US government takes on legal fight over console jailbreaking once more

Just over two years ago, the US Copyright Office rejected a proposed effort to make it legal to jailbreak video game consoles to run legally obtained homebrew software. Today, hacking proponents and industry members are once again fighting over the same proposed exception to the Digital Millennium Copyright Act as part of the copyright office's regular review of "Section 1201 exemptions."

Proponents of the exemption argue that console owners should be able to have more control over what software they can run on hardware they legally own. "Just as jailbreaking a phone—a practice that the Copyright Office recognizes as valid—extends the device’s functionality, jailbreaking a console opens up a whole new world of possibilities to owners," iFixit writes in a brief supporting the effort to make console jailbreaking legal. "Consoles don’t just have to be a gaming platform. They house within them a powerful computer, which can be easily and cheaply repurposed as a home media device or a general computing device. But repurposing the console requires jailbreaking the system."

iFixit cites a few examples of legitimate uses for jailbroken consoles, from educators using consoles as cheap, TV-based PCs in classrooms to Air Force researchers using 1,700 daisy-chained PS3s as a cheap supercomputer. An exemption could also allow for more basic personal uses, such as converting an Xbox to a home media center well after its usefulness as a game machine is done.

The fact that jailbroken consoles can run illegal copies of copyrighted games shouldn't have any bearing on whether these legitimate uses for jailbreaking are legal, iFixit argues. "Yes, jailbroken consoles can also be utilized to pirate games. But piracy is already a crime—whether or not the pirate defeats a technological protection measure over firmware. And pirates will continue to pirate games—whether or not jailbreaking a console is legal."

iFixit is joined in its arguments by the Free Software Foundation, which argues that installing GNU/Linux on a console "should not come with the threat of legal sanction" if it doesn't infringe on anyone's copyrights. The effort also has the support of over 1,600 public commenters who submitted largely identical form letters through the Digital Right to Repair website. "Jailbreaking my game console shouldn't be a crime," the form letter reads. "Copyright law should be used to prevent piracy, not to limit consumer freedom. I jailbreak my game console in order to run software on it that's important to me. The hardware in game consoles can last a long time; jailbreaking allows consumers like me to repurpose devices and use them longer and more effectively than the manufacturer ever intended."

Industry says: Jailbreaking leads to piracy

On the other side of the debate before the Copyright Office are three entertainment industry lobbying heavyweights: the Entertainment Software Association (ESA), the Recording Industry Association of America (RIAA), and the Motion Picture Association of America (MPAA). These groups argue that jailbreaking a console necessarily means eliminating built-in access controls, increasing the incidence of piracy, and decreasing the incentive for publishers to create new copyrighted works for the systems.

Accessing and distributing pirated content is "a principal reason why users hack their video game consoles," the industry groups write, citing numerous advertisements and online discussions seeking to jailbreak consoles specifically for this purpose. "There is abundant evidence that the primary reason many users seek to hack video game consoles is not to create new and different works, but to avoid paying the customary cost of existing works or devices—which courts have recognized as a commercial use. ... Absent these access controls, copyright owners would be legitimately concerned that their content could easily be infringed, and the incentive to make such content available through the video game consoles would be greatly diminished."

Further, the industry groups argue that the legitimate use cases for jailbroken consoles are not compelling enough to justify a fair use exemption. Being able to use consoles as low-cost computers is not a sufficient argument for an exception in a world where Moore's Law reduces computer hardware costs quickly. Similarly, the groups argue, there are thousands of other devices that can already run Linux as an alternative operating system, and the mere inconvenience of not being able to run the OS of their choice isn't a significant burden on console owners.

Here we go again

The current arguments on both sides of the issue are quite similar to those presented during the Copyright Office's 2012 rulemaking cycle. The parties on each side are a bit different this time around, though; the EFF and Sony both filed briefs in 2012, but have yet to join in the argument directly, for instance.

Back in 2012, the Copyright Office came down squarely against the idea of legalizing console jailbreaking. Being able to play homebrew games and software is not a sufficiently "transformative use" for a console to justify an exemption, the US Register of Copyrights ruled. Furthermore, the Register agreed with the industry's arguments that an exemption could have the substantial "real-world impact" of "diminishing the value of, and impairing the market for, the affected code, because the compromised code could no longer serve as a secure platform for the development and distribution of legitimate content."

Jailbreaking a console is different from the now-legal process of jailbreaking a phone because, as the Register puts it, making a console game is "a long and intensive process," compared to "the relative ease and inexpensiveness of creating a smartphone application." Even if that were not the case, though, "the evidentiary record fail[s] to support a finding that the inability to circumvent access controls on video game consoles has, or over the course of the next three years likely would have, a substantial adverse impact on the ability to make noninfringing uses," the Register found. One bit of evidence for that finding: only a few thousand people made use of the PS3's "OtherOS" Linux installation function before Sony removed the capability in early 2010.

Is there reason to believe the Copyright Office will come to a different conclusion now than it did in 2012? We're struggling to think of any significant events or legal theories over the last three years that would point to such a turnaround. Still, there's always a chance the mere passage of time, and additional consideration of the arguments, will lead to a new result.

The Copyright Office is accepting written comments until May 1, and public hearings on the exemptions will take place May 19 through 21 in Washington, DC and Los Angeles.