For example, when Sony first marketed the Sony PlayStation 3 (“PS3”) in 2006, it highlighted as a key feature the PS3’s ability to run the Linux OS in addition to the native PS3 OS. 115In April 2010, however, Sony issued a firmware update that blocked this capability, leaving users and developers who depended on this functionality without any options for restitution. 116 To overcome this sudden and dramatic limitation and restore their consoles to full functionality,
console owners, hobbyists, security experts, and software developers created methods of jailbreaking to decrypt and modify the PS3’s firmware to enable it to interoperate with lawfully obtained third-party operating systems and software. However, their efforts to gain control over the device have occurred under the threat of litigation by console manufacturers, including claims under § 1201.
In the 2009 rulemaking, the Copyright Office recognized that allowing users to decrypt and modify a device’s firmware to enable the device to interoperate with lawfully obtained
applications fosters fair use, competition and innovation. The same rationale applies to video game console jailbreaking for similar purposes of interoperability. The technological restrictions on video game console jailbreaking do not protect the value or integrity of the copyrighted work; rather, they reflect a business decision to restrict the applications that users can run on the device.
As such, the Register should recommend a similar exemption for video game consoles to allow for the circumvention of technical protection measures to enable interoperability of the console with independently created operating systems and software applications.
The PS3 application Multiman is a prime example of such an application. 182 Multiman allows users to create a backup of their PS3 software—a practice generally anctioned by the Copyright Act 183—and save the file on an external hard drive.
News Source: KAKAROTOKS
Official Source: eff.org
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