Convicted modder must pay or 'pay' (with jail time)
by James Ransom-Wiley 
{ Dec 8th 2006 at 7:15PM }
Convicted console modder Stephen Fitzgerald can avoid jail time if he forks over £5,210 (more than $10,000) owed in legal fees and fines. Fitzgerald made the ill-advised decision to offer a "while you wait" modding service in his booth at a computer fair back in April 2004. Needless to say, his brash criminal activity was not ignored by authorities. In addition to the fees and fines, Fitzgerald has been ordered to serve 120 hours of community service.Think they ever caught that Patrick Cai guy?
Reader Comments (Page 1 of 1)
Chris @ Dec 8th 2006 7:19PM
So why is that illegal?
007craft @ Dec 8th 2006 7:20PM
since when is console modding illegal? Unless he was also copying games for the people, why is he fined?
Kwipper @ Dec 8th 2006 7:39PM
The illegal part of it was that he was selling the services. Modding isn't illegal as long as you don't try to make money off of it.
John B. @ Dec 8th 2006 7:55PM
They need some real crime over there to keep themselves busy...
Carillon @ Dec 8th 2006 8:04PM
@ Kwipper,
How is it illegal even if you make money off of it?
eric @ Dec 8th 2006 8:26PM
There's most likely a UK DMCA-equivalent that makes 'circumventing copy protection' illegal.
Dansk @ Dec 8th 2006 8:57PM
Yes, one can argue that he was modding for homebrewing purposes and the like, but let's be frank, people wanted to pirate stuff... Good to see law is enforced in wahtever country that happened.
Duby @ Dec 8th 2006 10:38PM
UK does have a DMCA-like protection against Technological Protection Measures, implemented for compliances with EUCD. UK also has a different system for exempting some uses. UK Copyright has "Fair Dealing," not "Fair Use."
I don't know much about the UK provisions and I haven't started studying for my US Copyright exam yet (too busy studying First Amendment), but:
First: DMCA only applies to protections of copyrighted material. If the modding affects non-copyrighted material, it should be perfectly fine under the First-Sale Doctrine (that is, you can do what you want with a good you buy. e.g., once you buy a copy of a book, you can write in it, tear it apart, paint on it, resell it, etc. You can't copy it and distributes the copies, though, unless that qualifies as a fair use)
I'd be careful about blindly applauding the enforcement of a law as incoherent (or at least as inconsistent) as the DMCA. In fact, many scholars argue that the DMCA is not only bad policy, but is unconstitutional. Both the language of the act and judicial interpretations vary regarding the effect of the DMCA on Fair Use. subsection 1201(c) of the DMCA states: "OTHER RIGHTS, ETC., NOT AFFECTED- (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."
If this doesn't affect the right of fair use, than there shouldn't be liability for cracking a protection measure to, for example, make an archival copy. Or it could be interpreted to mean that fair use rights survive against INFRINGEMENT claims, but not against claims of cracking access and copy protection measures (not infringement).
Under the first interpretation, I have the right to circumvent protection to make an archival copy. I don't know the first thing about modding. Mr. Modder can circumvent on his own console. But I can't pay Mr. Modder to do for me what i have the RIGHT to do for myself because that's trafficking.
Under the second interpretation, I can't do squat. Fair Use is gone.
You must remember that the purpose of US Copyright Law is NOT to reward authors or give authors control of their works (let alone companies who buy the rights to these works). The purpose of copyright, literally codified in the Constitution, is to PROMOTE PUBLIC LEARNING through the means of granting exclusive rights to authors for LIMITED TIMES.
The "limited time" right now is "lifetime plus 70" or, in the case of a corporation, 95 years, although those numbers always seem to get bigger as soon as Mickey Mouse is about to enter the public domain. The Supreme Court has held that these times are limited enough, though I personally would disagree. (Did you know that the Content-industries actually tried to argue that "forever minus one day" would be a permissible limit?) The court (for now) left no doctrinal rule to distinguish lifetime plus 70 from, say, lifetime plus 500, which is technically limited as well. But that's besides the point.
The point is the Technological Protection Measures are FOREVER. They don't turn off after lifetime + 70 or 95 years or even 5 years. That's one major argument why the DMCA is unconstitutional. Now, you might counter that, once the copyright in a work has expired, the work enters the public domain, and so under the DMCA it ceases to be protected from circumvention of its DRMs. However, for the majority of us who are not modders (or copyright scholars!), DRMs block our access to works FOREVER.
There's also a question as to whether Fair Use is constitutionally mandated, if not by the balance of exclusive rights for the promotion of public learning, then at least by the First Amendment. I can't contractually agree to not use my first amendment speech rights because they are public rights--my waiver hurts the public interest in whatever speech I may make. Technological Protection Measures are self-help tools by "private" individuals or companies that stifle speech. The First Amendment only protects speakers from State actions and State actors, but that criteria is satisfied by the DMCA, which creates civil and criminal penalties for circumventing those technologies to make protected speech.
The Supreme Court has stated in dicta that the fair use provision in the copyright act incorporates first amendment protections into copyright.
So:
1. DMCA and its ilk are
a) bad policy
b) inconsistent with the copyright act
c) vague--courts are split on interpretation, some seem inclined just to go for rough justice and equity
d) possibly unconstitutional
2.
a) The Content-industry would have you believe that such a conviction is perfectly justified, but it's questionable.
b) The industry would also have you believe that there is such a thing as stealing a copyright or stealing content. There is NO SUCH THING. You can INFRINGE a copyright, but you cannot steal it or digital content. If you steal a sack of potatoes, the sack is gone. If you make a copy of a poem, the poem is still there. A copyright does not give you ownership of a work. A copyright gives you ownership of a copyright, which is a bundle of LIMITED exclusive rights, such as the right to make and distribute copies. Copyright does not give you ownership of a work's market--it gives you limited exclusive rights in the market, such as the market for copying and distributing the work. If that were not the case, it would be infringement to write a game-guide or a walk-through. Just because it is possible to make some money related to a work, it does not mean that the copyright owner is entitled to that money! Don't just lap up the propoganda the content industries push!
3. I had a third point, but I forgot it. It might have been that there are other ways to protect against rampant copyright infringement in the digital age.
4. write your congressman and senator to ask them to rewrite the DMCA!
Duby @ Dec 8th 2006 10:49PM
ps: circumventing copy protection under the DMCA is illegal even if not done for money, unless it's one of the exceptions, like academic encryption research.
GoPodular @ Dec 8th 2006 10:55PM
For someone that hasn't started studying yet, you have a really good grasp of what it's all about.
For a good laugh (or to see just how F'd up the whole DMCA really is and how corporations are getting around it) read through the EULA for an XBOX360. It's in the manual. Under that license, you do NOT "own" the console. You own the "right" to use it. So technically, since it really isn't yours, you aren't entitled to mod your 360. If you do, you're circumventing the copyright protection of *Microsofts* hardware. Clearly a violation of the DMCA.
How's that for twisting the intention of copyright law? LOL.
Max Vest @ Dec 8th 2006 11:12PM
Although I've loaned out my copy of the UK Copyright, Designs and Patents Act 1988, it seems that modding to circumvent region protection might be legit even under UK Law. However the Sony v. Channel Technology ruling seems like it shuts the door on homebrew modding that could allow copyright violation, which at last count was about 96.4% of the homebrew scene.
And here Australia is expected to make mod chips legal, even if they circumvent anti-piracy technology. Sometimes the apple falls far from the tree indeed.
Duby @ Dec 8th 2006 11:16PM
That IS ridiculous! I just e-mailed your comment to my Prof. so she would get a good laugh.
Another note: As I mentioned, if the technological measure is protecting something not covered by copyright, the DMCA does not apply. So if the modding wasn't for the purpose of copying games, but just getting around some protection of the console's (hypothetically) uncopyrightable software controlling a process (e.g. for the purposes of interoperability), DMCA would not apply. But whether or not the protected software is copyrightable would make for big expensive litigation that most modders would not be willing or able to afford.
That is, if you were modding an Xbox360 to support a Wii Remote (who's gonna try it?!) my guess would be that you're fine, though Microsoft would still probably sue you.
PS I'm also not licensed to practice, so do not take any comments or suggestions I make as legal advice.
Anthony @ Dec 8th 2006 11:33PM
@10
Just skimming through this, When you say you only own the write to use the console, Does that mean if you decide to go at your Xbox with a hammer, Microsoft can sew you for breaking there console and hardware? Or does that not apply since it has no copyright value in that matter.
I hate copyrights, There not really laws at all, More like lets see who can twist the rules more bs.
Max Vest @ Dec 8th 2006 11:45PM
Relevant portion of Copyright, Designs and Patents Act 1988 (c. 48) at http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880048_en_21.htm#mdiv296.
Perhaps you would have to use contract law to reach someone circumventing region coding. That seems to act more like a license restriction than anything else. I do agree that as long as the region-encoding doesn't contain any copyrightable content, circumventing it doesn't seem to break the letter of the law. But to find out whether British copyright law is as unfriendly to software code as American law would require further neglect of Trusts and/or Estates, neither of which will i have if I fail exams.
Max Vest @ Dec 9th 2006 12:02AM
GoPodular, it seems like you would be violating your license agreement with Microsoft by opening up your XBox 360, and liable under contracts. But I don't see where copyright, and thus the DMCA, would come into play. The functionality of the XB360 is patented, sure, but copyright doesn't extend to functionality. It protects an original work of authorship fixed in a tangible medium. To the extent that the nuts and bolts of the XB360 probably aren't copyrighted because they do not contain authorship, I don't think you violate the DMCA by opening the box up and poking around. But then again, it's been a little while since (c) class.
Duby @ Dec 9th 2006 12:02AM
There is no way that a court would consider the purchase of an Xbox360 a license rather than a console. It's just Microsoft's chutzpah-legal department making a long, long, long reach, the only possible purpose of which could be to threaten a nigh-frivolous suit that some defendant will be too poor to litigate.
If you open up most books, you will find the copyright notice: no part of this publication may be used in any way without the permission of the publisher.
That is NOT true. That would mean that you need the permission of the publisher to READ the book...or use it to prop up a table.
Just because a company says it has a right or tries to license a right doesn't mean that it has the power to do so.
An Xbox is a device for playing video games, not a work of expression fixed in a tangible medium. It is not the within subject of copyright, so there is nothing to license. Under just about every applicable precedent, this would be a sale of a good and even if copyright WERE applicable, would be subject to the First-Sale Doctrine (you can do what you want with the item you buy).
Elements of the Xbox are protected by patent, so those elements cannot be copied or manufactured. You're always free to destroy a patented device that you buy.
The only things you CAN'T destroy once you buy them is certain works of fine visual art protected by the Visual Artists Rights Act
Max Vest @ Dec 9th 2006 12:11AM
And I feel the same way as Duby about hardware license agreements. If it looks like ownership, and feels like ownership, a court will most likely construe ownership. Now, if Microsoft sold you the console for $10 a month and retained the right to reclaim it should you not pay, that looks more like a license.
Same with copyright and corporate ass-coverers. Buy a copy of the works of William Shakespeare. Those were public domain, last time I checked. I bet you some pencil pusher put a copyright notice in there. Don't worry - you can still copy Hamlet to your heart's content.
Duby @ Dec 9th 2006 12:22AM
Opening up the Xbox would certainly violate agreements like Warrantees, etc.
But don't get too fed up with Copyright! It does allow authors to protect works, but it also LIMITS the control they can have over their works. Copyright is a legal mechanism to prevent censorship excessive control of knowledge.
For example, copyright preempts state laws (many scholars, and I would argue that all sane scholars agree that that includes contract), so a company generally can't worm its way into rights to a work not granted by copyright law. That is, a publisher can't contractually require you to ask permission for any use of a book.
So celebrate the limitations copyright law imposes on copyright holders!
GoPodular @ Dec 9th 2006 1:34AM
The DMCA would come in if you installed a mod chip. This guy was prosecuted under the pretense that the systems were not owned by him.
According to the "implied" EULA, your XBOX360 is still owned by MS even though it's in your living room. The FCC has a pdf copy of the manual on their site:
http://svartifoss2.fcc.gov/prod/oet/forms/blobs/retrieve.cgi?attachment_id=581228&native_or_pdf=pdf
- Page 24 -
Caution:
Any changes or modifications not expressly approved by Microsoft could void the user's authority to operate the equipment.
According to MS, we all bought the "authority" to use the equipment, we didn't buy the equipment itself, so any modding we do would fall under the same realm as the guy facing jail time... modding someone elses console.
TehSudds @ Dec 9th 2006 4:59AM
Although he wasn't, he could have been nabbed another way. The Xbox modchips use modified versions of the real Xbox BIOS. Distributing these counts as copyright infringement.
Max Vest @ Dec 9th 2006 9:57AM
This horse is so dead. But here's a beating.
It doesn't seem like copyright law is going to apply to the BIOS or any hardware. Copyright generally doesn't cover purely functional software. If you fire up Nintendogs (closest game available), you'll notice it announces copyright of game, scenario, music and program. Generally copyrights of program extend to user interface and things like that, not the underlying processes. Judges don't understand things like that; why do you think the software industry fought so hard for software patents (that they're beginning to regret...)?
Modding the BIOS does, however, qualify as a DMCA circumvention because the statute makes a flawed presumption that any use coming from this would violate copyrighted games, music, and movies. In fact, there are many legal uses of anticircumvention technologies that would not violate copyright, but do violate your license agreement, which is handled under a separate body of contract law. Unfortunately the DMCA sloppily extends to this lesser body of contract law the status of federal copyright law.