PSP Homebrew: legal status

While having nothing to do on a saturday at work, I decided to read the Sony PSP System Software EULA. My main motivation was that I wanted to awnser the following questions:

• Is downgrading the PSP illegal?
• Is homebrew illegal?
• Is Dark AleX's custom firmware illegal?

Before reading through this please bear in mind IANAL, and my theorising is mostly based on the contents of the EULA. Some of the restrictions in this EULA have not been tested in court and could possibly not be enforcable. Most of them are also incompatible with Fair Use. That's why they like to use "To the fullest extent permitted by law," all the time. Is downgrading the PSP illegal? I'll go through all the relevent phrases of the EULA one by one:

To the extent permitted by applicable law, your rights to use or access the current version of the System Software shall cease upon installation of a newer version of the System Software onto your PSP™ system.

This probably depends on where you live. You see, as far as Sony's concerned, you'll lose your license to old version of the firmware as soon as you upgrade to a new one. Pretty sneaky. (Though this, for as far as I know, is untested in court and I *think* it probably wouldn't make it. After all, I think having a back up of older firmwares and reinstalling them would comply as Fair Use.) So what does that mean? Well, if you have firmware 3.10, and you upgrade to 3.11, then you lose all your rights to use 3.10 ever again. This line does not say that you may not install an older version before 3.10. And if you buy a new PSP, and you never installed any upgrade in the first place, you never lost any rights to use any firmware at all.

SCE does not grant any license to System Software obtained by users in any manner other than SCE's authorized distribution methods.

Now this is a problem. It means: If you download a PSP firmware from anywhere except for Sony's official websites or sources, you are not allowed to install it. So that means that downloading the firmware from qj.net means that, according to Sony, you're not allowed to install and/or use that firmware.

You may not lease, rent, sublicense, publish, modify, adapt, or translate any portion of the System Software.

Yup, sites like qj.net are probably breaking copyright law by hosting the Sony firmwares. If Sony ever sends them a cease and desist letter, they would have to comply, and take all of the old firmwares offline. That would make it harder for people to find old firmwares through regular channels.

You may not (i) use any unauthorized, illegal, counterfeit, or modified hardware or software in connection with the System Software, including use of such tool to bypass, disable, or circumvent any encryption, security, or authentication mechanism for the PSP™ system;

In other words, it says: you're not allowed to use downgraders or other exploiters. This sentence alone makes downgrading a PSP an illegal act, since all downgraders depend on security exploits or modified hardware.

(iii) use any hardware or software to cause the System Software to accept or use unauthorized, illegal, or pirated software or hardware;

Basicly the same as above.

(iv) obtain the System Software in any manner other than through SCE's authorized distribution methods;

Stating again that you aren't allowed to download the Software from anywhere but the official Sony site. So since 1.) sites are (probably) not allowed to publish any version of the firmware, 2.) you're not allowed to download firmware from anywere but Sony's site (and there are no old firmware versions there) and 3.) you're not allowed to use any unauthorized software with the System Software, downgrading breaks the EULA, and obviously voids your PSP's warranty. Is homebrew illegal? Ignoring the fact that most of the time you have to downgrade your PSP to use homebrew in the first place, there are some specific sentences that make running homebrew itself a violation of the UELA. (Even if they ran without downgrading your PSP.)

(i) use any unauthorized, illegal, counterfeit, or modified hardware or software in connection with the System Software, including use of such tool to bypass, disable, or circumvent any encryption, security, or authentication mechanism for the PSP™ system;

Homebrew is never authorized, so there you have it.

(iii) use any hardware or software to cause the System Software to accept or use unauthorized, illegal, or pirated software or hardware;

This also makes it illegal to use homebrew enablers like HEN and eLoader.

(v) exploit the System Software in any manner other than to use it in your PSP™ system in accordance with the accompanying documentation and with authorized software or hardware, including use of the System Software to design, develop, update, or distribute unauthorized software or hardware for use in connection with the PSP™ system for any reason.

And this states you're not allowed to use your PSP to even develop homebrew. Is Dark AleX's custom firmware illegal? When first thinking about Dark_AleX's legal situation, I first thought that only installing and using his custom firmware actually breaks the EULA. For the same reason as using any homebrew breaks it. But perhaps even Dark_AleX himself could get in trouble:

To the fullest extent permitted by law, you may not reverse engineer, decompile, or disassemble any portion of the System Software, or create any derivative works, or otherwise attempt to create System Software source code from its object code.

You see, Dark-AleX was smart to only release a tool that creates a custom firmware from original firmwares. So basicly who's creating the actual derivative is the one who uses the tool. But, it can be proven that to create this tool, he himself had to at least 1.) decrypt the firmware, and 2.) use the original firmware to develop it. So possibly Sony could tell Dark_AleX to stop developing his custom firmware... But in the end I don't have any idea how enforceable this statement is in the first place. Even Sony says: "To the fullest extent permitted by law". Meaning not even they're sure about it. So does this all mean we should all hide in fear of Sony's lawsuits...? Well I don't think you have to worry about that. First of all, laws differ all over the planet, and Sony can't be 100% sure they'd win all their cases. And they have better things to do than go and sue every single homebrew user. And as for homebrewers like Dark_AleX... If they keep playing smart, and also keep releasing as much as their software as possible under GPL (contrary to some devs believe, releasing risky software as Free & Open Source software makes it harder to sue the developers) they don't have much to worry about. You can however be very sure that if you use homebrew or install custom firmware, you'll void your guarantee... ;-) Keep that in mind.