The Case Against Sony
Recently, there's been a lot of controversy over the hacking of the Playstation 3. George Hotz, a hacker that goes by the name “geohot”, amongst others, distributed the root keys of the Playstation 3, which allows users to enable homebrew applications on their Playstation 3.
Now, I do not pretend to be a legal expert; I'm a simple college student. However, reading through the many articles on the case of Sony Computer Entertainment America v. George Hotz, I see many differing opinions on if Hotz should win the case, or if Sony should get their way.
I would also like to state that I do not own a Playstation 3; therefore, I do not have anything personal at stake.
Before getting into what I can understand from a legal perspective, I would like to state my opinion:
Sony is not within their rights to sue George Hotz. They are, however, legally allowed to release firmware for the Playstation 3 console that would overwrite any hacks and restore it to what they want it to be. These updates would need to be optional for the running of the system; for future games to run, not so much. Provided that users modifying their consoles are not using the modifications for piracy/copyright infringement/other illegal activity, hackers are within their rights to do what they wish with their own purchased goods. Any illegal activities done after the modification of the system should be taken up between the government and the user, not Sony.
Sony is, however, totally within their rights to ban users from online interactions if they have modified their console in any way. That is a service granted by Sony, provided that users are running official firmware and software on a non-modified Sony console. I think it's a bit extreme to ban them, provided modified users are not using their modifications to affect online interactions, but Sony is legally allowed to do whatever they want in their provided online interactions.
Picture from Wikipedia.
Now, to get into why I think this.
The US Copyright office has established that purchased electronics may be modified to use unofficial firmwares. George Hotz, before this Playstation controversy, hacked the Apple iPhone. Apple attempted to block this, claiming it infringed upon copyright laws. However, the government established through this lawsuit that modifying a console—without the purpose of infringing on intellectual property—is legal.
Particularly relevant is this portion of the text that can be found
(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.
(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.
I have copied the relevant portions of the text.
Before I continue, I would like to restate that I am in no way a legal expert.
However, the above text to me suggests that we are within our rights to modify our own devices to run legally-obtained software that may not be otherwise allowed, as well as to use any information we have found through hacking the system, provided the information is not used to infringe on copyrights.
I will not lie and say that hacking the Playstation 3 would not potentially allow piracy: it will. However, the modification of a console and its firmware is not the same as piracy. Opening a system to allow for new applications to be run on it is something completely separate, and protected by law. Sony would be within their rights to suspend any services to users who have used their devices for piracy, but would not be legally allowed to force an update that would cause the consoles to become inoperable. The only thing they would be allowed to do would be to issue an update that would, if applied, cause the modifications to be inoperable.
Now, it seems to me that Sony could potentially use the above laws to argue that the Playstation 3 does not fall within these bounds because it is neither a “wireless telephone handset” nor a “video game accessible on personal computers”. Should they exploit those semantics, they stand a chance at winning their suit; however, I do not believe that would follow the intention of the law.
George Hotz did not show off piracy as a capability of his hacking of the Playstation 3. He demonstrated his modification's ability to run OtherOS as well as homebrew applications; neither of these demonstrate any infringement of copyrights. He also specifically stated that he does not condone piracy.
It would be ignorant to say that some users may utilize these modifications to enable piracy. However, the modifications themselves are not piracy, and thus should be covered under fair use.