January 20, 2011

Copyright vs. Ownership: The Right to ‘Jailbreak’

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The infamous hacker George Hotz, a.k.a. “Geohot,” has been sued by Sony of America for publishing tools and information which can be utilized to “jailbreak” (override the software limitations of) the PlayStation 3 video game console. Sony alleges that Hotz’ tools, by enabling gamers to play illegally copied games, encourage copyright infringement in violation of the Digital Millennium Copyright Act. Hotz’ case reflects a very hotly debated question in the courts today: Who really owns a PS3?

The after-market modification of electronic devices is not new to Sony or other electronic device manufacturers. Sony first experienced console modification with the original PlayStation, as some gamers would modify the console’s hardware in order to play illegally copied games burned on rewritable CDs. Not long after, Microsoft’s Xbox console became a popular target of modification due to a game save vulnerability which allowed gamers to pirate and modify games. Today, virtually every company creating electronic devices has to worry about some form of end-user modification: Hotz is also responsible for “jailbreaking” Apple’s iPhone,  which allows the phone to use different cell phone networks and Apple-prohibited applications.

17 United States Code §1201 prohibits the circumvention of “technological measure[s]” that “effectively control access” to copyrighted material. The Library of Congress provided an exemption to this statute for hackers like Hotz in 2010, after Apple sought to sue those who “jailbroke” their iPhones. In order for his PS3 modifications to fall under this exemption, Hotz must show that his hacking was for interoperability — that is, that his modifications allow the PS3 to operate with different programs and do not facilitate copyright infringement. Though Hotz does claim he made a “specific effort” to avoid enabling piracy, his modifications nevertheless provided the tools for others to pirate, and if Sony can prove others are using Hotz’s tools to illegally copy games, they may win their case.

Hotz’s case represents a hotly debated legal issue in the courts today: The scope of ownership of electronic devices. As Hotz and many others would argue, someone who purchases an electronic device like a PS3 has unrestricted access to their device: They can play it, hack it or even throw it off a cliff. This type of complete ownership would allow consumers the unconditional right to modify their devices, even if modifications would enable potential copyright infringement. Companies like Sony would argue that parts of the device — the built-in limitations and code in particular — are still the property of the manufacturer and are thus illegal to tamper with. As such, the consumer is more like a licensee, who may enjoy a device only in the manner prescribed by the manufacturer.

The difference in these “scopes of ownership” means quite a bit to the everyday person: If companies can still control their devices after selling them, they can disable or change them at their leisure. Apple recently patented a method to remotely disable iPhones and iPads that exhibit “suspicious behavior,” which could be used to remotely disable modified iPhones and iPads without warning. Microsoft used similar methods to remotely disable modified Xbox 360 consoles last year. If left unchecked, users who have modified their electronic devices or use their devices “incorrectly” may soon find these devices remotely disabled by secretive “updates” or changes without warning.

Though these methods seem draconian, there are non-copyright-related reasons why companies like Sony and Apple may wish to employ them. In many cases, modified devices can have a detrimental effect on the quality of provided services. “Jailbroken” iPhones enable network tools that have the potential to heavily tax AT&T networks, seriously harming other consumers’ iPhone capabilities. Modifications to the Xbox allowed gamers to easily cheat at popular online games, harming legitimate online competition. Theoretically, some form of post-purchase control is necessary to ensure all consumers can enjoy their products as originally developed — the debate, of course, is over how much control is really necessary.

So who really owns a PS3 or other privately purchased electronic devices? That question may soon be answered by the courts. A remarkably similar World of Warcraft-related tampering case may be appealed all the way to the Supreme Court, as federal courts currently disagree regarding whether or not a copyright owner can sue when a consumer circumvents copyright protection without infringing copyright law. Even with such a case, the battle between consumer autonomy and copyright protection rages on, and it will take much more time, litigation and legislation in order to fully answer questions regarding scopes of ownership. Nevertheless, for the time being, some things are certain: hackers like Hotz will continue to do new and innovative things with technology that toe the line of legality, and electronic device manufacturers will constantly be seeking new methods to protect their proprietary interests in the ever-changing world of electronic devices.

Kirk Sigmon is a first-year law student at Cornell Law School. He can be reached at kas468@cornell.edu. Barely Legal appears alternate Fridays this semester.

Original Author: Kirk Sigmon