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Sony, Microsoft Battle Hackers Over Right to ‘Jailbreak’ Video Game Systems: Hackers ask the U.S. Copyright Office for the right to modify powerful video game consoles

Another high-tech and high-stakes copyright battle is brewing—this time between video game console manufacturers such as Microsoft and Sony and the hackers who like to tinker with the devices’ inner workings, allowing them to perform new and socially responsible functions, but also perhaps to play pirated media and games.

Microsoft’s Xbox 360 and Sony’s Playstation 3 pack an exceptional amount of graphics and computing power at a relatively low price. As tech-savvy consumers and scientists realized this, they began to circumvent the “walled garden” the companies created, using the consoles as cheap computers or number-crunching machines.

University professors, amateur hobbyists, and big-time scientists realized the potential of the Playstation 3’s computing power. The United States Air Force networked 1,700 PS3’s to form one of the most powerful supercomputers in the world. A researcher at the University of Massachusetts used a grid of eight PS3s to simulate gravitational waves. Thousands of amateur game makers began to create “homebrewed” software that could be played on modified Playstation or Xbox systems. Thousands of pirates modified their systems to play “backup” copies of commercial games.

Nearly all of those nonprescribed uses of video game consoles are illegal, according to the Digital Millennium Copyright Act, an expansive law criminalizing digital piracy and the development or modification of devices to allow machines to play pirated media (the USAF has a special agreement with Sony).

A new push by amateur hackers and digital rights activist groups such as the Electronic Frontier Foundation, or EFF, could make “jailbreaking” video game consoles legal under a similar exemption afforded consumers who jailbreak iPhones (a process that allows users to turn their phones into wireless hotspots, install unlicensed software, and achieve a level of customization Apple doesn’t provide). The copyright office is taking public input on the subject until Friday, and will likely make a decision soon after.

Andrew Huang, who wrote about modifying an Xbox while studying electrical engineering at MIT and later turned it into a book, argues that jailbreaking allows users to “gain full administrative access” to a video game console to “innovate and take advantage of the device’s full potential.”

His book includes more than 250 pages detailing how to reverse engineer and modify an Xbox to run homebrewed software developed by amateurs, add USB ports, exploit security holes, and run alternative operating systems such as Linux.

[Sony Says it Has Sold 1.2 Million Playstation Vitas]

The EFF argues the exemption is needed to allow consumers to “use lawfully obtained software of their own choosing,” even if it isn’t licensed by Microsoft or Sony.

Unsurprisingly, Microsoft and Sony are pushing back hard. In a statement to the U.S. Copyright Office, Sony said jailbreaking “will enable—indeed, may often be intended to facilitate—the unauthorized copying and commercial piracy of a large number of valuable copyrighted works.”

It hasn’t always been this way. When the Playstation 3 was released in 2006, Sony touted it as an inexpensive computer replacement, and even included a feature that allowed users to run the Linux operating system.

Phil Harrison, then a vice president at Sony, said at the time that the company hoped “that the PS3 will be the place where our users play, watch films, browse the Web … the Playstation 3 is a computer. We do not need the PC.”

In 2010, hackers found a vulnerability in the company’s sanctioned Linux environment that allowed users to play pirated games. It appears that hack soured Sony on the idea of the Playstation-as-computer. It shut down the Linux environment, locking users out from playing homemade games and researchers from modifying the PS3 in the process. In its statement to the copyright office, Sony had a message for homebrew gamers and researchers: Go elsewhere.

Homebrewers “have other options” and “are not doing anything that is qualitatively different from developing games for the PC,” they argue. As for research, the company argues that the “console is not intended to be a general-purpose computing platform and it is not necessarily well-suited for research applications.”

The EFF and hackers argue that modifying their consoles for purposes other than piracy is a “fair use” of the technology. In a letter to the copyright office, Huang takes a “once you buy it, it’s yours” approach. He and the EFF argue that hackers often dream up new and unintended features and uses the manufacturers never thought of, and that manufacturers sometimes embrace.

Microsoft’s Xbox Kinect camera was designed to be for motion gaming only. Soon after its release in late 2010, hackers reverse engineered the $99, high-tech camera. It’s now widely used in medicine, education, and robotics.

At first, Microsoft cried foul, telling CNET that “Microsoft does not condone the modification of its products.” The company soon backed off and encouraged alternative uses of the camera.

A Microsoft spokesman puts the company firmly against the proposed Digital Millennium Copyright Act video game exemption.

“Kinect inspired game developers, entertainment brands, hobbyists, academics, and commercial partners to develop exciting new ways to use Kinect in areas we hadn’t planned on when we created it. We support this innovation,” says a Microsoft spokesman. “By contrast, the overwhelming goal of ‘hacking’ the Xbox 360 console is to remove security features in order to play illegally pirated game discs. The health of the video game business depends on customers paying for genuine products.”

Huang says that’s a fundamentally different approach that may have stifled innovation in the Xbox. With the Kinect, it took a more lax security approach and has reaped the benefits. With Xbox, it’s still stifling creativity, Huang says.

“It’s much easier to pirate games than it is to say, boot Linux on the Xbox or run other non-sanctioned but also non-infringing software on the box,” Huang writes in an E-mail. “One may argue that because they made the barriers so high for people to do legitimate activities on the [Xbox], they have constrained innovation and thus the only thing left are illegitimate activities.”

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