Feds Reject Legalizing DVD Cracking, Game Console Modding

Xbox modding. Photo: videocrab

Copyright regulators rejected on Thursday proposals to make it lawful for people to copy DVDs for personal use or to jailbreak videogame consoles to run custom software.

The ruling hands yet another loss to digital rights groups who are waging an ongoing campaign to chip away at the scope of a law that limits citizens’ rights by treating copyright owners’ encryption techniques as sacrosanct.

Every three years, the U.S. Copyright Office entertains requests to create temporary loopholes in the Digital Millennium Copyright Act, which makes it unlawful to circumvent encryption technologies in items that you buy.

It’s all part of a long-running showdown between the big copyright holders who view the world as divided into creators and consumers, and a coalition of librarians, digital rights groups, disability activists and hackers who seek to preserve a world where people can repurpose, upgrade and build upon the devices and media they legally buy — just as hackers, painters and culture jammers had done for decades before the DMCA was adopted in 1998.

Librarian of Congress James Billington and Register of Copyrights Maria Pallante rejected the two most-sought-after items on the docket, game-console modding and DVD cracking for personal use and “space shifting.” Congress plays no role in the outcome.

The regulators said that the controls were necessary to prevent software piracy and differentiated gaming consoles from smart phones, which legally can be jailbroken:

[T]he record demonstrated that access controls on gaming consoles protect not only the console firmware, but the video games and applications that run on the console as well. The evidence showed that video games are far more difficult and complex to produce than smartphone applications, requiring teams of developers and potential investments in the millions of dollars. While the access controls at issue might serve to further manufacturers’ business interests, they also protect highly valuable expressive works – many of which are created and owned by the manufacturers – in addition to console firmware itself.

On the plus side, the regulators re-authorized jailbreaking of mobile phones.

On the downside, they denied it for tablets, saying an “ebook reading device might be considered a tablet, as might a handheld video game device.” We don’t suspect Apple or Google would sue anybody for jailbreaking their tablets, as they never sued anybody for jailbreaking mobile phones even before regulators first approved jailbreaking in 2010.

That said, when the only difference between a Galaxy Note and a Android tablet is an inch and a radio that can handle voice and data channels, it’s a pretty odd line to draw.

Digital-rights group Public Knowledge blasted the decision forbidding DVD cracking to enable consumers the ability to make copies of their DVDs so they can be watched on various devices in different platforms.

The group had asked regulators to grant consumers the lawful right to make copies of DVDs for personal use, a request the Motion Picture Association of America strongly opposed. While plenty of programs exist to decrypt the so-called content-scramble-system encryption on DVDs, the decision against making it lawful means the mainstream public must live under Hollywood’s rules.

“Today’s decision flies in the face of reality. The register and the librarian were unable to recognize that personal space shifting is protected by fair use. This has implications beyond making personal copies of motion pictures on DVD,” said Michael Weinberg, a Public Knowledge vice president. “Under this view of the law every personal non-commercial space shift is a violation of copyright law. That means, according to the Copyright Office, every person who has ever ripped a CD to put on her iPod is a copyright infringer.”