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Are mod chips really illicit devices? |
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Written by Felix Da Silva (fdasilva@bitnip.com)
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Thursday, 02 August 2007 |
 Recently, federal agents in the US have carried out a series of raids against individuals and
businesses in 16 states as part of an investigation into the distribution and
sale of mod chips. Dubbed "Operation Tangled Web", the 32 search warrants were
executed by US Immigration and Customs Enforcement agents from 22 offices, with
assistance from the gaming industry.
The individuals and businesses are accused of direct involvement with
the console-modding community, including those engaging in the import,
distribution, sale, and installation of mod chips for the PlayStation 2,
Nintendo Wii, Xbox, and Xbox 360. The ICE was the lead agency in the raids due
to its responsibility for keeping counterfeit and pirated goods off of US store
shelves.
Those arrested could be charged with violating the Digital Millennium Copyright
Act, specifically its provisions dealing with the circumvention of
copy protection controls.
Julie L. Myers, Assistant
Secretary of Homeland Security for Immigration and Customs Enforcement, in a
statement
Illicit devices like the ones targeted today are created with one purpose in
mind, subverting copyright protections. These crimes cost legitimate businesses billions of dollars annually
and facilitate multiple other layers of criminality, such as smuggling, software
piracy and money. laundering Now, even though mod chips can be used for pirating games, that is not their only purpose.
Mod chips add to the functionality of the consoles by allowing gamers to load full
games onto hard drives, use the consoles as media centers, allowing gamers to play games from other regions and play homebrew content.
The hardware companies and the Entertainment Software Association (ESA)
can't stand them because they can also be used to play pirated games which is the
rationale given by the ICE for the raids. Just because it could be used to play pirated games, does not warrant all of it to be illicit or illegal.
If you look at a fairly recent case in Australia, their High Court ruled that modifying PlayStations to bypass Sony's
regional coding mechanism does not violate the country’s copyright laws.
The judges, according to the Associated Press, decided that while pirating a
game is one thing, playing an otherwise legit game using a mod chip is another,
opening the way for Aussies to buy in games from cheaper markets to play on
their Sony Australia machines. They also found that Sony’s regional coding did
not qualify as a technological protection measure, and also said that regional
coding restricted competition and consumer rights.
This battle and argument on illicit devices have been around for a long time. In 1987, Amstrad came out with a player that has two tape decks in the UK. This device allowed users to play a cassette tape on one and allowed the user to put a blank tape into the other and dub a copy of that original tape.
CBS claimed that Amstrad breached s.21(3) Copyright Act 1956 by
manufacturing, advertising and offering for sale equipments for high-speed
recording of pre-recorded cassettes onto blank tapes and therefore authorised
the public to infringe their copyrights.
The Court held that Amstrad conferred the power to copy but did not grant the right to copy,
therefore did not authorise the infringement.
This rationale can be applied to this particular case of mod chips. Just because the mod chips conferred the power to play pirated games, it doesn't mean that it authroises the circumvention of copy protection methods. Just because the mod chip 'can' circumvent copy protection methods does not mean that is what it is for.
What about the people that just want to mod their machine so they can use it as a media center or those that want to play legally bought games from another region? Just because a device can have an illicit purpose, it does not and should not render them as illicit or illegal devices.
If that were the case, we would not have dual tape players, digital players or recordable media such as writable CDs because they all 'can' be used to circumvent copy protection methods. This reminds me of the time when I was watching a debate program on TV a while back when they were discussing these devices which allows you to 'burn' data onto a CD.
Back then the ability to record data onto CDs were brand new and of course, executives were crying foul about how these devices are illicit and illegal. I can specifically recall one of the executives saying, 'The sole purpose of these devices is to circumvent copyright and to steal music.'
If these executives have it their way, they might even try to shut down the Internet. They might argue that most pirated software, movies and other copyrighted materials are obtained through the Internet and it should be closed down.
Sounds a bit silly doesn't it?
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