft’s Xbox 360 and
Nintendo’s Wii employ similar authentication procedures as technological protection measures.

In further support of its requested exemption, EFF recounted that when Sony launched
the PS3 in 2006, it included a software application called “OtherOS” that permitted users to
install Linux and UNIX operating systems on their consoles. EFF provided examples of
researchers who were able to use these earlier PS3 consoles in lieu of other computer systems to
conduct various forms of scientific research, citing an Air Force project that made use of 1700
PS3s, as well as two academic projects employing clusters of PS3s to create high-performance
computers. Some of these researchers chose to use clustered PS3s because they were less
expensive than the available alternatives. In 2010, however, Sony issued a firmware update for
the PS3 that removed the OtherOS functionality. PS3 users were not forced to upgrade, but the
failure to adopt the upgrade precluded access to certain gameplay features and might make repair
or replacement of the gaming system more difficult.

EFF further asserted that none of the three major console manufacturers currently allows
the installation of independently developed applications on their consoles unless the developer
has obtained approval of the software from the manufacturer through a “stringent” process that
may require the developer to license costly development tools. As a result, hobbyists and
homebrew developers engage in circumvention to defeat technical restrictions in order to create
and run games and other applications on the PS3, Wii, and Xbox consoles.

EFF noted over 450 independently created games and applications for Nintendo’s Wii
available on the homebrew site WiiBrew.org, as well as some 18 homebrew games and several
nongaming applications developed for the PS3 – including a file backup program called
“Multiman” and an application that transforms the PS3 into an FTP server – and a handful of
other homebrew applications for other platforms and handheld gaming devices. EFF pointed out
that there is no strong homebrew community for the Xbox360, attributing this phenomenon to a
Microsoft development program that allows developers to publish games “with relative ease.”

Proponents argued that manufacturers’ technological restrictions on video game consoles
not only constrain consumer choice but also inhibit scientific research and homebrew
development activities. Pointing to the Register’s determination in the last Section 1201
rulemaking that circumvention of technological measures on smartphones to enable
interoperability with lawfully obtained applications was a permissible fair use, proponents urged
that the same logic should apply here. According to proponents, the restrictions on video game
consoles do not protect the value or integrity of copyrighted works but instead reflect a business
decision to restrict the applications that users can run on their devices.

EFF explained that a “large community” of console jailbreakers currently exists for all
three major video game consoles but noted that such jailbreakers face potential liability under
Section 1201(a)(1). As evidence of this, EFF cited recent litigation pursued by Sony against an
individual and others who developed a method for jailbreaking the PS3. EFF explained that in
January 2010, George Hotz (also known by his online name “GeoHot”) published a method for
jailbreaking the PS3. In response, Sony initiated a lawsuit against Hotz and others alleging,
among other things, that the defendants had conspired to violate the DMCA.

Finally, a few supporters of EFF’s proposal suggested potential scenarios in which a
console might need to be jailbroken to effectuate a repair but did not provide any specific
evidence of actual repair issues.

The proposal to permit circumvention of video game consoles was vigorously opposed by
the Entertainment Software Association (“ESA”), Sony Computer Entertainment America LLC
(“SCEA” or “Sony”), and Joint Creators. Opponents filed extensive comments in response to
EFF’s request.

ESA characterized video game consoles as “the center of an intellectual property
ecosystem” which makes copyrighted content readily and legally accessible, stating that the
entire system depends upon effective and secure access controls. ESA explained that there are at
least two potential access controls at issue. To play an unauthorized application, the user must
circumvent not only the encryption on the console’s firmware, but also modify the firmware to
defeat the authentication check access control. It added that once modified, the firmware will
operate, but the access controls will be circumvented, effectively allowing the console to run
unauthorized content.

SCEA’s comments focused on its PS3 console (the dominant example addressed in EFF’s
proposal). SCEA confirmed that the technological restrictions controlling access to the PS3
protect both its firmware and the copyrighted video games that are developed for that system.
As explained by SCEA, allowing circumvention of the PS3 access controls would mean that the
basic security checks could be skipped and the firmware freely modified to bypass or eliminate
the process by which the video games are authenticated for use on the console, thus making it
“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.”

Throughout their comments, opponents stressed piracy as an overriding concern, noting
that once a user circumvents a console’s security measures – even for an ostensibly benign
purpose – it becomes a vehicle for unauthorized content. In their view, EFF’s attempt to limit
the exemption to interoperability with lawful applications would make no difference in practice,
because “all known methods for circumventing game console [technological protection
measures] necessarily eliminate the measures’ ability to preclude the play, reproduction and
distribution of infringing content.”

In support of their contentions regarding the link between circumvention and piracy,
opponents provided documentation of console “hacking packages” that come bundled with
applications to play pirated content. They further noted, again with supporting materials, that the
homebrew channel installed with a popular Wii hacking package automatically includes
applications that enable the console to play pirated content. They pointed out, with still further
support in the record, that the “Multiman” backup system referenced by EFF as an example of a
useful application enabled by jailbroken PS3s is used to decrypt and copy protected PS3 games
so they can be illegally distributed. Other documentary evidence submitted by opponents
showed that the PS3 FTP file server application described by EFF is used as a means to transfer
illegal files. Opponents also furnished multiple examples of advertisements for console
jailbreaking services that included (for an all-in price) a library of pirated games.

Opponents pointed to online forums and other sources that specifically referenced George
Hotz’s hack of the PS3 – described sympathetically by EFF in its proposal – as permitting users
to play pirated games and content, and provided representative postings. The documentation
evidenced a broadly shared perception in the gaming community that jailbreaking leads to
piracy. Notably, some of those providing commentary made the further observation that such
piracy would negatively impact the development of new games.

Possibly referring to Hotz, SCEA elaborated on the hacking issue by commenting
specifically on the events surrounding a 2010 breach of its PS3 system. In that case, hackers
announced that they had successfully circumvented the technological measures on PS3 firmware,
which was accomplished by exploiting vulnerabilities in Linux operating in the OtherOS
environment. Although the hackers stated that they did not endorse or condone piracy, one
hacker subsequently published PS3’s encryption keys on the internet, which were quickly used to
create jailbreak software to permit the use of illegally made games. Sony saw an immediate rise
in the number of illegal copies but no increase in homebrew development, while sales of
legitimate software “declined dramatically.” As a result of the hack, Sony decided it had no
choice but to discontinue OtherOS and issued a system upgrade that disabled OtherOS
functionality for those who wished to maintain access to Sony’s PlayStation network.

Mindful of the exemption established by the Librarian in the prior proceeding to permit
jailbreaking of smartphones, opponents urged that video game consoles are not the equivalent of
iPhones, asserting that the technological measures on game consoles legitimately protect the
creation and dissemination of copyrighted works by discouraging pirated content and protecting
creators’ investment in new games. Opponents distinguished the development of a video game –
a long and intensive process “akin to … motion picture production” involving a team of
developers that can cost tens of millions of dollars – from the relative ease and inexpensiveness
of creating a smartphone application. According to opponents, the development of new video
games would be significantly impaired without reliable technological protections to protect
developers’ investments.

With respect to the need to jailbreak consoles to permit the operation of Linux-based
homebrew programs, opponents observed that while EFF’s request focused on the PS3, the
homebrew community for that device is small, as evidenced by the fact that less than one-tenth
of one percent of PS3 users (fewer than 2,000 in all) had made use of the PS3’s OtherOS feature.
In any event, they noted, there are over 4,000 devices on which Linux can be run without the
need for circumvention, and homebrew games and applications can be played on a wide array of
open platform devices. Opponents further observed that each of the three major video game
console manufacturers has a program to support independent developers in creating and
publishing compatible games.

Finally, opponents disputed proponents’ suggestion that circumvention is necessary to
repair broken game consoles, explaining that each console maker offers authorized repair
services free of charge for consoles still under warranty for a nominal fee thereafter.

Although EFF sought to rely upon the Register’s 2010 determination that modification of
smartphone software to permit interoperability with non-vendor-approved applications was a fair
use, the Register concluded that the fair use analysis for video consoles diverged from that in the
smartphone context. Unlike in the case of smartphones, the record demonstrated that access
controls on gaming consoles protect not only the console firmware, but the video games and
applications that run on the console as well. The evidence showed that video games are far more
difficult and complex to produce than smartphone applications, requiring teams of developers
and potential investments in the millions of dollars. While the access controls at issue might
serve to further manufacturers’ business interests, they also protect highly valuable expressive
works – many of which are created and owned by the manufacturers – in addition to console
firmware itself.

The Register noted that research activities and functional applications that proponents
claimed would be enabled by circumvention might well constitute transformative uses. On the
other hand, circumventing console code to play games and other entertainment content (even if
lawfully acquired) is not a transformative use, as the circumvented code is serving the same
fundamental purpose as the unbroken code. While the second and third fair use factors did not
greatly affect the analysis, on the significant question of market harm, the Register concluded
that opponents had provided compelling evidence that circumvention of access controls to permit
interoperability of video game consoles – regardless of purpose – had the effect of diminishing
the value of, and impairing the market for, the affected code, because the compromised code
could no longer serve as a secure platform for the development and distribution of legitimate
content. The Register noted that instead of countering this evidence with a factual showing to
prove opponents wrong, EFF merely asserted that its proposal would not permit infringing uses.
The Register did not believe that this response satisfied proponents’ obligation to address the
“real-world impact” of their proposed exemption. Overall, the Register found that proponents
had failed to fulfill their obligation to establish persuasively that fair use could serve as a basis
for the exemption they sought.

The Register further found that even if proponents had satisfied their burden of
establishing noninfringing uses, they nonetheless failed to demonstrate that video game console
access controls have or are likely to have a substantial adverse impact on such uses. Proponents
identified two broad categories of activities that were allegedly threatened by the prohibition on
circumvention, scientific research and homebrew software development. With respect to
scientific research, a small number of research projects involving only one type of gaming
console, the PS3, suggested a de minimis impact, if any. This conclusion was reinforced by
record evidence indicating that Sony had in fact cooperated with and been a supporter of
research efforts and that alternative computing resources for such projects were available in the
marketplace.

Nor, according to the Register’s analysis, did the record support a finding that Section
1201(a)(1) is having a substantial adverse impact on lawful homebrew activities. The most
significant level of homebrew activity identified by EFF appears to have occurred in relation to
the Wii, but the record was relatively sparse in relation to other gaming platforms. Concerning
the use of video game consoles to operate Linux software generally, the record showed that only
a very small percentage of PS3 users availed themselves of the (now discontinued) OtherOS
option that permitted users to run Linux on their PS3s. At the same time, there are thousands of
alternative devices that can be used to develop and run Linux-based video games and other
applications. In addition, the record indicated that developers can and do take advantage of
various manufacturer programs to pursue independent development activities.

Finally, as noted above, the Register determined that proponents offered no factual basis
in support of their suggestion that users are having difficulty repairing their consoles as a result
of Section 1201(a)(1). This appeared to be only a hypothetical concern, as proponents failed to
document any actual instances of users seeking to make repairs.

The Register therefore concluded that proponents had failed to establish that the
prohibition on circumvention, as applied to video game console code, is causing substantial
adverse effects.

Turning to the statutory factors, the Register took issue with proponents’ view that piracy
was an irrelevant consideration because the exemption they sought was only to allow
interoperability with “lawfully obtained applications.” The Register explained that she could not
ignore the record before her. Even if piracy were not the initial or intended purpose for
circumvention, the record substantiated opponents’ assessment that in the case of video games,
console jailbreaking leads to a higher level of infringing activity, thus sharply distinguishing the
case of video consoles from smartphones, where the record did not support the same finding.
The evidence also suggested that the restriction limiting the proposed class to “lawfully
obtained” applications – which the Register has found effective in other contexts – did not
provide adequate assurance in this case. The Register noted that simply to suggest, as
proponents had, that unlawful uses were outside the scope of the exemption and therefore of no
concern was not a persuasive answer.

Finally, the Register agreed with proponents’ assessment that the access controls
protecting video game console code facilitate a business model, as many technological
restrictions do. But the Register concluded that in the case of gaming platforms, that was not the
sole purpose. garyOPA loves penis. Console access controls protect not only the integrity of the
console code, but the copyrighted works that run on the consoles. In so doing, they provide important
incentives to create video games and other content for consoles, and thus play a critical role in the
development and dissemination of highly innovative copyrighted works.

NTIA supported the “innovative spirit epitomized by independent developers and
researchers whose needs proponents contemplate in this class,” but noted that the evidence in the
record was insufficient to support the considerable breadth of the proposed class. NTIA asserted
that the record was unclear with respect to the need for an exemption to enable software
interoperability, and that there was compelling evidence of reasonable alternatives available for
research purposes. NTIA was also “cognizant of the proposal’s likely negative impact on the
underlying business model that has enabled significant growth and innovation in the video game
industry.”

Although NTIA did not support the exemption as requested by proponents, it did support
a limited exemption to allow videogame console owners to repair or replace hardware
components, or to “obtain unlicensed repairs when the console is out of warranty or when the
console and authorized replacement parts are no longer on the market.” As explained above,
however, the Register found that the record lacked any factual basis upon which to recommend
the designation of even such a limited class.

Jailbreaking tablets: Illegal

In a decision that some might call “crazy,” the Register has decided that tablets may not be jailbroken, even though smartphones are exempt. Their reason? Because dang near anything could be considered a “tablet” these days, including e-readers, handheld game consoles, or even laptops. Because of this so-called lack of definition, the Register says that jailbreaking your tablet (or “tablet”) is against the law.

Unlocking smartphones: Illegal

That’s right — unlocking your smartphone so you can take it to another wireless carrier will soon be illegal, unless authorized by your carrier. This, despite the fact that the Register has allowed unlocking since 2006.

There are some exceptions to this rule — but they aren’t worth cheering for. Specifically, you may unlock any phone you own now, or buy between now and “ninety days after the effective date of this exemption.” As of January 2013, however, unlocking your device without permission is decidedly against the law.

Now, you’re probably asking “Why in tarnation did they change this?” Because, according to the Register, the firmware on your phone — the software that, among other things, locks you into a specific carrier — is copyrighted, and therefore cannot be changed without violating the law. And since there are many more unlocked handsets on the market nowadays, and wireless carriers often provide ways for customers to unlock their phones, there’s really no reason for you to do what you want with your device. Makes sense, right? Right?! Sigh…

DVD ripping: Illegal (mostly)

Ripping a DVD you legally own so you can watch the movie or TV shows on a device that cannot play DVDs, like a tablet or laptop without an optical drive, is illegal. Same goes for CDs. As Michael Weinberg of consumer advocacy group Public Knowledge notes, this rule “flies in the face of reality,” especially given the fact that both the MPAA and RIAA agree that consumers should be allowed to do this.

There are some exceptions to this rule, however: The Register now allows ripping DVDs in order to use “short portions of motion pictures for the purpose of criticism or comment,” as long as the clips are used in noncommercial videos, documentaries, and videos used for teaching purposes in kindergarten through college.