A few months ago the Librarian of Congress decided that jailbreaking your own iPhone is legal. What about game consoles?
For people unfamiliar with the terminology, jailbreaking originally referred to a process which allowed iPhone users to unlock their phone’s operating system in order to gain complete control of their phone in order circumvent any limitations imposed by Apple. In other words, a jailbroken iPhone breaks the economic network effect (sometimes known in the industry as a platform effect) Apple intended by allowing users to install software from more than simply the Apple Apps Store.
The same idea applies when jailbreaking an Xbox 360 game console. This type of jailbreaking has been traditionally referred to as ‘modchipping’ or ‘modding’ because the method involves soldering a silicon chip into the console. The process is relatively simple. It involves opening a console up and performing a bit of silicon surgery to alter the laser which reads Xbox disks. The altered laser then allows the console to read homebrewed games and software, as well as pirated copies. The purpose of jailbreaking any piece of electronic hardware is often to circumvent the Digital Rights Management (DRM).
Back in August 2009, federal Homeland Security agents arrested Mathew Crippen, a 27 year-old liberal arts student at California State University, at his Anaheim home for jailbreaking two Xbox 360’s.
The Government alleges that Crippen ran a circumvention racket from his home, clearly meriting the attention of the Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security. Well, more accurately, his activities merited federal attention after the Entertainment Software Association (ESA) reported Crippen as a potential violator of the Anti-Circumvention Provisions of the Digital Millennium Copyright Act of 1998 (DMCA). The ESA is a trade association of the videogame industry which combats copyright infringement and piracy. Nearly all major videogame software producing companies are members of the ESA, many of which are based in California.
Crippen believes a formal disgruntled neighbor reported him to the ESA, which then sent an undercover agent to Crippen requesting that Crippen jailbreak an Xbox 360. ICE then sent its own undercover agent to have another Xbox 360 jailbroken. After Crippen successfully jailbroke both consoles, authorities obtained a warrant to arrest Crippen and raid his home, where authorities further confiscated around a dozen different gaming consoles.
Crippen allegedly made some money from jailbreaking Xbox 360s. He allegedly charged 30 dollars a console for this service. Crippen claims it takes only 10 minutes to jailbreak an Xbox and that he learned how to do it online from Google searches on the topic.
The federal government charged Crippen with two counts of violation of the DMCA’s Anti-Circumvention Provisions that make it illegal for anyone to break software encryptions. Specifically, Crippen is charged under 17 U.S.C. ｧｧ 1201(a)(1)(A), 1204(a)(1). If found guilty, Crippen could face up to 10 years in jail and $1 million in fines for both offenses. His trial date is set for November 30th of this month.
Crippen claims that he did not modify the Xbox 360 consoles to allow their owners to play illegally pirated games, but rather so that the owners could use decrypted copies of DRM-laden lawfully-acquired gaming software and make backup copies of games already owned. Games inevitably get scratched and back-ups can be made (it has already been well established that making backups is perfectly legal), but back-ups cannot be used because of the DRM encryption of the consoles. A stock Xbox 360’s laser simply will not read games made on regular DVD disks. In order to fix that, an Xbox 360 needs the laser modified. Crippen claims he only helped people who wanted to make lawful backups of games they already owned. Section 117 of the Copyright Act, 17 U.S.C. § 117(a) specifically authorizes an owner of a copy of any computer software, including computer games, to make an archival copy of the program.
Stepping back for a moment, a rational reader may inquire how it could be illegal to modify any piece of electronic equipment. Except for guns, I can ordinarily alter almost everything I own anyway I please without the government having any business regulating me. My gut tells me the law should never make it illegal to modify a piece of hardware I already bought and paid for. Unfortunately, that is exactly what the DMCA’s anti-circumvention provision does.
The DMCA, with its Anti-Circumvention Provisions, is a very unique piece of legislation because it does not ask the purpose for which the altered hardware is being used, but makes the very alteration of software or, in this case, hardware illegal. No one is arguing that using jailbroken hardware to run pirated software/games should be legal; rather that jailbreaking hardware to run legal software should not be illegal.
The Librarian of Congress can choose to make certain exceptions to the DMCA every three years, which is what he did a few months ago by adding jailbreaking phones to the announced list of administrative exceptions to the Anti-Circumvention Provisions of the DMCA. The Registrar of Copyrights receives all exemptions proposals, holds a process of hearing and public comments, makes final recommendations, and the exclusions are then formally issued by the Librarian of Congress. To be clear, the mobile phone exception only applies to individuals jailbreaking their own phones and does not cover anyone jailbreaking phones for profit.
The trouble for Crippen is that gaming consoles are not on the list of exclusions. Xbox’s are also not mobile phones. Additionally, the government claims he was jailbreaking for profit not personal use. Crippen will need a fairly talented and creative lawyer to successfully convince a judge or jury that gaming consoles should be treated like phones under the DMCA.
Fair use is also a likely defense Crippen will offer against prosecution under the DMCA. Fair use includes things like reverse engineering, first amendment free speech, using copyrighted material for educational purposes, and the like. Unfortunately for Crippen, fair use may not help him both because he allegedly jailbroke consoles for money and because the Anti-Circumvention Provisions of the DMCA contain no express fair use provision and the courts have so far declined to read one into the statute. If Crippen jailbroke his own game console, the court still might find he did something illegal but its unlikely anyone would have reported him, and even if he was reported, the ESA would lack sufficient evidence to get him prosecuted. However, Crippen allegedly jailbroke other peoples consoles for money. If proven, such conduct could constitute a clear violation of the DMCA痴 Anti-Circumvention Provisions.
The ESA had to crack down on Crippen’s power grab on the gaming entertainment establishment’s market. It is just not possible to prosecute all console jailbreaks; so the ESA appears to be attempting to make an example of Crippen to discourage other people from jailbreaking their own consoles. It seems unconscionable to charge someone with a crime for which the potential sentence could be up to a $1,000,000 fine and ten years in prison, so the government is only seeking a three year prison sentence and no monetary penalty (as if Crippen could pay).
Even three years still seems like an awfully stiff penalty for enabling people to play and backup video games.