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!