Jailbreaking Your iPhone? Legal! Jailbreaking Your Xbox? 3 Years In Jail!

from the copyright-law-at-work dept

Bunnie Huang is no stranger to absolutely ridiculous legal claims concerning trying to hack an Xbox. After doing so, he had trouble publishing a book on the subject, over fears that telling people how to modify a piece of electronics they had legally purchased might somehow violate copyright law (anyone else see a problem with that?). Now, techflaws.org points us to the news that Huang is scheduled to testify on behalf of a guy facing jailtime for modifying Xboxes. But US officials are trying to bar his testimony, claiming it’s “not legally relevant.” Technically, they’re probably right. But, from a common sense standpoint, Huang is trying to make a bunch of important points.

First, let’s take a step back, and realize just how ridiculous this situation is. If you buy a piece of electronic equipment, should you ever deserve jailtime for then modifying it? With most things you buy, you have every right to then make changes to it. Yet, when it comes to gaming consoles, suddenly that can get you jailtime. The culprit? Of course, it’s the ever-present DMCA, and its anti-circumvention clause, which lets any device maker put in some “technological protection measures,” and suddenly it’s illegal to modify what you thought you legally owned.

Now, supporters of the DMCA will note that every few years we have the lovely “exceptions” process, whereby the Librarian of Congress gets to (somewhat arbitrarily) choose what things won’t get covered by the anti-circumvention clause. Just a few months ago, for example, it was deemed “ok” to jailbreak your mobile phone. So, here’s the conundrum: it’s perfectly legal to jailbreak your iPhone, but you can get thrown in jail for jailbreaking your Xbox. Explain that.

Huang wants to testify on behalf of Matthew Crippen, who would jailbreak Xboxes. Huang planned to show the jury just how easy it was to mod an Xbox. While he doesn’t say so, my assumption is that the idea is to show that, and then suggest that the anti-circumvention provision does not apply because it shows that the Xbox’s technological protection measures are not “effective,” and the anti-circumvention provisions are only designed to apply to “a technological measure that effectively controls access to a work protected under this title.” Similar arguments have actually worked in Europe, though I’m not sure if they’ll work here.

Either way, I’m guessing the court won’t allow Huang to testify for a variety of legal reasons, but even if he doesn’t, it would be nice if the court and anyone else could explain why jailbreaking an iPhone is fine while jailbreaking an Xbox gets you jailtime.

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Companies: apple, microsoft

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Comments on “Jailbreaking Your iPhone? Legal! Jailbreaking Your Xbox? 3 Years In Jail!”

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133 Comments
Jay (profile) says:

Re: Re: Re:

I think what he’s trying to discuss is that he’s doing this for a monetary profit.

Now, let’s level a bit on this. It’s true that you can mod an Xbox. What’s not being discussed is WHY you modify an Xbox which I’ll go into now:

1) Making your Xbox region free – Some people play Japanese RPGs in the native language. You also have games that aren’t imported in the US. The bottom line argument for why companies are against region free is one reason alone. Money. If you can force a release date to be 30 days after the US, then it’s assumed you make more money by forcing this staggered release date. The other reason is the fact that the money goes to a division of the same company so it’s not calculated as a sale to that division.

2) Playing backups – Nowadays, most DVDs can play xbox games without having to worry about the

3) Pirating – the idea that the developer loses money is kinda laughable on closer scrutiny. The actual playing of pirated games.

Really, in regards to this, there’s a better ways to make the Xbox a much more viable product than suing someone that has knowledge of video games.

TheStupidOne says:

Re: Re:

There is a difference, but what does that matter legally? If it is legal for me to jailbreak my iphone, then how could it be illegal for me to pay someone to do it for me? If an action is legal, then the person who performs that action, or the compensation for performing said action should be irrelevant unless specifically banned by law.

Anonymous Coward says:

Re: Re: Re: Re:

It used to be that I could still buy my own box and I could buy a ‘test’ chip that turned on all of the features of the box. That was all fine. The problem comes in when I ‘test’ a signal I’m not paying for. At the same time, you won’t find anyone in say california that will sell a cable box that already has the test chip installed to someone else in california. The sale of that chipped box seems to be some kind of legal problem. Not agreeing with the way things are here but you have to ask, why should an xbox or iphone or ???? be treated any differently?

Dan (profile) says:

Re: Re: Re:2 Re:

That’s one of the inherent problems with the DMCA exception system. You have to list them individually. It’s like legislating each specific driving distraction.

They should let the owner decide whether to modify and leave it up to the companies to then deny the accompanying service {ie. X-box live or the phone network} or not.

Christopher (profile) says:

Re: Re: Re:3 Re:

Ah, but to deny them the service is for illegitimate reason (fears of hacking that don’t exist, etc.) would leave those companies open to litigation.

It’s time to just say “NO DRM!” and move on, allowing people to modify their consoles if they do wish to without having to worry about legal repercussions.

If the ‘anti-piracy’ idiots don’t like that? Too bad, so sad, they just have to live with it!

Trerro says:

Re: Re: Re:

Who performs the work shouldn’t matter, at all. If I buy a car and then customize it, how is that any different from paying a skilled mechanic to perform the same work? Well, there is an important difference – the mechanic is a professional who unlike me, knows cars well, and is unlikely to screw up.

I build my own computers and upgrade them. I’ve also worked jobs where people pay me to upgrade theirs. Again, I really don’t see a difference between modding your own stuff, and paying a professional to do it when the stuff is something you don’t have sufficient knowledge of to do yourself.

If you buy an XBox because you want a cheap Linux machine (or whatever you want to jailbreak it for – it’s your device), you should have every right to retool the machine for the that purpose, regardless of whether you do it yourself or pay a guy who does hundreds of them.

Christopher (profile) says:

Re: Re: Re:2 Re:

Which is why we need to have a Constitutional challenge to the DMCA, which would get it thrown out immediately.

Personally, I just IGNORE the DMCA and say “If you want to come after me, go ahead…. but I’m going to file a countersuit against you if you ban my console or do anything else!”

Works fine for me, no one has DARED to challenge me on this because they know they would lose the cases.

minijedimaster (profile) says:

Re: Re: Re: Re:

I build my own computers and upgrade them. I’ve also worked jobs where people pay me to upgrade theirs. Again, I really don’t see a difference between modding your own stuff, and paying a professional to do it when the stuff is something you don’t have sufficient knowledge of to do yourself.

Try applying that “modding” part to an Apple computer and let me know how that works out for ya.

zaven (profile) says:

Um, if they are allowing you to jailbreak their xbox, it’s irrelevant whether it’s your xbox or someone else’s xbox. If you’re doing it against their will, then it’s a different law you’re breaking.

If I am allowed to jailbreak my iPhone, I am most certainly allowed to pay someone to jailbreak my iPhone just as much as that someone is allowed to charge for doing a service

Christopher (profile) says:

Re: Re:

It shouldn’t be a case of ‘disallowed by law’ here. You should be able to do WHATEVER YOU DAMNED WELL WISH with your legally bought product, and it’s only when they find you doing something like pirating (which modding does NOT automatically prove, there is such a thing as PLAYING A BACKED UP COPY TO PROTECT YOUR INVESTMENT!) that the legal penalties come in.

In fact, the Constitution is very blunt on that score that laws that try to dictate to you what you do with your own property, unless you are causing a risk of physical injury to someone else, is your own business and NOT the government’s.

Anonymous Coward says:

Re: Re:

No, profiting off of a product that is licensed to someone else is illegal. Therefor, it is illegal to profit from jailbreaking ANY sort of technology. Not only that, but jailbreaking an XBOX is most definitely intended for the sole purpose of playing games you did not buy. Of course there is the argument that you’re just trying to do things that are legally acceptable, but the technology is not far ahead enough to allow one thing and not the other; and to monitor it effectively is simply not business efficient. So yeah, we can keep bashing any corporation that tries to limit what control you have over a product, but think about the jobs you are killing by finding the loopholes. This is why Apple complained about jailbreaking their phones. By jailbreaking a phone you are downloading cheap imitations of reverse engineered technology for free. This will eventually limit the amount of effort that gets put in to pieces of software. If you can get it for free somewhere else, then where is the profit? And why even create the software in the first place if it’s just going to get hacked and presented for free? I don’t know if you have ANY experience with downloading illegal software, but the quality is very apparent, and it is not for the better. Truth is, the line needs to be drawn. Maybe this is where they decided to draw it. Get over it. The people complaining are the people who are upset that they can’t get their shit for free. That is not how a company works. Nothing is for free, idiots.

The Infamous Joe (profile) says:

Re: Re: Re:

No, profiting off of a product that is licensed to someone else is illegal.

Citation needed.

Not only that, but jailbreaking an XBOX is most definitely intended for the sole purpose of playing games you did not buy.

Reading fail? See above for the actual reasons to mod an xbox. thanks.

So yeah, we can keep bashing any corporation that tries to limit what control you have over a product, but think about the jobs you are killing by finding the loopholes.

Right, no games would ever get made, I mean, they might as well quit now, it’s clear no one makes any money selling games.

This is why Apple complained about jailbreaking their phones.

..and explain to me why the united states government said it was okay?

If you can get it for free somewhere else, then where is the profit?

Assuming the majority of modded xboxes are to pirate games. which is a bad assumption, are you saying that the very small percentage of people who mod their xbox will somehow bring game companies crumbling to the ground? (metaphorically speaking, of course)

I don’t know if you have ANY experience with downloading illegal software, but the quality is very apparent, and it is not for the better.

I have to confess, I’m not sure what you’re talking about. I just bought Fallout: New Vegas and it’s awesome. once I’m done with that, I’ll buy Fable III, which I’m sure is also awesome. What games are you playing?

The people complaining are the people who are upset that they can’t get their shit for free.

You realize the people complaining are Microsoft, right? *They* sued. You must also realize that people have to buy the xbox before they can mod it, right? So, who is asking for something for free?

Nothing is for free, idiots.

I can only assume you’ll be sending Mike at Techdirt a nice check for his write-up of this topic, because nothing is for free, amirite?

Thanks for stopping by, though.

average_joe says:

While he doesn’t say so, my assumption is that the idea is to show that, and then suggest that the anti-circumvention provision does not apply because it shows that the Xbox’s technological protection measures are not “effective,” and the anti-circumvention provisions are only designed to apply to “a technological measure that effectively controls access to a work protected under this title.” Similar arguments have actually worked in Europe, though I’m not sure if they’ll work here.

I read a case recently where it was argued that since the defendant was able to circumvent the protection, it wasn’t “effective.” The court noted that to interpret it that way would be illogical since it would then allow the very thing the law was meant to stop. I just don’t see that argument holding any water.

Either way, I’m guessing the court won’t allow Huang to testify for a variety of legal reasons, but even if he doesn’t, it would be nice if the court and anyone else could explain why jailbreaking an iPhone is fine while jailbreaking an Xbox gets you jailtime.

Well, the simple reason is because that’s what the law says. Let me ask you, why should the laws that applies to cell phones be the same as the laws that apply to gaming systems?

chinese.bookie (profile) says:

Re: Re: Re:2 Re:

You just don’t get it. That’s why there are hundreds of thousands of very well paid lawyers. They get paid to write the laws for the lobbyists so that they will have a job getting paid for prosecuting, defending and judging cases based on that law. If the law wasn’t about semantics and technicalities, it’d be mathematics, not law.

Anonymous Coward says:

Re: Re:

[i]Well, the simple reason is because that’s what the law says. Let me ask you, why should the laws that applies to cell phones be the same as the laws that apply to gaming systems?[/i]

why should the laws pick and choose at all. Why can i modify my computer, my car, my house or my clothes, but i can’t modify my phone?

It’s either all ok or none of it should be. And if none of it should be allowed, then everything should cost ridiculously lower amounts since we’re now renting/leasing instead of owning.

Anonymous Coward says:

Re: Re:

“Well, the simple reason is because that’s what the law says. Let me ask you, why should the laws that applies to cell phones be the same as the laws that apply to gaming systems?”

What DOES the law say anyway?

To me it makes no sense that bypassing protection measures on a cell phone is any different than bypassing those same measures on a game console. They are both electronic devices. They were both mine. I bypassed their security. Now what? I’m arrested for bypassing one of them?

What is the criteria here?

Anonymous Coward says:

Re: Re:

Well, the simple reason is because that’s what the law says. Let me ask you, why should the laws that applies to cell phones be the same as the laws that apply to gaming systems?

why should the laws pick and choose at all. Why can i modify my computer, my car, my house or my clothes, but i can’t modify my phone? It’s either all ok or none of it should be. And if none of it should be allowed, then everything should cost ridiculously lower amounts since we’re now renting/leasing instead of owning.

Karl (profile) says:

Re: Re:

In the 2600 case (link above), the judge explicitly ruled that it doesn’t matter how easy it is to circumvent. The exact words were that a technological measure can be effective “whether or not it is a strong means of protection.”

So you are correct… if the judge follows precedent, he’ll rule against such an argument.

average_joe says:

Re: Re: Re:

Yes, it was Reimerdes that I was thinking of. That case involved CSS protection on DVDs. The defendants argued that CSS is a weak cipher that does not “effectively control” access to the plaintiffs? copyrighted works. The court said this is indefensible as a matter of law–a technological measure effectively controls access if its function is to control access. The defendant’s construction would offer protection where none is needed, and it would withhold protection where it is needed the most.

Any Mouse says:

Re: Re: Re: Re:

Under that logic, the wording of the law makes no difference. Effectively, one could say that a simple switch to disable power if the cover is removed is suddenly an ‘effective control to access.’ One that can be bypassed so very, very, simply, but apparently that isn’t the point at all. Hmm.

vivaelamor (profile) says:

Re: Re: Re:2 Re:

“Under that logic, the wording of the law makes no difference.”

Precisely. I can only imagine they added the word to make it seem like the law is maintaining protection rather than the actual fact that it is the protection. They may as well have said ‘it is illegal to fiddle with stuff without authorisation’ and let companies put a sticker on saying ‘don’t open this’.

Karl (profile) says:

Re: Re:

why should the laws that applies to cell phones be the same as the laws that apply to gaming systems?

Because “jailbreaking” your XBox achieves the same goal as jailbreaking your iPhone, the same legal considerations should apply to both.

The iPhone order is available from EFF’s website (PDF). The court’s consideration of the “four factors” test start on page 9. If you simply substitute “XBox” for “iPhone” and “Microsoft” for “Apple,” all the arguments would still be valid.

In fact, if you accept the LOC’s judgement on what constitutes fair use, “jailbreaking” embedded firmware should be legal no matter what the device.

Karl (profile) says:

Re: Re: Re:2 Re:

To see a case on point, check this out:

That’s the DeCSS case, yep, I’ve read it before (long time ago).

But we’re talking about two different issues. DeCSS circumvents DRM which exists to prevent copying infringing files.

“Jailbreaking,” on the other hand, is done to promote interoperability, e.g. to install third-party applications. As stated in the iPhone order, “Congress has determined that reverse engineering for the purpose of
making computer programs interoperable is desirable[…] [This] suggests that the purpose and character of the use are favored.”

Jason says:

Re: Re: Re:4 Re:

Yeah, the Xbox mod doesn’t actually circumvent the DRM tools that encrypt and thus protect the software from copying.

IF the phrase “effectively protects” is not a measure of how effective the protection is, then the only other available meaning is how direct is the protection. That is to say, what “effectively protects” under DMCA is that which actually locks the software up against copying.

The Xbox mod in question is not what breaks the locks. Rather it frees up the box to use unlocked software.

Dan (profile) says:

Re: Re:

I agree Joe. Any protective measure can be shown to be ineffective, given a screwdriver and a soldering gun. So on that basis, his testimony is not relevant.

What his testimony would do, is point out how stupid it is to not let purchasers do whatever they want with things they bought. That is what the prosecution doesn’t want to come out.

techflaws.org (profile) says:

Re: Re:

it was argued that since the defendant was able to circumvent the protection, it wasn’t “effective.” The court noted that to interpret it that way would be illogical since it would then allow the very thing the law was meant to stop.
Which means that the law is illogical and should be scrapped (as well as those punished who came up with it) since there is no effective copy protection.

Anonymous Coward says:

Question: Why is the legality of “jailbreaking” various electronic devices decided seemingly at random?
Answer: Because the people that write laws are too stupid to understand the things they write laws about, and too lazy to spend a couple of minutes on Google finding out about said things. As such, they just do whatever people tell them to, which is why lobbyists exist.

cw says:

it's the purpose

phones are jailbroken primarily so that you can install 3rd party unsupported software. Jailbreaking a phone doens’t automatically allow you to bypass any copy protection of any of the software.

xbox’s are modded primarily to run illegal copies of games. the mods automatically allow bypassing copy protection. homebrew games is not a strong market like it is with phone apps. if the mod in question does allow homebrew without allowing copied games, I’m guessing this case would already be closed.

Jason says:

Re: it's the purpose

The mods DO NOT automatically allow “bypassing copy protection” because the feature that locks down the hardware to only play copy-protected games does not qualify as effective copy protection because it doesn’t do the work that actually effects the protection. The copy protection encryption does that. IF the defendant supplied decryption algorithms as part of the mod, well, then that would be illegal circumvention of copy protection.

This, this just allows for use of copying-not-protected games whether pirated or not.

Christopher (profile) says:

Re: Re: it's the purpose

Actually, no, it isn’t because under FAIR USE you have the right to make backup copies of your DVD’s and CD’s. If you have to bypass ‘copy protection’ in order to use those legal copies of your games? Too bad, the DRM shouldn’t have been included in the first place.

I would MUCH rather they go after people and corporations that are selling pirated games KNOWINGLY than Mr. Joe Schmo off the street, who wants to protect his 60 dollar+ investment.

JEDIDIAH says:

Re: Re: it's the purpose

> Come on, don’t even bother lying. Find me ten
> jailbroken iPhones that don’t have pirated apps
> on them.

Mine. My iPhone is jailbroken so that I can treat it like a PC and control the data that’s on the phone. I really couldn’t care less about pirating “phone apps”. They simply aren’t worth my time.

Primarily, my phone is jailbroken so I can work around the limitations of the SMS app. It really isn’t built for business.

My “delete all” hack is a real time saver.

Jason says:

The Difference Really: 'that which effects', not "how effective it is"

..is that simply freeing up the box to run whatever software you want is seperate and severable from then going and running software that circumvents copy protections.

It’s no different than installing linux and mplayer on your computer to watch movies. If you then install libdvdcss to circumvent the encoding in DVDs so that you can view them using a Linux box, well that would be circumventing the “effective protection” or that which actually effects the copy protection.

So you’ve got a similar situation on the XBox, only there, MS has included BOTH an encoding scheme to protect against copying, AND a lockdown scheme to only play encoded games. They can argue that this is because there are pirates out there who decode their games and distribute decoded games, which is true.

HOWEVER the ability to play not encoded games is NOT a circumvention of the effective protection AGAINST COPYING, but rather a circumvention of the effective prevention AGAINST playing whatever you like on your own box, which incidentally enhances the actual effective protection, but which you should have a right to modify.

Ryan Diederich says:

And this is why....

I modded my xbox. This DRM crap is simply useless, it takes only days for the superbrain that is the internet to crack the system, and then Microsoft pays God knows what to try to fix it. It never works.

Maybe if they didnt load up their console with DRM, I would buy games instead of just downloading them. Oh well, my silent protest…

Christopher (profile) says:

Re: And this is why....

Agreed. Personally, I wait until games are 20 dollars before buying, and I like to BACK UP MY INVESTMENT by making a backup copy that I play of my game or making it so that I don’t have to have the EASILY SCRATCHED DISC in the drive all the time spinning when the game is installed to my hard drive already.

Get rid of that STUPID having to have the disc in the drive in order to play, then we can talk.

Michial Thompson (user link) says:

Maybe little mikee should explain a little more

WOW Little mikee plays with words again…

Little mikee, the mods being prosecuted for are for playing ILLEGAL copies of games…. Try showing me one LEGAL software product on the market for the X-Box that requires the XBox to be altered????

And no Backups of your own rented games don’t count.

Jakub Kowalski (user link) says:

Radios vs gaming consoles

Few years ago radio stations in Poland switched frequency range on which they broadcast. Every radio shop offered modifications that allowed to use old radios with new frequency range. There was media campaign to inform people that they should do it. And there was even possibility to have it done for free.
And then it was ok to change some electronic parts in your device to regain some functionality.

But in the same country few years later police and courts say that you can’t have your PS2 or Xbox modified. Copyright law says that you can have a backup disc of your software, but you can’t fix your game console to accept and play this discs. You can’t modify it to have more functions which homebrew software offer.

Sony claims that you can’t fix your PS3 to have Install Other OS option back.

I’m just waiting when companies making personal audio players will go that way too and say that rockbox on my player is illegal too.

BTW We can even have LPG tank installed in a car instead of gasoline tank and that’s ok, but we can’t mess with our toys.

That’s really sick!

Grismar (user link) says:

Strawman argument

I feel this all a big strawman argument. Who exactly ruled it’s legal to “hack stuff you own”? Because that seems to be the logic applied here: it’s legal to hack stuff you own (see iPhone case), so it should be allowed to hack your XBox.

Another way to look at it: it’s legal to bypass measures that prevent you from using third party software on a device you own. It’s illegal to bypass measures that only serve to bypass copy protection on software for your device.

Of course it’s complicated, since hacking your XBox can result in more than just making it possible to run pirated software. And on the other end, you can argue that hacking your iPhone would allow you to install pirated versions of iPhone software. But a court could definitely rule that in the case of the iPhone the good (installing legal apps outside the App Store) outweighs the bad and that this is not the case with the XBox. I don’t fully agree with such a ruling, but the case deserves more than flawed logic to turn it around.

At any rate, the logic “if you’re allowed to hack one device you own, you should be allowed to hack all of them” is flawed. That’s like saying “if I’m allowed to use a knife to cut pork, I should be allowed to use a knife to cut my kittens”. PETA disagrees, so do millions of YouTube users…

vivaelamor (profile) says:

Re: Strawman argument

“I feel this all a big strawman argument.”

That’s an ironic start to your post.

“Who exactly ruled it’s legal to “hack stuff you own”?”

The US Copyright Office, apparently.

“it’s legal to bypass measures that prevent you from using third party software on a device you own. It’s illegal to bypass measures that only serve to bypass copy protection on software for your device.”

But if that wasn’t the case with the iPhone, then why would it be with the XBox?

“Of course it’s complicated, since hacking your XBox can result in more than just making it possible to run pirated software. And on the other end, you can argue that hacking your iPhone would allow you to install pirated versions of iPhone software. But a court could definitely rule that in the case of the iPhone the good (installing legal apps outside the App Store) outweighs the bad and that this is not the case with the XBox.”

Where did the USCO say that the ‘good outweighs the bad’ in the iPhone case? I read: “the modifications that are made purely for the purpose of such interoperability are fair uses.”, which seems pretty unambiguous in stating that if your modifications are required to run third party software then they are fair use.

“At any rate, the logic “if you’re allowed to hack one device you own, you should be allowed to hack all of them” is flawed. That’s like saying “if I’m allowed to use a knife to cut pork, I should be allowed to use a knife to cut my kittens”. PETA disagrees, so do millions of YouTube users…”

It is only flawed if the two situations are not sufficiently analogous. By your logic, not all humans should be afforded the same rights because everyone is different in some way.

The reason people don’t like the idea of harming kittens but do eat pork are varied but at least exist: kittens are considered cute, pigs are slaughtered by other people, cats aren’t generally considered food in most countries, etc. While you can disagree with the reasons (btw, I’m vegetarian but I probably disagree with PETA on a lot of issues), at least they relate to actual distinctions.

Jason says:

Re: Strawman argument

“Another way to look at it: it’s legal to bypass measures that prevent you from using third party software on a device you own. It’s illegal to bypass measures that only serve to bypass copy protection on software for your device.”

That’s why the Xbox mod should be considered legal. It DOES NOT bypass copy protection. SOMEBODY ELSE had to bypass copy protection to make the illegal copies, hence the copies.

Your ability to play them or not was NEVER regulated against by the DMCA, AND IN FACT the verbiage of the circumvention clause that limits it to circumvention that “effectively protects” against copy protection (since it has already been ruled NOT to be a measure of how effective the protection is) can ONLY mean to protect your right to make legal modifications such as the Xbox mod.

chinese.bookie (profile) says:

remove the word 'should' from your posts...

and your arguments evaporate. The law, as it stands in the United States, isn’t about what should be, or what is right. It is about what is written and past interpretations of that meaning. Period.

If the law was about what is right, people that make millions wouldn’t be paying less tax than me. And O.J. wouldn’t have gotten away with it the first time. And about 100 convicts in my state wouldn’t have been convicted (and later had their convictions overturned) because of prosecutorial misconduct.

There’s only one answer: Get your own lobbyist.

P.S. The definition of an honest judge (substitute alderman)in Chicago is one that stays bribed.

Jason says:

Re: Re:

No, the Xbox jailbreak was specifically to allow non-locked software, the same as the iPhone.

The DMCA protects both rather than prohibiting either.

The guys who make the unlocked copies of Xbox games that can be played on modded boxes, yes that is addressed in DMCA. ALSO, if they just made locked copies and the mod included software to play the locked copies, that too would be circumvention and outlawed by DMCA

BUT the ability to play not-locked software? That is NEVER addressed in the DMCA.

Karl (profile) says:

Four factors

In case anyone is still reading this thread, here are the relevant portions of 37 CFR Part 201:

Under the first factor in Section 107, it appears fair to say that the purpose and character of the modification of the operating system is to engage in a private, noncommercial use intended to add functionality to a device owned by the person making the modification […] The fact that the person engaging in jailbreaking is doing so in order to use Apple’s firmware on the device that it was designed to operate, which the jailbreaking user owns, and to use it for precisely the purpose for which it was designed […] favors a finding that the purpose and character of the use is innocuous at worst and beneficial at best.

Moreover, Congress has determined that reverse engineering for the purpose of making computer programs interoperable is desirable […] [T]he fact that [an iPhone owner] is engaging in jailbreaking in order to make the iPhone’s firmware interoperable with an application specially created for the iPhone suggests that the purpose and character of the use are favored.

Turning to the second fair use factor[…] It does not and should not infringe any of the exclusive rights of the copyright owner to run an application program on a computer over the objections of the owner of the copyright in the computer’s operating system.

Turning to the third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole[…] Where the alleged infringement consists of the making of an unauthorized derivative work, and the only modifications are so de minimis, the fact that iPhone users are using almost the entire iPhone firmware for the purpose for which it was provided to them by Apple undermines the significance of this factor.

Addressing the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work […] Apple is not concerned that the practice of jailbreaking will displace sales of its firmware or of iPhones […] Rather, the harm that Apple fears is harm to its reputation. Apple is concerned that jailbreaking will breach the integrity of the iPhone’s ecosystem. The Register concludes that such alleged adverse effects are not in the nature of the harm that the fourth fair use factor is intended to address.

And here is the relevant class of works:

Computer programs that enable wireless communication handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

While the ruling specifically mentions “telephone handsets,” it’s hard to see why this should not apply to any device’s firmware.

Fill says:

Any sane judge or jury...

Any sane judge or jury is going to know what the primary motivations between jailbreaking an iPhone and an Xbox.

One allows you to SIM unlock the phone and install/buy apps that aren’t available through Apple, and the other is to play pirated games. Now, while it is technically possible to install pirated apps on a jailbroken iPhone or install homebrew or linux on an Xbox, they are not obvious or easy.

It wouldn’t be hard to find an expert witness who would say that the iPhone jailbreaking community does not actively condone or enable pirating of apps, whereas the primary motivation of the Xbox jailbreaking community is to make money from people who wish to pirate games by modding their Xboxes.

That said, pirating is already illegal, so the DMCA is redundant. It’s a hack to go after those enabling the pirating since it is easier and more effective than trying to go after the pirates themselves. But, that’s what you get when corporations can influence lawmakers via lobby groups.

Jason says:

Re: Any sane judge or jury...

“Any sane judge or jury…would agree with me!” Yes, you’re right everyone who disagrees with you is crazy!

“One allows you to SIM unlock the phone and install/buy apps that aren’t available through Apple, and the other…” allow you to unlock your Xbox and install apps that aren’t available through Microsoft.

As self-deluded and woefully wrong you are about your notions of “primary motivations” that’s irrelevant anyway. The Xbox mod is not circumvention of copy protection. It is the enablement of non-MS, non-locked software (the very definition of interoperability), and yes some people use that for playing pirated games, but please note that those games were already copied into a fully intact non-locked game completely apart from the Xbox mod. There was no copy protection left for the mod to circumvent.

Anonymous Coward says:

I’m not sure if anyone brought this up, I tried to read most of the comments, but skimmed some in the middle. It seemed like a few people touched on it a bit.

What I don’t understand here is the connection between modifying owned things and the usage of said modded things. Even if the primary use, or even possible use of an object is something illegal, I do not see how that causes the thing itself to become illegal. It is easy to come up with hundreds of examples to illustrate this point. I own several knives, many of which are very large and very sharp, that sit most of the day in my kitchen. It would be astonishingly easy to murder with these knives, but they are not illegal. Provided, I did not modify these knives to make them deadly, so how about another example? I have many wire clothes hangers, whose original purpose is to facilitate the hanging of clothing, naturally. If I modify this coat hanger (using a simple process that takes only a small amount of imagination though ostensibly was not the intent of the makers), I can make a new object that I can use to break into people’s cars. Should the bending of coat hangers be outlawed? Should anyone who possesses a bent coat hanger be fined or otherwise punished?

Though this issue is obviously more complex, it seems nonsensical both to pick and choose what constitutes a violation, especially after precedent has been set, and to rule on a possibility (may that be a large possibility or a small possibility).

Karl (profile) says:

Re: Re:

I think a lot of the issue is the belief that modding an XBox is only done for the purpose of piracy. Unfortunately for those believers, it’s not true.

Like the iPhone, you’re simply breaking the “lock” that only allows Microsoft-approved content on the device. Whether the content that is not Microsoft-approved happens to be itself pirated is beside the point. You may be infringing on the game owner’s copyright, but you shouldn’t be infringing on Microsoft’s.

The legal issue is that Microsoft undoubtedly presents its lock as “piracy prevention” (illegal under the DMCA) rather than preventing interoperability. It’s not true, but it has enough “truthiness” for a judge to believe it.

Of course, from a common sense perspective, it’s a no-brainer. You bought the device, so if you mod it, the worst that should happen is that you void your warranty. Serving jail time for it is simply ridiculous.

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