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back to article Xbox modder prosecution dropped like white-hot potato

Federal authorities on Thursday dropped their prosecution of a southern California man charged with two felonies for modifying Xbox 360 consoles, following a severe berating by a judge and an admission they made procedural errors, Wired.com reported. The criminal trial against 28-year-old Matthew Crippen was the first to test …

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Better things to do...?

Given the levels of criminal activity in the US and other parts of the Western world, why is valuable court time being spent on one guy who modded 2 Xbox's?

Proportionate use of public resources people!!!

I mean he didn't rob a bank or commit mass murder. Make the Xbox flexible and the gaming & video industry should think about a revision to their respective pricing. If the genuine article is relatively affordable, more people will buy the material and will be less inclined to look for pirated alternatives. Not rocket science really.

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Robbery, murder and rape victims don't pay the government.

Microsoft, on the other hand, will be handing out backhanders left, right and centre -- as will a good number of large corporations. The law is there to make money for people, not to protect anyone.

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FAIL

You really believe it?

CD's are now cheaper both in real terms and current values (hint I used to pay £15 - £20 for a CD 20 years ago).

Radiohead GAVE AWAY, GRATIS, FREE, NO COST, an album and people STILL copied it and stuck it on bit torrents.

Yes maybe if they lowered the costs more people would buy it, but the freeloaders will still not buy it.

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Gates Horns

Sony claimed the pirates made more money than they did

One time I read that Sony were making less money than the pirates because Sony had to charge so much for their games that people were not buying them, buying the pirated ones instead.

What was obvious to me and should have been obvious to Sony was that Sonys marketing and advertising was working well for the pirates, all Sony had to do is sell at a sensible price and no one would want a knock off.

As for the games consoles, if they were open platforms certified to a basic spec then it would start a new "home computer" revolution like the one in 1983 which started most of the games writers who dominate the market today.

Mind you, that's probably what the incumbent are worried about more than piracy.

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The problem with consoles

The problem with consoles is that - unless they have a very long production run - the company making them (Sony, Nintendo, MS ... ) actually LOSES money on every console they sell. The idea being that they give you the crack pipe for free, it's up to you to buy the crack at the prices they dictate - they make the money on the games.

I suspect that's why console games are generally £10 more expensive than their PC equivalents; PC gamers have paid for the hardware to begin with; my PS3 cost me some £400 when I bought it - my PC cost me closer to £2000.

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Happy

Problem is...

"What was obvious to me and should have been obvious to Sony was that Sonys marketing and advertising was working well for the pirates, all Sony had to do is sell at a sensible price and no one would want a knock off."

Sony has costs to recoup, the pirates don't. To the pirates, apart form some minor outlay on kit and printing, it's all profit. Sony and games makers have to recoup those R'n'D costs.

Not saying it's fair or right, but their is a flaw in the logic.

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Silver badge

They may have only charged him with the modding on 2, but guaranteed

he was modding a hell of a lot more than that. They finally nailed one guy in my area whose entire business depended on modding Xboxes. This was several years ago when a 500G drive was large. He was putting those in, pre-loaded with thousands of dollars in preloaded games.

I don't like the DCMA because it obliterates fair use rights, but I rank the freetards who steal copyrighted materials right there with the people who wanted the broad reaching DCMA.

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Sony can't compete with a pirate who gets his software for maybe 5 grand per game

and therefore makes obscene profits when he sells it at one-third the cost.

In the example I quoted earlier, the guy was pocketing maybe an extra $75 per machine. If the games were all downloaded from warez sites, that's more profit to him than Sony makes, and nothing to the people who wrote the software for the game.

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Fair use indeed

You should be able to do what the hell you like with a piece of kit YOU buy. And that includes buying an iPhone, smashing it to bits, then calling the result "art".

Should this mentality be applied to working around copy protection? Why not? Because an equal part of "fair use" is that it is your purchase you're dicking around with. To download/clone some software to work on the modded box is NOT fair use. To crack the system for your own games is. Perhaps there are even valid technical reasons for doing such a thing (faster optical reader, processor overclock etc could mess with timing code in protection, that sort of idea).

And modding the kit for third parties? Um... Probably not most people's definitions of "fair use".

This is, I believe, where the important distinction lies. Are you doing it for yourself, or for others?

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Agree

The distinction, in the UK at least, for a lot of crimes is how its used, for yourself or for others.

Hence why you copying your mates CD is unlikely to get you in trouble, but uploading it or distributing it probably will.

I think the biggest problem is that the "copy protection" components are too tightly integrated in with the rest of the system, if the Xbox were modable without being able to play pirated copyrighted material then there wouldnt be these issues.

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I tend to agree..

I tend to agree: Modify and arse around with your own hardware as much as you want (don't expect the hardware manufacturer to support you though!) but don't run a service modifying hardware for money - especially when that service is clearly an 'allow you to play copied games' service. This guy appears to have been very lucky that the local law and their lawyer messed up the case.

Also - if a lot of people start modding hardware, don't be surprised if the price goes up, what with the cost model of games subsidising hardware.

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Go

"You should be able to do what the hell you like with a piece of kit YOU buy"

That include buying lots of fireworks over time, assembling a bomb and detonating it a public place? Brother, you made the flat statement, I'm just pointing out its absurdity. Oh yeah, I see you didn't really mean that! My mistake, I actually thought you meant what you said, not what you had in your mind you didn't say.

I love you people. A more target-rich environment I could not have dreamed up myself.

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@Doug Glass

But it's a public place, so you didn't buy it. In detonating a bomb in a public place you will be damaging property or injuring people that you don't own. Your logic failed.

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Grenade

re Doug Glass

Doug, I think you missed the point here a bit. Sure, you shouldn't be able to explode a bomb in public but there should be nothing at all stopping you making fireworks (or anything else) into a bomb in the first place. I made great use of my Anarchists' Cookbook when I was younger and have nothing against this sort of thing - it enourages people to think creatively, solve problems and has to be a better use of time than getting fat playing computer games and watching telly all day long. Very educational for those with a bit of wit and those without should either accept their limits or feature in next year's Darwin awards...

The basic premise the original poster made is spot on - if you own something, you should be able to do whatever you want with it. The missing bit is what you allude to - SO LONG AS YOU DON'T HARM OR DISTRESS ANYONE ELSE IN THE PROCESS (yes, this isncludes the emergency services and anyone who may have to pay to clean up after you.). Thankfully, as a few other people point out, British law seems to work along these lines but there is a worrying big brother trend at the moment... On the matter of pritating media, this rule still applies, though it also applies to the existing media oligopoly so I am a bit divided here.

Grenade icon cos of the bomb reference and there isn't a high horse / ivory tower / soap box.

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Flame

Re: "You should be able to do what the hell you like with a piece of kit YOU buy"

"That include buying lots of fireworks over time, assembling a bomb and detonating it a public place?"

Way to extrapolate thoughtlessly! If you want a needlessly scary but accurate analogy, you'd have referred to buying "a bomb" not "lots of fireworks", but people aren't generally allowed to buy bombs. And a games console is generally not something that hurts other people through usage unintended by the manufacturer, whining of the "content industry" aside.

"Brother, you made the flat statement, I'm just pointing out its absurdity. Oh yeah, I see you didn't really mean that! My mistake, I actually thought you meant what you said, not what you had in your mind you didn't say."

I don't think anyone needs your incoherent lecture about people advocating "bad things" when you're one of the few people who automatically goes into scaremongering mode while everyone else understands that the freedoms one enjoys in a civilised society are moderated by their effects on other people. No-one is advocating violent acts through modification of games consoles.

"I love you people. A more target-rich environment I could not have dreamed up myself."

Yes, keep on thinking that you're keeping up there at the back.

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@ Fraser

"Modify and arse around with your own hardware as much as you want (don't expect the hardware manufacturer to support you though!) but don't run a service modifying hardware for money"

So the american laws give the people the right to mod their hardware as much as they want, but at the same time effectively remove that right from 95% of the said population -the non-technically-savvy- by making illegal to hire someone to do it.

Funny enough they made a law that specifically makes it illegal to sell products or services that COULD be used for criminal purposes.

So I guess that the NRA, car makers, and ninja suit makers are the next in the line. o_O

I admit I am writing this comment out of self interest because I really suck at soldering. So, after being a computer geek since the days computers worked with coal and steam I'm still part of that 95% for whom triying to mod a console would mean the certain destruction of said device.

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generic title...

There is one place where you can't do what you want with something you own and that's modifying a replica weapon (legal to own) into a weapon that can fire live ammunition. There are specific laws which govern this, however it does set a precedent for the law specifying what you can and can't do with what you own.

The issue with modifying your own hardware (which I believe is totally legal in the UK) is what you end up with. If you do it yourself for your own interest, fine. If you copy games that you don't own and use that on your modified hardware, not ok. If you provide a service modifying other people's hardware, for profit, enabling them to run copied software, also, not ok.

Like I said above though: If lots of people do this, it's likely that the cost of the hardware will go up, but maybe the royalty costs for the game producers and therefore the end user cost will go down...

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Anonymous Coward

agreed

as far as any one is concerned if you bought it you own it. unfortunetly if any one bothers to read eua they will find that in reality especially when it comes to electronic devices they are only leasing it for one time fee. prime example is apple product. i am serious really read the eua with a lawyer friend who can actuly translate the legalise to plain language.

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@Doug Glass

"That include buying lots of fireworks over time, assembling a bomb and detonating it a public place?"

No. You don't own the public place and your bomb may harm others. THAT SAID however...if I buy a matric assload of perfectly legal fireworks and assemble them into a bomb...I am perfectly allowed to go out to my aunt's farm and reshape the landscape. That is provided of course that my geoforming:

a) Doesn't harm anyone other than myself.

b) Occurs with my aunt's permission.

c) Doesn't destroy anyone's property (neighbours, utility companies, etc.)

d) Doesn't destroy critical wetlands or other natural preserves.

In that case: "I bought it, I can do what I want with it" is true. So long as what I am doing with it does not harm other individuals or thier property. Modding my XBOX does not harm Microsoft, a game manufacturer, you and my buddy's dog Jimbo.

Pirating games on the other hand could be argued to constitute "harm" to MS and the devs.

Thus modding my XBOX for personal use should not be illegal. Pirating a game should be.

As the meerkat would say: Simples!

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FAIL

Bent U.S. prosecutors losing out, rightfully, again

People in a U.S. prosecution are faced with massive bills if they fight charges, as well as prosecutors with a law book filled with additional charges with which to lever a guilty plea.

Time and time gain these guys have been caught cheating - these aren't attorneys with a long list of clients, these are single case assignments backed by the massive resources of a vengeful government and no doubt a really, really upset manufacturer!

Next time a modder should do his conversion privately, then have his client test the Xbox to ensure his satisfaction. This way it will eliminate some potential charges.

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Anonymous Coward

well

AFAIC region locking games is an illegal distortion of the markets and if I want to play a Japanese game that I bought and imported then I should damn well be able to play it.

If such mods allow you to play "pirate" content then all the better as it means I can play Persona 4 and other J-RPGs with subs and without the horrific fucking American voice actors.

If you havn't downloaded redubs and arn't American I suggest you give it a shot as your ears will love you for it. Also often it gets rid of rubbish American music tracks too and gives you back the origonal J-track lists. Happy days. As a side note I own all the games that I have redubs for, I do try to live with yank dub but it just ruins it.

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The market only exists because of distortion

We are rich because others are poor.

If a loaf of bread in China was the same price as a loaf of bread in London, Chinese factory workers wouldn't be cheap labour.

The price of bread in a country is based on local conditions.

The problem with intellectually property is it has zero unit cost, and we therefore think of it as being of universally unchanging value.

Region-locking allows them to sell to all markets at a price that matches local market conditions.

If all DVDs cost £20 the world over, most of the world wouldn't be able to afford DVDs. If all DVDs cost the same price the world over as they currently do in Kinshasa, Hollywood would be unable to recoup the cost of filming their dross.

Much as I hate it, blocking parallel imports of digital works is the best solution for the current global economic model.

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FAIL

Hey Rick!

Doing whatever you want with hardware you buy DOES NOT include illegal copying of stuff.

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Pint

re-read the post.

I was going to post a flame since you:

1) used Fail icon

2) used caps and

3) completely missed the point of the well articulated post you were responding to

This is strictly slashdot grade stuff. but then, it's been a day and being nice is a good thing. Read heyricks' post again and you will see that he actually agrees with you about copyright violation. He then goes on to point out that there are plenty of legally valid reasons one might want to perform the hardware modification that the defendent was being prosecuted for.

Beer, because I need one.

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Go

Gotta Love "em

All the little boys and girls arguing that it was their right to take the candy without paying. I still say, if you're so into freedom and believe you can take what you want with impunity, why don't all the indignant posters here just go to a local brick and mortar store and walk out with all the music and movies you can carry without paying? Why not? Because there they wont have the requisite anonymity the internet provides ... they can't hide. Of course they could do it at night like most crooks, but that would require them to leave the basement.

Get over it guys. A rose by any other name is still a rose, and the same goes for a thief.

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Re: Gotta Love 'em

Which part of "To download/clone some software to work on the modded box is NOT fair use" in the original post did you fail to understand?

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Flame

Re: Gotta Love "em

"All the little boys and girls arguing that it was their right to take the candy without paying. I still say, if you're so into freedom and believe you can take what you want with impunity, why don't all the indignant posters here just go to a local brick and mortar store and walk out with all the music and movies you can carry without paying?"

How is the principle of being able to do what you like (without harming others, of course) with something you have bought and now own - that's the console, just in case you can't join the dots - anything to do with the act of stealing physical goods from a store? This is just the usual stupid scaremongering and conflation of issues used to justify the curtailment of individual rights because a bunch of people in an industry think that the way to maintaining that revenue stream they feel entitled to is to create new "opportunities" by restricting others, knowing full well that there's no ethical justification for criminalising behaviour that is effectively normal.

Note, in case you have difficulty understanding the above, that I have in no way argued that anyone infringe anyone else's copyright.

I don't know which is worse: that you parrot the propaganda of pro-corporate, anti-citizen interests because it pays your bills somehow, or you actually believe it and think you're doing a good thing by telling everybody to "keep their eyes forward" on your own time.

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Silver badge

Because you causually put in the throw-away line

"without harming others of course" and the ignore the fact that the whole point of the modding is to harm others by stealing their copyrighted work. Even Mr. Self-Righteous Japanese games man added "if that includes being able to play pirated games SO MUCH THE BETTER."

In other words, bring me a case in which someone has been prosecuted for modding a machine for the sole purpose of playing legally purchased and imported games and then you have a leg to stand on. In this case, the perp was EXPLICITLY showing the undercover agent that you could play pirated games. The prosecution fucked up in not revealing that to the defense before the trial, hence the dismissal. But the guy was guilty as original sin.

Oh and part of the reason I know you won't find that case is because I was involved with a group that did need to follow all the necessary steps to ensure the rights holders had all been paid even though we were in the wrong region. It's one of those self-protective things you do when you are inviting the manufacturers to your show along with 20,000 other people and running pirated crap is a good way to get your ass in jail.

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as our English brethren say, "B*ll*cks!'

I have an external drive unit on my Wii, the WODE. I have the Evo card unit for my DS.

I own *every* game for each system, in the original box and original disc or cartridge.

This way, i do not have to carry around a dozen carts when I'm at the airport or bus station. I do not have to change discs or deal with drive media when playing different games or having drunken friends over for a marathon Super Mario Sluggers session.

The ass-umption that the only (and even primary) use of hardware mods is for piracy is complete BS. Slandering hardware mods solely on informal surveys of the bragging usage of the vocal internet morons and minor children who are the minority of system owners is complete crap.

Projecting one's own criminal tendencies (the unadmitted internal dialog of "I don't have the self control not to steal, or use illegally, so you obviously can't be better than me and resist too") on things like hardware mods, firearms and drugs does not mean that the problem exists for society at large-it just means *you* shouldn't have the adult freedoms and responsibilities of these potentially dangerous things. As Heinlein said (IIRC) ""It's like demanding that grown men live on skim milk because the baby can't have steak."

Until there are some actual, unbiased, properly managed and multiple-source research projects on the actual usage of hardware mods, backed up by a few years of records over many demographics and conducted by multiple research agencies, then there should be NO law nor ANY legal involvement against hardware mods REGARDLESS of what Hollywood's pet presidents, judges and senators want to believe.

Until then, judge me and others *AFTER* I've committed a crime. Not before, not because I could *potentially* commit a crime, but after i've actually done wrong.

It's funny, the same mouthpieces who claim terrorism is only a Republican scare tactic and that airline security is the worst threat to freedom *evar* actually support DMCA and Hollywood suppression of hardware innovation, open standards and even freedom of speech both at home and abroad...the same people who berate America for "forcing it's culture" abroad, actively push for American copyright suppression on all nations of the world. The same folks who insist on forgiving criminals but then wish to punish everyone who hasn't harmed others by making them suffer restrictions on their choices.

If I gotta chose my master, I'll take the one with the marching soldiers in lockstep over the propaganda and thought control puppetmasters anytime. I can see and fight the oppressive soldiers, and not have my family and neighbors programmed to hate me. A police state backed by rifles is more honest an enemy than a thousand hired keyboard warriors feeding the nations' forum boards with their dozen or so multiple accounts following the same script created by the best psychologists, advertising men and social engineers that money can buy.

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Bronze badge
Black Helicopters

Tin-foil-hats-R-US

I'm not generally paranoid but you are bringing into your house an internet connected device with camera and microphone that you have no control over. If you even think of modding it a Swat team will arrive and stuff you into a sack!

Yeah right! I definitely will not be buying *any* Microsoft products. I already switched to Linux when Vista came pre-loaded with DRM spyware.

What a strange world we live in :(

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Big Brother

Google are hardly evil at all

Now if Google made games consoles with Cameras are Mics then they would use it for Google HomeView, an extension of street view that allows you inside the home from StreetView. There you could watch people live without disturbing them. Obviously only available to government agencies same as the non-blurred photos and the database of passwords they harvested.

This could help combat domestic violence, we should all wear a little ribbon showing our support.

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Go

Honesty ...

... is still the best policy.

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Thumb Up

OK

I honestly think Google should be shutdown and sales of their old kit used to fund the removal of world poverty. I honestly think Google are Satan's minions and as Mike Harding said once, "A boil on the bum of mankind!.".

I honestly think people who use modding to get free games without paying are scum who drive the prices up. Those who mod to play grey imports or learn something about hardware, I honestly have no problem with.

Thanks I feel better now!

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Anonymous Coward

@Mystic Megabyte

Let's be honest, there's a wealth of other reasons to not use Vista...

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Crippen is the OJ of the Tech World

Guilty but innocent as charged.

His terms of "service" should be that the mod is not to allow you to pirate games but protect your own expensive games from your kids' abuse and to allow homebrew stuff to run.

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Silver badge

Fair and balanced ?

Well whaddya know ! On the one hand, the judge knocks down the fair use argument for the defense, and on the other blasts the prosecution for manhandling the accusation process.

Sounds like this judge is actually on the ball on this case !

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Thank god sanity has prevailed

Just because the guy was running a commercial business selling people the ability to gouge the producers of the games they went on to pirate, in clear violation of a law designed to prevent precisely what he was doing, doesn't mean that he did anything wrong.

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Unhappy

Hot potato?

I smell a rat. They dropped this with astonishing speed. I can't help thinking someone realised there was a probable knock-on to other similar cases.

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Silver badge

They dropped it with astonishing speed

because they got caught in a mistake they teach you to avoid in Law 001: Prosecution must always disclose the facts of the case to the defense in time for the defense to properly prepare. The key charge (the accused demonstrated the ability to play pirated games to the undercover agent) was not disclosed until AFTER the trial started. That's the sort of blunder that will earn you a stern dressing down from even law and order types like myself. Even more so because what should have been an open and shut case must now be dismissed.

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Boffin

The issue isn't modding the xbox...

As heyrick points out... Modding one's own xbox *could* be covered under fair use.

Modding third party boxes for money? Not so much.

Showing others how to mod their own boxes for free? Should be covered... (IANAL so don't take that as legal advice...)

Where's the intent? If the intent of the mod is to be able to play stolen aka 'bootleg' works... then you're on your own and you should get a good lawyer.

Should Timmy, the 17yr old computer 'whiz' kid who mods his own box for the sake of a hack worry? No, not so much as long as he doesn't mod other people's equipment.

On a side note... its interesting to find out why the prosecution hid the evidence until the last minute. I guess one could argue entrapment...

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Flame

Worked our reasonably well for both sides

I'd say that the outcome actually has benefits for both sides. Crippen has avoided jail. The state has avoided the bad publicity of actually convicting Crippen, has made it clear that anyone else they choose to prosecute is on shaky ground, has established the fact the Fair Use does not grant exemption from the DMCA, and has left various other untested legal points that currently act as a deterrent untested.

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Pirate

Modding?

Here's a scenario:

Chav 1 modifies his mate's car with some power boosting kit (induction kit, turbo and ridiculous spoiler that actually makes the car less stable at speed) and in the process removes the limiter that stops the car from speeding.

Chav 2 then gets clocked doing 60 in a 30 zone by the police.

Who deserves to go to jail?

Okay, in reality the answer is both of them but the point is, yes he's modded a couple of xboxes. That should not in itself make him a criminal. Now if he'd been caught modding the xboxes AND selling the pirated games that would be a different matter as the modding is then specifically to enable him to commit the offense of selling counterfeit goods.

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Alert

Oh well

So much for experiencing the red ring of death after conviction.

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So why does it matter if you change somebody else's kit if they ask?

Following on from the apparently agreed "do what you want to your own kit" argument, why shouldn't Chav 1 ask Chav 2 to mod their kit for them? Again, the rule will come down to what Chav 1 does with the kit once Chav 2 has modded it...

Chav 2 should be at liberty to make any changes to Chav 1's kit that Chav 1 requests (and that do not adversely impact other people). In this way, Chav 1 can have changes made that s/he cannot do him/her self and Chav 2 has a viable business model that keeps him/her off the streets nicking things. If we can finally get back to the idea that (most) people are responsible for their own actions, it is no concern of Chav 2 what Chav 1 intends to do with the kit once it's been modded (though Chav 2 may refuse to do the work or report Chav 1 to the cops if his / her intentions are clearly nefarious...). This is no different from me asking the nice chaps at the local garage to make my car go again when it stops - I COULD use the newly mended car to ram-raid the off-license round the corner but this really is not their concern.

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Joke

lol

i wish reg would mentioned that people who were witness for the prosecution were also admited criminals.

the person who was a technical advisor employed by MS had admited to modding Xbox consoles while in collage. and the person who video taped the modding procces self admited that he had violated the privicy laws of california. hey it would make for more amusing reading.

but fora change we actuly had a judge who admited that he does not know what the hell they are doing here, mark my words that will be next governor of california. in all consoles as iphones are allowed to be jail broken under federal law passed a little while back so i do not see the point of prossecution to even push this case at all besides to line their pockets with money at eery ones elses expense.

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Silver badge

Its the 1980s all over again.

Re: Sony claimed the pirates made more money than they did

This was happening back in the early days of computer games (when games came on cassette) until the game makers realised that charging $40 for a game wasn't making any friends.

When they dropped to $4 (slightly more than a blank cassette) the USA games market took off.

Outside of the USA, thanks to exclusive import deals and licensing, etc etc prices stayed high and piracy remained rampant.

There's a lesson there but I'm not sure anyone wants to learn it...

As for the freetards - most won't pay, some will try then buy but all the efforts to try and stamp it out are akin to herding cats - and making enemies of them guarantees they WON'T pay.

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