By J. DeVoy
Known in hacker circles as “geohot,” George Hotz, along with Hector Martin Cantero, Sven Peter and the heretofore unnamed John Does 1-100, is facing an ex parte motion for a temporary restraining order by Sony Computer Entertainment America LLC (“Sony”) tomorrow, January 12. Here’s the filing (A Legal Satyricon Exclusive(?)).
Working together, the defendants allegedly devised a way to circumvent Sony’s technological protection measures. The defendants have been distributing this information across the internet, instructing others how to circumvent Sony’s protective measures and use counterfeit games on their Playstation 3 devices, according to the motion.
Saliently, Sony alleges that this use of technology – described as “hacking” on page 2 – is in violation of the Digital Millennium Copyright Act (“DMCA”). The last notable time this issue was addressed came when people were frequently jailbreaking their iPhones in order to add third-party applications not supported by Apple. During that controversy, the U.S. Librarian of Congress found that jailbreaking the iPhone was a fair use of the technology and exempt from 17 U.S.C. § 1201. The Librarian of Congress additionally found that the following use was not prohibited by § 1201:
Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:
(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.
But a little about the law, first. 17 U.S.C. § 1201(a)(1)(A) sets forth a comparatively straightforward prohibition:
No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
Fair enough, but most people lack the capacity to do that. Given the sophistication of Sony’s digital rights management software, this problem would be too small to warrant mention without the internet. Thus, § 1201(a)(2)(A)-(C) broadens the scope of prohibited behaviors (with similar measures found under § 1201(b)):
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
As used in this subsection—
(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
There are factors that determine the exemption of certain technologies and processes from § 1201, found in § 1201(g)(3).
Factors in determining exemption.— In determining whether a person qualifies for the exemption under paragraph (2), the factors to be considered shall include–
(A) whether the information derived from the encryption research was disseminated, and if so, whether it was disseminated in a manner reasonably calculated to advance the state of knowledge or development of encryption technology, versus whether it was disseminated in a manner that facilitates infringement under this title or a violation of applicable law other than this section, including a violation of privacy or breach of security;
(B) whether the person is engaged in a legitimate course of study, is employed, or is appropriately trained or experienced, in the field of encryption technology; and
(C) whether the person provides the copyright owner of the work to which the technological measure is applied with notice of the findings and documentation of the research, and the time when such notice is provided.
Problematically for Hotz, and others may disagree, but this case is distinguishable from the iPhone situation at first glance. While the jailbreaking of the iPhone allowed for the phone to operate on different networks and use applications available from third parties who did not wish to play the Apple Store’s games. Allowing the phone to operate on other networks furthered the Congressional goal of interoperability, while allowing users to install third party applications on the phone was not a copyright violation. Pirating the applications would have been, but properly purchasing or licensing the rights to the software, even if used on a jailbroken phone, is not the same as full blown copyright infringement.
In contrast, this situation finds Playstation 3 users with a device to let them play games for which they possess neither copyright rights or licenses. This dispute may appear to be about accessibility like the iPhone situation was, but there are no networks to be accessed here, or new applications to be run on the Playstation 3. From the looks of Sony’s pleading and the surrounding media attention, the primary use of this development is for piracy and use of counterfeit games. While producers of video games (or “vidjea games,” as my grandmother would say) may be an unscrupulous lot for trying to kill the first purchase doctrine, piracy is still unlawful. As this situation appears to be wildly different from the iPhone disputes of yesteryear, geohot et al‘s workaround is not likely to be exempt from 17 U.S.C. § 1201.