Legalities of jailbreaking the PS3

Sony has been in the news recently quite a lot in the IP front. First, they have been served with a serious injunction in Europe regarding a patent dispute with electronics giant LG involving the PS3 (Jas Purewal at Gamer/Law and Florian Mueller have been following the issue). Then Sony got engaged in a DMCA legal battle against activists and websites that provided instructions on how to jailbreak the PS3.

For those unfamiliar with the background of this dispute, last year a hacker named George Hotz posted a set of keys that could be used to unlock the latest PS3 (at the time of writing the keys have been removed). This allows users to install a different operating system on the console (which is in the end just a computer), as well as allowing users to upload other applications, and perhaps most importantly, it might allow users to mod the hardware so that they can play pirated games. Sony did not like this, and initiated action against Hotz based on anti-circumvention provisions found in the DMCA. In a very interesting ruling (I would say unprecedented, but I’m afraid I may be proven wrong), a Federal Magistrate of the U.S. Northern District of California granted a subpoena against Hotz’s web hosting company to obtain the IP addresses of all of the people who had downloaded the key from the site. Needless to say, the Internet did not take this lightly, and started to post the aforementioned key everywhere. As it is often remarked in these pages, the Internet interprets censorship as damage, and reroutes around it.

Perhaps the most interesting incident occurred when a Sony Twitter account accidentally re-Tweeted the key, and in a gigantic case of corporate “doh” immediately removed it, but not before it had been copied by various people.

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So right now we are engaged in the eternal game of cyber-cat-and-mouse as Sony has posted a new firmware update to the PS3 which is set to remove this and other vulnerabilities.

But what about the legalities of jailbreaking? I will make the distinction here with modding and other specific exploits that are designed specifically to remove technological protection measures in order to facilitate infringement, I believe that regardless of your opinion on DRMs and TPMs, the law is clear (see Art. 11 of the WIPO Copyright Treaty). Jailbreaking however is designed mostly to allow a user to upload un-approved or unofficial software to a hardware device. Strictly speaking, this does not constitute circumvention of technological protection measures, that type of protection is designed to keep the manufacturer strictly in control of whatever software and firmware gets into the device. So the question is whether users have the right to remove such restrictions. The U.S. library of Congress thinks that they do, so in their latest update to DMCA exception regime they included iPhone jailbreaking as an exception to the DMCA anti-circumvention provisions.

Outside of the U.S., the question is still in the legal limbo, but I honestly think that there is a very good legal case in favour of jailbreaking devices if it is done with the intention of installing a new operating system, or installing applications not sanctioned by the manufacturer. If users want to tinker with the software, just void the warranty and let it go, but do not pursue them for wanting to get creative with their own property.

All of this talk leaves me wanting to play a game, but most of mine are still in a crate making its way through Costa Rican customs. I guess Solitaire will have to suffice.

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