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Australian Federal Court Finds Mod Chips Not Illegal
Friendless writes "In contrast to the story earlier this week about the Ottawa man who was jailed for selling and installing mod chips, the the Australian ABC reports that the Australian Federal Court has found that installing mod chips is not illegal, because Sony failed to prove that a copyright protection measure was installed in the PlayStation in the first place. Here is the full judgement."
It is called civil disobedience, and it is often the only way to get injustice corrected (and the DMCA is extremely unjust).
If enough people are arrested for outrageously stupid reasons, public awareness of what is happening will be raised. I remember telling a non-technical friend of mine, who is a pilot for a major airline and served in the airforce (and saw combat in Yugoslavia), about the arrest of Dmitry and he was outraged. In fact, I don't think I've ever seen him as angry as he was that day. He took that injustice very personally, as do most people who believe in the ideals of democracy and not the rule of corporate oligarchs, cartels, and monopolists.
The more lay people that are made aware of these injustices the better, and this guy is going a long way toward accomplishing this. The excesses of copyright have only succeeded these last decades because the awareness of what has happened (chronic copyright extentions, and now fundamental changes in its nature from a civil to a criminal law, and from a largely commercial regulation to a profoundly invasive personal one) has been absent. Copyright law, in its current form, will likely not withstand public scruitiny very well, which is something that would be good for every one of us (returning it back to its pre-1970 duration, if not repealing the notion altogether and replacing it with a gentler, non-monopolistic regime for compensating authors and artists, but that is a discussion for another day).
Raising public awareness of these issues is probably one of the most important things we can be doing, and if we as technically knowledgable people do not do so, no one will. This guy should be applauded for stepping up to the plate and putting his personal liberty on the line for the greater public good.
If we had more people willing to do this sort of thing when the despots seize personal liberty after personal liberty we would live in a much better world. He is a man who clearly feels strongly enough about software freedom to risk jail time, up to 5 years, which is a hell of a lot more grave than the $17,000 fine mentioned in the article (I wonder why they played that down. That makes his actions even more impressive).
The correct ABC link is here.
Wasn't the Ottawa case more about copied games then teh mod-chip? If he was just arrested for a mod-chip then the comparison would be valid, but selling burned games is an entirely different matter.
Secondly, the story about the Ottowa man who was jailed for "selling modchips" was actually jailed because he had 417 pirated games that he was selling to customers. Christ, people, read more than the headline next time!
Finally, I don't see how it could possibly be illegal to modchip a Playstation. I bought a piece of hardware (PSX). I bought another piece of hardware (modchip). When I buy them, I buy the rights to modify them in whatever way I want. There is no EULA on hardware. There is no contract that says "I will not modify this piece of hardware." What I do with my toaster/PSX on my own time is my own business. Is this one of those stupid "DMCA illegalities" that we keep running into?
From the very bottom of the article:
<snip>
165 In view of the failure of the applicants to establish that the copyright work was protected by a technological protection measure, it is not necessary for me to determine whether the devices installed by Mr Stevens in the PlayStation consoles were circumvention devices.
166 In an affidavit read on the last day of the hearing, Mr Nabarro expressed the opinion that the chips had no purpose other than overriding the anti-piracy devices of the applicants. The price Mr Bannon paid for being permitted to read the affidavit at such a late stage (Mr Nabarro being already on his way to the airport) was that he conceded that Mr Nabarro's evidence was not literally true. In particular, Mr Bannon accepted that the installation of the chip enabled the owner of the console also to play a back-up copy of the PlayStation game which lacked the access code.
167 On the evidence, I would have held that the chips installed by Mr Stevens had only a limited commercially significant use other than circumventing or facilitating the circumvention of the access code. Thus, if the access code had been a "technological protection measure", the chips would have been circumvention devices. I would also have found that Mr Stevens sold or promoted (through advertisements in the Trading Post) the circumvention devices and that he knew that the devices would be used to circumvent or facilitate the circumvention of a technological protection measure.
</snip>
(Emphasis added)
So despite the fact that the judge thought it unnecessary to determine whether the mod chips were a "circumvention device", he goes ahead and expresses the opinion that they blatantly are, and he would have prefered to rule in the opposite direction.
At least it sets some kind of lower threshold on what can be considered a "technological protection measure", thus raising the bar slightly higher for companies trying to stifle fair use of their products. But in the end, the wrong law was passed, and the wrong law is still on the statute books. So how great this ruling really is, I don't know.
And it was nice to see the old chestnut of "loading into RAM is theft" re-appearing; I thought that one was already put to rest for good!
These sigs are more interesting tha
There are many ways even the awful recent laws could be interpreted out of existence, so to speak. To really get what they want (which is impossible, but regardless), the big media industries not only need these draconian laws and worse, but they need very "conservative" enforcement in the courts.
Strictly speaking, I tend to agree with the Australians; security on the consoles (and proposed security in other systems) is far from being "primarily" a tool to prevent theft. It has many other purposes, stated and unstated.
We often call fair use a victim of the media industry's war on customers (or perhaps a war on civil liberties, or on sane contract and criminal law). Region coding aside, one thing in particular that frequently gets swept away in the "copy control" race is the notion of backups.
Yes, just simple backups. I'm in the habit of keeping things backed up when I can, and you should be too. Of course, don't take my word for it. You'll be a believer after you lose your first important batch of data, just like I did.
The media guys just want the backup issue to go away. They ignore it at every opportunity, and they hope you will too. But why can't we make backup copies of our CDs, DVDs, and, yes, playstation (etc etc) games? They get scratched, they wear out... even if you buy into the most apocalyptic notions about time shifting and space shifting, backups are still legit. And not only us, why can't _libraries_ and _rental places_ make backups? 100x as important for them as for us; they get a lot of wear and tear.
The "security" systems, as exemplified by the PS2 and other consoles aren't just for preventing theft. They're for preventing backups. You damage "your" property? Buy another copy. But is that legitimate?
This debate is filled with similar examples. Where's the "security" in region coding? It's entirely arbitrary! And the list goes on.
You see, there's a continuous conflict here, between big media's power grab, and fair use (making backups, quoting, time shifting, space shifting, etc), basic freedoms (like privacy, for DRM systems which "happen" to report what you do back to HQ), and elementary contract law (parties explicitly agree, implied contracts, no "surprising" fine print conditions, you own what you buy, etc - actually comes pretty close to the rule of least astonishment).
They want to abolish fair use altogether (along with getting special status for contract law and enforcement, etc) - that's the only way they can try to stop all theft. While they're at it, they're going to get fringe benefits that far outweight the value of their stated goal - control over all media devices? Carte blanche to dictate any kind of terms they want whenever they sell you anything? The ability to asses and collect taxes? Yet right now all the pieces aren't in place yet, and if you have to rule on the law, you still have the option to look objectively at the facts and conclude that mod chips and other game copying tools have legitimate uses and must be legal. I don't even think it's a stretch.
Until they explicitly eliminate fair use at the legislative level (which they might - who knows! anything's possible, apparently), that's always a possibility. Of course, controlling the courts isn't impossible either, perhaps... One thing the last few years should have taught us is that when it comes to corrupting influences in politics, politicians have a unique appreciation for the power of those who control the media.
We're on the road to Tycho.
The DMCA (arguably) forbids making, owning, or even discussing how to make mod chips.
The law is convoluted, badly written, and in practice self-contradictory. But the net effect may be that your mod chip could get you in trouble.
The media guys know it's a shaky defense; that's why they're not rushing to test its limits right away. Rather than sic the feds on everyone (as they certainly could), they're going for what we like to call a chilling effect; they want practices to change as people are _afraid_ of prosecution, and they want the law to age a bit. Recent laws always look like potential victims to a high court, so the theory goes. But once its 10 years, 20 years old, it starts to take on a certain "legitimacy."
Don't ask me. I only live here.
We're on the road to Tycho.
Australia rules that selling pirated games is illegal.
:-)
The guy in Canada was mostly burned for selling the pirated games, not for installing the mod chips. It just looks better in an article to emphasize the mod chip aspect. We have no laws against modding equipment, even if it breaks copyright. Hell, if you can find a good Canadian server that will let it on, you can have DeCSS online up here.
~ kjrose
A long time ago, when I was innocent and mostly unaware of DMCA, I got my PSX modchipped. This was one of the earliest mod chips (this becomes important later in the story). I was in Virginia working for my cousins software company (a defense contractor) and they had this cool video game store there that sold a lot of imported games. Well, they had just gotten in Samurai Spirits 1 & 2 for the Playstation. I bought it and brought it home, and tried to use the "swap method" to play it. (The swap method is where you prop the Playstation open while keeping the closed button under the lid pressed down. You then put an American game in your Playstation, and after it starts to boot swap it with an import.)
Well, this was a failure, so (long story short) I mailed my Playstation to a friend of mine and had him install a modchip. I finally got my Playstation back and spent many happy hours playing Samurai Spirits.
Well, a while later Sony got Capcom to tweak their software so it wouldn't work in modded Playstations. I found this out after buying two games. The first was Rockman III, a very expensive game that I can only play using Bleem! (I'm unwilling to rechip my Playstation with a newer "stealth chip" and I certainly won't ever buy another one.) The second was the American version of Dino Crisis! I solved that problem by getting my friend to ship me a patched CD-R of Dino Crisis, which worked fine in my modded Playstation.
So, essentially, Sony had convinced Capcom to tweak their software so that legitimate copies of their software wouldn't run on my chipped Playstation, but "pirate" games would work fine.
After this experience, I decided Sony was run by the Devil incarnate, something which was only confirmed by their later behavior.
All the creatures will die, And all the things will be broken. That's the law of samurai. (Jubai, 1605)
Not True.
If you gain a mod chip for a PS it generally does three things for you:
1) Allows you to play non-'original' disks. (A semi-dodgy area, fair use says a backup is permitted)
2) Allows you to play discs from other regions (No illegality here.)
3) Allows you to play DVDs from other regions. (Perfectly legal)
One of the selling points on a PS2 is that it plays DVDs, and hence you can factor in that cost of a DVD player when buying a PS2, and as pretty much ANYBODY in a country that does not fall into region 1 knows DVDs are somewhat more expensive there... Not mentioned the staggered release dates, region 1, then 6 months later the rest of the world.
Games are also 'zoned' in a similar manner, brought out eariler, different pricing, and in fact different games (well features I guess)..
Why companies playing in a global market should attempt to segment, purely for the purpose of increasing profit... If you import DVDs from the states to the UK you still pay the VAT, and hence the tax arguement doesn't really cut it with me. Some items really are value added for the zones, but so far I've only noticed this on cars, not Computer related items.
And so to sum this up, there are perfectly legal and legitimate reasons for installing / purchasing a mod chip. I'm not saying that everyone has these goals in mind when they buy or sell them, but I am saying that to tar everyone with the same brush is a little harsh, and wrong.
To reply to the quote in the parent: This was totally unrelated to the first sale principle, it was the selling of mod-chips (oh and those copied games). Once you have bought the hardware there is nothing illegal about altering it. Sure the DMCA may come into force if you circumvent copy-protection, BUT I'm not sure if that applies if you don't distribute the 'crack'. At least nobody will know since there will be no publicity.. If you buy a ps2, crush it and use it as a doorstop, you can, and there is NOTHING Sony can do about it, even if you publish it, hell that probably violates the DMCA since the copy-protection is circumvented... Hmm I wonder what happens to scrapped machines??
Sony (and Sega, MS, etc) want to stop this because traditionally Europeans (and other areas, sorry about the view - I'm from Europe) will tolerate much higher pricing than their American counterparts, thus better profit margins..
Z.
P.S. I believe PS2 Games are zoned, although I'm not 100% sure.
The opinion is not lowering the threshold on what can be considered a "technological protection measure". All these last few paragraphs say is that it is irrelevant whether the mod chips are truly circumvention devices because the access code was not proven to be a protection device that was circumvented.
The main points of the case are as follows:
1) The access code does not protect the copyrighted work from being copied, 2) the access code merely causes the copied work to be unplayable, 3) the mod chip makes the copied work playable, and 4) the key here is that the work is already copied, regardless of the presence of the mod chip.
Even further, the text also supports the notion that even if the access code WERE a technological protection measure, the mod chip may still not have been considered a circumvention device because the protection measure would have also prevented the legal playing of American games and backup copies.
Sony was in fact two hurdles away from winning this case. I don't think this lowers the hurdle on what can be considered "technological protection measures" Rather, it clarifies (according to Australian law, unless they have an appeal process from this level) that mod chips are legal because they are not circumventing a protection device.
Clearly Sony must take additional steps to protect their games.