Sony always gets what it wants. While they're not fundamentally wrong, since it's their product, they're playing whack the mole with a large hacker community. This can't end well.
I'll admit that I haven't followed the story that closely, but from my understanding, he hacked his PS3 and posted what he found, right? Wouldn't we, as a reasonably logical technical community, see that as his system and he would be free to do with it what he wants (the hack, probably not the post)? Perhaps posting it is where they have a case (INAL), but I can't see any justification for going after him for merely hacking/poking around his PS3 hardware and software.
I started to see this pop up in some posts recently:
* apple's hardware...they have the right to do what they want
* sony's hardware...they have the right to do what they want
I don't exactly know when this started but I think it's worth correcting and trying to stop. No reasonable person would assume that you could buy any physical device and NOT be allowed to do whatever you want to it. There may be usage restrictions (you can't modify your car w/ a jet pack and expect to drive it on a public road...), but if you are doing something for educational/experimental purposes, I can't see how it would be illegal.
Anyone care to comment? I'm open to having my position changed if someone can show me why.
IANAL, but the DMCA includes a ban on circumventing access controls. Recently exceptions to this ban were issued, allowing people to jailbreak their iphones. Unfortunately the broadest exceptions were limited to "telephone handsets."
The summary of the exception with respect to video games said this:[1]
>(4) 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.
IANAL, but it is not a general prohibition on circumventing "access controls", so he may not need to rely on an exception.
17USCs1201 (added by the DMCA) says:
(a) Violations Regarding Circumvention of Technological Measures.
- (1)(A) No person shall circumvent a technological measure that
effectively controls access to a work protected under this title.
The prohibition contained in the preceding sentence shall take
effect at the end of the 2-year period beginning on the date of the
enactment of this chapter.
So the technological measure must "effectively control access to a [Copyrighted work]".
Jailbreaking a games console does not circumvent the technical measures that prevent copying - at most, it might circumvent technical measures that prevent someone from circumventing technical measures.
The Court of Appeals for the 9th Circuit (including California) has a precedent that makes the anti-circumvention provision rather broad (more than a plain language interpretation of the law would otherwise imply); other circuit court rulings have interpreted the law to be much more narrow and not cover circumvention that doesn't allow / involve copying; presumably this is why Sony wants it heard in California and Geohot wants it heard in New Jersey (under the jurisdiction of the Court of Appeals for the 3rd Circuit).
No, the DMCA bans circumventing a measure that prevents copying. Sony needs to prove that their locks on the PS3 prevent copying. I'm not sure they do.
I guess the question is whether him giving users root access to their machine is 'facilitating copyright infringement' or not. I guess if you read it by the letter of the law he may be guilty, but thankfully the letter of the law isn't always king. This was probably meant more like, "does not actively encourage copyright infringement and facilitate that need."
I've only seen people say "It's Apple's App Store, they have the right to do what they want with it", not "It's Apple's hardware, they have the right to do what they want with it".
I don't know anyone who would question a hardware owner's right to do as they please with it.
>To be clear, we believe you have every right to push forward such a policy. In our view, it’s your hardware and your channel and you can put forth any policy you like.
Apple's server hardware isn't the issue: Apple is asking for a 30% cut when Readability is processing and distributing content. (Maybe; I'm not sure how the Readability app specifically works. But Readability is theoretically in the same boat as Amazon, where Amazon is hosting all of the content, and Apple expects a cut because you're using an iOS device, and Apple maintains that their curator position licenses them to revenue sharing from all apps, regardless of who hosts the content.)
Morally I agree that something you buy is yours to do what you want with, but in practice there are routinely restrictions on what you can/can't do, each with their own degree of right/wrongness.
For instance most people find it reasonable that you can't:
-Modify/bypass emissions equipment on your car.
-Saw off the barrel of your shotgun, or modify semi-auto -> Full auto
-Buy one copy of a movie then show it to the whole neighborhood and charge admission
I think in all those cases you mentioned it would be usage restrictions rather than actually being able to change the physical object you bought. And it would be the government saying you can't do something, not BMW or Colt handguns.
Again, INAL, but I thought you could modify a semi-auto and saw off the barrel as long as they were used at the shooting range (for instance...probably a state by state law as well).
And I'm fairly certain you can bypass the emission on the car to modify to make it a track car, for instance, or make it farm equipment. Again, not really up on the law, more anecdotes I've seen in my personal life.
> And it would be the government saying you can't do something, not BMW or Colt handguns.
I think this is a key point. Is it the government telling you that you can't do something (that is against the law) or a company using the law to prevent you doing something that they don't want you to do. I would guess that the former would be governed by criminal law and the latter by civil law - please correct me if I am wrong.
In this case, it is Sony using the law to try to prevent people learning how to root their PS3s and doing so through civil courts.
I thought you could modify a semi-auto and saw off the barrel as long as they were used at the shooting range (for instance...probably a state by state law as well
Nope, it's a federal law that prohibits you from possessing a short-barreled shotgun or a full-auto anything. This is since the National Firearms Act of 1934. Selling such a shotgun (after being goaded into it and entrapped by a ATF agent) was what precipitated the Ruby Ridge massacre.
In fact -- and you'd think this would fall foul of the 1st Amendment -- it's illegal to distribute a pamphlet that tells someone how to convert their rifle to full auto.
I agree... usage issue: another example is modify a phone so it transmits at non-standard frequencies I'm in my right to do it. If I'm at home or a non-public place that's shielded I can do what I want, but the public airways outside are under FCC regulation and then I'm breaking the law not for doing the modification but for using it in regulated space. It's the same way a companies tests out development phones and transmitters before getting a licence.
For your first point (and I only know this from accidental experience), it is extremely easy to bypass emissions equipment on a car, 1995 or newer.
On cars from 1995 an up all cars had to have an OBDII compatible port that lets car manufacturers read out the codes, but it was primarily designed to speed up emissions testing. Instead of putting the car on the tread mill now all they have to do is plug in the computer and get the codes back from the car. The car is continuously monitoring its output anyway to get the right fuel/air mixture to get the best possible gas mileage.
The way it does this is with a series of O2 sensors that are placed near the exhaust port on the engine and continuing down the exhaust for one or two more.
The thing is that if one of those sensors is faulty or dirty it will return that code, however since cars also have to run when the sensor has broken or just isn't installed the computer will completely ignore it and not fire a code for it at all. On my car all of my O2 sensors were broken, and I didn't know it until I brought it into a mechanic as I didn't think it was running correctly. I had passed emissions since my computer said everything was fine, but if it had been put on the tread mill (which would have cost me the same $27.50, so the state makes the same money whether they computer it or run it) it would have had "high" emissions because the fuel/air mixture was not right and I was basically dumping unburnt fuel into my exhaust.
After the O2 sensors were fixed my car ran much better.
It surprised me that my car didn't throw a code for the O2 sensors being completely gone as far as the computer was concerned, but it just goes to show that some things are easy to bypass.
Most people absolutely do not find it reasonable that you can't buy one copy of a movie and show it to the whole neighborhood. In fact they assume you can; people do it all the time.
I don't like the "licensed not sold" line. A copy was sold, U.S. law (generally) backs that up, and that means there are certain things you can do with it such as loan it out or give it away/resell it. You can't copy it, but that's because of copyright law, not because it's licensed-not-sold.
they're playing whack the mole with a large hacker community
Large companies need to realize that they're actually engaging in asymmetric warfare when they do this. The worldwide hacker community that's aware of Sony far outnumbers the internal dev group that did their security.
What's more, Sony suffers from the typical company illusion of hiring the top 1%:
But groups of hackers on the internet have none of the friction that exists in corporations, and so are operating in a purer, less-diluted meritocracy. As a result, companies doing DRM are generally outnumbered by more qualified opponents.
The basic rule of asymmetric warfare, is that you don't take on your opponent in a head-on fair fight. That's absolutely the worst thing to do. You need to turn the situation on its head, like the IRA did. Usually, the outlaw is in the position where, "You have to beat them every time. They only have to catch you once." But the IRA had that turned on its head. They only had to get away with something "once," and the British authorities had to catch them every time.
Companies can deal with pirates, but they have to realize that they are the underdogs, not the big guy in this fight. The best thing for them to do is to figure out how to win without fighting. Failing that, they need to figure out how they can be the ones who "only have to win once."
(I've been figuring this out, and yes, it can be done.)
They're trying to "only have to win once" by going after the top PS3 hackers. All of the defendants listed so far (geohot, fail0verflow) have unequivocally condemned piracy. Sony doesn't go after the pirate developers because, so far, none of them have shown much skill in uncovering new vulnerabilities - they take and rehash what fail0verflow, geohot, et al have done to support piracy. [1] Not to mention it is a lot easier to go after geohot, a guy who believes what he is doing is right and doesn't want to live in a world where he has to hide his research, than an anonymous pirate developer.
[1] The minds behind original PSJailbreak dongle (which enabled backups and piracy) do deserve credit for their brilliant USB exploit. Back to my main point, many have said that the PSJailbreak crew was only able to start their work after geohot exploited the PS3 hypervisor and documented how to do so.
They're trying to "only have to win once" by going after the top PS3 hackers.
That's just plain wrong. All Sony is going to do is to drive all the hacking completely underground. All of it will be black hat.
That's not what I meant about "only winning once." That's just another whack of the whack-a-mole mallet. Here's how you "only win once" while you are forcing your enemy to "win every time."
1) Let people copy and run your game, but require them to pay when connecting to the official company servers.
2) Devote all of your technology and development resources to only detecting pirates, but don't ever take any direct action against them. Don't even let them know immediately if they've even been detected.
3) Ensure that all of the highest glory, fame, and bragging rights in your userbase go to winners of tournaments on the official servers.
4) Take indirect action against pirates, but only in ways which are hard for the pirates to substantiate. Never lock them out, outright, but start degrading their gameplay experience in ways which make them look like they're "whiners." Attack their gameplay experience, but only periodically and when it will hurt them the worst. Start rumors that various cracked versions of the games have bugs. Ban pirates and warez users, but only from the big official tournaments on the official servers, perhaps many months after they've been detected as pirates.
5) Continually update the game, including the detection technology.
In this scenario, those running your software illegally are the ones who will always be looking over their shoulder, wondering if they've been caught. At least at first, no one will have strong motivation to crack the detection technology, since they can run the game anyways. Be continually changing the detection technology, so that any given crack only lasts a month or so. One can even compartmentalize the detection technology, such that any given crack will only work on a fraction of the installed base. If done correctly, you can convince people to simply pay for the game.
This isn't "getting medieval." It's "getting Machiavellian."
