I've read the DMCA. I've followed the court cases. I don't understand how jailbreaking a phone or modding a console would violate the DMCA, and I don't understand why people keep legitimizing the idea that it would by asking for DMCA exceptions. The DMCA says "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." And it defines "(A) to `circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and (B) a technological measure `effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work."
What work are we talking about if you mod your gaming console? Video games aren't scrambled or encrypted and they don't require the application of information or any process or treatment. You can run a video game in an emulator without doing anything to it. You just load it and run it. And you can easily copy a video game using a DVD or Blu-Ray reader and writer and an emulator will happily play the copy. The technological measures in a video game console are about preventing the console from running unauthorized software (including unauthorized copies of games), not about protecting the content on the gaming discs. As such, I don't understand how you would be violating the DMCA by modding your console. (Mind you, video game console manufacturers could change this if they started encrypting their discs, and they might next generation, but the current gen ones don't. They're signed, but they aren't encrypted.)
Likewise, I haven't seen any evidence that jailbreaking a smartphone would circumvent a technological measure meant to protect a copyrighted work. Now, once you jailbreak a phone, there might be software on that phone which you could circumvent, but that would be a separate act. Is there logic here that I'm missing or is no one else looking at what the law actually says?