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
    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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