Comment by mcn | Hacker News Reader

Comment by mcn | Hacker News Reader

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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.

[1]http://www.copyright.gov/1201/2010/Librarian-of-Congress-120...

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."

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