Go Directly To Jail. Don’t Pass Go.

JUST WHEN YOU thought the US legal system couldn’t get any crazier, something comes out of the blue that leaves you wondering if the nice people at the US copyright office all forgot to take their medication at the same time. In today’s case of The Law Is An Ass: the US Copyright Office has just published a paper that specifies jail-breaking gaming consoles or tablets will soon be illegal. Yeah, I know, those crazy kids!!

This bizarre legal situation has come to pass because the US Copyright Office accepts requests every few years from both pro and anti-digital rights activists to alter laws under the Digital Millennium Copyright Act. In essence, it looks as if a small group of very vocal business people with sizable  financial interests have managed to convince those hopelessly digitally illiterate (but doubtlessly well intentioned) people in the copyright office of the evils of jail-breaking. Perhaps they should have convinced them to take their meds instead?

It looks like the Electronic Frontier Foundation (EFF), New America Foundation’s Open Technology Initiative, New Media Rights, Mozilla Corporation and the Free Software Foundation (FSF) were all proponents of keeping jail-breaking legal. Funnily enough, details on the organisations that wanted jail-breaking outlawed were harder to find (my inner conspiracy theorist thinks that both Apple and Google are conspicuous by their absence).

The schizophrenic view held by The Copyright Office around why phones can legally undergo jail-breaking, while you’re breaking the law with other gadgets, stems from the fact that someone convinced the copyright office that “video games are far more difficult and complex to produce than smartphone applications”, so you’re pretty much up shit creek with a teaspoon for a paddle if you’re in the US and are a console or tablet owner with an itch to extend the functionality of your hardware. Phew! Phone users however, can tinker with their hardware with comparative legal impunity, because phones are widely adopted. If by now you’re spluttering with rage, you’re not alone. There’s a saying that goes thus:

“Those that fail to learn from the mistakes of their past are condemned to forever repeat them in the future”.

In this instance, there are almost too many analogies and historic precedents to draw from. Didn’t it occur to anyone from the US Copyright Office to take a quick look at the fiasco that was the Volstead Act? As any gangster movie or Boardwalk Empire fan knows, the manufacture and sale of alcohol was outlawed in the US from 1919 to 1933. The outcome of this was a total disaster for lawmakers and law enforcement agencies for decades afterwards (and arguably when it comes to organised crime still is a slow moving train-wreck).

Much of the political pressure being brought to bear for the banning of booze in the US came from The Women’s Christian Temperance Union and the Prohibition Party. Politically savvy players in the Women’s Christian Temperance League and Prohibition Party tapped into the prevailing anti-German sentiment (remember, this was just after WW1) and talked up the political power of the German-based brewing industry and reducing domestic violence in the home. Moral outrage at the evils of booze ensued and before you knew it, Prohibition was instituted via a ratification to the Eighteenth Amendment to the United States Constitution in 1919. The madness had truly begun. Called the Volstead Act, the amendment prohibited the manufacture, sale, or transportation of liquor within the United States (strangely enough, drinking booze was still totally legal).

Congress may have passed the act, but they gave very little thought as to how the act was to be enforced. Unsurprisingly, many large US cities with underfunded police departments were uninterested in enforcing the legislation, leaving an understaffed federal service to go after brewers, vintners and bootleggers. It wasn’t a raging success.

Although alcohol consumption did drop on the whole, the craziness that was the Volstead Act also saw a massive upswing in alcohol consumption in many US cities and huge headaches for law makers as organised crime sprung up to tap into the lucrative booze trade. Thankfully, sanity finally prevailed in 1933, with regulators admitting defeat and repealing the law.

So just what are the lessons that the US Copyright Office could learn from this? First and foremost is enforceability. Just because you can pass a law, that doesn’t mean that you’ll achieve the desired socio/economic and moral outcomes originally envisaged. People still wanted a tipple and were prepared to pay in order to get it. No rocket science needed here. People jail-breaking their tablets and consoles because they want greater customisability without having the accountants of IT/telco firms emptying their pockets. Will this law see it stop? I seriously doubt it.

Therein lies the second lesson for the US Copyright Office. Nature abhors a vacuum. Organised crime and gangsters quickly filled the niche formerly occupied by bars and breweries. Where there had previously been a carefully controlled, regulated and policed alcohol industry, driving it underground saw crime spiral out of control. At the moment jail-breaking isn’t all that widespread. People in the know tend to give it a go if they’re not too concerned about invalidating their warranties. Making it illegal will probably also see jail-breaking garnering a whole lot more media coverage. And guess what? A growing number of people will want to know just what this jail-breaking fuss is about.

Under prohibition, people were being charged large amounts of money to drink what was more often than not sub-standard booze. In many cases alcohol poisoning, blindness and even death resulted from people drinking poorly brewed and distilled liquor. Outlawing something can often see an illegal alternative, creating even larger problems for lawmakers than they’d originally wanted to solve by passing the law in the first place. Jail-breaking most devices is anything but a straightforward process, and even the most tech savvy are wary of getting it wrong and “bricking” their tablets or games consoles. Dodgy illegal malware-laden alternatives touted as simplifying or even automating the jailbreak process could become increasingly commonplace, creating a whole new layer of cyber security issues that previously didn’t exist.

Awesome, isn’t it? Ironically, The Copyright Office’s definition of a tablet computer is fairly broad. In a nutshell, this could mean that US gadget owners could soon find themselves running afoul of the new law without even realising it. Worse still, even though phones have been exempted from the new laws, phone owners will most probably need to get permission from their telco before they’re legally able to unlock/jailbreak any phone, because the terms of what constitutes legal jail-breaking have been narrowed under the new law.

The question I have is how applicable will the new laws be to phablets, the in-between-a-phone-and-tablet peripheral that became wildly popular thanks to Samsung’s Galaxy Note range? The market is a fast moving beast and new form factors that don’t neatly fit into these laws are not only a distinct probability, they’re almost guaranteed to happen. Then what?

Saying that phones are legal yet consoles and tablets are not because phones are more widely adopted than tablets is of course barking mad. Will phones stay more widely adopted by 2025? Who knows? The same applies to the logic that says games created for consoles are more complex. You don’t have to have the brain of Albert Einstein to realise that code for phones will become increasingly more complex as time moves on. How will these new laws factor this trend in?

I foresee big problems ahead. The new copyright laws will come into play in the US on October 28 and will remain in effect for three years. Personally, I am hoping that someone comes out with a range of fully pre-jail-broken tablets, consoles and phones that kicks the idiots who lobbied the US Copyright Office into the poorhouse. Here’s hoping. PAT PILCHER