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back to article Appeal Court: Mod chips infringe game copyright after all

A man who sold computer chips that enabled pirated video games to be played on consoles was rightly convicted of copyright offences, the Court of Appeal has ruled. Christopher Paul Gilham sold the devices - called mod chips because they modify a console - to people who were able to use them to play unlicensed copies of video …

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Paris Hilton

Paws?

"may help to consider what is shown on screen if the 'pause' button on a game console is pressed"

Firstly, the pause function tends to be on the controller, not the console.

Secondly, the wii doesn't have a pause function, so I assume this case doesn't affect any wii mod chips?

(JK)

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Surely non-modded consoles infringe copyright too?

By that logic surely non-modded consoles infringe copyright too? Or is that not the case because the software licence explicitly allows a copy to be made by an official console? It would be interesting to see if there is actually such a clause in the EULA or equivalent for every officially released game.

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Anonymous Coward

copying is a bit of a bad term

for example, to play a game, you copy some of the contents of the disk into a buffer, tghese contents are then copied into a drive controller. then copied into memory, via other controllers.

and so on...

You'd be better off arguing that you have created a unique work merely inspired by the contents of the disk. After all, no two playthroughs of a game are likely to be identical.

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@Anonymous Coward

You didn't actually read the article did you?

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Silver badge

Now lock up arms dealers for murder

... an offence to sell or distribute "any device, product or component which is primarily designed, produce, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures".

IIRC, The people who originally hacked the X-box were doing it so they could run Linux on cheap hardware subsidised by Microsoft. Their first successful hack had a side effect of making it possible to run copied games. They did not release the hack at once. Instead they gave Microsoft the opportunity to sign a Linux boot loader. That way, people could run Linux without defeating the Digital Restrictions Management hardware. Microsoft chose not to work with the hackers, so the DRM breaking details were published.

Modding an X-box has honest (possibly legal) uses. As well as running Linux, you can keep your games in a safe place and only let your children play with (scratch) copies of games you have bought.

People can use a modified X-box for Linux and backups or for playing stolen games just like people can use a gun for hunting or murder. They can have my video recorder when they pry it from my cold dead ^H^H^H^H^H when a giant alien bug crashes his flying saucer into my truck.

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effective

Clearly this isn't an effective technological barrier - so the mod chip can't be breaking that law...

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surreal

Arguing about how much data is copied from the DVD to the system RAM is insanity. What's next - will remembering a movie be considered copyright infringement?

It's painfully obvious that the courts here are applying laws that were never intended to deal with videogames and digital media in general, and bending over backwards to find something to charge pirates with. I mean, seriously, the argument rests on the use of the PAUSE BUTTON? It's surreal.

We absolutely need a brand new set of laws to deal with copyright in the information age. Patching the old copyright laws simply isn't working.

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FAIL

Pause

erm.....yes it does........

Push the little house button in the wii remote, i think you'll find it pauses the game.

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FAIL

@ the Anonymous Coward

So sorry but you are completely wrong on every point,

The location of a button that implements a 'pause' function is completely matter less, it is the effect that matters.

Secondly the ruling uses the logic of displaying an image /sound as a breach of copyright, not the ability to pause a game. The concept of pausing a game could be implemented on a wii through an on screen menu for example. So the ruling applies to any mod chip for any device (not just consoles)

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Thumb Up

good call

Let's face it the sole purpose of mod chips is to circumvent copyright protection

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Silver badge
FAIL

Idiots

A mod chip can be used to play pirated games. Mod chips can also be used for lots of other things (like unlocking the full potential of a device), but lets ignore that for now.

So because "a thing" can be used in one way to break the law, this "thing" is now illegal?

That strikes me as a very dangerous legal precedent and one that must be overthrown.

Crowbars - can be used in burglaries. Now illegal.

Crash helmets - can be used as a disguise in robberies. Now illegal.

Cars - can be used for getaways. Now illegal.

And so on.

Mod chips and the people who sell them are not the issue, the people who use them are. If people *USE* mod chips to break the law, then pursue *THOSE PEOPLE*. Leave the rest of us who want to mod kit so it can fulfil a new function well alone, thankyouverymuch.

I will now go back to watching iPlayer on my old xBox.....

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FAIL

Paid by the word?

What a load of ... erm ... 'hot air' ... to recognise that a mod chip allows counterfeit products to be displayed!

It's funny* that only in the last sentence common sense is mentioned.

Maybe if that was applied at the start a whole load of money & time could have been saved...

The start being ... ? 1984? 1973? 1066??

* Funny; being peculiar, worthy of note and not at all amusing

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Boffin

Stupid argument

Only a portion of the work is copied into RAM at any time, so the judge had to dream up some bizarre argument about "drawings" and "pausing the game"?

Did no-one point out that the binary code of the game itself (i.e. the "computer program" that the console is running) is loaded in its entirety when the game is started? Are we to believe that computer programs may not be copyrighted, but only any images and sounds that happen to come with them?

I know our judiciary is hardly renowned for its knowledge of technical matters, but you'd think this might have occurred to the prosecution or their technical advisers at some point.

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Coat

"Paws?"

Whether the function is called from the controller (a bit irrelevant TBH, since it's still the console that processes the instruction), and whether the Wii has a pause function or not, is irrelevant.

The gist of the decision is that what is onscreen at any given moment in time represents a substantial part. This 'pause' analogy is there to simplify comprehension of the approach adopted by the CA.

For the 'pause' analogy, substitute 'a frame' (out of a sequence of frames per second).

Mine's the one with the CDPA 1988 as amended in the backpocket

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Gold badge

Re: Paws?

The key words in there are "may help to consider" i.e. the existance or not and use or not of a pause button is immaterial to the case, but the reader is asked to consider the still frame that would theoretically be generated, were such a feature to exist, as an aid in considering the type of content "copied". It's an illustration.

I'm guessing that while a picture may be worth a thousand words, there are too many people being paid by the word in the legal business for them to catch on.

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Bronze badge
Megaphone

Discrimination...

And what about people who buy modded consoles in order to play legitimately purchased games from overseas, because the suppliers have deemed them as "not commercially viable" on these shores?

Maybe this has changed since my console days (PS2), but I recall a number of titles which left me gnashing my teeth in fury upon finding out that there was no intention of european distribution, and my only option was to buy a modded console (which I couldn't afford at that point) and import...

Shouty - because even now, after all these years, I still am

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Thumb Down

Stupid...

If someone went and capped all these #$#$@ lawyers involved in this case, could, for the sake of example, Glock also be prosecuted for murder, since they knowingly made a device that would etc etc... ?

I mean, what's a glock for but shooting another person? It's not like you hunt frickin bears with it.

Someone should put all these copyright lawyers in a boat, take it out to sea, and sink it, with extreme prejudice.

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It wouldn't be so bad...

...if the console manufacturer didn't region lock games. Come to think of it, what is the point of region locking?

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Thumb Up

Surprised

I'm surprised to find that someone actually appears to be switched on and make sense in the justice system.

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Grenade

Copyright

Mod chips are created to allow breach of copyright. End of story.

While there are a very small number of geeks who have "developed" other software to run on consoles, without the sales created by beating copyright the mod chip developers wouldn't waste their time on Homebrew.

There is plenty of cheap, widely available, legal hardware platforms and open source software to meet most requirements. While it may be "fun" to break the closed systems, commercial exploitation (such as selling mod chips) is definitely over the line.

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Headmaster

More Jesuitism...

...from the school of "I want to sell it to you .... but not really. Sign over your sould and future behaviour first.".

Thinking about the semantics of the pause button FFS.

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Grenade

@ AC (JK)

Raising issues with the judge's *example* is unproductive. The general principle is enunciated above this. It's a basic, common-sense answer to all the stupid nerdy loopholes people like to think exist.

The mod-chip guys said "We're not copying *the whole game at once* so it's not copyright violation".

The judge said "Fuck off. Yes it is."

Once again, society has rejected a tired freetard self-justification.

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WTF?

Wetware copies

"Secondly, it seems to us to accord with common sense that a person who ... sees and hears the visions and sounds that are the subject of copyright, does indeed make a copy of at least a substantial part of the game, even though at any one time there is in the RAM and on the screen and audible only a very small part of that work,"

If the copyright infringement to which the mod chips contributed, is the storing of a "substantial part" of the original game sounds and animations.. then by the same reasoning, when we watch a movie, we are guilty of copyright infringement, because our memories store a "substantial" part of that work.

It's probably a good thing that the aforementioned "common sense" plays such a trivial role in the courtroom, or we'd be living in a strange world indeed.

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Grenade

Eh? Re: Copyright AC 14:05

Please show numbers of what mod chip sellers make in mod chip revenues compared to revenues _they_ make selling ``counterfeit'', ``illegal'' copies of games and so on. Your argument hinges on the assumption that legitimate uses of mod chips are necessairy neglible. So I'd like you to demonstrate the validity of that assumption, please.

My concern is that there are legitimate uses and the court apparently did not cover any such possibility at all. Next to running linux or other free software on such a machine, which the sellers may find objectionable due to subsidies involved, there is a likely more substantial market for ``grey'' imports. That is, games intended for and imported from a different region but otherwise perfectly legit. The manufacturer still sees his normal fees if only from customers from a different region, in fact may see extra from that enthousiast segment. And in that view I'd like to know whether lex betamax would still stand.

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Anonymous Coward

@The BigYin

"So because "a thing" can be used in one way to break the law, this "thing" is now illegal?"

No, the very act of installing the "Thing" is illegal, regardless of whether the end use is or not.

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title

I'm a gamer. A "Serious Business" gamer at that. I have no problem whatsoever compensating developers for their hard work, and currently have a collection of over 500 games, all legit.

What pisses me off, however, is the region locking. To this day, I have a selection of about 30 titles that are not available on European hardware I want to buy and Play.

I have a Gamecube Freeloader, a Dreamcast Regionpass, and SNES, Saturn, and N64 converter carts - all devices that bypasses the region code - and only the region code - that lets me play a sleuth of games that never came out in PALland, no piracy involved.

There was a Wii version too - until Nintendo disabled it in a firmware update. DSi also has region coding, their first handheld to do so.

On the other end of the scale, and to their kudos, PS3 games don't have regional coding, and it's optional on 360 games.

But the bottom line is, if I want to play certain titles on current gen hardware, you've got to either;

a) Buy another region's hardware

b) Buy a modchip

c) Suck it up and stew about it until your ready to explode in frustration, waiting another six months for a game you want to come out (Smash Bros.), or play the game at full speed (Starfox), or find out the launch was cancelled by lack of regional interest (Grandia III).

I choose C, but can perfectly understand anyone that chooses route B, and until all this regional bollocks is stripped out, Modchips will always have a legitimate use in my mind.

Love Games. Hate market Segregation and Piracy.

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Anonymous Coward

Mod chips vs. guns

the primary purpose of a mod chip is to breach copyright. All the other bollocks people spout is just sophistric crap to try to convince themselves that as they *could* run a webserver on their Xbox if they wanted to then that makes their playing pirate games somehow now perfectly legal.

Guns, although I would be very happy if they were universally illegal, are not primarily made to murder people (and nor are cars' primary purpose getaway driving etc.).

So, freetards, why don't you just man up and admit you are a bunch of thieves?

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Anonymous Coward

Transient copying

If transient copying counts as copying from the point of view of copyright law then blind people need a special licence to read a book using a text-to-speech apparatus. In my opinion, it shouldn't. Copyright law shouldn't prevent people from making copies for their own use, e.g. "format shifting".

(What about a blind person fitted with some kind of bionic eye? Presumably he'd be breaking the law if he looked at anything other than clouds and natural vegetation.)

It sounds like a really bad ruling.

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Linux

The judge's argument seems sound

But the defendant chose completely the wrong grounds on which to defend. Modchips aren't just used for copyright infringement. If he had argued on this point I believe he would have got much further, since nobody has banned bittorrent as a technology yet.

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Mod chips taking the blame?

Someone mods a console for the same reason they break into the iphone. They own the device, why should the manufacturer determine what software they can run on their own hardware?

In practice, I guess many people obtain these mod chips to enable them to play pirate copies, but lets be honest here the illegal act of copying occurred without the use of a mod chip. The use of mod chips does not facilitate copying, technically it facilitates the execution of arbitrary software, which may already happen to be copied.

It's understandable why the game companies might wish to claim "they're guilty anyways, so it should be illegal", but the law should tread more carefully. The judge's rules was clearly based on this pre-desired outcome and came up with some nonsense to make it happen.

As for his argument itself, I think he made a mistake claiming that the rendered images were subject to copyright instead of the binary code which resulted in those renderings. For instance, applying this ruling in a different market, Adobe should own the copyrights to all images generated using Photo Shop since it rendered them, which is clearly nonsense. I could even argue that users putting creativity into a sufficiently expressive game would deserve ownership of the resulting screen renderings and not the game studio - a customizable pinball game comes to mind, mod'ed Quake levels, etc.

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Silver badge
FAIL

"Mod chips are created to allow breach of copyright. End of story."

And this is bad how?

Apart from the fact that it breaches some arbitrary law from a state criminal enough to be rogered by various lobbies.

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Dear Lord

Wow, some very poor understanding of copyright law and the judicial process, not to mention a lack of common sense.

As the article says:

The Copyright, Designs and Patents Act (CDPA) makes it an offence to sell or distribute "any device, product or component which is primarily designed, produce(sic), or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures".

The guy was selling something - that wasn't in issue. However the court was asked to determine two points -

1. one of law - does breach of copyright occur when you *play* a copied copyrighted material on a console?

2. and one of fact - if the answer to the previous point is "yes", then is the mod chips *primary* purpose to breach copyright (i.e. to play copied material)?

The court decided that playing a copied game does constitute breach of copyright. The manner of explanation is a little odd, but I promise you, *any* ratio you read is couched in very odd terms. The Plain English Council don't hold much sway on the benches!

To be honest it seems a fair decision - as the court said, each part of the game is copyrighted. That's why you can't just make your own Lara Croft posters and sell them on eBay. Her likeness is copyrighted. You could say the same about the code - any original algorithms are copyrighted (note the difference between copyright and patent before jumping off on one!), and so their being copied into the consoles memory is likely to constitute a breach.

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Without fail on here...

Any story about copyright infringement of any sort, be it music, movies or games brings out the 'Holier than thou' brigade, bumping their gums about 'freetards' and 'thieves'.

Put another record on, it's getting boring. Most of them you seem so far up on your moral high ground, that I'm surprised you can breath without the aid of oxygen tanks.

If you can sleep at night knowing that you have broken no laws whatsoever in your lives up to this point, then, by all means fell free to judge other people, but I would doubt very much that you could without being hypocritical.

As the 'Sex Pistols' once sang "No one is Innocent"

btw I'm not on the side of the copyright infringers, I just get pissed off at some of the guff posted on here from the aforementioned 'Holier than thou' mob.

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Boffin

OMG my games are doing illegal stuff!

Hm... my MGS4 game does an "install" for each act. That means that part of the game is copied to the PS3's HDD, which according to this judge, is a copyright violation. Meh.

Anyway ... I'd like to thank this idiot ruling, as it means that anyone who wants to play overseas games ... will buy a PS3, which doesn't have region-locking. Hell, Sony gave everyone what they wanted: copy protection for the developers, cheap Blu-Rays for the masses, OtherOS for the geeks (though they didn't include those in PS3Slim), and removing region-locking for the overseas game purchasing dudes. Thus there is no motivation to actually do a modchip except for illegal purposes; though Sony's "idea" of dropping OtherOS might actually make the geek crowd want one for the PS3 Slim. Oh well...

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Pirate

simple resolution (thought of a title)

Never buy any hardware or software with DRM type restrictions. I know Win7 has it built into media player, use VLC (DVDs, MKV's DivX etc), wanna run a linux server, an old PC base has got to be cheaper than Xbox360. When you buy an iPhone you know the draconian Jobsian rules surrounding its use. By buying their products you're complicitly agreeing with their closed off philosophy, and jailbreaking / modding the system isn't sticking it to the man, they still got your money, you just released them from any after sales service.

As for the copyright issue, I demand all money orientated content creators get off my internet instantly and go back to analogue production.

Problems sorted (mine is a happy world).

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Paris Hilton

@Lee

>>Guns, although I would be very happy if they were universally illegal, are not primarily made to murder people (and nor are cars' primary purpose getaway driving etc.).

Uh... say what? The first thing a gun was ever used for was to kill another person. That's.. uh.. kinda it's purpose.

Oh you mean wrongful killing. Nothing at all like when the soldier boys invade another country, then go around killing the natives that live there because they're "protecting" them (get back to your seat Bush).....

Sing me another one. You and your buddies on the board at the MAFIAA can keep trying to sell that bollocks somewhere else.

Paris, because she knows when she's getting shafted..

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Ke
Grenade

Secondary purpose to allow for backups.

Hasn't it been determined that it's legal to back up your media.

What's the point of backing up your media if you're unable to use it? Mod chips facilitate this and should be allowed. It's your hardware - you should be able to do with it what you please - including taking to it with a sledge hammer.

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Silver badge

@Jerome 0... and other points.

@Jerome 0: Consoles rarely have enough RAM to load the *entire* game code into memory. The code is often paged-in and out of RAM as needed. (E.g. the code for a level's game logic isn't needed when that level isn't being played. Similarly, why load all the coded needed for a "Capture the Flag" multiplayer game into precious RAM when a single-player game is running?)

Code is data. A good programmer will treat it as such.

Re. Region locking:

This is used for logistical and localisation reasons, not merely to p*ss you off.

A game like "Modern Warfare 2" has to be adapted for multiple regions—the Germans, for example, have a notoriously tricky censorship system—so it's cheaper to release in the "home" territory first as you'll be most familiar with the necessary red tape.

If the game does well on release, you can then justify spending money on translation and localisation—which often includes new voice actors and graphics—as well as tweaking the game for each region's legal quirks. (Oh, and the regional marketing teams will also have a better idea of expected sales by this point, so they can adjust their campaign expenditures accordingly. Not much point spending millions on TV ads in the Netherlands for a game that flopped badly a few weeks earlier in the US.)

There are other, more obvious, logistical advantages to this approach: you don't want to press enough DVDs or Blu-Ray disks to serve the entire planet in one go in this industry. Games are very hit-or-miss; if your game flops, the last thing you want is millions of dollars of inventory sitting unsold in warehouses rapidly making your company bankrupt. Rolling out a release region-by-region lets you press only as many disks as you need for each region as you go.

(There's also the issue of what happens if you press a complete run of disks for a country, only for that country's politicians and bureaucrats to come up and kick you in the corporate nadgers when some Daily Fail reader complains that their precious toddler might be incited to commit acts of buggery in your 18-rated game!)

As for those who wanted to play obscure unreleased Japanese games in the UK or US... tough! You're clearly not a big enough market to bother with. Deal with it and grow the f*ck up already. I used to design and develop games myself in the late '80s and early '90s, but even I know that games are a luxury entertainment commodity, not an inalienable right. There are kids out there starving to death in a world with more than enough food to go around. Get a bloody life already*.

* (says the sad twat posting to an IT news site at 0300 hrs.)

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WTF?

.... what are guns for, then?

"Mod chips are created to allow breach of copyright. End of story."

And guns are for killing people. End of story.

Mod chips are illegal but guns are not, while "copyright" is nothing compared to life.

Absolute stupidity.

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@ Sean Timarco Baggaley

I'm not talking about the extra scripting that's needed for each level or for different multi-player game modes, I'm talking about the engine itself. That's not paged - it just wouldn't be practical. Besides, even if it was, that hardly invalidates my point that the judge was using bizarre excuses to justify his reasoning when far more sensible excuses exist.

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Pirate

Stuff the rights holders but...

...whatever the alternative uses for mod chips, it is unrealistic not to accept that their "primary purpose" is to allow the playing of pirated games and consequently the judge has reflected the will of Parliament in finding that the mod chip vendor had breached the CDPA.

Having said that, I couldn't care less if the rights holders are being screwed. For every prosecution there are 10000 pirates, none of whom would give a moment's consideration to stopping their piratical activities and I say good luck to them.

Remember folks, "Home taping is killing music".

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Pirate

Is this the legal loop?

By using a weird and illogical argument, the ruling stands the chance of challenge meaning yet more money for the legal profession.

God knows what all the guff is about copying, it is totally irrelevant. The respective firmware loads the OS which loads the program and executes in normal computer fashion. A mod chip normally only overrides a particular piece of firmware code, thus not actually using a copy.

If any of the copy stuff was valid, then the games would not run!

The defence argument should have concentrated on proving and using the deemed right to make a working backup and then coupled it with the ability of the mod to be the only available method to allow said backup to actually function as a backup. eg a black and white photocopy of a colour photo may be a copy but it is not a usable backup should the original get damaged.

I have had to go and sort out several companies where, too late, their backup tapes/discs were found not to be usable as backups to recover the company data in the desired manner, proving that unless a backup is actually recoverable it is not a backup.

The mod chip seller could have been seen as the saviour to the masses.

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Thumb Down

Homebrew

Developers of commercial games could very well start out doing so with homebrew coding. If mod chips make this possible then they should be allowed. Being able to code games on consoles for the average hobbyist Joe becomes less accessible without these. These games could be better than the same old racing/fps game we see every day. But alas they nip real creativity in the bud.

As for all the other things that you know are used for illegal purposes but could have a legal purpose, don't get me started.

Don't get me wrong.. I think games that check online to see if they are a copy and don't allow further use are definitely the way forward. I think what Valve/Steam on the PC have setup and with XBox 360 kicking users of live is a good way to combat this. If you ask me, all games consoles should be required to go online at some point, even if once a year. Maybe enhancements that allow newer games to run would require it. At the end of the day, if people have the money and aptitude for gaming, chances are they could get online somehow.. Maybe even the shops that sell the stuff could allow such upgrades for free?

This case is all wrong.

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Thumb Down

@AC - Tuesday 14:34

So my argument still stands. Because the "thing" can be used for illegal activities in one way, the "thing" is now illegal. If you can't install it, you still can't use it. The end result is the same.

This is madness, utter madness. So many "things" are dual purpose (mod chips included, despite the frothing on here). The examples people are giving of guns doesn't go into the detail.

Some guns are only fit for target shooting, their ability to kill is slight but they can still be sued for threats.

Some guns are primarily intended for hunting, although they could kill people.

Other guns are only intended for killing.

Taking this legal argument to it's conclusion, picking up a gun ("installing" it) is now illegal in the UK because it *COULD* be used for an illegal act. That is all that is need.

I *COULD* use my motorcycle to kill someone (and probably kill/serious injure myself in the process but that's beside the point). If that now illegal?

I *COULD* break a CD in half and use the broken edge as a weapon. Is breaking CDs in half now a illegal?

I'll say it again. It's not the "thing", it's not the people who sell/make/supply the "thing" it is the purpose the end-user puts the "thing" o. Go after the end-users *IF* they commit a crime. The only exception is when the "thing" is single purpose and that purpose is to commit a crime (so that's the sale of fully operational assault rifles in the UK...oh, wait, no...that's not illegal; that's positively encourage with government funding! Hey ho).

On a happier note: I am now thinking of plonking a Linux distro on this old xBox. Someone come and arrest me!

Backups: That right was effectively rescinded a while back in memory serves. You should contact the publisher for a new copy which will be supplied "at a reasonable price". I think Sony has claimed they do this with their CDs.

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@ Nimrod

I'm not even sure if I've completed one game on my original xbox (owned since 2002), but it's spent countless hours steaming video/music over samba using xbmc.

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FAIL

Why did the judges even go there?

There's no question that the defendant had broken the law by selling mod-chips (see section 296ZB http://www.opsi.gov.uk/si/si2003/20032498.htm#24)

What I don't understand is why the judges said:

14. In order to establish that an offence under, by way of example, section 296ZB (c)(i) of the CDPA has been committed in relation to games such as those concerned in the present appeal, the prosecution must prove:

(2) That the playing of a counterfeit DVD on a game console involves the copying of a copyright work."

as I can see nothing in the legislation that states that.

But now, thanks to the judges introducing that element, they've allowed themselves to establish this ridiculous and unnecessary new precedent.

I'm sure a jury would have shown more common-sense but they've got that covered as well:

"30. Cases that, for example, involve determination of difficult questions whether a copy is of a substantial part of a copyright work, can and should be tried in the Chancery Division before specialist judges. They can be so tried much more efficiently in terms of cost and time than before a jury, and questions of law can if necessary be determined on appeal on the basis of clear findings of fact."

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