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back to article Xbox modder can't claim fair use, says judge

A California man facing criminal charges for modifying his Xbox 360 will not be allowed to use fair use grounds to defend himself at a trial scheduled for next week, the judge hearing the case said in a ruling that could have profound consequences for other hardware hackers. Matthew Crippen of Anaheim, California, was arrested …

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Black Helicopters

Fascist judge

"the government need not show that the modified Xbox's were actually used for infringing purposes.”"

The judge decides all by himeself that no proof is needed, in plain English.

That's plain and pure fascism for you, my friend.

Also denying defense is fascism.

This hanging judge takes whatever it needs to take to get a "legal" punishment, eh?

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Paris Hilton

<pedantry>

I feel that you are misrepresenting both the judge's statement and the nature of fascism.

The judge is merely clarifying the law. The DMCA makes tampering with a technical measures which were intended to protect copyright an offence. For the law to apply, the prosecution does not have to show that actual copyright infringement occured.

The judge is not necessarily a fascist (although Edmund Burke's famous quote about the sole prerequisite for the triumph of evil applies).

Fair use in as exception to copyright laws.. so it makes sense to deny fair use as a defense in a case where the copyright infringement is immaterial.

If there is fascism here, then it is inherent in the law (and, depending on your political opinions, the lawmaking process). Corporations dictating a law that denies individuals their rights (as owners of a device) in favour of protecting the corporations' commercial interests could be seen as a sign of fascism.

The blond woman.. metaphor for Justicia in our day and age

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Boffin

Two words were missing

There were three words missing from the article, that were in the Wired article:

"Matthew Crippen, 28, faces three years in prison on two allegations of violating the anti-circumvention provisions of the Digital Millennium Copyright Act *for financial gain*"

Basically, it says it's against the law to make a *profit* from disabling copyright protection measures, which IMHO is absolutely fair enough. What the judge is therefore saying, is that he doesn't need to prove that the machines that were modded and sold were subsequently used to play pirated games. Again, fair enough, since not only would it be difficult/impossible to show, it's irrelevant to the charges in this case.

If it were just modding for his own use, he'd be fine.

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Removal of copyright protection device by whom?

AC wrote "The judge is merely clarifying the law. The DMCA makes tampering with a technical measures which were intended to protect copyright an offence. For the law to apply, the prosecution does not have to show that actual copyright infringement occured."

I'm not overly familiar with the DMCA and its exact wording etc. However, does it define WHO is not allowed to tamper with technical measures intended to protect copyright? If the manufacturer or copyright owner of the console say decided to remove or tamper with the copyright protection device, are they excluded under the DMCA. If not, quite a lot of technology companies are probably guilty as well!! I suspect it doesn't as the copyright it protects is not necessarily just the copyright of the manufacturer. A good example is the XBox. The Microsoft copyright protection devices protect other companies software and not just Microsofts.

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Go

Appeaks court ...

... US Supreme Court. Lots of options; just has to play out. Get over it donk.

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Headmaster

@Mike

Indeed it does.

In spite of being written in a confounding bit of legalese, the relevant section of the law begins just like any good firewall definition. "No person shall circumvent a technological measure that effectively controls access to a work protected under this title", followed by a number of exceptions.

I'm guessing the tech companies you mention, could be part of those exceptions... but by that point the analogy to a firewall definition no longer applies and the law devolves into such lengths of legalese and ambiguity as are necessary to insure jobs for members of the legal profession.

Some relevant links and summary may be found here (http://en.wikipedia.org/wiki/Anti-circumvention#United_States)

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FAIL

Many Laws have given defences

Many laws have established within them (or through case law) a set of accepted "defences". This means that, even if you have definitely done what the law disallows, you can defend yourself with a particular explanation. All the judge was doing was explaining the law. In this case, the crime which the guy is being accused of does not have a "fair use" defence. He can defend himself by showing that there is reasonable doubt in the assertion that he did mod the X-boxes in question.

This is no different to a (somewhat frivolous) example such as: Let us assume that I am caught driving at 100mph. I state during pre-trial proceedings that I intend to defend myself by proving that I am a really good driver and totally capable of driving safely at 100mph. The judge would be totally right to tell me that he won't admit any evidence I want to submit in this space. On the other hand, I could also state during pre-trial that I was a properly trained policeman driving under a blue light in hot pursuit and would use that information in my defence. Or I could state that I wasn't on a public road, and that I would present evidence to that effect in my defence. Both of these would be legitimate ways to either mitigate the crime (in the first case) or prove I am innocent (in the second case), and the judge would allow me to state my evidence.

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Good old USA

Fully owned by (c) holder.

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Stop

except

the whole point is that DMCA makes (c) irrelevent hence people cannot use "fair use" to combat it.

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Anonymous Coward

The danger of buffoons in the higher echelons

Yes, this is what happens when vested interests with lots of money lobby idiots who are supposed to represent the people and create sensible laws for the protection of us all.

The idiots don't understand technology but do understand lots of people saying the same thing (and they have buckets of cash so they must be right, right?)

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Anonymous Coward

USA Should be renamed to

United States of protecting media companies interests. And the start of the constitution needs to now read 'We the special interests....

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WTF?

One acronym

OMGWTFBBQ

----

Seriously though, I was under the impression Fair Use was an exception to the DMCA point blank. To say you can't claim Fair Use, well.....

Are some judges really stupid when it comes to seeing the long term problems with their decisions?!

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Troll

@Samuel Walker, 24th November 2010 23:37 GMT

I am not sure about the full case, but according to the article.... he *sold* the modded consoles. He didn't mod them for his own private use. I believe that this is where the problem is and why Fair Use isn't applicable. (well, to my limited understanding).

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What's yours is mine and what's mine's my own

It seems incredible to me that the judiciary can waste so much time on such a trivial matter. The man has purchased the unit. It belongs to him and he should be free to do what he likes with it. To bump up such cracking/hacking actions to the level of a criminal offence with the possibility of a jail term is really quite beyond me. There are "proper" crimes to be sorted out like murder, robbery, etc; before anything like this is dragged through the courts.

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Anonymous Coward

Of course this has to take precedent over "proper" crime

After all, the victims of "proper" crime often can't afford a team of highly paid lawyers and there's usually less in the way of damages to spread around. It's not as if you were expecting the court system to be motivated by the idea of preserving justice and making the world a better place is it? How are they all going to get rich from that?

And the guy only has himself to blame for thinking that just because he bought an item that he had some sort of right to treat it like he owned it......

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Gates Horns

I agree

If he legally owns it (which he does), he can do what the hell he likes with it.

Obviously the warranty will be void but if he's opening it, he obviously has experience/knowledge in electronics.

Also, wouldn't the optical drive just be a standard LG or Lite-on IDE drive?

If so would the "hardware" hacking is probably simply just flashing it with custom firmware.

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FAIL

Umm, read a bit more carefully...

..."allegedly had a business modding Xbox 360s for between $60 and $80 a pop, allowing the consoles to run pirated games or unapproved homebrew software. He was indicted after allegedly performing the silicon surgery for an undercover corporate security investigator"

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Anonymous Coward

So, people who own equipment...

are allowed to do what they want with that equipment, including paying someone to modify it.

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FAIL

So what you're saying

is that they were modified by a party acting on behalf of the legal owners of the unit. THAT SHOULD STILL BE ALLOWED. IT'S THEIR UNIT, THEY'VE PAID FOR IT.

If I take the speed limiter off a motorbike, that's still a totally legal activity even though the owner could then be riding a bike that's too powerful for them. But the act of delimiting is still legal.

DMCA is an utterly abhorrent law because it means that you can't use equipment you've paid for and legally own in whatever manner you want, even if that manner is (aside from the overbroad DMCA) entirely legal.

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Troll

@Adam Foxton, 25th November 2010 09:47 GMT

it is not the same, you see, in this case the judge said that the feds (or whatever you call them) don't need to show that the people who brought the console to be modded were doing that to play pirated games.

you are allowed to do what you want with your device (like jailbreaking it), the problem is, what are you going to do with the modification? in this case, it was clear that the people who wanted to mod their console were most likely pirates, and here where the problem lies, *piracy*.

so yes, you can modify your motorbike if you want, but if you install a machine gun on it, you better keep it away from the main road. The same apply to the modded console, as long as you do _not_ play pirated games, then no one will be able to do anything to you. The judge simply said that the feds don't need to prove if his customers where playing pirated games or not, nothing else. The case is still in court.

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Bronze badge

Right to do as you please with your legal property

"If he legally owns it (which he does), he can do what the hell he likes with it."

For a start this is a fallacy. In the US you can legally own a Glock 9mm pistol. You are however specifically limited in the things you can legally do with it; you are not given free reign to commit a crime using that equipment. The same goes for kitchen knives in the UK, yes you can own them but it is a crime to walk around in the street brandishing it.

Since it appears that the DMCA states that deliberately using methods to circumvent technological protection mechanisms *is in and of itself a crime* then by modding an Xbox he has effectively committed a crime, even if he never turns the Xbox on after modding it.

The fact that he was modding other peoples Xboxes for profit simply reinforces the fact that he was deliberately and knowingly bypassing those protection mechanisms, and that is all the proof they need to get him under the DMCA (as I understand it).

You may wish that equipment you buy is yours to do with as you please, but the sad fact is that the law currently states that you are limited in choice of what you are going to be allowed to do. If this bothers you that much I suggest you lobby to get that law changed, because that is your only legal recourse.

Remember, a megacorp can provide funding to the legislators in return for favours, but a majority of voters can replace them entirely ;)

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Problems with the arguments behind the DMCA

Intent and harm. Exercising your right to use your Xbox however you like doesn't come in the same class as shooting people for one very good reason: you don't have to negate someone else's rights in order to exercise it - well, unless you use it to beat someone to death, but that kind of proves the point, I think.

Claiming you have a right to shoot anyone you like would be classified as a positive right, in that others have to give up their rights in order for you to exercise yours. The right to own a gun for self defence is a negative right - nobody has to give up their rights for you to do that. If they're attacking you they're already infringing on your rights, and you have the right to defend those rights.

Saying you have the right to use your property as you see fit is a negative right. It doesn't take away anyone else's rights. You want to use your xbox to play illegally copied games, that's great! You can do that, as modding your xbox - which is your own property - doesn't affect anyone else's rights.

What you can't do is claim that you have a right to own those illegally copied games, as that takes away the right of the creator to decide how their stuff is distributed. The "right" to own those games is a positive right, as it requires others to give up their rights n order to accommodate your own claimed rights.

The DMCA is turning the negative right of property ownership into a positive right to interfere in the property ownership of others. It's bad law. The fact that it's law doesn't make it automatically correct and good and proper, as the law requires that the right to use your property as you see fit is reduced in order to accommodate the claimed rights of another. It's really no different from claiming the right to shoot people just because you have a gun.

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Linux

Guns and thumb drives...

> For a start this is a fallacy. In the US you can legally own a Glock 9mm pistol.

and this is an entirely different fallacy.

Weapons are an entirely separate category of their own that are quite unlike anything else you could try to compare them to. Or are you seriously going to equate a semi-automatic pistol with a video game machine?

Your argument is disengious at best.

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Retroactive?

If I 'protect' some copyright material with ROT13, can I have everyone who has written a ROT13 app thrown in jail?

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No.

Article I, Section 9 of the US Constitution specifically forbids retroactive (or ex post facto, "after the fact") laws. You can try to use ROT13 as a protection mechanism, but you can only go after people who break the ROT13 used in YOUR work.

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FAIL

Well....

It couldn't "quite" be ROT13. You'd want to be able to maintain that it was a separate and secret mechaniscm (to a courtroom and judge with no clue as to what an encryption algorithm is). But since the DMCA also makes it illegal to spread information which could be used to break a protection mechanism, you COULD make it illegal to explain how ROT13 works (in the US, at least). That's basically what the whole DeCSS case was about.

Again, there is no need for the prosecution to show that you have tampered with someone's (ineffective) protection mechanism, or even that the information you have provided is sufficient for someone to succesfully sabotage a protection mechanism.

The DMCA really is that stupid.

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Modding != piracy

I hate these sorts of cases, as they always try to portray any kind of hardware hacking as illegal, but from the end of the article it sounds like the guy was modding and selling systems, rather than just tinkering with his own console. If he was selling modded consoles then he's pretty much done for, as enabling piracy is an open and shut case these days. However it also gives a bad name to legitimate hardware hackers who just want to explore what can be achieved with the hardware.

The thing that pisses me off most is that today "modding" is synonymous with piracy, whereas back in the good old 8-bit and 16-bit days it was all about changing your console so it could run games imported from Japan or the US. I remember telling someone I'd modded my PS1 and they immediately assumed I was a pirate, which was an attitude I'd never encountered before. The great thing about most this generation of consoles is that games are now released almost simultaneously worldwide and they're also usually region free, so at least I don't have to look like a pirate to enjoy the latest JRPG...

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Anonymous Coward

Inclined to disagree.

I would be inclined to agree if this was nodding a Wii or ps3 since doing so on those consoles allows custom code to be run. However the 360 itself hasn't been hacked, the mod that exists merely forces the disc drive always reports the disc as genuine. Since there aren't keys to allow anyone to create their own signed discs the only result of this mod is piracy.

Also anyone else keep hearing the argument that people need to make backups to protect discs? Really can't see any reason why anyone who cared that much would need to go to such lengths.

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Couldn't agree more

This is the sole reason I would want to mod a console - to play imported games. Yes, Square Enix, I'm looking at you and wondering when the hell you will release Parasite Eve and Chrono Cross to the UK.

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Megaphone

While I would be inclined to agree with you

I have purchased way damn too many $60 discs that end up scratched. I would love to be able to back my own discs up, and throw a new copy into the drive when there is a read error rather than tossing the old game, or paying another $60 (F' that).

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Thumb Up

Agree with Ty

My brother has had to buy 2-3 games 2 times due to the disc getting scratched in the drive.

And a few times because his kids changed games and laid the disc down. So in his case it would be solely for backups.

As for the Wii I've soft modded my wii to play AVI's off a pendrive and DVD movies in its drive. Why nintendo just doesn't do it themselves(or even sell it as a channel) is beyond me seeing the console is obviously able to do it.

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Anonymous Coward

Hang on

Wait a minute.

Both this article and the Wired article suggest that he had some business efforts modding XBox units... now that strikes me as a fairly blatant DMCA violation. If it were his own units he were modifying for his own use, and not using that towards modifying them for other people (blatantly for the purposes of copyright breaches) that is a totally different kettle of fish.

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FAIL

Title

I agree. He operated an (obviously) for-profit BUSINESS modding these XBoxes. And, as stated before, the mod simply said the CD in the tray was genuine, therefore, no custom software (IE Linux or the like), but simply able to play burned games ("backups" if you prefer). Now, if he posted his How-To online and perhaps sold the equipment to do the mod, then I could say 100% defendable.

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Big Brother

WTF!, if I own it, I can do what I like with it!

The more I think about it, the more I'm starting to unfortunately realize this is actually big news. Fuck its sickeningly big. Yet another big sickening authoritarian move. Its a major blow for hardware modders but its also really bad for all of us, because of what it ultimately really means.

Anything I buy I will do what I like with it, (as I have done all my life!). I am not a pawn of the corporations to be dictated to that I cannot open a box and I cannot do this and I cannot do that etc..

When I buy something its mine, so in a *free world*, if I choose, then I can and I will pull it apart and if I want to, I can even then jump up and down on its pieces and morally I can also even show others how to pull it apart and jump up and down on it. Its mine! ... (yes I know I said in a free world, because this news actually shows how bad the authoritarian control of the corporations is getting over us all).

This so called legal move is a direct violation on my freedom. Its also a sick corrupt mockery of the principle of a law. I don't respect this law, I detest it and all who push for it, because they show how corrupt the law is becoming. The law is suppose to represent the wishes of the people, not just the wishes of a minority of powerful rich people who seek to restrict the freedom of everyone else for their profit!

The bastards who are ruling over us are getting ever more extreme in their absolute abuse of "the law" to dictate their will to us. Its not the law any more, its their wishes!

I will never be a pawn of the corporations, to do what they want, when they want, how they want, all for their profit! ... they just want us as consumers. Don't create anything, don't think, just consume, every bloody step of our lives. Fuck that!. That isn't the world I want to live in and I'm sure many others don't either.

This ever increasing authoritarian bullshit has to stop!

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Grenade

Hear! Hear!

It is also my right to take the thing I own and pay some one else to modify it to my liking

Prove I am using it to pirate copyright material and prosecute me, not the Xbox or PS3 repair guy, I knew upfront what was being done, I'm responsible for circumventing your "controls", not the poor worker I hired to get his hands dirty

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Bronze badge
Unhappy

He's not a martyr but a profit pirate

I believe the hint at the end of the article suggests he was modding and selling the modded boxes, if so, then he's very stupid indeed given the number of hotshot lawyers who know these cases are instant wins.

I completely agree with you that you should be allowed to do what I like, however think about dicking about with the insides of your car. Suppose you kill 5 people at a bus stop 'cos you screwed with the car's firmware, would you still be able to claim 'fair use' and 'It's mine I do what I like with it'? Your hearing would last about 0.3 secs before you got put in clinky.

Believe it or not, quite often you do not have a right to do what you like with software and hardware. Often on any product you buy you agree to a EULA or some such legal bollocks that states you will not dick about with the insides, else the manufacturer reserves the right to bend you over a barrel and exact their pound of flesh!

I have modded quite a few bits of my kit and I do strongly believe like you, 'It's mine I do what I like.', the law is an ass and often see's things differently.

Another dark alley in life's moral maze!

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Flame

Difficult to find an appropriate analogy

The car one doesn't work because in that case you would not be breaking a law about modding your car, you would be breaking the law for driving an unsafe car and dangerous driving, maybe manslaughter.

It's perfectly legal to mod a car to be unroadworthy. If you take it on the road, that is the crime.

I'd say a closer analogy is if you found a way to modify the engine to run on ambient pollution from other people's cars (far fetched I know). Would that be a crime? I don't think it would as long as the technique didn't break safety laws.

(Flames cause it would probably explode.)

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Big Brother

freedom of speech versus copyright

Of course the DMCA will be thrown out by the US Supreme Court eventually, which means probably after several decades of people being locked up over it. That's about the record of the supremes over various other fundamental rights denied various groups for many decades, e.g. for freed black slaves to be able to sit on any seat in a bus or to have equal educational rights or to be able to vote in elections. The problem is that it will also probably be several decades before the supremes get around to hearing a DMCA false imprisonment case.

Unless copyright lobbies get to pay to get copyright elevated within the US constitution to a higher status than freedom of speech that is. So far all they seem to be able to buy is laws in the US congress. I think they'd have to buy about 3 quarters of the states as well to get copyright defined as a constitutional right. Mind you, given the undue lobbying influence of those who buy ink by the barrel and can use such purchases to decide who gets elected, I wouldn't put buying constitutional rights past them.

Big brother icon, because those who buy laws for the purpose of protecting copyright want to dismantle our fundamental privacy rights as well for the same purpose, e.g. to legitimse spying on your communications in case your communications breach their copyright.

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@Semaj

What about modding a replica weapon? They're legal to own in the UK, but the act of modifying one to be able to fire live ammunition would be illegal. Offering a service to do this would also be illegal. Owning the device after such a modification would also be illegal.

Of course modding a piece of hardware to allow it to play copied software isn't really anything like as serious as modding a replica weapon, but the analogy stands.

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Pirate

Slanted view of the report.

I agree with above. If he was a sole 'hacker' who pulled his 360 apart to tinker with it, then I'd say it was an unfair case. HOWEVER, he was selling modified consoles, so therefore advocating piracy. What did he expect MicroSoft to do, send him a thankyou card? Seriously, he's gonna do some time and deserves to.

I'm all for tinkering, and I do on all my consoles and PC's etc (except the 360, i love LIVE too much). I don't believe anyone should be selling a service to modify consoles. If the end user isn't clever enough to tinker, what right do they have in expecting mod's be done for them.

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Anonymous Coward

Actually

He was selling modded cases so advocating playing unsigned game DVDs.

That is not the same as "advocating piracy". The old "Backup" games DVD argument appears here.

If he were selling pirated discs as well then you could hang him high on that assertion.

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Bronze badge
Stop

Doesn't matter

Selling them isn't what he's being prosecuted for. He's been charged with circumventing a measure used to protect copyrighted content. So while it might be easier to agree that he was doing something bad, the exact same law could be applied to a person doing it for their own use.

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The title is required, and must contain letters and/or digits.

Regardless of the legalities of it, I think you should be able to do what you want to your own hardware, including installing modchips/bypassing protections.

Selling already modified hardware is a definite grey area. For me it all comes down to how he marketed the modded consoles. Inciting piracy no no, promoting the removal of other limitations yes yes.

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Troll

Oh how we larfed...

Land of the Free? Not any more it isn't.

The Patriot Act and the DMCA is a fascism double whammy.

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PT

Don't Mod Consoles, Alright?

The DMCA sorely needs to be tested in a case that goes all the way to the Supreme Court, so in a way I hope Crippen is found guilty. I thought the Dmitri Sklyarov case might be appealed all the way, but Adobe perceived they would probably lose and begged the Feds not to pursue it. Having the DMCA declared unconstitutional is probably an outcome nobody in the "protected content" industry dares risk.

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Re: "Land of the Free"

That was always just a typo. It is "Land of the fee"

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Ahem

The penultimate sentence is why Fair Use doesn't apply. He was selling the modded Xboxes, which puts the modification itself far outside the bounds of educational

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FAIL

How is this different to Jailbreaking, which IS legal!!!

Title say sit all !!!

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Silver badge

He's not being charged with "Jailbreaking"...

...but with doing so at a profit. Sorta like plagiarism.

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Anonymous Coward

Re AC 01:03 GMT

"How is this different to Jailbreaking, which IS legal!!!"

It's all to do with perception and bias.

They automatically assume people who jailbreak are educated professional IT types and therefore legit and people who modify games consoles are spotty little jobless layabouts who must be thieves.

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