Feds go after the Mod Chip industry

[danny_galaga]

Oh man, that guys effed himself over thoroughly.  He admitted right to them what he was doing?

Get a lawyer, man.  Get a lawyer before you start talking.

If they didn't read him his rights before asking him to tell them info, then his rights were violated and he can get off scott free. He BETTER at least get a public defender.

AGAIN, untrue.

This thread is funny.   

all they have to do is call him a terrorist...

[Dervacumen]

I could easily see them going after ROM burners.

It's kind of amazing they aren't, actually.

...before you know they will raid mame cabinet builders too.

How many of the confiscated cabinets would find themselves in a police station lunchroom?

[shmokes]

I love that people talk about a ridiculous "interpretation" of the DMCA.  Mod chips, according to the DMCA, are simply illegal.  Period.  It says it plainly.  The law is bad, not the interpretation of it.  The law or at least portions of the law, need to be overturned not reinterpreted.

[Grasshopper]

I think the issue is not the wording of the DMCA but the fact that it appears to be in direct conflict with laws already in place relating to property rights. That's where the law is potentially open to being challenged.

And let's not forget that the Australian version of the DMCA was successfully challenged.

[tommy]

I can compare this situation to it being legal to sell pipes for smoking in stores. While it is legal to sell the pipe everyone knows that it will be used to smoke illegal drugs. While the modded console should and is legal to own and buy the parts, we all know it will be used to play games you legally do not own. The point is , don't think you're fooling anyone when you buy something that is well known and has a bad rep for being used in an illegal way.

No one buys a colorfull pretty pipe to smoke tobacco and no one uses a console mod legally.

[shmokes]

The difference is that pipes are legal, whereas the DMCA specifically makes mod chips illegal.  It is, admittedly, the same thing in spirit.  But the difference is, actually, pretty important.

[ChadTower]

The difference is that a person can choose to smoke pot in a pipe.  They can also choose to smoke tobacco in a pipe.  The pipe has a legal purpose.

The modchip has no legal purpose.  And before someone waves the homebrew flag, circumventing device security in order to run unlicensed homebrew software is not a legal purpose.

[hypernova]

The modchip has no legal purpose.

What about playing an out of region game that isn't available in your own?  I'm not buying a Japanese PS2 to play my FFX International.  The way I figure it, I have a right to play a game from across the ocean, without buying the hardware with it.  Region lockout is a crock of ---steaming pile of meadow muffin---.

[sosuke]

I'm still trying to figure out why nintendo region locked the wii. It makes me sad. I can play Japanese games on my DS but not my Wii?  Oh well I guess there is no valid case for mod-chips....

[shmokes]

The difference is that a person can choose to smoke pot in a pipe.  They can also choose to smoke tobacco in a pipe.  The pipe has a legal purpose.

The modchip has no legal purpose.  And before someone waves the homebrew flag, circumventing device security in order to run unlicensed homebrew software is not a legal purpose.

That's exactly right.  It's bad law, as I should be able to do whatever the eff I want to with electronics that I've purchased, and if that means modifying it so I can play homebrew (something that is none of the company's business), I should be able to.  But it is, nevertheless, illegal.  It shouldn't be illegal, but it is.  If they outlawed glass pipes, based on what they are often used for, it would be the same thing, and it too would be bad law.  But so far, they haven't done that which makes the two examples quite different.

[ChadTower]

The modchip has no legal purpose.

What about playing an out of region game that isn't available in your own?  I'm not buying a Japanese PS2 to play my FFX International.  The way I figure it, I have a right to play a game from across the ocean, without buying the hardware with it.  Region lockout is a crock of ---Cleveland steamer---.

Region lockout is a necessary evil.  Playing out of region games is also not a legal use.  The unfortunate fact is that region coding is the only way to protect the various rights of various copyright holders via international copyright law. 

[shmokes]

I disagree.  The supposed reason for region lockouts is so that rights aren't diluted, for example, a game that is published by Koei in Japan, might be sold to Activision for distribution in the U.S., and the title isn't worth as much to Activision if people are able to import the game from Japan, because then Koei is making the money on those purchases, rather than Activision, even though the buyer lives in Activision's territory.  But that's nonsense.  Hardly anyone imports, and if they do, they get a different product.  Activision is going to territorialize the thing, translating menus into English and probably doing new voicework, or at the very least adding English subtitles.  An importer is importing a different product than the one Activision is selling, and if they want the benefits Activision brings to the table, they will have to buy the Activision-published title.  The fact is, the number of importers is so small to begin with as to be irrelevant, but in reality, even they tend to be hard core and just import a handful of titles to get their hands on them early, while STILL eventually buying the American version as well once it is released.  Region lockout is an anticompetitive crock of ---steaming pile of meadow muffin--- and should be illegal, rather than making it illegal to circumvent.

[ChadTower]

I disagree.  The supposed reason for region lockouts is so that rights aren't diluted, for example, a game that is published by Koei in Japan, might be sold to Activision for distribution in the U.S., and the title isn't worth as much to Activision if people are able to import the game from Japan, because then Koei is making the money on those purchases, rather than Activision, even though the buyer lives in Activision's territory.

It's not a law written specifically for video games... it applies straight across the board for many types of IP.  I see no problems with it other than that people want what they want how they want it and don't like dealing with realities like IP ownership.

[Samstag]

I disagree.  The supposed reason for region lockouts is so that rights aren't diluted, for example, a game that is published by Koei in Japan, might be sold to Activision for distribution in the U.S., and the title isn't worth as much to Activision if people are able to import the game from Japan, because then Koei is making the money on those purchases, rather than Activision, even though the buyer lives in Activision's territory.

It's not a law written specifically for video games... it applies straight across the board for many types of IP.  I see no problems with it other than that people want what they want how they want it and don't like dealing with realities like IP ownership.

You don't see a problem with the fact that in running XBMC on your xbox YOU are breaking the same law that is getting these people busted?  You don't have a problem with the fact that the feds can enter your home and take all your consoles because of this?

[Green Giant]

Why do people claim the only reason for modchips is to run games illegally.

I know 3 different people who have modded systems.  One of them uses it illegally, but the other two don't.

One is a friend of mine from Japan.  He prefers the Japanese RPG's as well as other Japanese games simply because he can read japanes better.  He still wants to play American games, but not have to go through the trouble of owning 2 PS2, and they don't import every game overseas to America.  Another guy has kids.  His kids destroy his discs.  He has gone through several copies of games he owns.  How do you suggest he replace his games when they get destroyed.  Take it to best buy and tell them it scratches to easily.

Last I checked, they ruled it legal to make MP3's out of music you already own so long as you don't distribute them.  Would the DMCA make all mp3 ripping software illegal now since it could be used to distribute music to people who don't rightfully own them?  Why aren't they after that too?

[Green Giant]

No worries about mame:

"Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace."

[shardian]

No worries about mame:

"Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace."

Please don't drag MAME into this. It and the DMCA has been discussed TOO MANY times on here and it always gets ugly.

[ChadTower]

Dude, the law is clear, and the feds are acting according to the law.  Modding your console to play Japanese games is not legal, whether you want it to be or not.  If your friend wants to play Japanese games the legal method is to get a Japanese console.  His convenience and cost are not relevant to the law.

Dude's kids destroying his discs don't make it legal to use backups.  It simply doesn't.

Now, I don't have any issues with modding the console to do those things, but pretending they are legal is personal denial.

I do run XBMC.  I'm not worried about it... they haven't and likely never will go after end users.  Especially people do did their own mod and only their own mods.  They'll go after people profiting financially from the process.  That's not me.

[shmokes]

The law is clear, and the feds are acting according to the law.  But when Rosa Parks gets all back of the bus on us, some people talk about the law being clear, and some people talk about the law being bad.  It is bad law for all the reasons that Green Giant said it is.

[Dervacumen]

Dude's kids destroying his discs don't make it legal to use backups.  It simply doesn't.

I believe that would be me.  And the cost of the ensuing lawsuit probably keeps anyone from bugging me.
Heck I could mount my own defense with no legal background and cost the system and taxpayers hundreds of thousands of dollars.  And they could confiscate nothing since I haven't found a Wii game I even want to buy yet.  Crap, I haven't even found one that I want to illegally copy.  And I've rented a few.  I guess they could take my chip.  It's not installed yet and I've had it since May.

I also driven an average of 5-10 MPH over the speed limit on the freeway for the last 20 years without a ticket.  I like to live on the edge.

[ChadTower]

And some people will compare region encoding on a video game platform to a major human rights problem.   

Keep the analogies in scale, man.

I got a ticket for going 20 in a 15 in the fall.   

[Green Giant]

Stop saying the law is clear!!!  I just read the DMCA.  It is not clear.

The portion they are attempting to apply to these modchip installers is extremely ambiguous.

"‘‘(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—
‘‘(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
‘‘(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title;   
‘‘(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. "

This clearly states that the burden of proof is on the government to prove beyond a reasonable doubt that the installer knows the modchip with a hacked bios.

This is an exact copy of the law.  Stop saying it is clear.

All the installer would need do is show there are alternative uses for the modchip.  If he does not install bios or offer any information on where to get it, he is innocent.  There are completely original xbox bios' that can be installed with a modchip.  They do not infringe in any way on the bios that comes with an xbox.  The fact that something like this exists makes him innocent unless he was stupid enough to offer advice on installing a hacked bios.

[Green Giant]

Modding your console to play Japanese games is not legal, whether you want it to be or not.  If your friend wants to play Japanese games the legal method is to get a Japanese console.  His convenience and cost are not relevant to the law.

Dude's kids destroying his discs don't make it legal to use backups.  It simply doesn't.

I was referencing those examples because several people have claimed the one and only use for a modchip is to play games you do not own.  You can legally own an imported game which you buy overseas, but a modded system or a whole new system from Japan are the only ways to play it.  Just trying to explain to people that there is more to a modchip than playing copied games.

[ChadTower]

There is no alternative use for the modchip.  The law covers all potential uses:  backups (illegally copied software), homebrew (unlicensed software), region circumvention.

There is no other purpose.

No one has claimed the only purpose is to play games you do not own.  Not here.

[patrickl]

You are allowed to make a backup.

[ChadTower]

That is one of those "grey areas" most people talk about.  As I understand it, you are allowed to make a backup if you don't have to circumvent copy protections in the process, because security circumvention is specifically illegal.  Since few console games can be copied without circumventing the physical security on the disc, the law seems to preclude console games from that concept.

[patrickl]

Oh, I thought you were always allowed to make a backup, but that it's not a right. So you cannot claim that DRM is keeping you from your "right" to make a backup.

On the other hand if installing a mod chip is not illegal if you can find a non-illegal use for it then making and using a legal backup would make it all legal wouldn't it?  Or is that really stretching it?

[ChadTower]

Depends on the modchip.  Some do more "alteration" than others.

[Samstag]

Stop saying the law is clear!!!  I just read the DMCA.  It is not clear.

The portion they are attempting to apply to these modchip installers is extremely ambiguous.

"‘‘(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—
‘‘(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

It is clear.  This is the important part in regard to modchips.  If the manufacturer designs copy protection into the system, it is illigal to produce or distribute any device that breaks or circumvents the protection.  That means that no matter what purpose you actually use the modchip for, the fact that you are bypassing a security feature makes your mod illegal.  Also note that it covers services, so even a softmod that breaks protection is outlawed.

This does not cover making your own mp3s from an audio CD because there is no security built into an audio CD.

[patrickl]

This does not cover making your own mp3s from an audio CD because there is no security built into an audio CD.

RIAA claims that ripping mp3 files from audio CD's is illegal though.

[ChadTower]

RIAA will say anything to get you to buy a CD.  The game industry has suffered little as a result of piracy... the music industry, on the other hand, has been torn down raped slapped around and laughed at.

[Green Giant]

There is no alternative use for the modchip.  The law covers all potential uses:  backups (illegally copied software), homebrew (unlicensed software), region circumvention.

There is no other purpose.

No one has claimed the only purpose is to play games you do not own.  Not here.

The law specifically says modification of software to break the copyright protection.  Modchips as a hardware piece are just chips holding code.  The code on them is what causes problems.  As a whole, modchips from the manufacturer only come with a homewritten bios that allows homebrew applications, nothing that would be called illegal.  The bios that bypasses copyright is the illegal part.

Homebrew is the area that will save modchips.  As long as a developer writes his own entirely new bios for an xbox, it is legal.  You are just using the hardware, not changing the internal xbox bios that protects copyright.  Should the new bios created from scratch allow play of copied games, then it is illegal, otherwise they have no case. 

However, this is the important part, if the entirely new homebrew firmware/bios only allows homebrew applications, possibly even windows or linux, then it is legal.

They are probably forced to confiscate the systems from the modder to see if he has uploaded any illegal bios'.  The modchip allows the bios to be installed, but until you actually recommend this or install this, you have not violated the DMCA.  If the guy never emailed anyone with tips on installing a bios to bypass the xbox copyright, then he has not broken the DMCA.

Remember that the government will have to prove that the vast majority of modchip users only use modchips to play backed up games.  Since this is impossible, they will have to show anyone installing a modchip provided information that would allow the user to bypass xbox copyright protection.

[ChadTower]

Except that the Xbox requires the bios to be compiled with an official, signed, Microsoft XDK or else the Xbox will reject it.

There is no way to duplicate that without the XDK and the only way to get the XDK is to license or steal it.  That makes it impossible to write an Xbox bios from scratch without a license.

[Green Giant]

This does not cover making your own mp3s from an audio CD because there is no security built into an audio CD.

RIAA claims that ripping mp3 files from audio CD's is illegal though.

Hence the reason I haven't bought a cd in over 4 years.  I don't think I have seen someone use a portable cd-player since then too.

[Green Giant]

Except that the Xbox requires the bios to be compiled with an official, signed, Microsoft XDK or else the Xbox will reject it.

There is no way to duplicate that without the XDK and the only way to get the XDK is to license or steal it.  That makes it impossible to write an Xbox bios from scratch without a license.

"There are two types of alternative BIOS in wide use on Xbox modchips. The first is the completely legal Cromwell BIOS, and its derivatives, which were developed by the Xbox Linux Project and contain 100% "cleanroom" GPL-licensed code which can be used to boot Linux from the Xbox hard drive or DVD drive."

This turns the xbox into a computer.  You do not need anycode from microsoft, hence it is 100% legal.

[Green Giant]

Cromwell is a replacement firmware for the Microsoft Xbox gaming console that has been developed by the Xbox Linux Project. If programmed onto the onboard flash chip of the Xbox or a modchip, it can boot the Linux operating system and practically convert the Xbox into a full PC.

It is unusual in that it is a legal firmware (because it does not use any of Microsoft's code to function) and was developed primarily through reverse-engineering of the original MS bios and its boot process. In light of this, many Xbox modchip manufacturers ship this firmware with their chips to avoid litigation and copyright infringement claims.

Using this firmware makes modchips perfectly legal.  They are not in violation of the DMCA as long as this code exists.  Other systems could be more problematic, but if the modder was working on an xbox, he did nothing wrong.

[slycrel]

Sounds like you got lied to, bro... law enforcement doesn't go into people's homes, seize their goods, and not charge the person with anything.  It's either illegal to have them, and they get charged / good seized, or it's not illegal and they do nothing.

Not true.  This kind of crap has happened before and will continue to happen.

Check out this quote about operation sundevil in the early 90's...
http://www.chriswaltrip.com/sterling/crack3b.html

        Hackers are generally not indicted (if at all) until the evidence in their seized computers is evaluated -- a process that can take weeks, months -- even years. When hackers are arrested on the spot, it's generally an arrest for other reasons. Drugs and/or illegal weapons show up in a good third of anti-hacker computer seizures (though not during Sundevil).

Anyhow, just thought I'd point that out.  It's certainly not unheard of for this to happen.  It may or may not be legal, but it does happen.

Sorry for the sidetrack.  I've been stuck in WoWland so haven't been here for a few days.  =)

[Samstag]

This does not cover making your own mp3s from an audio CD because there is no security built into an audio CD.

RIAA claims that ripping mp3 files from audio CD's is illegal though.

It's copyright infringment,  but it's not covered by the DMCA because it doesn't break any protections.  I mentioned it because green Giant asked how it was different.

[Samstag]

Oops.  My edit skills suck today.

[Samstag]

Cromwell is a replacement firmware for the Microsoft Xbox gaming console that has been developed by the Xbox Linux Project. If programmed onto the onboard flash chip of the Xbox or a modchip, it can boot the Linux operating system and practically convert the Xbox into a full PC.

It is unusual in that it is a legal firmware (because it does not use any of Microsoft's code to function) and was developed primarily through reverse-engineering of the original MS bios and its boot process. In light of this, many Xbox modchip manufacturers ship this firmware with their chips to avoid litigation and copyright infringement claims.

Using this firmware makes modchips perfectly legal.  They are not in violation of the DMCA as long as this code exists.  Other systems could be more problematic, but if the modder was working on an xbox, he did nothing wrong.

The firmware is perfectly legal.  The modchip is not.  It breaks the xbox's designed control in order to run the legal firmware. 

Edit: Fixed my pitiful quote-fu.