Wednesday, December 15, 2010

Xbox Hacking Case: Finally, A Judge That Stands For Innovation!



If you are at all interested in copyright law and new technology's effect on innovation, then this article will give you chills. As Anton Ego put it in the classic pro-innovation manifesto, Ratatouille, "The world is often unkind to new talents, new creations. The new needs friends." And it is with great pleasure that I report how upliftingly a District Judge in Los Angeles embodies this notion. I'd like to briefly summarize what the case is about, then talk about why the things this judge said are so exciting.

The defendant in this case is charged with breaking digital mechanisms that protect copyrights, in this case, the Xbox's controls on what kinds of games can be played on it. The defendant developed a way to hack into the Xbox and play pirated, non-officially-licensed games on his system. Arguably, the main purpose of the hack is to let illegally copied games run on the system. But our defendant argues that there are a lot of non-infringing uses for this kind of hack, including developing new technologies for the machine and for playing your own legal back-up copies of your games, to name just two.

So this case went to trial, and while there have been a lot of cases about reverse engineering technologies and hacking them (the semi-recent iPhone jailbreaking rules, for instance), this is the first about the Xbox. Very exciting, but also potentially dangerous.

Because the judge presiding over the case could happen to really likes the rule against circumventing these technologies, maybe because he thinks that protecting large companies that develop these technologies is more important than letting tinkerers break their machines open and try to innovate. If a judge like that presides over the case, then we remain where we have been since the Digital Millennium Copyright Act was put into action in 1998: copyright law prevents a very important (in my opinion) type of innovation.

But lo and behold, the judge in this case is not the kind of pro-DMCA hard-liner that some of us were afraid of. During opening statements just a few weeks back, the presiding judge, Philip Gutierrez, realized that the prosecution's case had some problems. He pointed out, as the article linked above says, problems with witness credibility and with the prosecution's characterization of the defendant's intent. Even more importantly, the judge reversed his earlier decision to remove a fair use defense from the defendant's arsenal, essentially saying that the law must allow some experimentation on this kind of technology.

That is key: according to this judge, allowing tinkering, home-brewing, and hacking is IMPORTANT, and anyone who does it is allowed to try to prove that they did it with good reason, reason more important than the arbitrary strictures of the DMCA.

It also signals a big step forward in how judges think about these issues. To a certain extent, the prosecutors made all of these mistakes in this case because they thought they could get away with it. And if they got a judge like a lot of the other circuit judges out there, who maybe don't understand the role of hacking in innovation, they WOULD have gotten away with all of this. It's supremely uplifting to see a judge making it clear that you can't just rely on judges liking your policy aims to win cases against hackers; when you want to curb innovation, your case better be pretty strong.

(Brief notes: First of all, since this incident, the prosecution decided to dismiss the hacking incident, essentially giving up, for now, on trying to prosecute this kind of thing. Victory! For now. Also, for a great overview of how this kind of hacking works, check out famed Xbox hacker Bunnie's overview.)

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