When Microsoft shipped its Xbox game console, Linux programmers salivated. The Xbox was a pretty nice computer, priced at $149. The Xbox had all the hardware needed to run Linux and its applications. Problem was, Microsoft had tried to lock down the Xbox hardware to prevent unauthorized programs – such as the Linux kernel – from running on it. An article at xbox-linux.org explains how this lockdown plan failed. The technical details are quite interesting, but nontechies can learn from this story too.
Microsoft had two reasons for locking down the hardware. It wanted to stop people from running Xbox games that had been illegally copied. And it wanted to stop people from running other (noninfringing) software such as Linux. The latter goal is the more interesting one. Microsoft did this because it wanted to sell the Xbox hardware at a loss, and make up the difference by charging a premium for games. To do this, it needed to stop unauthorized software – otherwise people might buy the Xbox, install another operating system on it, and never buy an Xbox game.
A group of clever engineers, calling themselves the Xbox Linux Project, set out to discover how Microsoft had tried to lock down the Xbox hardware, and how they could overcome Microsoft’s lockdown and install Linux. We would expect them to succeed – in computer security, physical control of a device almost always can be leveraged to control the device’s behavior – and indeed they did. The bulk of the Xbox-Linux article describes the technical details of how Microsoft’s lockdown worked, how they reverse engineered it, and the tricks they discovered for capturing effective control of the Xbox and installing Linux on it.
Opponents of this kind of tinkering often argue that it is really just a front for copyright infringement – that the tinkerers really just want to run illegally copied games. But the article describes a group of people who just want to run Linux on their Xboxes, and are willing to take steps to stop their work being misappropriated by game copiers. For example, the article says that once they had figured out a trick, which the article calls a “hack”, for installing new software on the Xbox, they tried to use it responsibly:
But the Xbox Linux Project did not blindly release this hack. The first … proof of concept exploit had been finished in January 2003. After that, a lot of energy was invested in finding out a way to free the Xbox for homebrew development and Linux, but not allowing game copies. Microsoft was contacted, but without any success. They just ignored the problem.
Finally in July, the hack was released, with heavy obfuscation, and lockout code for non-Linux use. It was obvious that this would only slow down the “hacking of the hack”, so eventually, people would be able to use this vulnerability for copied games, but since Microsoft showed no interest in finding a solution, there was no other option than full disclosure. The suggestion of the Xbox Linux Project would have been to work together with Microsoft to silently close the security holes and, in return, work on a method to let homebrew and Linux run on the Xbox.
What should public policy have to say about this? Given that the Xbox Linux folks apparently weren’t trying to copy games but simply wanted to run noninfringing software on lawfully purchased hardware, and given that they took steps to hinder the use of their work for infringing purposes, it’s hard to object to their work on copyright grounds. The real action here is in Microsoft’s strategy of selling the Xbox hardware as a loss leader, and the tendency of the Xbox Linux work to frustrate this strategy. Xbox Linux creates value for its users. Should public policy be willing to destroy this value in order to enable Microsoft’s pricing strategy? My instinct is that it should not, though there is a plausible argument on the other side.
What is clear, though, is that this is not really a copyright issue. At bottom, it’s not about the right of Microsoft to be paid for the Xboxes it builds, or about the right of game authors to be paid for the copies of their games that users get. Instead, it’s about whether Microsoft can control how people use its products. In general, the law does not give the maker of a product the right to control its use. Why should the Xbox be any different?
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In the U.S. on cans of insecticide and many household products you will see displayed the following text:
“It is a violation of federal law to use this product in a manner inconsistent with its labeling.”
Time for the MS lobbyists to get busy. 😉
A more “responsible” approach?
When, exactly, did it become the responsibility of good citizens to assist the Gillettes of the world in using a “sell the blades” business model? I haven’t heard that there was any civic duty to aid big businesses in getting rich. Or to not get in the way of a big business having its way.
Microsoft is free to use that business model. And people are free to circumvent it, so long as they don’t infringe on a patent or copyright, or misuse their trademarks. Other companies are free to start up and compete, directly or indirectly, with Microsoft. The street is free to find its own uses for things. It’s called “freedom”, and particularly, a “free market”. If you think that seeking your own advantage, within the law, in a free market is somehow “irresponsible”, and that we should all do our duty in a regimented order of things, and shouldn’t do anything the bigger fish don’t like, then you’re welcome to move to China. You’ll like it there.
Perhaps a more responsible approach would be to hack the console, but not publish the hack until the console’s market lifetime has passed. That way it does not bring up the issue of interfering with Microsoft’s market share, but still gives the console owner the freedom to use his console as he sees fit after it is no longer a staple of a commercial strategy.
On the other hand, if you are just considering the business model of selling physical hardware with contractual restrictions on its use, well, there are various reasons why that isn’t a good idea.
MS can restrict use insomuch as it relates to its patents. I can’t say how much that is, but I wonder how much of an XBox’s hardware is patented and whatnot.
This whole issue reminds me of the ACRA vs Lexmark decision (which I cannot find the text of) which partained to the ability of Lexmark to control how a product was used after purchase through a box-top license. More on that here.
Leasing might be the way the console wars go in the next generation (the one after PS3, 360, Wii). Currently the PS3 is set to be priced so high that some people might be interested in leasing it anyway, add into that additional legal protections and it might become very common. Of course the penalties for violating the lease would have to be an effective deterrant.
Also consider the plight of the iOpener (from NetPliance). The iOpener was a all-in-one Intel computer running a QNX operating system designed to be an “Internet Appliance”. NetPliance’s business model was to sell the iOpener hardware for $99 and make their money off the ISP service the hardware needed (the hardware had no provision for using anybody other than NetPliance for the dial-up). My buddies in the computer OEM field figured that each iOpener was about $500 to $600 in cost.
NetPliance didn’t sell their boxes with a contract agreement (like cellphones), because they didn’t want to scare off people. Myself, and a lot of other people, bought one to play with. Turns out it was a regular PC, with a regular BIOS, with QNX running off a 16Mb flash disk. By opening the unit, soldering an IDE header to the board, and plugging in a hard drive, it would boot and run Windows or Linux. Word spread. NetPliance patched the BIOS to only boot from the flash disk, but since the earlier BIOS image was on the net this helped not one whit. Then they started epoxying the flash chip in the socket….
The arms race between hackers and NetPliance continued until it got to the point where you could buy an iOpener, and without touching a screw driver reflash it over the web into a small Linux system that was a perfect $99 X-terminal.
NetPliance’s efforts to stop a very small band of hardcore hackers ended up resulting in hacks being released that allowed the “script kiddies” and people who didn’t know the right end of a screwdriver to repurpose the hardware.
Re: Scott: They ruled against it because the way Sega designed the system, it wasn’t possible to run custom content without it having Sega’s logo associated with it. We’re both right — it was because Sega was ducking around the law like that, and because it wasn’t possible to make custom content that wouldn’t pop up with Sega’s trademarks attached, because Sega made it that way.
Also, there was no call to bluntly accuse me publicly of being “incorrect”. Disagree, but please do not rudely just flatly contradict somebody, especially not in public.
The basic question is who should govern the use of a physical object after it had been sold, the seller or the buyer?
1. Is this question made more complex if the seller had certain intentions about how the buyer should use the object?
I think not.
2. Is this question made more complex if the physical object has components that are not physical (software), and the buyer makes slight changes to the software?
Perhaps. It seems as though software may be afforded protection against the “modify-and-use-as-we-like” idea that applies to physical objects. Also, if technical protections in software are the impediment to the free use of a physical object, the DMCA may apply.
The way to govern use of a physical object after it has been transferred to the ultimate user is to lease it rather than sell it.
Treadwell said above:
The lack of subsidy would therefore mean that the XBox price would be higher, probably about what a “real†computer would cost. Thus, the motive for running Linux would be significantly reduced since it would be just as cost-effective to use a “real†computer for it.
Netting it out, I would think that the public is overall less well served in this scenario: XBoxes are more expensive, and running Linux isn’t any cheaper.
The problem with this view is that you are making a trade-off between personal freedom (including some First Amedment rights) and property rights and the business model of some particular entitiy.
In such cases, in a free society, the busness entity must operate within a free society, rather than society give up its freedoms to enable a busness plan.
To do otherwise is always fundamentally wrong and moves us to the corporate fascist state that the amny incremental actions such as this will surely result in, if left unchecked.
I’m not sure this would apply in the MS case. For one thing, in the Sega case, Sega itself was the one causing the trademark to be displayed, and since it was their own trademark, it was easy to conclude there was no infringement.
No, that’s not correct. First, it’s not clear that Sega was the one displaying the trademark; the game software had to have initialization code that triggered that display. There were also other potential infringements: copyrighted initialization code in the game itself, and the first four bytes of the game software had to say “SEGA.”
But more importantly, that’s not the reason it didn’t hold up in court. The court decided it wasn’t infringement based on public policies underlying trademark and copyright law.
So they didn’t decide against Sega for technical reasons of who really displayed the trademark. They decided against Sega because the infringement was just a roadblock preventing legitimate use.
X
If you are interested, I have commentary on this at http://uchicagolaw.typepad.com/faculty/2006/06/closing_the_xbo.html
a very good read.
and of course, the “very good reason” for microsoft wanting to block linux on their consoles is, that their main product is in direct competition with linux.
go figure?
wether this is a morale good reason or not is debateable, but from a business standpoint it sure makes sense.
Reply to Treadwell. INAL, the problem is that it has become very fashionable for manufactures to claim that they are granting you a license. Further, they claim, that your purchase of whatever (mass consumer) product you bought, validates this so-called license. This is pure bunk.
I will agree with you that you should not be playing a DVD for commercial purposes. But this would be based on copyright law. I would assert that you own the DVD and that the so-called license is not valid.
Since “universal” assertions are usually flawed, I will acknowledge that there may well be specialized hardware products that are truly licensed based on the customer and vendor entering into a negotiated valid contract.
“Netting it out, I would think that the public is overall less well served in this scenario: XBoxes are more expensive, and running Linux isn’t any cheaper.”
Nope. Because they don’t need an added “XBox subsidy tax”, the games can be less expensive. If they aren’t that’s MS being evil, not because someone ran Linux on an XBox. Also, the XBox would still be cheaper, if not by as much, because once someone has an XBox they are still more likely to buy XBox games than before, even if no longer guaranteed to.
“Sega tried a similar trick to stop unauthorized games on the Sega Genesis, by having the initialization code display their trademarked logo and sing their name. And display the text, “PRODUCED BY OR UNDER LICENSE FROM SEGA ENTERPRISES LTD.†Basically they tried to force unauthorized game designers to commit infringement. IIRC this didn’t stand up in court.
If violating the patent is the only way to reverse-engineer (and especially if the patent only really exists as a legal trap,) I’d expect an infringement case would be difficult.”
I’m not sure this would apply in the MS case. For one thing, in the Sega case, Sega itself was the one causing the trademark to be displayed, and since it was their own trademark, it was easy to conclude there was no infringement. For another, MS has a lot more money and lobbying power, and you can’t be so naive as to think that doesn’t influence outcomes of legal proceedings as well as the legislative process itself. For a third, even if MS couldn’t win a suit, if they could avoid it being dismissed out of hand right at the start they could cost the defendants an arm and a leg in legal fees. Just the possibility of such fees in turn would give MS a lot of leverage with which to force a settlement, which would probably include almost-as-disastrous monetary payment from the defendants plus an injunction barring them from doing whatever-it-was to an XBox ever again.
What’s fundamentally different about licensing hardware in the same fashion, where only certain uses are permitted?
A license gives you capabilities you don’t already have. I can’t really sell you a license to use a rocking chair you just bought, because you are already free to use it however you want.
In your DVD example, you don’t really have a “license” to use it for home-viewing. You have that freedom already, since you own the DVD. You don’t need any license for that. And there is no licence preventing you from public performance—what prevents that is copyright law.
I can grant you a license to copy a copyrighted work, and dictate specific terms. But that’s only because you probably weren’t allowed to do it without the license.
A license agreement for hardware would mean that some law prevents you from using the hardware, and you’d need third-party permission. If there are no such laws, then that’s why it’s fundamentally different. On the other hand, if you are just considering the business model of selling physical hardware with contractual restrictions on its use, well, there are various reasons why that isn’t a good idea.
On public policy: if the “razors and blades†business model is not possible, then corporations would generally not pursue that business model. For example, if Microsoft were not able to make it difficult to run Linux on a subsidized XBox, then it is less likely that Microsoft would subsidize XBoxes.
Except, I don’t buy the idea that Linux hobbyists are going to have a big impact on the profit margin. What percent of Xboxes sold are going to be used as cheap Linux machines?
One other thing I wonder about in this realm: there are many instances of products that are licensed for only certain uses. For example, when you buy a movie DVD it is licensed for “private in-home viewing only;” you cannot show it in a theater and charge $$$ for people to come watch it. Many types of software also have licensing constraints, e.g. the number of users that can connect to a server, or the number of machines on which you can install the software.
What’s fundamentally different about licensing hardware in the same fashion, where only certain uses are permitted?
As a counterpoint, on a personal level I will acknowledge that it “feels wrong” to constrain the use of a physical object. For example, the attempts by inkjet manufacturers to prevent inkjet refill stores from doing business felt wrong to me. (Perhaps my personal bias in working at a large software company is coloring my conclusions on these somewhat similar issues.)
This is a very interesting discussion and issue.
David,
Your argument is the “plausible argument on the other side” that I was referring to. Probably Microsoft would make Xboxes more expensive, and games cheaper, if it couldn’t control who could put software on the Xbox. That would help some people and hurt others. The question is whether government should try to enforce one outcome over the other.
Freedom is always the default, so any government action to limit what Xbox buyers can do with their Xboxes should be amply justified, and even if adopted should have limited scope to minimize the impact on liberty.
The analogy to razors and blades is instructive. There is no law banning the use of third-party blades with razors, yet the razor companies are able to use loss-leader pricing anyway.
Once a piece of hardware is sold (be it the Xbox, a car, or a gun) the hardware manufacturer cannot dictate how it may be modified and/or used. If I buy a Ford and then want to customize it by installing a Chevy engine, I have a right to do so. The Xbox is no different. As for the manufacturer selling the product at a loss, well that was simply a bad business decision – too bad.
Additionally, we should not fall for the “red herring” argument that modifications should not be would allowed since they would allow for an unauthorized use such as game playing. Virtually every product, whether it is in its original configuration or modified, can be used for an “illegal” activity.
Netting it out, I would think that the public is overall less well served in this scenario: XBoxes are more expensive, and running Linux isn’t any cheaper.
The trailing clause is a sensible inference, but I don’t see that this is necessarily a net loss to the public. Are we better off as consumers in a razors-N-blades market, or in one where we pay the actual cost for both games and players? What’s good for Microsoft is not necessarily good for everyone else.
Note that I’ve got nothing in this game; I won’t buy my kids a gaming console, and I’ve already got a computer running an OS that I vastly prefer to Linux. I’ve got them playing Lux, Civilization, and nethack.
Disclaimer: I work at Microsoft, but not in areas related to XBox. The statements below are purely my personal opinion, not that of Microsoft.
On public policy: if the “razors and blades” business model is not possible, then corporations would generally not pursue that business model. For example, if Microsoft were not able to make it difficult to run Linux on a subsidized XBox, then it is less likely that Microsoft would subsidize XBoxes. Why subsidize a product that is unlikely to be used for the additional revunue-generating uses (buying games)–and in fact is being used to run a competitive offering?
The lack of subsidy would therefore mean that the XBox price would be higher, probably about what a “real” computer would cost. Thus, the motive for running Linux would be significantly reduced since it would be just as cost-effective to use a “real” computer for it.
Netting it out, I would think that the public is overall less well served in this scenario: XBoxes are more expensive, and running Linux isn’t any cheaper.
I find it quite offensive that the XBox Linux people felt the need to police on Microsoft’s behalf. They’ve bought the hardware; they don’t owe anything more to the company. Why should they attempt to hide useful information from other people, just because they don’t want it to play with Linux. What if you wanted to port a BSD, or try to write your own kernel on the hardware?
It seems hypocritical — once they get inside the gates, they become defenders instead of attackers.
“All they would have had to do was patent a method of playing unauthorized content on the X-box. With a bit of cleverness in the design of their security system, MS could patent a method to break one part but not all of their security.”
I don’t know, I get the impression Judges aren’t too impressed by someone trying to use a law as a clever security barrier.
Sega tried a similar trick to stop unauthorized games on the Sega Genesis, by having the initialization code display their trademarked logo and sing their name. And display the text, “PRODUCED BY OR UNDER LICENSE FROM SEGA ENTERPRISES LTD.” Basically they tried to force unauthorized game designers to commit infringement. IIRC this didn’t stand up in court.
If violating the patent is the only way to reverse-engineer (and especially if the patent only really exists as a legal trap,) I’d expect an infringement case would be difficult.
Scott
Actually, Neo, MS wouldn’t even have had to invent a new format to use the patent bludgeon. All they would have had to do was patent a method of playing unauthorized content on the X-box. With a bit of cleverness in the design of their security system, MS could patent a method to break one part but not all of their security. This would guarantee that MS could prosecute anyone who used unauthorized content, while not requiring them to explain how to break all of their security in the patent disclosure.
“My instinct is that it should not, though there is a plausible argument on the other side.”
Wrong — there is no plausible argument on the other side, unless you believe there can be a right to specific business models, a right to being able to compete using a specific pricing strategy, a right to profit whether or not you even try to adapt to shifting market conditions, or some other such right that would enshrine special privileges for corporations at the expense of individuals. Large corporations are minimally-sentient sociopaths, pretty much without exception, and small businesses wouldn’t benefit. I think the highly sentient, mostly non-sociopathic population of individuals is more deserving, and so does the Constitution — at least when last I looked at it…
Unfortunately, there is actually a legal bludgeon available for the Microsofts and Gillettes of the world to enforce viability of a “sell the blades” business model over the wishes of the market — patent law. Be thankful it apparently didn’t occur to MS to invent a new disc format or other storage medium for the XBox to use, patent it, and tightly control the patent.
Lesson for MS: the price of using a cheap, already widely supported media format like DVD-ROM is the same as its benefit: cheapness and interoperability. Even where interoperability is the last thing you desired, and you hoped to benefit from extortionately priced media. 🙂