QJ How-To #5: Legality 101 (Part 1): Copyright Issues and Homebrew |
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The full past month, we've provided you with how-to guides on prepping your PSPs for homebrew. Now that you're just about ready to really get the fun rolling, we'd like to take pause from all those instructions this week (and the coming one, too) to lay down the rules of what's cool and what's not, what's acceptable and what's borderline you'll-get-your-ass-whipped-by-the-giants in brewing your own homebrew.
For QJ's How-To #5, we present to you Legality 101: Homebrew and Copyright issues. Know the real score on why the mere mention of "homebrew" puts Sony's and Nintendo's underpants in a twist, and how clear exactly is the delineation between homebrew and piracy -- cos they ain't the same at all. Essentially, therefore, this how-to is not technical, but practical: How To Not Get in Trouble for Doing Homebrew.
First, let's define some pertinent terms that we will be seeing throughout this installment of the How-To series. Terms like "copyright", to know why it is the ever-battlecry of the corporate giants; "infringement", to know when fair use becomes unfair, among other things, and more. Okay, let's get started.
Copyright
Dictionary.com defines this as:the exclusive right to make copies, license, and otherwise to exploit a literary, musical, or artistic work, whether printed, audio, video, etc.: works granted such right by law on or after January 1, 1978, are protected for the lifetime of the author or creator and for a period of 50 years after his or her death.
Wikipedia, on the other hand, would define it as:
a form of intellectual property which gives the creator of an original work exclusive rights for a certain time period in relation to that work, including its publication, distribution and adaptation; after which the work is said to enter the public domain.
Let's step back from the jargon and paint a layman's picture of Copyright's definition. Basically, the author of any material (as enumerated above), be it text, audio, images, etc., are rightfully the owner of said materials. As good ol' Wiki stated, it is considered intellectual property, as in, it came from your own ideas and actualized to fulfillment either by the author himself, or under his vision and guidance. Also considered as IPs would be trademarks (the distinctive names, words, logos, designs, etc. of a product) and patents (grant of exclusive right in an invention for a period of time).
As the owner, the author then has the freedom to essentially do whatever he wants with it: make copies, license, exploit - the whole she-bang. Something like, if it's your party, then you can cry (or bawl) the whole night if you want to. Cos it's your party. Same concept applies here.
Now, those who are granted such copyright (upon application) on or after January 1, 1978 automatically secures said ownership of material for as long as they live. And even after their death, the copyright remains secure in their name for another 50 years -- enough to sustain the fabulous lifestyle of the descendants of the author with post-humus royalties. After that length of time, only then will it enter what they call the public domain.
Public domain is that status of the material enumerated above after the copyright has ceased, it being the rights now being held by the public at large. This then makes the material subject by appropriation by anyone, or in other words, safe for public consumption.
Okay, listen here. Before you go rejoicing and counting down the days till the 50 years are over for your favorite game or whatnot, do take note of this: The aforementioned Copyright lifetime is applicable only to individual works. Those that belong to corporations (ie. Sony, Microsoft, Nintendo) are secure and valid for a whopping 95 years from the date of first publication.
That's way too long a wait for public domain-ship, huh?
Infringement
This is the act of breaching a law, right, or obligation.
Now, let's put these two terms together, shall we?
Copyright Infringement
This is therefore the "unauthorized use of material that is covered by copyright law, in a manner that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works. Piracy, in other words.
Derivative works would be those that are based on the original - "spin-offs" as you may call them.
So, now you see where this is headed, yes? See, the main question that you should be concerning yourselves with, especially if you're into making homebrew, is whether or not you are breaching the threshold of creative re-creativity and established copyrights. After all, there is a somewhat-thin line separating homebrew from piracy. We in the community may recognize and acknowledge that line, but others are not as patient to look closer and see it for what it's worth. So we say, it's better to know these things so as to protect ourselves from any untoward harassment or whatnot in the future.
Homebrew vs. Piracy
Let's now go take a look at how thin exactly is this line separating homebrew from piracy. Debates have been raging for years now as to the legality of homebrew because it supposedly opens the floodgate for piracy. As anti-homebrewers would argue, homebrew is never benign in itself because it will eventually be used as a tool to pirate.
Homebrew, as we all know, is the process of using hacks and exploits to execute unsigned hardware code - little pieces of heaven that the manufacturers did not include in the original hardware.
Piracy, as we've discussed above, is the unauthorized use of material covered by copyright law. The term was first contextualized in Daniel Defoe's 1703 novel, "True-Born Englishman": "Its being printed again and again, by Pyrates."
And as fate would have it, homebrew does technically use copyrighted material (in terms of hardware) without authorization from their respective manufacturers. But there's an even deeper argumentation beneath all this technicality.
Coders have defended homebrew by stating that it does not have anything to do with piracy, but is in fact merely an avenue for the owners of the hardware (such as the PSP) to fully access the products that they have purchased, as consumers, and thereby have the freedom to do as they please with their purchase, as owners, and explore into its unknown nooks and crannies.
Said Fanjita in a 2007 interview with Paul Rubens of BBC News, a month after Team Noobz, Team C+D, and Dark AleX cracked Sony's OFW 3.03:
Everyone has the right to do what they want with their own hardware. Piracy does upset me, and because what we are doing opens the way to piracy it's harder to justify it morally. But our stance on piracy is clear, and we hope to be role models. Sony have never been in touch with me, so I am confident that what we are doing is legal.
Okay, this is the picture we're confronted with: homebrewers who are against piracy are themselves being tagged as accomplices to or pirates themselves. What a sad bit of irony, don't you think?
However, it also stands true that while homebrewers like Fanjita are generally against the use of their software for piracy, coders and developers generally leave the decision up to the users whether or not they will apply the homebrew for more sinister activities, such as piracy. Hence the problem culminates: if you don't like piracy, then why make/propel/encourage something that will lead to such an activity?
But then again, one could also argue that anything in themselves is value-neutral. It is the use of it that will ultimately determine whether it is a good or bad tool. For example, a knife. Displayed on a store shelf, it is a value-neutral object; in the kitchen, it is a valuable tool for food preparation; but in a crime scene, it becomes an evil object because it led the way for the death of somebody.
Same as with homebrew, in a sense. The codes in the hardware are value-neutral, the exploitation of it for further development of the hardware's potential is good, but the use of it to rip off copyrighted materials just so one can get a cheaper (or free) deal is bad.
Therefore, the potentiality of its evil should not be a hindrance in the development of a tool that can also be potentially used for the good. Hence, we have regulations -- to keep the potentialities as good, and to keep the evils at bay.
Fair Use
Actually, this doctrine is from the United States, as codified by the Copyright Act of 1976. The Fair Use Doctrine gives some leeway for the public to use copyrighted materials, even without permission from or payment to the owner.
While the statute17 U.S.C. § 107 gives no clear-cut definition of it, it does present four non-exclusive factors for consideration:
- the purpose and character of the use;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
What has to be realized here is that the hardware is only as good as the software. It doesn't matter if the unit is kickass, if you can't play any games on it, it doesn't matter (bite your tongues, fanboys! lol). The thing with homebrew, as we all know, is that it makes possible the running of games even without their licensed UMDs, thanks to ISOs and other workarounds.
Granted, there is a vulnerability in the hardware, and people in the know exploit these vulnerabilities to max out what the unit can do, but what also happens is that the hardware's lifespan is also dependent on the software. Cos as we've touched on earlier, without the software, it wouldn't matter if your unit is kickass. And if people are getting access to licensed software by way of other means apart from getting what's out in the legit market, then the developers are not getting profit.
Following this chain of events, if the developers are not getting profit from that platform, why invest money by developing more software products for it? And so we get less quality games from credible devs who have become wary because of the lack of security and protection for their products on the host hardware.
It's a chicken and egg merry-go-round, you see. And smack in the middle of all this hullaballoo between legit licenses and copyrights and piracy would be homebrew.
That's just the tip of the iceberg. Next week, on How-To #6, we'll continue this discussion with a closer look at GNUs, Creative Common Licenses, Sprites, and the corresponding general rules and exemption to those rules. Hopefully that will help you know what NOT to use/ do in your own projects. We'll also be tackling the Moorhuhn case for a case study of Cease and Desist orders involving homebrews.
Do stay tuned for that, and as always, we welcome your comments. Till next week!
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Comments [refresh]
thanks, that was a great dictionary definition
As much as I respect devs like DAX and Fanjita for what they do (and continue to do), I honestly don't believe they are as sincere as they claim with their stance on piracy.
M33 cfw, for example. If the people who made it truly disapproved of piracy, why is there ISO/CSO support? One would say that its for users to back up their own UMDs (and this argument is strengthened by the fact that a feature in newer M33's allow one to use the usb to connect right to the UMD, making backing up easier). However, one must think realistically, and one must doubt that most people who have ISOs in their memory sticks didn't get them from their UMD.
At the very least, they could release an alternative cfw, one that has all the features it normally has except for the playing of UMD "backups". Then I would believe their stance on piracy is sincere enough. For the time being, it's comparable to a newspaper stand owner claiming he's against pornography, then having a rack of dirty magazine behind the register.
But again, I must stress that I am in NO WAY bashing DAX and the M33 crew or any other developer. I just believe that their stance on piracy is a cover to protect them from the law... which I must say, is very wise of them to do.
nah i agree. HOWEVER you cant really prove that, so theyre safe. coz there are people out there who doesnt want lugging theyre umd collection around. if sony wants to combat piracy, either disable ISO in PSP or scrap the umd and go ISO completely.
TS: Bluntly, address the fact that you aren't a legal representative and that your advice should not be a substitute for legitimate legal counsel in a persons own jurisdiction - cover your butt (despite the fact there is very little "how to" in it.)
Interesting read, not very focused but thanks for sharing it - it inspired some (and I imagine over the next few days, will inspire many more) interesting thoughts.
The debate about whether including iso support in cfw is really never going to end, but for me main point is that people have a right to choose legal backups or illegal pirates, as long as the creator of the cfw doesn't break any intellectual property laws then people should be able to use the console that they wholly own any way they like.
"pyrates"?
that this is the American view. Other countries have other laws. e.g. Australia only got fair use at the start of 2008. Anyone want to guess what the Russian laws are?
That allowed you to either choose the cfw that supported iso and homebrew or the one that only supported homebrew. It was released not that long ago.
it was written a couple of centuries ago. i imagine english then is a bit different from what we know today.
yes, you're right. i should have included that in part 1. i was saving the caveat for part 2, but it will certainly serve for more clarity if i add it in the intro as well.
duly noted, and thanks.
this is but part 1, so this focuses more on the customary definition of terms and whatnot. the real nitty-gritties will be presented in part 2. i had to cut it short cos the article in full is just waaaaay too long. if i can't stand reading it all the way to the end while proofreading, then i doubt anybody else would be able to stand the length.
;)
watch for it next week!
To the writer of the article...
It's "posthumous", all one word with no hyphen.
It was the only word that stood out and me need to correct it, otherwise I read it as, "Post Hummus". haha
Is not hackable. If Sony really wants to stop piracy, they would do a few things;
1) They should release the PSP 2 with cool features and use an improved version of the TA 088v3.
2) They should discontinue PSP games and make better games for the PSP2, BUT only until they have enough revenue so they don't lose money. Sure PSP owners would be pissed off, but oh well. They'll just have to purchase the PSP 2 after a price cut or they'll have to buy it used.
3)Take out the UMD. I'm sure they'll do that, but if they don't, they'll have to create some tight security and avoid any loop holes so people can stop copying games!
Piracy is bad! We need to support Sony so we can have better systems in the future!
So ...
Not only do the folks here at QJ speak for:
Homebrew
Technology
Geeks
Fan boys
Fan girls
Sony
Microsoft
Independent game studios
But now the speak for:
Morality
and The Law
I've got two concepts for you:
Archival
Fair Use
These concepts are part of what?
Copyright law
That's right copyright law doesn't just protect the entity that holds the copyright it protects everyone else as well. It tells the copyright holder what rights to expect and what rights not to expect.
The fact is the PSP scene is fading fast.
Because the PSP is fading fast.
It's sad.
Articles like this aren't going to make either the PSP or this site relevant.