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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."
From TFA: 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.
This is where we all cheer, because the DMCA is being used appropriately.
I suspect this story only got a green light because it has that particular acronym, but seriously guys -- this is what the law is supposed to do, right?
Did this just get posted so we could laugh at these guys for being so blatant?
From TFA:
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.
Like I said on digg this morning when this was posted there, no wonder they were charged, and quite rightly too.
This is not a "Your rights online" story, it's a story about blatent copyright violation.
From TFA:
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.
I'd have a lot more sympathy for them if there weren't for the pirated games installed as part of the purchase. Real stupid move there.
I tried every decent and legal way I could think of to resolve the issue w/the business before I rented the chicken suit
Hold on, it wasn't mainly the modding that they got nailed for. If you RTFA'd or read about it earlier, they were selling the modded Xboxes with pirated games. I hate the DMCA as much as anyone else, but these guys are in the wrong here.
I am Spartacus
If you RTFA, then you'll find that this isn't a case of "Modded xboxes = bad" it's "Modded xbox + large amounts of commercial copyright violation = bad". Which I don't think most people would have a problem with. Slashdot strikes again!
(Although, having said that, I'm here on a day-pass. Anyone else think that the idea is actually pretty great?)
My UID is prime. Is yours?
Not sure if you read the article, but they aren't being charged for just about anything. These guys were not only modding an Xbox, but they were selling it with pirated games pre-loaded. Go sell it in another country that doesn't enforce copyrights, but selling it in Los Angeles? They are idiots and deserve whatever happens.
These guys where ripping off thousands of dollars in software with each sale. Heck, if you coughed up $30 for each of the 77 video games they gave away with their modded box (for less then $500) you'd have to pony up over 2 grand. Realisticly it would be significantly higher then that. If they sold 100 fully loaded boxes they would have effectively ripped off a quarter million dollars from the publishers.
Rightly so these guys should be prosecuted.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
It still seems right to criticize the DMCA to me. It isn't necessary to get pirates but it does criminalize a whole range of activities that really shouldn't be illegal.
Try not. Do or do not, there is no try.
-- Dr. Spock, stardate 2822-3.
I don't have a lot of sympathy for these guys because obviously they were doing more than modding consoles. But is a 5 year prison sentence appropriate for this? I'm not sure how prison sentences work in California, but in Canada a 5 year sentence doesn't neccesarily mean you spend 5 years behind bars. I just think that a civil remedy would probably be just as effective (i.e. sue for damages). I'm obviously not a lawyer - I just think half a decade of unwilling participation might be overboard for small scale piracy.
NeverEndingBillboard.com
NeverEndingBillboard.com
I'm intrested in what game programmers / creators think of the penalties that could be imposed. Would you prefer a large fine to jail time?
Remember that these guys could have been prosecuted under perfectly servicable copyright laws; it's not as if we need a law as divisive as the DMCA to bring people like this to justice.
Copyright laws, together with the concept of Fair Use, are reasonable; the DMCA is a corporate-sponsored attack on Fair Use, and serves no other purpose.
Andy
To elaborate, this is the exact charge that could set a precident that scares me: "conspiring to traffic in a technology used to circumvent a copyright protection system". For a long time, Linux on xbox was considered legal as no code was stolen. Only the copy protection system was broken, using flaws in the hardware (unlike DeCSS). No actual code is altered in the process. This could also prevent people who prefer their privacy from disabling Trusted Computing. Generally, the rule of thumb has been "you bought the hardware, you can do whatever you want with it as long as you don't touch our software". This would change that.
Well, the great thing is that they can keep copying the one copy of the game and sell it as many times as they want. So sure, they'll sell it to you for $3, because they still have the original software and plan on selling 100 more.
It would have been nice to see a test case for the DMCA. However, this is going to be settled fast.
From 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
Even without the DMCA crap, these guys are screwed. Most likely the lawyers for the defendants will settle for a fine and a suspended sentence. Nothing will be tried, and the DMCA will continue to exist as a nice chilling spectre.
Necessity is the mother of invention.
Laziness is the father.
I simply do not agree on modding being illegal. I still feel that by modding an Xbox i get more functionality, I paid for the hardware and if i own it I can smash it, mod it, or do whatever I like to do with it in the privacy of my home.
.....
Now selling 77 games on the HDD is not a good thing, but being able to play a copy of a game comes handy sometimes.
E.G. I am the owner of the original game "Ghost recon Summit strike" NTSC but since I do no have Live I play on XBC or KAI.
Since I figured that the game is only compatible with the same system (NTSC vs NTSC and PAL vs PAL) I cannot play with my european buddies online unless I have a PAL version, and even if I buy a pal version I cannot play it in my unmodded NTSC Xbox. So I have a copy of the PAL game just for the purpose to be eble to play overseas.
But that is just one reason I own a modchip and why I refuse to buy a game 2 times. (UBI I love you guys, make the next GR playable all-over just like any other developers and I won't own an illegal copy I promise.
Now when it comes to game modding on consoles, ripping the game (whether you own it or steal it) is also a requirement (or to be able to make a custom DVD with the new files) .
Same goes with extra maps (without live).
But still this is just the game part, when you want to use your box as an AVI player, listen to online radio and etce..tc..tc
What is next? I buy a honda and there will be an eula that if I put on an extra exhaust pipe, or change the air filter I am modding illegally? Oh yeah, I circumvented the rev limiter because my bike moved like grandma's.... everyone does that
If it goes like this we will see computers with locks on it that only repairmen can open, and the police will come to you and check if your computer is still sealed, if not you pay $$$$ and go to jail.
A bit of info: I asked my local retailer for an unmodded Xbox. All I heard is : are you crazy? Why would you sell that here?
I mentioned it before, but here in Costa Rica a game goes for $80 for ps2/xbox while a copy goes for $5-$6.
Now which is selling better when a McDonalds worker makes around $200 a month ?
I personally order games used from Amazon or Ebay for like $15 a piece, but many people have no US shipping address here, and do not own a credit card, nor they want to pay for a game that's $80 and you are missing half the functionality as it is Xbox live only, as they barely have a dialup at home.
Just some inside look why piracy goes on here..... Well now returning to the LA story, I am sure those guys who bought these preloaded boxes made more than $200 a month, and I am sure I would be ashamed to get anything like thet in the US where you have $10 used games on storeshelves.
Oh, I saw ads last year around Christmas on TV advertising chipped consoles with 5 games included. I am 99% sure that those were copies too.
Sure if people buying those Xbox were going to buy all those games. Most of them probably don't even like 80% of the games in there. I'm not saying it was right to put the games on the hard disk but that trying to calculate "losses" is misleading.
Slashdot anagrams to "Sad Sloth"
Yes, but the problem is that selling copied games is an offense of copyright infringement, not really circumvention. If they had sold the games without a modded console would they have been charged, or if they just modded the console?
Yes it was. Read the article:
The three men are being accused of "conspiring to traffic in a technology used to circumvent a copyright protection system and conspiring to commit criminal copyright infringement," in violation of the Digital Millennium Copyright Act, according to a statement from the U.S. Attorney's Office for the Central District of California.
It sounds like that's exactly what they were busted for...
If you RTFA'd or read about it earlier, they were selling the modded Xboxes with pirated games. I hate the DMCA as much as anyone else, but these guys are in the wrong here.
Waitaminnit, we cant just say 'they broke the law and they deserve whatever they get'. We really need to look at this a little more deeply.
They illegally distributed 77 copies of games. You dont need the DMCA to bust people for that, copyright law already covers that infraction, right? So why invoke the unholy spectre of the DMCA?
These guys are facing 5 years prison for this. What sort of punishments would these dudes be receiving if they had sold modded Xboxen with no pre-loaded games? Or what if they had sold the 77 games on DVD-R, without also providing the mod-chips and hard-drives? IOW, are prosecuters using DMCA as a way of going after harsher punishments that would otherwise be impossible under plain-old copyright law?
Currently, mod-chips are technically illegal under the DMCA, but it begs the question 'Should mod-chips themselves be illegal'? If not, then doesnt that throw this whole story in a different light? These guys deserve punishment, without a doubt, but they deserve fair punishment.
That's why this topic should be discussed on slashdot. If you really hate the DMCA, as you claim, then you should closely examine every application of it.
oh yeah, IANAL etc etc.
A content creator deserves to be compensated for their creation.
This is untrue. First, most authors are not compensated; their works are flops and have no economic value, as far as copyright goes. But secondly, authors have never inherently deserved compensation. Copyright is an artifical system intended to benefit the public. Authors might benefit as well, but it is not the objective of copyright to reward them any more than the objective of building a highway is to pay money to road crews.
In fact, even if copyright were intended to reward authors, it would be the worst imaginable way of achieving this. Most authors, as already pointed out, don't derive any benefit from copyright. Among the few who do, most of them don't derive enough for it to be worth it; they would have made more money doing something else. Only an astonishingly small number of authors make a good living as authors. If your intent was to help them, a more efficient system would be necessary. Direct subsidies would probably do well. That we do not do that, and never have done that, is a good indicator that compensation is not a goal of copyright.
that decision cannot be made for them
As it happens, it can. We can require authors to deposit copies of their works as a prerequisite for copyright. And we can cause their copyright to expire at a date that is most beneficial to the public, regardless of whether the author likes it or not.
In fact, we could even abolish copyright altogether, if we really wanted.
If you never wanted to/could afford to buy the content anyway, you have no inherit right to it in the first place.
Quite false. There is an inherent right to free speech, and this encompasses repeating what another has said. Copyright is a temporary imposition on this, but that's all. Someone who could never have afforded to buy a copy of Tom Sawyer has an inherent right to it. We gave Twain a limited, temporary right to bar that, but we took it away again as well.
The only thing there is no inherent right to is to cause authors to create and publish works in the first place. No one can make an author write a book, but if they do, they have to play by our rules if they want a copyright. They cannot assert an inherent right to control others' use of the work, especially for no better reason than that they happen to be the author.
However, I work for a software company. Copyright pays the bills. This business, and thousands like it (including publishers, tv / movie studios, etc) wouldn't bother opening up every morning if copyright law wasn't there to protect the fruits of our labor.
And I'm a copyright lawyer. And while many authors would choose to do something else if they were not so favorably treated by copyright law, there's nothing bad about that.
The goals of the public, and of copyright law, are not just to cause original works to be created, but to cause derivative works to be created, to cause publication to occur, and to cause works to be in the public domain as fast as possible, and as close to being in the public domain during the term as possible.
If a change to law that better accomplished those goals happened to result in a number of authors leaving the field, we would nevertheless be better off without them. Heck, some authors would never leave, even if they had no copyright at all.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
"77 pirated games" is self-explaining enough
Not really. "Pirated" is used synonymously with "copied". If you're putting them on the hard drive, you're copying them. Any copying is illegal, so they're pirated.
But you have no history of ownership for those 77 titles. Maybe the agents provided proof of ownership to entice the act of copying. Maybe the seller buys used games and sells them back cheap to make the modded box more interesting and get them as return customers for other titles at market prices (Columbia Record Company, 100 CDs for 1 cent anyone?). We don't know whether they got the 77 originals or that once copied the originals were destroyed.
All the law cares about is that a copy was made without permission of the copyright holder, ergo piracy. But there are ways to copy honorably that should not be considered criminal.
Oh, say does that Star-Spangled Banner entwine / The myrtle of Venus with Bacchus's vine?
This is sad. I didn't RTFA. I didn't even really read the /. article blurbage.
/. article summaries.
All I had to see was "Xbox Modders Charged Under DMCA", and I KNEW that they'd loaded pirated games on a HD, and THAT was mostly what they were getting busted for.
That is both a sad comment on the community of profiteering xbox modders, and a sad commentary on the state of
If I knew the wedgies I gave you back in 6th grade would have resulted in this . . . I might have taken a moments pause.
A said it on an xbox forum when I heard about it (in a slashdotesque bitching style), and I'll say it here. I hate it when a headline is missworded purposely to get more attention.... They were not arrested for modding. They were arrested for loading 77 games onto the modded X-Box..... Arrested for modding would be surprising and interesting. Arrested for selling pirated games isn't. It's common sense.
In undeveloped countries, the consumer controls the market. In capitalist America, the market controls you.
Uhm ... there already are laws against pirating software and reselling it. Why do we need to invoke the DMCA here? We don't, unless we're making it illegal to resell modified items, which makes every single "I'm selling my modded vehicle" classified-ad post illegal on the VW/Audi/BMW/Volvo/kitchen-sink family of sites I frequent, along with the site of the local VW club. But guess what ... they're not illegal, so it's DMCA FUD.
The real story is that these people were violating laws against selling pirated software.
i am a soviet space shuttle
I'm not sure of the legal definition of "conspire" that is at use here, but the relevant dictionary definition is to plot, devise, or associate for an unlawful purpose. I think it qualifies as a "conspiracy" because more than one person was involved, and they combined their skills to perform an act that was illegal in the eyes of the DMCA and copyright law.
IANAL, but perhaps the best way for the prosecuters to cast the net over all of them at once was to use the "conspiracy" argument. Maybe a bit like (1) person A has ingredient X that is legal to possess; (2) person B has ingredient Y that is also legal to possess; and (3) persons A and B meet together, allegedly to combine X and Y together into a bomb or other unpleasant device.
If it weren't for deadlines, nothing would be late.
I think if I went to jail for an hour for everything illegal I've ever done, I'd be in jail for my entire life. I do think that they should have chosen something more lucrative and less destructive as a criminal pursuit, such as manufacturing crystal meth, or selling crack to children, or mugging, or murder.
i on_of_America, and putting people in boxes for theft of intellectual property is good business. Putting people in boxes for doing drugs that aren't government approved is good business. Putting people in boxes for not being good at managing government approved currency is good business. Good business all around, this putting people in boxes.
But on going to prison, the Corrections Corporation of America is one huge f0ing corporation, http://en.wikipedia.org/wiki/Corrections_Corporat
I think if people knew what it was like in real prison, they wouldn't be so quick to send people there.
Please stop stalking me, bro.
Yeah, its a great world where free market means "We would like to sell you this for fifty dollars" and we can reply "How about... free?" They then reply "No" and we then proceed to give them our free and take the product because... Its a free market and for some odd reason we don't value someone else's work as much as they value their own.
If you think someone is not worth the price, You don't buy it and shop for the competition, (competition not defined as people who "liberated" some more of the expensive products from their true owners) If its a good price, you take two. Simply saying it's too expensive is not a ticket to ride, Non-tangible goods or not.
"if the developers think that they should get more money for writing software that they receive from the sale of a hard disk with their code and hundreds of other game developer's code, then get the fuck out of the game development business!. Write code for someone who will pay your more for your services."
What do you mean, are you saying that, if the developers think they should get paid more than zero dollars, (silly rabbit) from some people who copied their creation without their permission they should... stop making games, and start programing something else you would probably advocate the mandatory free price tag for as well?
Since we are on slashdot, we need poor analogies to demonstrate my point as if you were a five year old. But with your... shall we say interesting world view, I'm going to say thats not a terribly bad place to start.
We are going to go on vacation. (Yay!) First we need a rental car, we want the Mustang, sadly we can afford the cavalier, so we haggle, which is to say, we pay them for the cavalier, then hot wire the Mustang (don't worry, we will return it, so really, its a non-tangible good, the "rental")
So finally we get to Florida in our 'loaned' car...
Your standing in line at Disney world, You come up to the front gates, and They expect 80 dollars from you for a day in the park (The nerve) you refuse, in a real market, you would go to six flags which is cheaper just with less rides. But in your wonderland... You find a guy out back who says he can let you into the park for the cost of opening the door to a service entrance. (because really, thats a free market, and we just haggled with Disney)
Where the hell did you get the notion that "haggling" means, whatever the buyer says = "that's the price that's fair and reasonable. " and that, all software should be sold for the price of some loser putting it on a hard drive.
"The game developers and distribution companies are just going to have to get used to working in the actual marketplace." What the hell does this even Mean?! What "Actual Marketplace" is this?! Some prince of thieves Walmart where all customers walk up to the front counter with a knife, name their price, then grit their teeth, tighten their grip on their saber, and then repeat their process in a more menacing tone?
It really, really hard to imagine viewing the world though as distorted and ridiculous scope as your own I'm not sure if you just some "free software (no, thats not a suggestion)" nut or if you really think that if someone can take it for free, that means thats now the price as if the people who create it don't own anything other than the physical DVD these games come on.
In conclusion, Get a clue, and uh.. Guess I will be seeing you in the paper for "haggling" one day.
Web Developers: Celebrate to our roots! Animated Gifs and Tiled Backgrounds, dont let our history die!
If they wanted a DMCA rap for selling mod chips, there were plenty of opportunities. What they have is a copyright infringement case. The only point of choosing this case to prosecute them under the DMCA is for one (or more) of these reasons: 1) To hit them with extra charges that can be dropped in the plea deal. Look for guilty or no contest, unless the EFF gets involved, which they'd be a bit silly to, because of the egregiousness of bundling the 77 titles. 2) To guilt-by-associate the mod scene with these infringers' prosecution. 3) To have case law that can be misquoted in the future as implying that selling/installing mod chips is a violation of the DMCA or copyright law.
These guys are guilty of copyright infringement, so charge them with copyright infringement. That's the crime they committed. There's no reason for "circumventing copy protection" to be a crime - unless you want to prosecute people MERELY for circumventing copy protection, even if they are NOT committing copyright infringement in the process. If you believe committing copyright infringement by circumventing copy protection is somehow worse than just committing copyright infringement, then the law should make circumventing copy protection in the process of committing copyright infringement illegal.
But it doesn't. It makes it illegal to circumvent copy protection even if the copying would otherwise be illegal. Thus, the DMCA effecively allows content owners to EXTEND their copyright protection by adding copy protection.
If it's legal for me to copy something, it should be legal whether the something has copy protection or not.
paintball
The problem is, if you don't send people to jail, how do you prevent people who have nothing to lose from committing crimes?
If I'm an intelligent person, and I can potentially make tens of thousands of dollars by committing a crime, and the penalty for committing the crime is potentially losing the 10's of thousands of dollars and doing some community service....
Time to begin my criminal career!
But if the crime is going to prison, committing the crime is probably no longer attractive.
Penalties for crime can't just be restitution - if there's no chance you'll be worse off if you commit the crime and a chance you'll be better off, everyone (not indoctrinated with social constraints like morals or fear of god) becomes a criminal.
paintball
In any genuinely legitimate case where the DMCA could reasonably be applied, the person being charged is already guilty of conventional copyright infringement completely independant of the DMCA.
So all the DMCA does is give them another thing to charge the guys with... although granted, it will probably take up less of the court's time to just deal with the DMCA charge than to examine the evidence for what would have otherwise been contemporary copyright infringement charges.
File under 'M' for 'Manic ranting'
Your post is... interesting.
If I want to buy something from you (such as your house and everything you own) I'll start at asking for it for free. You'll no doubt put a higher price on it, and we go from there. My preferred price doesn't seem to be fair, and probably your starting point won't be either.
If I say that I'll never pay more than $10 for everything you have, that doesn't make $10 a fair price.
Your point about game developers not having some sort of agreement with retailers is just utter garbage. Do you believe retailers sell games as a community service? They get a slice of the money, usually around 20% for new games I believe. That the retailer in this article pirated the games instead of trying for a profit shows that they're not only greedy, but stupid too.
You then go on to rant about game developers who should get out of the industry if they don't think rampant piracy is fair. That's... a novel point. I can't manage to twist my mind around it and still see how you could make that in any serious manner.
You don't understand game development, you don't understand business and you don't understand basic capitalism.
Well done!
Now please send me everything you own, and I promise to send you the fair and reasonable price of $10. And don't give me any of that moral, ethical or legal crap either!