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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  1. identicon
    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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