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Opinion: Should Console Jailbreaking Be Legalized?

Opinion: Should Console Jailbreaking Be Legalized? Exclusive

December 7, 2011 | By Nick R. Brown

December 7, 2011 | By Nick R. Brown
More: Console/PC, Exclusive, Business/Marketing

[An update last year to the Digital Millennium Copyright Act freed up users to "jailbreak" their smartphones, and a lobbying group is now pushing the same thing for consoles. But is that what most gamers really want? Journalist Nick Brown examines the issue in this editorial.]

At this point, most tech geeks know someone who has "jailbroken" their iPhone. Jailbreaking a few years ago was part of a mysterious subculture where only those draped in black overcoats living in shadowy basements who had battled the trials of flashing DD-WRT onto a router or who had the tenacity to liquid cool their CPU had dared tread.

But now jailbreaking an iPhone is pretty much a point and click pursuit. I actually have a friend who has jailbroken his phone whom I'm not sure is even capable of making a sandwich.

For those not familiar, jailbreaking (often called "rooting" by Android users) is the commonly-used tech jargon for unlocking your iPhone or potentially any other smartphone or gadget out there for the purpose of installing software of your choice, or taking your device to a different carrier.

In 2010 the Library of Congress expanded its definitions in the Digital Millennium Copyright Act (DMCA) in what's known as "anti-circumvention exceptions" pertaining to the issue of jailbreaking.

The key paragraph below describes the telephone handset exception:

Computer programs that enable wireless telephone 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.

Basically this legalized the jailbreaking process for using your device in any manner you see fit with the exception of distributing intellectual property of the product's designer or installing pirated software. It doesn't mean that Apple or any other handset manufacturer is obligated to unlock or jailbreak your phone and it doesn't mean that the manufacturer can't go after those responsible for breaking access controls, i.e. the controls that limit who has access to certain functionalities of a device.

The most recent breaking news in the jailbreaking of devices was this week's announcement by the Electronic Frontier Foundation that it was requesting that the U.S. Copyright Office and Library of Congress again modify the DMCA to allow for the jailbreaking of gaming consoles.

The basic argument is that gaming consoles are computer console type devices in the same vein as smartphones, and that an individual who has purchased and owns a gaming console has a right to use the console as they see fit.

I had a chance to catch up with Corynne McSherry, EFF's lead on this issue and Intellectual Property Director for the organization. McSherry explained to me that the view of EFF is that jailbreaking is not a copyright issue, whether that be a smartphone or a gaming console, or any computer device for that matter.

"You should be able to tinker with your device without getting the permission of the copyright holder," she noted.

EFF has a reasonable argument, and McSherry said the EFF felt the current situation with gaming consoles is likened to someone who wanted to modify their car, and upon doing so, not only did they void their warranty, but they were also liable for federal penalties. Certainly that wouldn't make much sense.

The trouble I see with this is that there is a bit of a difference between the modification of smartphones or tablet computers or the like and gaming consoles that has to do with the environments that they are used within.

For instance, if an individual jailbreaks their phone, generally speaking, they are the only one that uses the device and the chances of ruining the experience of other smartphone users is slim to none. However, jailbreaking gaming consoles has in many ways been a totally different story.

In late 2010, famed iPhone jailbreaker George Hotz openly published exploits to circumvent the Playstation 3's security functionality. Sony pursued legal action, after which hacker collective Anonymous threatened to attack Sony websites in retaliation.

Soon after, hackers breached PlayStation Network and Sony Online Entertainment servers, although Anonymous -- a loosely-defined group -- denied involvement. The data breaches made user contact and credit card information vulnerable for millions of subscribers, knocked 6 percent off Sony's shares, and the total damage was estimated by one analyst to cost Sony around $2.74 billion. (Sony and Hotz eventually settled out of court.)

The fine line lies between allowing individuals to do what they want to do with their purchased hardware, but if such a thing were legalized, jailbreaking could negatively affect the gaming experience of paying customers, whose expectations are to enter a protected walled garden world that provides for a fair and balanced online game playing experience.

The biggest examples of such have not been shown to produce that. Microsoft's Xbox 360 console is a rife playground for jailbreaking via a method called "jtagging." Sparing you from the ugly technical details, jtagging is a process involving hardware modification in conjunction with software that jailbreaks the Xbox 360 console.

In many cases, jtagging is very innocent and used in the manner that EFF projects most would use jailbroken consoles. On the other hand, the technique is also used to copy pirated games to an individual's hard drive, i.e. renting games, ripping the game to the user's console and returning the rented game, providing the user with a free copy of the game.

It also accelerated a massive hacking campaign in 2009 involving Activision's massively popular game Call of Duty: Modern Warfare 2, in which jtagged hardware owners were able to create game lobbies in which the jtagged users were able to auto aim, see through walls, modify point distribution, and partake in other forms of cheating. This particular game was rendered completely unplayable on the PlayStation 3 as well in early 2011 due to the hacking that took place on that console.

Online gamers must have confidence established by the console manufacturer, their online network, and even from the game designers themselves that everyone involved in a game is on equal footing. The end user desires a mindset that they are paying for a service that provides them an even playing field and past hacking episodes have completely shattered that trust for many a subscriber. If that confidence does not exist, then those users will simply stop paying for services and the manufacturers' revenue streams will dry up and hurt the company's ability to provide future hardware and service provisions.

But again, the console does belong to the purchaser. Modification of a gaming console in almost every case immediately voids the warranty, and cheaters or pirates when found are readily banned. Though in real-world experience, these policy procedures are acted out in a less than timely fashion, as it is practically impossible for a manufacturer to police all of its users.

EFF's McSherry feels that this rock and a hard place can be offset via contractual agreements between the hardware manufacturers and the end users, and that contractual agreements could create a wall of separation allowing for gaming consoles to be used as the end user sees fit, while maintaining a working online environment for all game players.

The notion is grand, and I would love to see this happen if the DMCA were adjusted accordingly in a perfect ecosystem where all users played fair and did not pirate software. But as the old sports adage goes, "If you ain't cheatin', you ain't tryin'." And I find in the world of gaming where the "cheat" is as American as apple pie, this maxim rings true as well. If individuals are willing to carry jailbreaking exploits to the point where it negatively affects other users when it is illegal, I'm not positive that cheating and piracy would become less rampant in a state where it is legalized.

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