QJ How-To #5: Legality 101 (Part 1): Copyright Issues and Homebrew
The full past month, we’ve provided you with how-to guides on prepping your PSPs for homebrew. For QJ’s How-To #5, we present to you Legality 101: Copyright Issues and Homebrew. 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.
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.
All things considered, the biggest deadlock in the context of homebrew would be the last item: 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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