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It's still illegal to jailbreak your video game console because of piracy

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Regulators don't trust gamers

If you're interested in installing unauthorized third-party software on your Xbox One or PlayStation 4, know that it is still considered illegal under the 1998 Digital Millennium Copyright Act (DMCA) because regulators don't trust the gaming community not to steal.

The US Library of Congress, in an online order today, issued a series of exemptions to a controversial provision of the DMCA that prohibits bypassing copyright protections, even if the act of bypassing those restrictions is not intended to steal proprietary information. The exemptions include almost every major consumer technology device you can think of, from smartphones and smart TVs to wearables and 3D printers. Yet video game consoles were rejected yet again for reasons related to piracy.

The exemptions are important because they allow consumers to install third-party software, in other words jailbreak, most of those gadgets without risking copyright infringement. The reason game consoles were left out is because a jailbroken one would primarily be used for playing stolen games, says the Electronic Software Association, the game industry's largest trade group and the main opposition to the exemption. The Library of Congress order reads:

According to the Register, the record was not materially different from that considered in 2012, and included evidence demonstrating that jailbreaking of video game consoles continues to be closely associated with video game piracy, thus undermining the value of console software as a secure distribution platform.

Teardown experts at iFixit tried to support the exemption by saying certain console repairs could be made easier through jailbreaking a console. Yet the ESA countered with the argument that console manufacturers offer free or low-cost repair services. Without any other legs to stand on, the exemption failed to pass.

"Jailbreaking ... continues to be closely associated with video game piracy."

It's certainly a blow for those hoping the game console market was starting to move closer to its PC counterpart. Game consoles today resemble full-blown computers more than they ever have in the past, letting owners install and run apps, use a web browser, and play bandwidth-heavy online games. Yet the software ecosystem remains locked down tight, apparently due to concerns over game piracy. The end result is a situation where consumers are constantly reminded that they don't really own a game console if the software is outside their control.

You may remember George Hotz, who went by the online name "geohot" and gained fame by becoming the first individual to unlock the original iPhone. In 2010, Hotz discovered an exploit in Sony's PlayStation 3 that allowed you to reactivate the then-discontinued PlayStation feature called OtherOS, which was originally a way for users to install a third-party operating system like Linux.

The console software situation hasn't changed

After Sony axed the feature in 2009, Hotz set out to essentially jailbreak the PS3, and he proceeded to publish his own and other groups' PS3 exploit information on the internet. Sony filed a lawsuit against Hotz in 2011 in part for violating the DMCA and the equally broad and perplexing Computer Fraud and Abuse Act of 1986. The case became a symbol for the console game industry's stance on openness, hacking, and consumer rights. The two parties settled, but the message was loud and clear: hacking a game console will get you sued. (In the same month of the settlement agreement, Sony suffered a devastating hack thought to be in retaliation for its legal efforts.)

Four years later, the console software situation hasn't much changed. Microsoft's Xbox One will run Windows 10 starting next month, making it far less likely that any Xbox owner will be able to run their third-party software on the device. (It does open the possibility that the Xbox One will benefit from the openness of the PC in some respects.) Sony, on the other hand, is just as closed down as it was when it sued Hotz.

Correction: The original version of this story mischaracterized the popularity of a website offering a PS4 jailbreak. We regret the error.