“A California man charged with violating the DMCA by installing mod chips in Xbox 360 consoles won’t be allowed to claim ‘fair use’ at his scheduled jury trial next week, a federal judge ruled Tuesday – a decision potentially devastating to the defense, and not particularly favorable to anyone who thinks they have the right to tinker with hardware that they’ve bought and paid for.”
Next we will be getting sued by Car Companies for putting new stereo systems or a non blessed motor oil in our cars….
I dont think the two are comparable.
No, what is comparable, however, is modifying your car so you can put a non-standard radio into your car. Or a different type of battery…
That is very comparable.
For an exact comparison, however:
Car companies may soon begin suing you for bypassing the minimal protections in place to prevent you from re-flashing the firmware on your ECUs.
This means performance modding companies will soon be down the tubes, and be treated akin to mass murderers – but with lower jail times…
–The loon
In Europe, the EU ordered all manufacturers to open up training material and parts specifications for all car models, to allow independent service shops to service and fix cars.
I would LOVE to see something similar enacted for the technology world.
I do think they are
It doesnt change that we have the right to mod things we bought. It only means that this judge is to stupid to use common sense.
Your choice is that you are not forced to buy an XBox or any device whose license you do not agree with. Unfortunately in America most are not willing to exercise their right with their wallets nor their votes. That’s how healthy democracy decays.
Thankfully I never agreed to any license when I purchase an XBox
<lobbyist>
And this is why it should be illegal to sell game consoles second-hand.
</lobbyist>
But usually there is a difference between a license and a law, right? Doesn’t breaking this kind of agreement (which is very one-sided, because you don’t sign anything when buying) usually mean things like loss of warranty and maybe loss of services, because the ‘contract’ gets void.
No idea how the laws about these things are, but that have been my assumptions until now.
Soon I’ll be afraid when buying food, because my teeth and stomach are modding it
And what if I put something on my bread? Isn’t that also a mod?
More DMCA-like:
Or what if I use a knife so I have slices of bread. Isn’t it possible that they didn’t want me to have slices, so I cannot put butter on it? I mean else they’d have sold sliced bread, right?
Edited 2010-11-27 00:19 UTC
Dumb comment. Your choice is to not look at the secret police wrong and anger them into beating you. Nice logic dog.
What license is that? What contract did you sign when you purchased it? Where is the license?
Company manufactures a product. Company owns said product. You buy said product. You now own said product, company does not own it. You are not renting it. The company has no rights here other than to protect its IP.
So the argument is, does modding the Xbox infringe on Microsoft’s IP? I’d argue not.
What’s next? Are they going to stop you throwing away your Xbox? Or decide which games you can and can’t have?
It doesn’t quite ban modding things we own, but it does set a bad precedent for consumer rights and modding.
Ok, the fact that he modded the machines is not the issue, people. He made a prophet modding them for others, BIG deference. By making a business out of doing this “fair-use” does not come into play, no mater how you spin it.
Now that, I can agree to.
So aftermarket car modifiers, kitchen remodelers and tailors can’t entertain customers who want to alter the original product?
All they are worried about stopping is illegal copies of games. Which no matter what people say, is most of the reason consoles are modified. I dont have the statistics, but ive been around enough xbox owners to know they didnt mod just to stick it to the man, they did it to not pay for games. and for some emulations of games they also did not pay for.
So certain legitimate activities should be illegal if they make it easier to commit other illegal activities?
If so, that’s an extremely weak argument, because almost any activity/tool useful to law-abiding folks is also useful to lawbreakers: kitchen tools, vehicles, cash, encryption, etc. etc.
Guns are regulated US because less than .01% of the people that buy them use them for criminal offense. In most countries they are banned entirely.
In the case of modding the vast majority of use is for criminal offense. But that is really a separate issue since in this case he was doing more than modifying his own console.
The guy in the story made a business out of providing a modding service to help others run pirated games. That goes beyond fair use. If he had just modded his console for private use he never would have been arrested.
They probably have him on video or audio instructing the undercover officer on how to run pirated software.
Don’t make a hero out of this guy. He’s just some student who didn’t want to work a normal job while in school and went the piracy route.
First, the gun example is supports *my* position for at least two reasons: criminals don’t always purchase guns through legitimate channels, and there are countries which have high rates of gun ownership (Canada and Switzerland, to name two) that have much less violent crime than the US.
Second, it’s immaterial whether the guy was instructing customers specifically how to run pirated games to the issue of whether fair use is a valid defense to a DMCA violation. Imagine some free software guy getting paid to help others run GPL’d software on their Xbox hardware — by this ruling, he would not be able to use this defense either. Then, would his activity be illegitimate for the sake of some public interest, or for the sake of Microsoft’s business model?
Or, to use the gun analogy, should we ban guns, abridging the rights of hunters and recreational shooters in the process, because we the US has crap social institutions?
So… if I mod the ECU in my truck to remove the 100 mph governor… that is illegal.. since I will obviously be doing it so I can speed?
Interesting…
A better analogy might be that in providing the ECU mod service to bypass the governor, you also bypassed the emissions controls, making it illegal to operate the vehicle.
See, this is why I hate car/computer analogies.
On a modern vehicle, by modifying it so that the emissions system malfunctions, you’re effectively making the vehicle performance drop too. There is absolutely no speed/performance/handling benefit from bypassing emissions these days, and in fact you can make it run like total crap trying.
The GP was more accurate with the governor analogy, but still incorrect, as we don’t sign any license agreements or contracts stating we won’t modify or repair our own vehicles when we purchase them. The reason for that is a car is not a computer. Yes, the average car has more than one computer system on board, but the licensing of that technology is between the vehicle manufacturer and their source for the parts. Point being, it’s always been and always will be a massively flawed analogy.
Not true, removing the catalytic converter improves air flow. You aren’t even allowed to replace the stock converter with one that improves airflow but meets standards. You have to have a licensed shop do it.
http://www.etrailer.com/Catalytic-Converters/MagnaFlow/MF23773.html
Again the flawed car/computer analogy rears its ugly head. I was speaking specifically of electronic measures to try to stay within the analogy, and here you go proving how flawed it is. Yes, more air flow equals more power, but that is outside the scope of what I was getting at.
Thank you for helping to prove my point!
Laws exist that prevent you from modding you car endlessly since in some cases lawmakers have decided that the public good overrides your desire to mod. The analogy fits just fine.
With console modding the vast majority are not even looking for performance gains but just want to play pirated games. It’s intellectually dishonest to say otherwise. I doubt even 1% of modders care about homebrew. Anyone interested in building their own Xbox games can use XNA.
It’s just disgusting that so many people want to defend this lame ass pirate who never would have been arrested if he didn’t turn piracy into a business. Reminds me of how tech sites defended that lame ass P2P chick who turned her computer into a file server for pirates and then lied about it to everyone including her defense attorney. I guess you can be a complete lame ass pirate and the tech press will still love you.
Yes, because as we all know, piracy is destroying the entertainment industry!
But cinema visits have been going up for years.
But piracy is destroying the entertainment industry!
Several studies have shown that people who download spend more on music/films/etc. as a result.
But piracy is destroying the entertainment industry!
Studies have shown that the current copyright climate is stifling art, science, and culture, and in some cases, is even killing it.
But piracy is destroying the entertainment industry!
The gaming industry is bigger than ever. Sales of all consoles and game titles is up, including newcomers like the iOS gaming platform.
But piracy is destroying the entertainment industry!
Companies like Apple and Microsoft are seeing ever increasing profits, sales, and whatnot.
But piracy is destroying the entertainment industry!
—
I… I just don’t know. I just… I just don’t know.
I agree with this… but only to a point.
There is a world between things which I would almost certainly buy no matter the cost (books, films which I’ve already seen and liked on a cinema screen) and things which I wouldn’t even buy if it costed 1c (“radio music”, songs from long-dead authors).
In this world of uncertainity, several factors come into play :
-How much does it cost ?
-How far should I travel to buy it ? How crowded will be the shop ? How much time will I spend ?
-Do I know the thing I want to buy well enough to be sure I won’t regret buying it ?
-What is the risk I take by buying it (e.g. when using “unsafe” vendors like eBay) ?
-Once I’ve bought the product, can I use it the way I want, or am I forbidden from copying it on my computer, using no-cds, lending it to friends… ?
-Who do I give money to ? The author who made the product I like, or intermediary people who only had a slim role in the product’s genesis ?
The more the buying process asks from me, the less likely I am to end up buying the thing.
In this context, piracy can help, with the problem of “Do I know this thing well enough ?”. As an example, I’ve watched several animes which I wouldn’t spontaneously buy in an illegal form (torrented copies or streaming). Then, if I’m convinced and want to keep or give a copy, I just buy the dvds (as I did with Cowboy bebop for my brother).
BUT there’s also the risk that I liked something, but still don’t feel ready to buy it, in which case I’ve just stolen money from the author. This is why I think piracy is not an universal solution to the “I wouldn’t buy it spontaneously without further information” problem.
In my opinion, what editors, distributors, and politics carefully avoid to mention is that piracy is just a symptom of a larger problem.
-> Physical shops are going further and further away from people’s home and more and more crowded in the name of rentability, and their prices are going up while people’s buying power is going down
-> Most online shops ask you to give a credit card number, allowing the one who possesses it to withdraw very large amounts of money, to unknown and untrusted websites. Paychecks are less and less accepted due to excessive fraud, and they’re not an international mean of payment. Paypal is better, but requires either a credit card or very lengthy wire transfers, and is not universal. All those means of payments are not available to young people. In short : online payment is totally fsckd up.
-> Modern laws are written by editors and distributors and basically tell both users and authors, the two vital parts of the media market, to go to hell. “Protecting the authors”, huh ? I’ve finally got access to some official numbers : on the music market, authors get 4% of the price for physical distribution and 2.8% for digital distribution. These laws who pretend to defend the author do NOTHING about this. In fact, to the contrary, the legal status of authors is getting worse (here in France at least).
-> On their side, users who follow the law are forbidden from playing the game/music/film they bought without a noisy spinning CD/DVD drive around, in the era of 1TB hard drives. If you return a scratched DVD to the shop, they’ll tell you that you made the scratch yourself after copying the DVD and won’t give you any refund. It becomes illegal to copy some CDs on a digital music player in order to listen to them without carrying lots of CDs around. And don’t get me started about those horrible unskippable screens at the beginning of DVDs, which are obviously not included in pirated copies !
Under those circumstances, it becomes harder and harder to convince yourself to buy something you like. And that, in my opinion, is the main problem.
Edited 2010-11-28 12:53 UTC
Again, no it doesn’t fit. The laws regarding modding vehicles indeed do exist to protect the public good. You don’t want some dumbass to reflash his ECU and cause the brakes to malfunction, which can cause a deadly accident. Conversely, modding an Xbox isn’t going to kill anyone. Rather, the law is against doing so to protect the corporate interest. Look, we can go on like this all day long but let’s just agree to disagree.
I have a real problem with this opinion. How the fuck do you know why every person out there mods their Xbox? I personally modded mine to run Linux on it as a spare server. I don’t even own a fucking controller for it, I picked it up at a yard sale with only the power and A/V cables for $5. I suppose the XBMC community was just a figment of the collective imagination as well. Don’t go spouting off false statistics off the top of your head. It makes you look like a total fucking moron.
I’m not one to defend “piracy” either; for one thing I work in law enforcement and am opposed to illegal digital downloads of music and movies on both a professional and personal level. Besides, the way I see it, if a musical act is in the mainstream they probably produce generic pop bullshit that isn’t worth a download, illicit or paid for. Most good indie bands are unsigned, and many of them give away their music. There is nothing morally, ethically or intellectually wrong about downloading their music until the moment they say “stop”. However, the RIAA would have the government believe that every single piece of music ever loaded onto a computer is owned by them and illegal to even hum to yourself, and ditto for the MPAA and anything audiovisually recorded.
That’s just my personal take though. I cannot and will not speak for the “tech press” on the matter.
Umm, watch the language, spouting off profanities makes you look ignorant and childish, see it is possible to put someone down without using curse words..
Thank you..
Edited 2010-11-28 01:03 UTC
“Watch the language”? Who are you to tell me what to say or how to say it? The guys who run this site can be more foul-mouthed than I was but I haven’t seen you call them out for it. If you have something meaningful to contribute to this discussion, I welcome it. If not, what exactly is the point of injecting your personal morality on someone you don’t even know?
Sorry I offended you, I just don’t like the F word.
Now I do agree with you about fair-use and copyright, however these are just our own personal opinions as the law is the law and complaining/arguing about them here serves nothing. If we don’t like the laws that govern us, it is up to us to make our views known to the people who make the laws, our senators, etc. Like Stallman, some people think technology companies should not be allowed to protect what they spent money on developing and producing, while I don’t agree with many of the laws that govern such things, I do agree that a person that runs a business model that knowingly breaks the law or instructs others in how to do so, can not use fair-use as a defense.
Just my 2 cents.
Edited 2010-11-28 02:27 UTC
No offense taken, just keep in mind that calling someone out for their language on a website where the editors themselves are known for flowery language makes you seem, at the very least, quite uninformed. You can infer whatever you want from that.
I do agree with you in this sentiment, and I feel I must once more state that I have not defended the respondent in this case once. I also think he should get some jail time for illegally sharing music IF he indeed is found guilty.
I feel I’m repeating myself here, but in case you didn’t get my position the first time around: Sharing files that the creator doesn’t want shared is wrong. Sharing files that the creator gives explicit consent to is fine. I don’t give a shit (sorry it’s just the way I talk) if the RIAA or MPAA think they automatically own any created works. They are flat wrong on that count. As an amateur musician, one day I may release my own music to the world. As the creator I have the right to control how I do that and whether I get any compensation for it. The RIAA can piss up a rope as far as I’m concerned.
Well, if you’ve read any of my recent comments in the last couple of days, you will know that I don’t condone piracy. (And I define piracy as consuming content that you have absolutely no intentions of ever paying for.) But there is one reason for modding that I personally consider to be legitimate …
With more and more brick and mortar video stores closing down, other than services like Gamefly (where you could be on a waiting list for months to rent new AAA titles), there really is no legal way to try out games before you buy them. I don’t have a 360 or any other gaming console, but if I did, you bet your ass I’d mod it for the reason I just stated. With the 360, every Xbox Live game has a demo, and that’s good. But with the retail titles, many of those don’t have demos. Same deal on the PS3 (I think). And with the Wii, few if any Wiiware or retail titles have demos available. And even if you have a video store close to you, the selection of games to rent is so craptastic, they might as well not even be there. And with games being $50-$60 these days, buying one without first having played it would be a gamble I’d not be willing to take.
But besides that, I would be inclined to mod it on principle, even if I had no intentions of ever pirating games. Why? Because I don’t appreciate a bunch of rich fucktards telling me what I can and can’t do with hardware that I own.
If that’s the reason for modding something–playing illegal copies of something–then they need to go back to putting a basic AM/FM radio in cars and ban all fancy aftermarket car CD/MP3 players. After all, they’ll all play burned CDs with no problem, and it’s obvious how easy (and frequently done) it is to illegally obtain MP3s and then burn them to a CD.
In fact, while we’re at it, why not ban all sales of writable/rewritable drives and media, and further, all hard drives, solid state drives, USB flash memory devices, and any other type of data storage?
Oh, and let’s kill off all humans, as we all have memory and are are able to speak–can’t sing the lyrics to your favorite song in public now or put a few of your favorite lyrics as your signature on a forum, that’s copyright infringement! Killing all humans would also have the direct benefit of eradicating all stupidity and greed from the world.
Better ban pens and pencils because you can poke people’s eyes out, scissors and garden pruners because you can stab people and cut their limbs off, kitchen knives and pocket knives because you can stab people to death, and permanent markers, white-out, and fuels because sniffing it can get you high. Oh, and the fun an axe could provide if in the hands of the wrong person…
Edited 2010-11-28 18:13 UTC
This was hilarious.
no your not breaking the law by modifying a vehicle until you add to the vehicle a nitrous system or window tint darker than what is legal, then yes you are now breaking the law.
Edited 2010-11-27 22:31 UTC
That’s a strawman — there’s a public safety interest in not having cars blow up on the highway or preventing mishaps because the driver can’t see out of his own car. What’s the public interest in preventing people from running non-sanctioned software (e.g., free software) on a piece of hardware they bought and paid for?
of all kinds of things you may have bought. Someone brought up cars above (in attempt to argue that since it would be ridiculous to ban modifying a car stereo, then one must conclude that one should be able to make any modifications one wants). But the fact is that it IS illegal to make particular engine modifications to your car. It’s also illegal to remove the seatbelts (in my state, at least).
And look at guns. It’s illegal to convert a semi-automatic rifle into a fully automatic one, and it’s illegal to convert a shotgun in to a sawed-off shotgun (in my state).
I’m sure we could list plenty of hardware modifications to particular items that are illegal, arguably justifiably so in each case.
In this particular case, the plaintiffs or prosecutors (whoever is bringing this case) are arguing that the Xbox modification is being used for the expressed intent of violating copyright, which is a DCMA violation. The judge is simply saying that “fair use” doesn’t give license to make modifications that violate the law (like DCMA), anymore than “fair use” would allow one to make car engine modifications that are illegal (for example).
That is interesting. I know in Alaska it is legal to modify your car and engine any way you want. However, it would make it illegal to drive the car outside of any drive way/property if the mods are illegal in itself.
This is awesome for those of us with huge properties and long drive ways
Anyhow, good points all and all.
Alaska is pretty lax on a lot of laws but the catalytic converter is covered by the feds.
http://autoparts.lifetips.com/cat/61691/emissions-control/index.htm…
A lot of car enthusiasts would remove them if they could since they restrict air flow.
I agree. The trouble is copying a tape on your VCR doesn’t necessarily do anything, unlike car emissions. The trouble is VCR copiers are being hunted down and crucified in court, unlike car modders. Who is paying for the law enforcement infrastructure to shut down these domains and lock up these xbox criminals?
People are being trampled down a slippery slope of corporate welfare and there are apologists here actually defending it.
Yes guys. Arrest, fines, and jail are reasonable punishment for stealing electrons. That is what I want my tax dollars spent on too. Keep building that world you want to live in. Government will take care of me by working for the businesses that provide for me. Uh
You’d think people would riot over this kind of BS, but then you’d remember not giving a shit is normal. Mmm, diseases of affluence! Intersex fish in every waterway! Yum! Daddy these egg sacs taste like mercury
The DMCA covers circumventing technological protection measures. This isn’t about modding an XBox being illegal in general: that’s still perfectly fine. This is about modding an XBox such that some technological protection measure was circumvented. You can do whatever the hell you want to an XBox 360 you own, so long as the net result of what you do isn’t that you get around restrictions that keep you from running pirated games.
The protection measures also prevents the owner from running free and non-sanctioned software — is that about preventing piracy, or protecting Microsoft’s business model?
…convoluted. I hate case law. I hate EULAs.
But I can understand that if they fear these people will then go out and break copyright laws by playing pirated games and such, they might go after this man. Still, owning a gun doesn’t mean you are going to shoot someone. On the other hand, in this case, why ELSE would you have this guy mod your machine like that?
[edit] This DOES seem clear…
the DMCA makes it a crime to “circumvent a technological measure that effectively controls access†to copyrighted material, even if there’s no proof that the circumvention was intended to facilitate piracy
Edited 2010-11-27 18:45 UTC
There are only two ways your hardware mod can be exposed:
1 When you buy or sell a mod.
In that situation, a court can look not only at what the mod does but how it was advertised and sold.
The chances that your “fair use” defense will look plausible are as close to zero as makes no difference.
2 When you go online with a mod.
When you play the pirated game or DVD. When you attempt to cheat in an online game or access other protected services.
I see it like this, modding the X-box to play pirated games is no different than modding a cable box to unscramble channels that you don’t want to pay for, and as such should be and is Illegal..
Then again there will always be people that want something for nothing and willing to break the law to do so. Just my opinion.
Edited 2010-11-28 02:54 UTC
Is it illegal to mod the cable box (presuming you own it) or is it illegal to actualy watch channels you havent paid for?
It’s well possible that it’s the former…
In France, thanks to the DADVSI law, it’s now illegal to “bypass technical protection schemes”. Even if what you do after bypassing those is perfectly legit.
Until recently, people had the right to make a private copy of music they bought for personal use. Basically, it’s not the case anymore. If you bypass the ridiculous anti-copy protection of most CDs for personal use on an MP3 player, you’re now violating the law.
Hacking the cable box to gain access to a non-encrypted version of the channels is violating the law too : you bypass the encryption… See how it works ?
Looking at how the US generally handles complaints of the media industry, I’d be astonished if the US law was any different.
Edited 2010-11-29 17:12 UTC
In the US, if you mod a cable box to bypass encryption, they assume your doing it to watch pay for channels like showtime, HBO, etc. without paying for the service and yes it is extremely Illegal, actually it’s considered a federal offense by the FCC.
Next you won’t be allowed to plea innocent.
Citations for all the vast comprehensive studies please. Also, I think some people should read the linked article and review the exemptions for jailbreaking phones. Those exemptions are not extended to Xboxes and I think they have similar arguments for use cases. However I don’t think the exemptions made it clear whether you can do it for profit, or only for yourself.
I support hacking the Xbox to add features, however I don’t support screwing over developers. For this particular case, for me personally that just leaves room for context. Basically do they have the guy on record trying to profit from the ability to pirate games, or distributing “free” games with the mod.