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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.
AAARRGGH them swanky pirates!
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 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.
That's about 76 more than the number of worthwhile games available for the Xbox. They got ripped off. =)
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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.
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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.
Uhh damn! Looks like everyone has RTFA!?! I suppose the editors will have to take that into consideration next time they post a summary...
Gamers and people who listen to music are terrorists in the eyes of the ??AA.
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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?
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.
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'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.
No matter how you look at it, people are still up against hard time for simply copying and modding stuff. No, there is still plenty to say because, like as with most copyright related "crimes". These people are not criminals, and the punishment is WAY WAY out of line in relation to the supposed harm done to society.
Now if in addition they robbed a bank, and beat an old lady and left her for dead ... then I might have some sympathy, but then again that wouldn't be charged as a DMCA crime would it?
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.
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.
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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
Harsh punishment for minor offence is not always wise.
During the frirst all-China empire Qin, legalist Li Si held a great power and established harhs penalty for any minor crime. A group of peasants was drafted for labor service. Heavy rains made his group late in reporting for duty. Knowing they would be killed for this offense, the group members decided they had nothing to lose and became an outlaw band. Soon their ranks swelled with thousands of malcontents, making the band of outlaws a sizeable force. Similar uprisings took place simultaneously in other parts of the empire, and empire Qin collapsed.
reference here