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Australian Federal Court Overturns Legal Modchip Sales
An anonymous reader writes "Yesterday, the Australian Federal Court overruled the previous ruling on modchips in Australia. I am pretty sure the overruled case is the mainstay for the 'legal' use of modchips in Australia (predominantly Linux on the Xbox). Haven't seen this hit the media yet, with the exception of the Australian Financial Review referring to it in the Free Trade Agreement context. The ruling can be found here. Although not a lawyer, it appears the original judgement was made on the basis that Sony did not provide a copy protection system. Also noted is that there is limited commercial use for the mod other than circumvention. Wonder what will happen to modchips for the Xbox, given that it can be argued that running Linux could easily be seen as commercial."
Reader silne adds "According to the article in The Australian's IT section, it's not illegal to possess or use a mod chip, just illegal to sell them. Looks like another win for Sony. Hopefully the ACCC is going to appeal this one." Bigthecat supplies a link to coverage at news.com.au, as well.
I doubt Aussie police are going to be kicking down some gamers door becouse they have a mod chip and are running Linux on there X box.
People who want them probably already have them and those who don't have them either don't care, or will still be able to import them.
It's not libertarian. Information wants to be free!
-Libertarian secular transhumanist
They've got a new boss, Graeme Samuel, who is widely perceived as more business-friendly. If mod chips are truly going to be banned, this might be an interesting indicator of whether the ACCC is about to become less of a public enforcer of individuals' rights than before.
I was willing to apply for Aussie citizenship until this. Now, as far as this potential migrant Yank is concerned; I'm fraggin' goin' home. G'luck Sydneysiders.
MOD chips on the playstation were only good for circumvention. Sony itself released a linux pack for the PS/2, so running linux is definitely not an argument.
The PS and PS/2 modchips basically allow pirated game discs to be played, without any other real use. The XBox case might be handled differently.
..that i should be allowed to create, buy and sell any tool i want, even if that tool can be used for illegal purposes. If the people buying the tool from me use them for illegal purposes, that's illegal, but THEY are the ones who committed the illegal act.
Everyone tells me that this is a bizarre, extremist, stupid idea, and would never work.
Unless the tools being described are weapons designed to kill people. In that case, having a right to make, buy, and sell these things even if they're going to be used for illegal purposes seems unquestionable, and it's extremist and stupid to state otherwise.
Of course you don't have a right to bear arms in Australia, right? But still I wonder if you'd get help from gun advocacy groups in Australia and told them about the plight of modchippers, and explained to them that modchippers and gun owners have common problems. I doubt it.
I find this very disappointing given that third party tying is well and truely illegal here in Australia, and mod chips allow consumers to regain the rights console makers have been trying to take away from them.
Essentially a mod chip allows a consumer to run whatever they like on the hardware they bought, not only what company X says they can.
The problem is that company X has total control over what can be run on the hardware without mod chips. This means they can sell a product and then say you can only run a select list of programs on the hardware from companies as dictated by them. This is third party tying, and this is illegal in Australia.
In short, mod chips return to Australian consumers the rights they're entitled to under Australian law. This rulling removes them again.
Any man who can drive safely while kissing a pretty girl is simply not giving the kiss the attention it deserves. -- AE
Their press release covering this ruling is headlined Consumers Lose in Playstation Decision, which hardly sounds conciliatory.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
http://www.theregister.co.uk/content/54/32088.html
:)
some content in this one this time too
Fry: heh, Yakov Smirnoff said it
Leela: No he didn't.
Very ironic that the big companys wish to deny us new open hardware and at the same time ramming DRM into legacy hardware. Ala media player 9 (Plan 9?) I would normally be a lot more concerned, however since Microsoft is set to embrace and extend this new field of DRM, I am not worried.
Go to Google and try to find a method for saving a Quicktime video stream. It can be done but you have to be persistant. Now try the same thing with Media Player... Google goes nuts showing you freeware up the wazzo to do just this very thing.
I am not worried.
I read about the ruling this morning in 'The West Australian' (newspaper).
Online link here.
Ho! Haha! Guard! Turn! Parry! Dodge! Spin! Ha! Thrust!
If I had mod points, I would mod you -1 offtopic
Well, at least it's in Internet Protocol Version 6.
cut here
The ACCC might appeal, since that decision also made it a bit more legal to sell multiregion DVD players here.
Legislating from the bench ROCKS! I'm so psyched about the law changing because someone not elected by or accountable to the process we use to select legislative representatives thought it should change.
You don't really NEED a modchip these days anyway. Solder a couple of points on the motherboard (MUCH easier than soldering in a modchip) and use the 007/Mechassault/Whatever hack to flash the TSOP. Worked for me, worked for my friends, worked for (probably) hundreds of other people.
Two years ago Mr Eddy Stevens sold unauthorised copies of computer games on CD-ROMs for use on Sony PlayStations. He also supplied and installed modifying chips in PlayStation consoles
Case closed. We really need to find better cause celebres rather than letting rights owners pick the fights.
If you were blocking sigs, you wouldn't have to read this.
The ruling seems to indicate that not only are modchips illegal, but software solutions that allow playing of ah.. unauthorised discs are also illegal.
In Australia it is illegal for vendors to 'lock' products with products from third parties.
This ruling seems to side with the manufacturers without addressing any of their failings. There is possibly wrongdoing on both sides here (ie offering a product for sale that does not comply with these 'third party lock in' laws)
With respect to the 'could reasonably know that a device would be used for copyright infringement' or 'that commercial viability of non-infringing uses for such device would be minimal' there are a couple of cases in point:
The playing of legally purchased games from overseas.
The use of backup copies of legally purchased material.
One way a number of companies remove the need to allow backup copies is to offer exchange at no or minimal cost of damaged media. I have not seen any examples of game manufacturers offering this service.
only allows linux to be used and doesnt allow any pirated games to be played (i.e. it would be pre-flashed with a linux bios image that had no (C) microsoft code in it)
Also, it could be built to boot bootable cdroms (such as a sutably modified knoppix disk or something), so that you could e.g. modify the installer for a sutable linux distro and make a set of ISOs ready to install that would give you e.g. red hat or mandrake or whatever with sutable mods for xbox and xbox h/w
Since the digital signature on xbox disks is the "access control" and since this doesnt allow one to play xbox games, pirated or otherwise and since it doesnt circumvent the "access control" as far as I can see (although IANAL and I dont know exactly what the relavent laws say)
Given that the chip would be flashable, someone would come up with a bootable ISO that will put some other bios (such as "lets you play pirate games" one) on there but since the chip makers arent selling it or even linking to it, they cant get in trouble for it.
The Australian game publishers are terrified of trying to keep up with the frantic schedule of one or two games per year seen in Linux gaming.
Except that wouldn't work on a sony console now, would it?
And in that case you still need a way to get the buffer-overflow files on your xbox - which requires a mega x-key (read: circumvention device) or some jiggery-pokery swapping IDE cables around while your hard drive is on.
"Free Trade" - what a misnomer.
Australia already has 0-5% tariffs on nearly all imports - the real sticking points here are removing PBS (Pharmaceutical Benefits Scheme), removing australian TV content restrictions, full privitisation of Telstra (the now half state owned telecommunications giant), removing distilled liquor duty, relaxing food labelling laws, relaxing quarantine restrictions, and basically anything else that a major American lobby group objects to...
So basically - we have to remove all of the things that Australians believe in and have spent many decades nurturing - for a marginal at best gain...
Let us hope negotiations progress...
Btw, I'm not anti-american, I would feel the same way if any other country tried to dictate australian domestic policy.
Q.
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we're apathetic /shrug
PS(2) games are also region coded and you need a modchip to play back US or Japan games on a australian PS(2). Many games are never released in PAL regions and many gamers there got modchips to play US games because they are released much sooner and are usually better. (bad ntsc->pal conversation, borders, wrong speed etc.)
Using regioncoding they can still sell shitty outdated, overpriced games in Europe and Australia.
Jan
It's bad enough that companies are simultaneously claiming copyright protection under the law while trying to make their content uncopyable even for fair use; companies should have to choose between enjoying copyright protection or employing copy protection. Copyright law loses its meaning and purpose if the content being copyrighted never has a prayer of making it into the public domain.
But this ruling goes even further: in addition to copyright protection, the legal system is now also being burdened, at taxpayer expense, with prosecuting people who circumvent copy protection. If Microsoft or Sony can't figure out how to make their boxes unmoddable (it's not that hard technically), why should the taxpayer pick up the tab for their incompetence? And, no, it's not just Australia: of course, this nonsense is even more widespread in the US.
No internet access isn't restricted - it is crap. Bandwidth just sucks in australia, though this has begun to slowly change.
"...whacked computer rules" - I'm not even sure what this one means... perhaps you mean how our federal police/intelligence agencies have finally been granted the same rights as the comparable american agencies???
Australia has EFA - but we don't neccesarily have to rely on volunteer organisations as we actually have a government commission (the ACCC) that is specifically to protect the rights of the citizens - except in this case... :) heh...
Don't get me wrong, we are in no way a truly "free" society, but show me one that is...
Q.
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How about we start to manufacture modchips that can be used as hand grenades. Maybe what you had ment in your example was guns... in which case someone should work out a design for a small handgun.
"It's the Law of the Universe, and I'm the sheriff." Slash-cott 2/10-2/17
i don't get it. i bought the damn thing. if i want to i can just trow the damn XBox out the window! i bought it, it's mine! if i want to remove the chip, ram what ever it's up to me! it's MINE!
it's like buying a calculator and then the law forbids me to use it to calculate how much plutonium i will need to reach critical mass!!! damn!
I would have thought the whole mod chip thing was a civil issue, not criminal when you're talking copyright infringement
Oh, wait... we're only talking potential copyright infringement aren't we?
It's legal for me to own a firearm (if properly licensed & registered) until such time as I actually commit a criminal offence with it. Surely I should be able to buy a mod chip for my Sony or whatever on the assumption I won't break any laws. If I do, so sue me, but until I actually break the law, I'm not a criminal.
Anyone here know much about the jurisdictions involved?
EFF in Australia is actually called the EFA
Good news for Australia. At least when you buy a console you can do whatever you want with it. The way it should be.
If you ring up Microsoft's European Customer Support and ask for a replacement (even at a fee) for a damaged disk of a game they publish, you are told flately 'no' (in three different examples I know of).
Since then I haven't bought any of their games, and I'd also strongly argue the case for me to backup the ones I do.
Making the chips illegal to sell strikes me as a pretty good method for making sure it stays that way.
proof, n. A demonstration that a conclusion is implied by certain premises and axioms.
Say, yes or no, legal or illegal, because I couldn't make it out from the text. And don't mod me down till there's a yes-or-no answer to this post.
Pity, really, as it would have been fun to watch MS squirm under a clickable lisence, or try and say the clickable lisence was invalid (thus them saying all clickable lisences are invalid, even their own).
Oh well.
Thursdae
up too early with nothing to do.
Who the hell is Steve Irwin?
From the headline: "Wonder what will happen to modchips for the Xbox, given that it can be argued that running Linux could easily be seen as commercial."
Someone explain that little pearl to me. Either the submitter doesn't know what 'commercial' means, or is simply making a huge stretch to justify X-Box mod chips.
The fact remains that while there will always be a few hobbyists who actually do use these things to run Linux on various devices, MOST people only use them to circumvent copy protection and play copied games. Anybody who argues to the contrary is only fooling him/her-self.
There's a Mercedes gap too. I want one and can't afford one, but it's not government's job to do anything about it.
Surely it is possible to make a modchip which allows the system to boot Linux or other free OSes, but will reject copies of proprietary games? The Linux CD might have a special marker (not a digital signature, just a marker) to say that it can be loaded. Of course no game maker would put this marker on its CDs.
In the current legal climate, wouldn't that be the best way to sell modchips legally and widely?
-- Ed Avis ed@membled.com
I'm not apathetic, I just don't give a shit.
Even better idea is to release the modchip design itself. You can't make money on it, but everyone with an EPROM burner (or in some cases a PonyProg device) can make it from off-the-shelf parts.
Which doesn't make it legal, but makes it technically impossible to prevent its proliferation and to find the people who have it. Also serves as a nice side income source for notoriously cash-strapped EE/computing students.
Would the modchip view be changed if the PS/2 was successfully argued to be a full fledged computer? IANAL, and have no idea what the legality of this might bring; but I'm pretty sure Dell doesn't have the right to limit what software you run...
i recon hollands pritty close
Roses are Red Violates are Blue im not very good a poetry but i have many other redeming qualitys
IMHO the only way out is still removing all legal protection to copy protection.
My main complaint with banning modchips is because it prevents using legitimate backups. Before I installed a modchip in my PS1 I had bought the same game twice for my son after he had scratched it. Why put a game on fragile media such as a cd when the target audience is children? Nintendo got a bad rap for not going with cds on their N64 but all of my cartridges still work on that system while the PS1 gets cds scratched frequently. Now that I have my modchip, if one gets scratched it is only the backup. I just make another copy of the original.
If I really just have a license to use the software, at least give me the option of buying replacement media at a reasonable price, not buying the entire product again.
Which you can get for a huge amount of cash, or you can buy their start home dev kit for around $450 which in turn comes with a license to code PS2 software but not sell it. Simply modding your PS2 and coding for it is illegal in the eyes of Sony, Nintendo, and Microsoft. You need licenses.
> "with the exception of the Australian Financial Review referring to it in the Free Trade Agreement context"
and from the artcle:
> '"That remains something of a weakness in local copyright laws in that they focus on the supply of the devices rather than their use," Mr Williams said.'
Put the two together and you have a push, using the looming US 'free' trade agreement as a cover, to outlaw the private non-commercial use of various technologies in Australia.
NOW IS THE TIME FOR ALL CONCERNED AUSTRALIANS TO WRITE TO THEIR MPs, URGING THEM TO MAKE LAWS TO BENEFIT ALL AUSTRALIANS (AND AUSTRALIAN R&D), NOT JUST A SMALL GROUP OF COPYRIGHT HOLDERS.
So its illegal to sell them _in Australia_ or _to people residing in Australia_?
I live in Chile where basically all this sort of stuff hasn't become law yet (you don't worry about X-Box mods while trying to put a roof over the heads of your people).
I wander back home to Aus every now and again. I reckon I could fit a dozen mod chips in my backpack. If somebody buys mod chips online, has them delivered to me, then gives a six pack of beer because they like me and in no way as payment for a delivery service, who can they prosecute?
I never took money for the chips or was involved directly in that transaction, so I am not part of the sale.
Opinions?
YNSA (IANAL in Spanish).
The dingo stole their baby!
The PS and PS/2 modchips basically allow pirated game discs to be played, without any other real use. The XBox case might be handled differently.
Actually, there was a perfectly-legal, totally-legitimate use. Namely, the ability to play imported games from another region, where that game might not have been released in your own area. Many anime fans ended up doing this, because most anime-based video games never make it to the US, so this is the only way to play Japanese games.
Indeed, there were some modchips made for the PSX which did only this, and did not bypass any other copy-protection methods (such that you still could not play backups). Are those also to be made illegal?
What makes the author say this? I know many people with modded xboxes, and they didn't do it so that they could run linux, but to load pirated games. In this, I sincerely doubt that i'm in the minority. If i want a machine that runs linux, I can buy a $200 tower, WITHOUT voiding the warranty on my xbox. Unless i'm actually trying to crack the problem myself, I don't see why normal people would go through the trouble of installing linux just for the "thrill" of seeing linux boot up
What about people who do homebrew console programs? I'm a commercial game developer, and I've modded my console solely for the purpose of enabling me to take my work home.
The problem with these DMCA-ish rulings is that even if mod-chips are substantially used for copyright violations, when you ban them, you screw all of the people who use them for legitimate use.
People who want to run Linux on their PS2? No - they can buy PS2 Linux.
People who want to play backups? Unless you treat your discs like shit, you don't need backups.
People who pirate games? Yup. Stiff shit, thieves.
People who want to import games from overseas? Yup - and out of the millions of console owners out there, they probably make up less than 1%.
Average Joe will never even know about this ruling, because it will not affect him. MOST people buy games only from their region. MOST people do not want to homebrew software or run 'backups'. And therefore MOST people are not affected.
Is this decision 'right'? Depends who you ask, because it seems what's 'right' depends on who gets the advantage, the console manufacturers or a small handful of consumers.
Next thing you know, it's going to be illegal to fill your car up with petrol because you're modifying the original contents of the car you purchased.
Oh wait, you sat in the vehicle? You opened its case, that's voiding its warranty.
What ever happened to equality?
Matt
the copyright holder makes an attempt to protect it.
IANAL but the current ruling, in conjunction with this little beauty from Section 47C of the Copyright Act.
For those that don't want to follow the link, given that subsections 1 and 2 outline the legal reasons for making back-ups, subsection 4 reads,
I can imagine then, that any type of hidden data on a CD could be deemed as part of the program, thereby making a copy without it is illegal - even if it were for back-up purposes! This is because making back-up copies is explicity excluded [see subsection 3(a)(v)] from the fair-use of circumvention devices.
In general, I am all for copyright - but certainly not when it is illegal to make a backup copy!
"The investigative powers of van Hulst's agency were expanded earlier this year to permit the opening of mail and hacking into suspects' computer systems." - yeah, nice and free...
Reference: Here
Q.
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Even passing a joint at a party (without partaking yourself) leaves you technically open to prosecution for "trafficking" - the same would apply to modchips I believe.
There are also importation/quarantine restrictions that they could possibly get you on - but I have no further information on those laws.
Australia has this annoying habit (troll disarm: I am australian) of creating "Big Stick" laws.
These laws are technically very wide reaching, but are generally enforced at the discretion of the officer involved.
So the final answer? Probably still get prosecuted if caught.
Q.
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never said they were i said they were close there the best i've seen so far any way
Roses are Red Violates are Blue im not very good a poetry but i have many other redeming qualitys