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

Wed, Nov 24th 2010 11:37am — Mike Masnick

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

52 Comments

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Anonymous Coward, 24 Nov 2010 @ 11:41am

If I buy something it's mine. No judge has a right to tell me how I can and can't modify it. These tyrant laws suck and this corporate tyranny needs to be abolished.
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William, 24 Nov 2010 @ 11:45am

How did this happen?
How can a judge say that modifying an iphone is legal and another say that modifying an xbox is not? I am wondering what the reasons behind the decision are.
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Anonymous Coward, 24 Nov 2010 @ 11:51am

Re: How did this happen?
Greed and the absurd laws that it promote.
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Jay (profile), 24 Nov 2010 @ 11:58am

Understandable but...
Hasn't this been the issue with a number of legal cases? First it's Blizzard who says reverse engineering is bad. Add to this the fact that now, they disallow bots in WoW.

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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PaulT (profile), 24 Nov 2010 @ 11:58am

I'll take a wild guess as to the reasoning behind this (without having read all of the facts, I admit). Lobbyists and industry folk will tell everybody that "pirate" software is the only reason for people to mod their device, and have convinced lawmakers that allowing freedom of use for a device you have bought is somehow dangerous.

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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Benny6Toes (profile), 24 Nov 2010 @ 11:59am

Can't mod anything?
hrmmm...following this through...don't change the chip program in your car's ECU (including you folks modding your Prius to improve it). Don't even think about trying to mod one of those new internet capable TVs. Using Wii remotes and the Kinect outside of their intended function(s)? Off-limits. I know there are other situations that would fit, but I'm drawing a blank.
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Benny6Toes (profile), 24 Nov 2010 @ 12:00pm

Re: How did this happen?
A judge didn't decide the iPhone issue. The Librarian of Congress did.
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RadialSkid (profile), 24 Nov 2010 @ 12:08pm

Here it is, short, plain, and nasty: It's my Xbox.

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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Anonymous Coward, 24 Nov 2010 @ 12:13pm

But it's the law. If you don't like it then spend tens of millions of dollars to lobby the political class and get them changed.

Common sense, people!
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DogBreath, 24 Nov 2010 @ 12:23pm

Re: Re: How did this happen?
I'd say the Librarian of Congress has an iPhone, but no xbox. So if you want something included next time around for exclusions in the DMCA, please send the bribes... I mean "free samples" to:
Attn: DMCA Exclusion Committee (Donation, wink-wink, nudge-nudge.) The Library of Congress 101 Independence Ave, SE Washington, DC 20540
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Mike Masnick (profile), 24 Nov 2010 @ 12:23pm

Re: How did this happen?
How can a judge say that modifying an iphone is legal and another say that modifying an xbox is not? I am wondering what the reasons behind the decision are.

The judge is reading what the law says... The problem is with the law, not the judge.
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Chronno S. Trigger (profile), 24 Nov 2010 @ 12:32pm

Re: Understandable but...
Have they finally hacked it so it can run homebrew software, like XBMC? I could use another, smaller media center PC.

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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Cory, 24 Nov 2010 @ 12:34pm

Re: How did this happen?
im willing to bet that judge has a jailbreaked phone and probably has a grandson or something that is were hes getting his inside information form and has got his but kicked on halo because of some xbox modder lol
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Anonymous Coward, 24 Nov 2010 @ 1:01pm

Re:
They don't see it that way. PC's are that way, if I buy a PC, I can reformat, crack it open, put a new OS, have sex with it and whatnot. Next step is gonna be that: Can only install microsoft products on windows 8. Also, you car will only be allowed to be filled with Chevron Ultra Permuim Expensive-as-hell gasoline or you will be jailbraking your car and thrown in jail and raped by a rapist paid by the corporations.
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Christopher (profile), 24 Nov 2010 @ 1:25pm

Re:
Agreed. Someone needs to take this to court based on "First Sale" principals. Once I buy something, it is MINE TO DO WITH AS I PLEASE!

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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Christopher (profile), 24 Nov 2010 @ 1:27pm

Re: Re: How did this happen?
I am not so sure about that. If one is legal, the other should be legal, and it seems that the Patent Office is just being overly milquetoast here.

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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Christopher (profile), 24 Nov 2010 @ 1:28pm

Re:
We have already point out the holes in that fallacious argument. I did a 'show and tell' as to why I mod/jailbreak my stuff: a very scratched disc that I had treated like it was made of 2 micron thick stained glass.

They need to switch from discs to DRIVES.... i.e. USB flash drives.
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out_of_the_blue, 24 Nov 2010 @ 1:30pm

Is Microsoft draconian enough for you?
Those who think that hardware and software can't be locked down by a draconian police state are flatly wrong.
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Christopher (profile), 24 Nov 2010 @ 1:30pm

Re:
No, that is someone being overly milquetoast. Did our Founding Fathers say "IT is the law!" and not protest against the Stamp Act and Tea Tax? No, they didn't. They protested out the wazoo and we are now existent because of their protests.

"Da law is da law" is not a good enough argument for anyone except the IMPEDED out there.
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Christopher (profile), 24 Nov 2010 @ 1:32pm

Re: Is Microsoft draconian enough for you?
How have they locked jack down? I can play pirated ANYTHING on my machine, easy as 1, 2 3, YIPPEE!

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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Rose M. Welch (profile), 24 Nov 2010 @ 1:35pm

Re: Is Microsoft draconian enough for you?
Why is that, exactly?
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Chronno S. Trigger (profile), 24 Nov 2010 @ 1:35pm

Re: Re:
Woo, back to the cartridge days. Hang on, I got to go blow my Nintendo.
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Anonymous Coward, 24 Nov 2010 @ 1:36pm

The importance of free software
This is the importance of free software. If Microsoft started to go that way, people can always replace it with one of the several Linux distributions. And if a Linux distribution goes that way, you can (explicitly allowed by the license) change it so it allows you to do whatever you want, AND distribute your changes so other people (who do not know enough programming to change it themselves) can use them.

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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Rose M. Welch (profile), 24 Nov 2010 @ 1:36pm

Re: Re: Is Microsoft draconian enough for you?
He's not a PC fanboy; he's a police state fanboy. He repeatedly insists that laws can stop piracy, modding, and so on. He completely ignores real actual police states where piracy still runs rampant.
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Anonymous Coward, 24 Nov 2010 @ 1:42pm

Re: The importance of free software
Exactly, competition is what driver innovation and the advancement of products. I like microsoft developer tools, that is why I try to use open source more often, that tells them that I can easily switch somewhere else if they stop making good product. So long story short: if you like something buy an off-brand to give it an reason to improve.
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Rekrul, 24 Nov 2010 @ 1:51pm

Re: Re: How did this happen?
The judge is reading what the law says... The problem is with the law, not the judge.

Don't judges have the power to set aside the law if they conclude that it's unjust?
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Anonymous Coward, 24 Nov 2010 @ 2:04pm

Re: Re: Re: How did this happen?
Juries can with jury nullification. We have to figure out how to get more juries to hate these laws.
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Prashanth (profile), 24 Nov 2010 @ 2:22pm

Kinect
Isn't it weird that it's OK to hack the Kinect, but not the parent device (the XBOX)?
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Anonymous Coward, 24 Nov 2010 @ 2:24pm

Re: Re: Re:
You might want to rephrase that. We all know what you mean, but still.
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Bruce Partington, 24 Nov 2010 @ 2:49pm

a reframe of the DMCA
A simple reframe of the DMCA should help clarify the issue: it's actually a full-employment act for lawyers and judges (among many others). All the contradictory rulings combined with speculative/reflexive litigation mean lots of billable hours.

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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Jason, 24 Nov 2010 @ 2:50pm

Huang's point is RIGHT ON THE MONEY
I've said it elsewhere, but the modification in question does not circumvent copy protection. It circumvents playback restrictions that make the machine not play nice with unprotected 3rd party software completely unrelated to whether it is pirated, homespun, or open source.

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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Karl (profile), 24 Nov 2010 @ 4:05pm

Re: Huang's point is RIGHT ON THE MONEY
I've said it elsewhere, but the modification in question does not circumvent copy protection. It circumvents playback restrictions that make the machine not play nice with unprotected 3rd party software completely unrelated to whether it is pirated, homespun, or open source.

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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Porkster, 24 Nov 2010 @ 4:29pm

Prison overcrowding...
So all your prisons in the US are filled with Murderers, Rapists and Xbox modifiers?
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Mike Masnick (profile), 24 Nov 2010 @ 4:36pm

Re: Is Microsoft draconian enough for you?
Those who think that hardware and software can't be locked down by a draconian police state are flatly wrong.

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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The Groove Tiger (profile), 24 Nov 2010 @ 4:41pm

Re: Re: Re: Is Microsoft draconian enough for you?
I'm pretty sure he thinks "draconian" is actually a compliment, from past post history.
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Anonymous Coward, 24 Nov 2010 @ 5:12pm

Re: Re: Re: Re: Is Microsoft draconian enough for you?
I'm certain that you are a mindless twit, from past post history.

Have an original idea yet?
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Chris in Utah (profile), 24 Nov 2010 @ 7:42pm

Re: Prison overcrowding...
Actually the war on drugs and convictions for non-violent criminal such as the average pot smoker are the majority. The rest are probably convicted copyright offenders telling the judge to shove it ;)
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Jason, 24 Nov 2010 @ 8:02pm

Re: Re: Huang's point is RIGHT ON THE MONEY
No Karl, it's not "prevent piracy." No such clause exists. The verbiage of the clause is what the judge is going to rule on and circumvention refers to measures that effectively (i.e. have as their function to) "protect" against copying.

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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The Groove Tiger (profile), 24 Nov 2010 @ 8:24pm

Re: Re: Re: Re: Re: Is Microsoft draconian enough for you?
How appropriate. You fight like a cow.
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The Groove Tiger (profile), 24 Nov 2010 @ 8:41pm

Re: Re: Re: Re: Re: Is Microsoft draconian enough for you?
>Reload

"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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The eejit (profile), 25 Nov 2010 @ 2:37am

Re: Re: Prison overcrowding...
OR those who tried sexual favours on the judge.
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Anonymous Coward, 25 Nov 2010 @ 8:58am

Re: Re:
Honestly: It has nothing to do with the disks as the medium.
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Gene Cavanaugh, 26 Nov 2010 @ 10:52am

Modding Xboxes
Great article, and you are SO right!
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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SLK8ne, 26 Nov 2010 @ 12:29pm

The inmates are running the asylum
This is just stupid.
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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Jason, 27 Nov 2010 @ 7:57am

Re: Re: Prison overcrowding...
Nah, the average pot smoker is in jail, not prison. It's the average housewife trying to make an extra buck selling pot that's getting a year-plus.
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aikiwolfie, 28 Nov 2010 @ 1:23pm

Don't buy an Xbox
If you don't like Microsoft's rules of use then don't buy their products. The same goes for anything where the vendor tries to limit how you can use the product.
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out_of_the_blue, 29 Nov 2010 @ 7:41am

Re: Re: Is Microsoft draconian enough for you?
Amazing how consistently I've been misunderstood here, when I thought my intent obvious and the point incontestable. It's triggered an interesting observation that you people seem to reverse everything in your minds, with corollary that when gov't or corporations *obviously* lie to you, that reversal in your own minds turns the lies into gospel truth. I'll muse on that. Explains quite a lot.

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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Jason, 29 Nov 2010 @ 10:44am

Re: Don't buy an Xbox
Screw that! MS doesn't have the right to make up rules of use for my XBox anymore than GM has the right to make rules of use for my car! If I want to supe them up, I get to supe them up. Condemnat venditor!
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Anonymous Coward, 1 Dec 2010 @ 1:21pm

Re: Re: How did this happen?
I'm pretty sure the word "iPhone" is nowhere in the text of the law. Try again.
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Anonymous Coward, 1 Dec 2010 @ 1:29pm

Re: Re:
He was being satirical
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Anonymous Coward, 1 Dec 2010 @ 1:32pm

Re: Re: Is Microsoft draconian enough for you?
Microsoft fights to get modders jailed. Microsoft is an instrument of the police state, and vice versa. Just recently they threw around threats of involving "law enforcement" against the hackers working on OpenKinect, even though that work did not need to circumvent copy protection.
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doughless (profile), 2 Dec 2010 @ 9:53am

Re: Re: Re: Re:
His phrasing sounded intentional
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