forums.ps2dev.org

OK, although this is slightly old news (26 Oct), I just read the ruling, and I think it's noteworthy and relevant. Here's a good link to some analysis by our friends at Ars Technica The discussion is worth reading as well, as the videogame industry is specifically mentioned by a couple posters.

For those of you outside the US, or for anyone that's unfamiliar with the case, the US printer manufacturer Lexmark incorporated technology in it's printers that would refuse to work with "unauthorized" (read: non-Lexmark) print cartridges. Rationale: the printers themselves are usually money losers -- they make their profits by selling cartridges. A third-party company (SCC) reverse-engineered the Lexmark cartridges, and added a chip of their own that fooled the printer.

Lexmark sued SCC under the DCMA, and was granted an injunction, but this was later reversed. Lexmark appealed, but the appeal failed.

Here are some excerpts from the article (the emphasis is mine):

Generally speaking, "lock-out" codes fall on the functional-idea rather than the original-expression side of the copyright line. Manufacturers of interoperable devices such as computers and software, game consoles and video games, printers and toner cartridges, or automobiles and replacement parts may employ a security system to bar the use of unauthorized components. To "unlock" and permit operation of the primary device (i.e., the computer, the game console, the printer, the car), the component must contain either a certain code sequence or be able to respond appropriately to an authentication process. To the extent compatibility requires that a particular code sequence be included in the component device to permit its use, the merger and sc?s ?aire doctrines generally preclude the code sequence from obtaining copyright.

We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case: by, for example, creating a Toner Loading Program that is more complex and "creative" than the one here, or by cutting off other access to the Printer Engine Program. The crucial point is that the DMCA forbids anyone from trafficking in any technology that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [protected] work." 17 U.S.C. § 1201(2)(A)

Reading the DMCA in pari materia with the rest of the copyright code supports this interpretation. The DMCA should be used as part of the copyright code as it applies to computer software codes and other digital media. To this extent, the specific "purpose" language of the DMCA modifies the more abstract language of the previous copyright law. As the Court explains, the fair use exception in copyright law explicitly looks to the purpose of the one making the copy in determining whether or not such copying violates the statute, and the DMCA itself contains a reverse engineering exception that also demonstrates Congress's aim merely to prevent piracy.

The court even quoted Lawerence Lessig, which IMO is pretty cool.

OK, my interpretation of this is:

• Copyright infringement is still bad. Circumenventing the copy protection on a game violates the DCMA
• Reverse-engineering a game console manufacturer's copy protection mechanism for the purpose of distributing your own game (or other content that is freely distributable) is allowable under the DCMA

So there should be no legal ramifications if someone were to find a way to burn their own bootable PS2 media (CD-ROM, DVD, memcard, whatever) containing their own material. The downside, of course, is that any technique that's used for legitimate developers will eventually be corrupted by the warz0rs.

Food for thought, though.

It would be GREAT if everyone here agreed with that, I mean it makes sense to me. But I'm sure it's still wayyy too far out and "uneccesary" for ps2dev to embrace (at least for now).

HOWEVER, it would help out people who want the Independance Exploit and don't want to spend money just on that.... then again I'm not sure what a "bootable" home burn looks like and I won't ask, would suck if someone locks this for warez =p ehheh.

That is interesting though, I'll read the article when I get back from class... speaking of... *runs*

Mharris, fantastic summary of the relevance of the DMCA case to what we, with respect to legitimate homebrew development, SHOULD be able to legally do.

However, we should all remember that, unless the Court itself mentioned video game consoles specifically, then they should still be considered "untested" in court. I would agree wholeheartedly that any such court case would be eventually lost to the plaintiff suing under the DMCA, if it reaches all the way to its conclusion, but most homebrew people are not in a position of influence or wealth to adequately defend themselves in said cases.

Also keep in mind that in the UK, courts have ruled in favor of Sony with respect to protections similar to what could be at issue under the DMCA. I believe there was a similar case in Australia that Sony lost originally, but my memory thinks it was won on appeal. (Someone help me out here).

The moral of the story is: Do you want to be the one to test it in court in the USA or some other country ? Or do you want to let someone else have that honor and blaze a trail ? Not many people have the strength for long protracted court battles.

It would serve many of us well to proceed cautiously. There are other premiere homebrew dev sites out there that are more appropriate for fighting ruinous court cases.

gorim wrote:Also keep in mind that in the UK, courts have ruled in favor of Sony with respect to protections similar to what could be at issue under the DMCA. I believe there was a similar case in Australia that Sony lost originally, but my memory thinks it was won on appeal. (Someone help me out here).

Yeah, originally sony got beat, but then appealed and won.. for a brief rundown:
http://australianit.news.com.au/article ... 5E,00.html

AFAIK, this happened here because unlike (most?) other countries, Australian copyright law does not allow us to make even one copy for personal use / backup, unless explicitly stated (anyone still read software licences? Usually you can copy it once to store off-site??).
Since this is really all mod-chip's only claim to legitimacy (imports and homebrew notwithstanding), they were outlawed.

Which means everyone here who bought an album at the record store, and ripped it to their iPod is a criminal. Funny that...

However, we should all remember that, unless the Court itself mentioned video game consoles specifically, then they should still be considered "untested" in court. I would agree wholeheartedly that any such court case would be eventually lost to the plaintiff suing under the DMCA, if it reaches all the way to its conclusion, but most homebrew people are not in a position of influence or wealth to adequately defend themselves in said cases.

I think this is correct. The court can treat two similar topics completely differently.

Actually, I've wondered about something. Gameshark (and Action replay/whatever) say they're unlicensed products and not endorsed by Sony. Since their discs are bootable, haven't they gone behind Sony's back to make a bootable disc, and defeated the copy protection mechanism to publish their own software? If so, how is Datel selling an unlicensed product on a self booting disc any different from me distributing my own games (even selling them) on selfbooting CDRs? (That is, if it were possible to magically burn such a thing without your drive 'correcting' the errors, and I had the time and team to create something worth selling; although both are unlikely events.)

Very good questions, and interesting to ponder.

Of course, I am no lawyer nor do I have any dealings with the parties involved, so I can only speculate.

First of all, I think the creation of bootable disks requires them to be pressed, not burned. The means to do this requires lots of money. People who are in a position to do this are motivated to make more money. So, they think very carefully about the consequences of what they are doing.

Thus far, the products sold to consumers are not themselves enabling widespread piracy, but restrict themselves to limited utility and gaming purposes. Certainly, they very well could have introduced such a product that enables piracy, but have not.

The only unlicensed product introduced that I know for sure HAS received legal attention from Sony was the hdloader/advance product, which went further than any other in enabling uncontrolled and widespread piracy by the end-user.

This shows that there is a line that is generally not being crossed.

Contrast this with modchips, that have been legally attacked with greater success, because they are direct enablers of uncontrolled piracy by removing copy protections to the end-user.

But the question remains... is the reverse-engineering of the methods of creating a bootable disk, and subsequent use in an unlicensed commercial product, illegal ? Note that laws on this will vary from country to country.

The interoperability measures included in the US DMCA may very well allow this to happen, so long as the previously mentioned line does not get crossed.

This may be the subtlety of the BNETD case, where the Judge made a controversial ruling that because there was no limited commercial purpose in the reversing of blizzard's network protocol, it was illegal under the DMCA. While I don't agree with the ruling myself, this ruling almost makes more sense in this light.

Lets put it another way:

Case 1: Someone reverses anti-piracy protection to create a commercial product to sell, but that product itself does not reveal the reversed anti-piracy measures nor enable further piracy - legal ? So far apparently.

Case 2: Someone reverses anti-piracy protection to create non-commercial products that as a side-effect enable uncontrolled and wide-spread piracy, and potentially reveal the anti-piracy method's algorithms. Ruled illegal.

So back again to your question, what would happen to you if you figured out how to defeat the protections and make your own bootable CDs ? I would think it depends on what you do with that information and who you tell about it. Only lawyers and the legal system can help answer that question with any more certainty.

One more thing to ponder, there are people in the dev scene who know a heck of alot more about ps2 anti-piracy measures than they tell to others in the scene. The simple fact is, they don't tell people because: a) it was hard work to figure things out, b) the ramifications of the information are endless, c) careless distribution of certain information leads to things getting out of control, and finally d) most, one might hope all, aren't interested in revealing it or have any personal gain, nor any harm to the game industry, happening as a result.

Remember that the original case that set the precedence used in the above decision was "Sega v. Accolade," so it's already been tested and reaffirmed for video games here in the US. That was one of Lexmark's arguments - that the precedent only applied to video games and not to printer carts. Kind of the opposite of what you are arguing. :)