I’ve mentioned it in a previous article, there’s an ongoing discussion in the US to potentially make console jailbreaking a legal exception to the copyright law, and the ESA (Entertainment Software Association) of course don’t like the idea.

You can get their document here. Please read it.

It’s an interesting read, and overall an interesting topic, one that, as you might guess, I’m very passionate about. Before things get out of hand, or people accuse me of saying things I didn’t say (which happens pretty much every time one of my opinion articles makes it randomly to mainstream sites), yes, I do believe that 95% of the people who jailbreak their console today do it for the main purpose of pirating games. And no, I don’t think it’s a good scenario to be in for gamers and developers alike.

But besides that point, the ESA’s document has many flaws, and I’d like to discuss a few of them.

Apparently, the hardware, the firmware, and the games are one blob that cannot be dissociated

In general, the document from the ESA shifts the problem from a hardware one into a DRM issue. Their hidden claim is that the console (the device), its firmware, and the content (the games) are part of an atomic security mechanism that cannot be split into several parts. They pretend that people who ask for the possibility to install an alternate OS on their console, also want the possibility to pirate games, and ESA state that it is impossible to jailbreak a console firmware without enabling piracy on the device.

This might be true today, but only because console manufacturers built their consoles this way. Let’s look at an example such as the PC: just because a PC can run an other OS than windows, doesn’t mean that all of a sudden the doors of the Steam service are open to piracy.

By forcefully joining Hardware, OS, and content into one single entity in the document, the ESA are conveniently blurring the discussion and shifting it to a plane where their point makes a lot of sense: “Nobody wants games to be pirated. Games, the firmware, and the console they run onto are part of a system that cannot be divided into smaller logical units, ergo the hardware cannot be open.”

Ii is painfully visible how the ESA themselves are uncomfortable artifically joining the hardware, the OS, and the DRM into a single entity, as they have to constantly repeat this connection throughout the document (“The access controls, including the operation of the firmware,…”). The connection is not actually cleat from a technical point of view. Clearly, the solution is to dissociate the OS from the DRM process, which PCs have done forever.

The real problem for Sony, Microsoft, and Nintendo

But let’s be serious for a minute, shall we? Preventing the jailbreak of consoles is not about fighting piracy. It’s about making sure the console manufacturer controls the entire delivery chain of the game to ensure they maximize profit. This is not for the benefit of game developers, or gamers. This is for Sony, Nintendo, and Microsoft. The ESA is not here to protect the customer’s interest, keep that in mind. These people, after all, were in favor of the infamous SOPA and PIPA.

The real risk for Sony et. al. with an open platform is that competitors would be given the possibility to open their own store on your device, which would in return open a fair competition, taking prices down. This would be a definite benefit for customers, and, arguably, to game developers who would have more leverage to discuss potential exclusivity rights with one store or another. Such a pattern can be seen on a platform like Android (think Amazon appstore, who regularly give away android apps for free). Of course, the people paying the lobbyists at ESA don’t want this to happen, as it’s in their clients’ interests to not see fair price competition on their platform.

Pitting Game devs against their users

One thing these lobbyists like to do is pretend that things that could hurt their bosses, would also hurt game developers and gamers as well. Most of the arguments for that are dubious at best.

The document states that one of the main reason game developers like to bring their games to consoles is thanks to their DRM mechanisms and the security that their games will not be pirated. I’d like to strongly question this statement, although I do not have any relevant data. I think developers are more attracted to some exclusivity deals they can get, to the controls, and the general ecosystem (discovery, curated content, promotion…) of a given platform. One anecdotal data point in favor of my claim is that there are more games on Android today than on gaming consoles despite piracy being very easy on Android.

In general, open platforms and games contribute to people being more engaged with the game, and making it live longer. Valve are a popular example with the mods of games such as Half Life, Blizzard’s Warcraft 3 was also modded a lot which greatly increased its lifespan, etc… So, saying that locking gamers out of the games is a good way for game creators to protect their brand is, in my opinion, a large misunderstanding of what gamers and game developers alike really want and who they really are. But, hey, what the heck do I know, I’ve only been a gamer for the past 25 years, and a professional programmer for 12 years.

Oh, my dear region lock

I feel the most unacceptable thing that console manufacturers can do today is region locking their content (thanks Sony for *not* doing that for games at least, this is one of the reasons I stick to your brand). Look guys, I know I’m the exception, but I’m a French guy with a Japanese wife, Japanese kids, and we live in the US. My DVDs and blu rays are in so many regions and formats that I can’t even remember which one is which. All I know is that half of them refuse to play on your stupid locked systems. You are sc*** me over fairly regularly, and this is precisely because I don’t pirate. Pirated content is *not* region locked and easier to watch in general. It’s beating a dead horse at this point, but bringing region locking as a “positive” aspect of a locked down system is a terrible way to approach this.

So the document mentioning that you’re “only doing the same thing as what DVDs and Blu-rays are doing” (page 13) is not a way to win this beauty contest with me: globalization serves your interests and ensures you can manufacture your products for close to nothing in a Chinese factory, while gaming the global economy by reselling the product at various price points when your customers could actually get them for cheaper otherwise. Pretending that thanks to region-locking mechanisms, you make game developers happy, is one of the most ludicrous things I’ve read in a while.

One last for the trip

Last but not least, I can only laugh at this statement from the document:

because hacking video game consoles enables users to cheat in […] multiplayer games, hacking diminishes the experience for other users.

Dude. As your name state, you represent a subset of the Software industry. Maybe it’s time you advocate that companies in your industry, with the billion dollars they generate every year, start hiring real programmers instead of making money on the back of unskilled interns? A real network system does not trust data from the client, end of story. Start hiring people who know their job, and the problem will go away. Hire engineers with experience building real client-facing networks, people who have worked in banks, ecommerce, etc.. ask these people if a “jailbroken device accessing their services” puts their service at any additional risk. This is such a ridiculous statement, any programmer who states that needs to change jobs immediately.

Conclusion

Don’t get me wrong, I’m not pretending that jailbreaking a console should be legal moving forward. I do agree that most people would leverage this to try and run pirated games. Although I am 100% convinced that there would be technical ways to dissociate the Hardware from the OS from the DRM mechanism, I assume this would be a significant amount of work and research, that the gaming companies are not willing to invest at this point. People who want an open system for homebrew development can, after all, as the document states in a fair way, get an Android device, a PC, or become an indie dev and play by the rules (something that wasn’t possible not so long ago, so clearly the gaming landscape has evolved).

What I disagree with however, is the strategy used in that document to make some of these points: pretending that this helps the customers, and game developers, when clearly the only goal here is to serve the interests of the businesses behind the consoles (specifically Sony, Nintendo and Microsoft) is pure intellectual dishonesty.