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Xbox Modders Charged Under DMCA
JamesAlfaro wrote to mention a News.com article about a pair of game store owners charged with Xbox modding. From the article: "Jason Jones and Jonathan Bryant, two Los Angeles residents who own the ACME Game Store on Melrose Ave., allegedly sold Xbox game systems that had been modified by Pei Cai, of Pico Rivera, Calif. Cai allegedly equipped the Xbox consoles with modification chips and large hard drives to allow the user to copy rented or borrowed games onto the device for future playback. Buyers would pay from $225 to more than $500 for the changes."
If you oppose the DMCA (as I do), this is the wrong type of case to rally around.
Read the article:
"During the investigation, undercover agents with U.S. Immigration and Customs Enforcement paid $265 to have a modification chip, a hard drive and 77 pirated games installed on an Xbox, according to the criminal complaint." (emphasis added)
Now, if they were charged for selling the modding and hard drives, it's a clear-cut abuse of the DMCA by industry and law enforcement. But they were allegedly selling 77 pirated games. That's a completely different issue and doesn't necessarily deserve any support.
Disclaimer: The article is pretty scant on details, so if it turns out the 77 "pirated" games were actually purchased at full price and installed on the hard drive, then I'll support the ACME Game Store owners.
If you read closely, they're not only invoking DMCA for pirated games, but also the modchip itself (conspiring to circumvent...).
This could set a precedent that means the end of:
TiVo mods
Linux on XBOX
Tinkering with Trusted Computing (!)
Pretty much modifying any hardware with basic protections
I was also going to post a similar expression of disgust, until I read this:
During the investigation, undercover agents with U.S. Immigration and Customs Enforcement paid $265 to have a modification chip, a hard drive and 77 pirated games installed on an Xbox, according to the criminal complaint."
No sympathy, then.
The article sure makes it look like installing the mod chip is the problem, doesn't it? I have to get to the 5th paragraph 3/4 of the way through the article to find out there's 77 pirated games sold to an undercover agent as part of the purchase. Up until that point it all looked like a "DMCA screwing the modders" article. If the facts were buried any deeper I'd expect a sign stating "Beware of the leopard" nearby.
I tried every decent and legal way I could think of to resolve the issue w/the business before I rented the chicken suit
1. You need to get a hacked bios that lets you boot soemthing else besides the DVD drive
2. you need to run some sort of dashboard. (basically a menu manager on which programs to launch.
Since all of these are built with an piece of software that MS owns, and is not licensened to build "homebrew" software its still technically not legal to get this software. That is why this software is not availiable for blatent download, you have to do a little bit of digging.
Now ethically I have no problem with the abouve steps to lets say get xbox media center working (my favorite reason for my xbox). But I think the store selling the box with games is totally wrong and just blatent copyright infringement/theft, depending on the camp you talk to. People worked hard on the games, and they deserve to get paid, just like you deserve to get paid at your work for what you do.
Source code is like sex. It's better when it's free.
Not only did they pirate the games, but they ripped off the rock band AC~DC for the logo on their website as well.
http://www.acmegamestore.com/
Even worse than the DMCA and those who pirate was a company I worked for. They wanted me to remove names of open source software, license information and names of those who contributed so they could repackage it as their own creation. I of course objected and wouldn't you know it, I suddenly didn't receive a paycheck. I have hesitated to bring this up but I couldn't hold it back any longer. I no longer work for them not because of the missed pay checks but because of their insistance on repackaging software protected by GNU. My morals are sick because of this company. The company is named Secure Crossing which can be found at securecrossing.com...I think it is sick that company's try to get away with this...
Just whose XBox is it? If I paid for it then I should be able to do as I wish with it. Doctrine of First Sale -- Microsoft loses any further control over it. Yeah, if they want to get me for pirating games that's a charge they can take to court, BUT there should not be allowed any case against modding.
"Doctrine of First Sale", as you call it, allows you to resell the device. It does not allow you to do illegal things with the device. The people in question were using the modded XBox to illegally copy and store games. Buying a magazine doesn't give you the right to run around and give people really bad paper cuts.
Dear god, I hope "Doctrine of First Sale" doesn't start showing up in every other copyright post. Please people, don't let it become the next "prior art"
Help me take back Slashdot. When did 'News for Nerds' become 'FUD and Conspiracy Theories for Extremist Nutjobs'?
The law itself specifies.
I'm feeling too lazy right now to dig up my copy yet again, but -- if memory serves, there are two conditions, either of which suffices.
The first is that the item or service is specifically intended for circumventing a digital access protection measure.
The second is that the item or service is marketed or advertised for circumventing a digital access protection measure.
Thus, "could" is not sufficient, in the general case. That 'could' would have to be strongly indicative that the infringing use is actually by design...
In this case, since the mod chip was presumably included to bypass the access controls and allow the use of infringing material that the accused themselves provided, it should be a slam dunk -- they can't plausibly claim that they were providing the chips only for legal use.
Only the dead have seen the end of war.
That's the problem, not the fact that they were changing their own property, as they saw fit, and reselling it -- which IS allowed by the law.
No, it's NOT allowed by the law. Whether you agree with the DMCA or not, I don't see any wiggle room in the position that they broke it. The DMCA prohibits the circumvention of copyright protection mechanisms except in limited circumstances, none of which appear to apply. They circumvented the XBox's copyright protection mechanisms. Case closed.
It's not like the Lexmark case, where you could argue that the company selling printer refills reverse engineered it for compatibility, or even that there was no copyright in place to protect. Whether it SHOULD be illegal is also another issue. But the only way you can say that the XBox modification is legal is if you think those provisions of the DMCA are unconstitutional. (There's a case to be made there but I doubt any court would agree.)
(BTW, my thoughts on the DMCA are as follows. I liken the circumvention of copyright protection to picking someone's lock. I lock my door deliberately to keep people I don't want in my house outside; MS puts a TCPAish chip in the XBox to keep programs that they don't want running from running. The analogy is far from perfect (or even good) because it's MY house and it's not MS's XBox, but stick with me for a moment.
(Now, pretty much anywhere if I get locked out of my house I can break in. In most places, I can carry around a lock pick set and break in using that so I don't damage anything. To me, this is like circumventing the protection for purposes that would be otherwise legal; running Linux, running a backup of a game you made, etc. This should be legal. (Just as I think jurdictions that outlaw mere posession of lockpicks are in the wrong.)
(Now, breaking into someone else's house is illegal, just as breaking copyright laws is illegal. But if you break into someone eles's house using a lockpick, many jurisdictions will add the posession of a lockpick onto your robbery charges. The analogy would be if you circumvent an active copyright protection scheme in the course of committing another crime, than the penalties would be made more severe. In both situations I see this as being a perfectly reasonable solution.)
"...corporations don't have souls and cannot be sinned against".
A corporation is collectively owned by a group of people. Ultimately, the myriad lines of ownership through mutual funds and holding corporations and retirement funds and all the other instruments of ownership all end up in the hands of individual people.
The owners may fill a dozen stadiums and they each may only hold a small portion of the total, but that doesn't matter. Just because your sin is thinly distributed doesn't make it any less a sin.
Well, in many other countries the problem is solved by making the community service
unpleasant enough. And by having the fines adjusted by income.
For example where in Finland where I live you really have to do something major or violent
crimes to get to jail. For others fines up to 100 000EUR work as nice deterrent.
We actually have the world record on traffic fines, I think the record is around 200 000EUR.
But then again we don't have problem is rich bastards breaking "minor" laws and getting away
for basically nothing for them.
The lesson, if the crime is profit motivated, have punishments that fit to them.