EFF Seeks DMCA Exemption for Console Modders

Paul Lilly

The Electronic Frontier Foundation (EFF) is urging the U.S. Copyright Office to renew and expand exemptions to the Digital Millennium Copyright Act (DMCA) that were granted last year in response to EFF's requests to protect certain modding rights. Specifically, EFF played a critical role in making it legal to "jailbreak" smartphones, and the organization wants the DMCA to grant the same freedom for electronic tablets and videogame consoles.

"In the exemption requests filed today, EFF asked the Copyright Office to protect the 'jailbreaking' of smartphones, electronic tablets, and video game consoles – liberating them to run operating systems and applications from any source, not just those approved by the manufacturer," EFF said in a statement . "EFF also asked for legal protections for artists and critics who use excerpts from DVDs or downloading services to create new, remixed works. These exemptions build on and expand exemptions that EFF won last year for jailbreakers and remix artists."

EFF Intellectual Property Director Corynne McSherry criticized the way the DMCA is written, saying it's "supposed to block copyright infringement. But instead it can be misused to threaten creators, innovators, and consumers, discouraging them from making full and fair use of their own property." Modder Geroge Hotz knows this all too well. Hotz is a notorious iOS modder who got himself in hot water when he hacked a PlayStation 3 console and then posted root keys of the PS3 on his website. He essentially figured out a way to jailbreak the PS3, which would have been legal on a smartphone. He settled a subsequent lawsuit with Sony and later landed a job with Facebook.

If EFF gets its way, the simple act of modding a console would not be illegal, though using a jailbroken console to circumvent copyright would still run afoul of the law.

"Technology has evolved over the last three years, and so it's important to expand these exemptions to cover the real-world uses of smartphones, tablets, video game consoles, DVDs, and video downloads," EFF Senior Staff Attorney Marchia Hofmann said in a statement.

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