Playstation 3 Jailbreaking an Open Source of Controversy
A little over a month ago a fellow IP Brief blogger reported on a very interesting decision handed down by the Librarian of Congress granting exemptions to the DCMA. The decision was triumphantly lauded by fair use advocates and not so happily received by certain others.
So why would Apple fight so hard against this? A decision that allows pre-OS4 users to install software that lets them adjust their screen brightness and change their background image seems harmless, right? The reason Apple doesn’t want users jailbreaking their products isn’t because of the countless man-hours it took to design the iPhone’s beautiful solid black background; it’s because the same software allows users to obtain copyrighted material such as games and applications for free. Granted, not every jailbreaker is an iPhone software pirater, but every iPhone pirater is necessarily a jailbreaker.
Enter the current state of video gaming. The video game industry, despite still being treated as a sort of niche industry by the mainstream media, currently makes more money than Hollywood and is predicted to double the revenue of the music industry by next year. It comes as no surprise that an industry as big as this would be as much concerned with piracy and someone like Apple. Modification chips (or mod chips as they’re known by the tech savvy gamer) act similarly to jailbreaking an iPhone in that they allow the user greater control over the video game console than the console maker wants them to have. In many cases this control includes the ability to backup copies of copyrighted games that then leads to the illegal sharing of these copies.
Creating personal use backup copies of things you already own typically doesn’t run afoul of copyright law (think ripping a CD to your iTunes as analogous to digitally backing up a video game) so the best way big game companies can fight the piracy that they are sure stems from this use is to go after the people selling the actual mod chips. Sony, maker of the Playstation 3, was recently able to get an injunction in Australian Federal Court blocking the sale and exportation of PS3 mod chips.
Just a few days ago, however, the source code that allows the jailbreaking of the PS3 was made “open source.” This means that now anyone can use, edit, and improve the code. Much to Sony’s chagrin, this has made the outcome of the mod chip fight entirely irrelevant as now anyone with the internet and a little initiative can jailbreak their PS3 for free.
The entire situation raises more questions than it answers. Issues with patenting source code aside, where should the line be drawn in efforts to protect companies like Sony, or should it be drawn at all? Does the law need to more strictly protect the intellectual property of the most profitable entertainment industry in the country, or should loss prevention departments of console makers just have to sit idly by with the knowledge that there will always be someone, somewhere, pirating their copyrighted material? Moreover, how can we come to terms with the apparent paradox of companies needing to be protected from their own consumers? Piracy will probably always exist, but the question of what we consider fair use of a product will only get more and more important as technologies improve and so does the consumer’s ability to harvest its latent potential.