Judge Says No Fair Use For Jailbreaking Xboxes; The Law Doesn't Care If Jailbreaking iPhones Is Legal
from the this-is-a-problem dept
Last month, we pointed out how ridiculous it was that modding your iPhone is considered perfectly legal, but that modding your Xbox somehow can get you three years in jail. That was to point out just how silly it was that the DMCA does not allow fair use when it comes to its anti-circumvention rules. This has long been a huge problem (and a potential Constitutional problem) for the way the DMCA is constructed. The only exceptions are manually chosen every few years by the Librarian of Congress (who recently granted the ok for modding your phone a few months back, but wasn't even asked about game consoles). Unfortunately, but not surprisingly, the judge in the case has said that this does not matter and fair use cannot apply. Again, this isn't a surprise but it does highlight how ridiculous the DMCA is.It would seem that this case could become a rather useful one in testing the constitutionality of the DMCA's anti-circumvention rules and the lack of fair use exceptions. It's hard to think of a situation that seems more unreasonable than saying that you can jailbreak consumer electronics device 1 "because of the Librarian of Congress said so," but you cannot jailbreak consumer electronics device 2 "because the Librarian of Congress did not say so." That hardly seems like a situation that copyright law should ever allow, as it presents an undue penalty on certain new technologies.
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Filed Under: copyright, dmca, fair use, iphones, jailbreaking, xboxes
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Re:
I can understand Microsoft being unhappy that people are jailbreaking their consoles, but if the idiots would USE SOMETHING OTHER THAN EASILY SCRATCHED DISCS.... maybe people wouldn't jailbreak.
Seriously: SWITCH TO FLASH DRIVES! Easiest solution in the damned world to the problem.
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How did this happen?
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Re: How did this happen?
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Re: How did this happen?
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Re: Re: How did this happen?
Attn: DMCA Exclusion Committee (Donation, wink-wink, nudge-nudge.) The Library of Congress 101 Independence Ave, SE Washington, DC 20540
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Re: How did this happen?
The judge is reading what the law says... The problem is with the law, not the judge.
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Re: Re: How did this happen?
But, I should point out: Last I heard, my right to do with something I have bought as I please are NOT allowed to be infringed by the government for any reason, save if I am creating an extreme safety hazard.
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Re: Re: How did this happen?
Don't judges have the power to set aside the law if they conclude that it's unjust?
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Understandable but...
So honestly, how can modifying an Xbox (BTW, nowadays a 360 does the same thing) be so bad for the overall market? Judges really are behind on the times.
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Re: Understandable but...
Witch brings up a good point to why modding should be legal. XBMC, one of the greatest media center software for any OS, would not exist without modding of the original XBox.
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With the iPhone, sense was seen but probably only due to the fact that someone convinced them that uses other than software was the primary function of the device. That is, although jailbreaking allows pirated software to be run, other functions such as the ability to move to a different operator overrode those concerns in the eye of the court, and running apps is a tertiary component of the device (beyond uses as phone and iPod).
With games consoles, however, the primary function is to run software. So, the "fair use" argument fell on relatively deaf ears even though there's many other uses for a modded console that have nothing to do with "piracy" (playing legally imported games and DVDs, being able to play an installed game if the disc is damaged, install Linux or media centre software, homebrew games, etc.).
As I said, this is just a (mostly uninformed) guess, but I reckon that's the way the logic would have gone, and why one type of device was excluded from fair use and another wasn't.
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They need to switch from discs to DRIVES.... i.e. USB flash drives.
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Can't mod anything?
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If I want to sell it someone else, I will.
If I want to give it away, I will.
If I want to smash it with a sledge hammer, I will.
If I want to set it on fire, I will.
If I want to spray paint polka-dots all over it, I will.
If I want to modify the hardware, I will.
Period.
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The importance of free software
By presenting such an escape valve, free software forces non-free software to stay open; thus, while Linux exists and is strong enough, Microsoft will not be able to close its operating system to third-party programmers.
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Re: The importance of free software
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Common sense, people!
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"Da law is da law" is not a good enough argument for anyone except the IMPEDED out there.
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Is Microsoft draconian enough for you?
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Re: Is Microsoft draconian enough for you?
Get real, idiot. This is not a Microsoft bashing thread, this is bashing the DMCA.
Microsoft have not added ANYTHING that is REQUIRED in software, except when it is their OWN software. Like the 'channel flags'. If I don't want that bull? I just have to use non-Microsoft software!
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Have an original idea yet?
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"I'm certain that you are a mindless twit, from past post history."
>I wanted to make sure you'd feel comfortable with me.
"Have an original idea yet?"
>Why, did you want to borrow one?
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Re: Is Microsoft draconian enough for you?
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Re: Is Microsoft draconian enough for you?
Um. The whole point of this is that it can't be locked down, no matter what the law says. Good paying attention.
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Re: Re: Is Microsoft draconian enough for you?
Anyhoo, for the record, I've been warning against the police state. Using this case to point up that Microsoft and gov't *work together* is recognizing reality, NOT favoring a police state.
MIKE: as I point out in your piece of the 29th about DHS taking over domain names, YOU ain't paying attention that "the law" isn no longer relevant.
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Kinect
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a reframe of the DMCA
The iPhone jailbreaking exemption came via the interoperability-for-purposes-of-communication exception, iirc. (Which is why the iPod Touch was not included.)
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Huang's point is RIGHT ON THE MONEY
Allowing this modification seems clearly to be the purpose of the verbiage in the DMCA when it limits the prohibition of circumvention to that which bypasses "effective copy protection." Another judge has already ruled that this verbiage does not refer to the degree of effectiveness but to that which specifically effects copy protection. The purpose then of saying "effective" copy protection can only be to rule out scenarios where where an indirect protection (such as a locked-down Xbox) effects significantly more than copy protection and thus the user should have the right to circumvent the measure.
Calling a locked-down XBox copy protection is like spraying poison in the hospital nursery ward and calling it birth control. The a fully copy-protection-circumvented copy is already made by the time it gets to a modified XBox.
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Re: Huang's point is RIGHT ON THE MONEY
It doesn't matter whether the copy protection actually has the effect of preventing piracy. It only matters that its purpose is to prevent piracy.
For example: Say that the copy protection didn't work at all, and you could play pirated games easily without having to bypass it. On the other hand, it absolutely prevented other, legitimate uses of software (installing third-party add-ons, backing up your games, etc).
Even though the only effect of that copy prevention is to prevent legitimate uses, it is still illegal to circumvent it, because even though it's a total failure, its purpose is to prevent piracy.
That's essentially what the DMCA's anti-circumvention clause says. And it's why the DMCA's anti-circumvention clause should be repealed.
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Re: Re: Huang's point is RIGHT ON THE MONEY
You gotta take piracy out of the picture here and just look at the nuts and bolts. Don't take me wrongly, here. I'm NOT arguing that the measure has to have the effect of preventing piracy.
I'm arguing that the measure has to be a measure for blocking/disrupting copying specifically. That's the nuts and bolts of anti-circumvention, and it's a hugely meaningful distinction.
Take libdvdcss as an example. The encoding of the DVD makes it so that if you copy the DVD (without any circumvention) you get a scrambled copy. That actually is a measure made to block copying, and so distributing libdvdcss meets the requirements for being illegal circumvention.
The XBox lockdown however has nothing to do with whether or not a copy can be made, and thus is not, (regardless of what its intent is, regardless of how effective it is) NOT functionally a copy protection measure. Whether or not it's intended to curb piracy does not change the fact that its technological function is not to interfere with the copying process, but rather to specifically stop what IS a protected activity under the DMCA, specifically engineering for interoperability with other works that are not encrypted.
See, right here where you say, "Even though the only effect of that copy prevention is to prevent legitimate uses, it is still illegal to circumvent it, because even though it's a total failure, its purpose is to prevent piracy."
That's just it. What is bypassed in the XBOX mod is NOT a copy prevention. There IS a copy prevention being used, to be certain. Similar to libdvdcss, there is some encoding that without circumvention would get you unusable, less usable, or even-intended-to-be-less-useful copies - let's call that Encrypto (cause it's a cool name, right?). The XBox mod doesn't touch Encrypto. Encrypto is the only functional protection here against illegal copying and the XBox mod does nothing to circumvent it.
Now, MS, in all their wisdom say,"Well we want to include other measures. We want to make it so that you can only use software built with Encrypto." That's great, and they are more than free to do so, but circumventing that measure is NOT circumventing a copy protection.
Whether Encrypto is perfect at stopping copying or perfectly worthless, it IS the copy protection. Alternatively, the lockdown measure that says you can only play Encrypto'd software on your Xbox, call it Locko, isn't a protection against copying at all. Again I'm not saying it's no good, I'm saying Locko does something altogether different than Encrypto, and what it does can not be called copy protection.
It's not about the legitimacy of the use, or the effectiveness of the measure. It's about what the measure DOES. Encrypto functions as a copy protection. Locko does not. Bypassing encrypto, no matter how effective it is, no matter legitimate the use, IS de facto circumvention. Bypassing Locko is NOT.
Are we there yet?
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Prison overcrowding...
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Re: Prison overcrowding...
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Modding Xboxes
I wish lawyers understood this as well as you do. I remember, when I was in law school, the Constitutional Law courses were heavily emphasized (though obviously not heavily enough).
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The inmates are running the asylum
a) has Microsoft been paid for the XBOX? "yes"
b) is this "jailbreaker" copying the XBOX OS? "no"
c) is he copying and manufacturing hardware identical to the XBOX? "no"
d) is he, by any valid rational argument reducing Mircrosoft's sales by his tiny (percentage wise) operation? "no"
Defendant is found not guilty, case closed.
This is about Microsoft's paranoid fear of Open Source as competition for Windows. After the machine leaves their hands it should be (in a sane world) none of their beeswax what anyone does with it. They got paid, nuff said.
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Don't buy an Xbox
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Re: Don't buy an Xbox
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