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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  1. Anonymous Coward
    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?

    1. Anonymous Coward
      Paris Hilton


      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

      1. Mad Mike

        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.

        1. Martijn Bakker


          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 (

    2. Annihilator

      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.

    3. Doug Glass

      Appeaks court ...

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

    4. Anonymous Coward

      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.

  2. Mectron

    Good old USA

    Fully owned by (c) holder.

    1. Danny 14 Silver badge


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

      1. Anonymous Coward
        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....

    2. Anonymous Coward
      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?)

  3. Samuel Walker

    One acronym



    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?!

    1. Anonymous Coward

      @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).

  4. David 45

    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.

    1. Anonymous Coward
      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......

    2. Simon2
      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.

      1. NumptyScrub

        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 ;)

        1. Graham Dawson

          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.

        2. JEDIDIAH

          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.

    3. JimC Silver badge

      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"

      1. Anonymous Coward
        Anonymous Coward

        So, people who own equipment...

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

      2. Adam Foxton

        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.

        1. Anonymous Coward

          @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.

  5. Christoph Silver badge


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

    1. Charles 9 Silver badge


      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.

      1. Martijn Bakker


        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.

  6. Si 1

    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...

    1. Anonymous Coward
      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.

      1. Ty Cobb

        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).

        1. Kevin 6
          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.

    2. Thomas 4

      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.

  7. Anonymous Coward
    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.

    1. Ammaross Danan


      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.

  8. Asgard
    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!

    1. The Fuzzy Wotnot

      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!

    2. Flybert

      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

      1. Semaj

        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.)

        1. Anonymous Coward
          Anonymous Coward


          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.

    3. copsewood
      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.

  9. KegRaider

    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.

    1. Anonymous Coward
      Anonymous Coward


      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.

    2. Pablo

      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.

  10. Jim_2

    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.

  11. Cunningly Linguistic

    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.

    1. 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.

    2. gnufreex

      Re: "Land of the Free"

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

  12. Peter H. Coffin


    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

  13. Anonymous Coward

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

    Title say sit all !!!

    1. Charles 9 Silver badge

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

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

    2. Anonymous Coward
      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.

    3. Anonymous Coward
      Anonymous Coward

      You jailbrake your own phone...

      Not jailbreak a shed load and then sell for profit.

      There's the difference.

      He's not modding his own. He's selling the consoles modded. Therefor illegal.

  14. mafoo


    You will rent you xbox on a 10,000 years contract and M$ will be able to take it back if they don't like you

  15. Big-nosed Pengie

    This is not a title

    Knowing this, why anyone would buy any of the crap that's controlled by this idiotic an dangerous law is beyond me. Yes, I know that this is about a person making a business out of these mods, but the bigger issue is that as long as morons keep buying the crap, the more the likes of Apple and Microsoft will keep making stuff that restricts what its owners can do with it.

    There's only one answer - stop buying this shit.

  16. Anonymous Coward
    Anonymous Coward

    No body, no murder

    except in the US of A when it affects corporations large enough to pay for special rules.

  17. Henry Wertz 1 Gold badge

    Devil's in the details...

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

    The fail of the DMCA is that jailbreaking is undisputably legal ONLY because the DMCA allows the Library of Congress to makes exemptions, and they exempted jailbreaking -- apparently only this July. Before that it was technically a grey area.

    To me, I think modding an XBox should undisputably be legal. As for selling them -- I think it's a matter of intent. I guess Jim_2 covered this -- Did he mention that this mod allows copied games to be played? Then he's sunk. If he said it was for homebrew software, I think he has a case. The chance is very high he did not only mention homebrew. The hardware narc (whose XBox he modded) probably testified to this fact, which is why the judge did not allow a fair use exemption. If he did say it was for homebrew software, and the judge excluded "fair use" anyway, THEN the judge is full of crap.

  18. Steve Evans

    Rewrite needed....

    You guys need to rewrite some lyrics... The words "Land of the free" have been reported for being misleading and misrepresenting the country.

  19. Anonymous Coward


    I say if people can make money by improving products, they should be allowed to. As long as everyone is clear as to what is going on, go for it!

    MS isn't losing an xbox sale here. It's second-hand, out of warranty from MS etc.

    If MS want to retain control after sale, lease them, don't bill them as "sold".

    1. Velv Silver badge

      Where is the Profit?

      "MS isn't losing an xbox sale here. It's second-hand, out of warranty from MS etc."

      No, but since the hardware is not where the profit lies, games makers will lose sales.

      Don't forget - you buy the hardware (and can do anything you like with that), but you license the software/firmware, and (like it or not) are bound by the laws governing that copyright and contract. (Not saying it's right, just pointing out the facts).

      And seriously, let's not be niaive about this - that vast majority of mods are performed to permit playing of pirated material. I enjoy tinkering with these things like the next geek, but Johnny Ordinary who lives on the council estate is doing it purely to save buying original games.

      1. Anonymous Coward
        Anonymous Coward

        pull ya head out!

        "Johnny Ordinary who lives on the council estate is doing it purely to save buying original games."

        With crap like that, does anyone actually listen to what you have to say?

        I wouldn't, clearly closed minded and stuck you your own anus.

    2. Kevin 6
      Thumb Up


      I guess the EU will have to sue the USA for blatantly mis-representation for our product (IE living here, and claiming freedom)

  20. Anonymous Coward

    So let me get this right...

    If Ford start telling me I'm not allowed to change the oil on my car, they could sue me in a civil court for damages?

    If Marks and Spencers told me I wasn't allowed to rip the hood off jackets, they could sue me in a civil court for damages?

    If Stark Weapons forbid dismantling of their weapons could Tony Stark be sued in a civil court for damages relating to the construction of his Iron Man suit?

  21. Aristotles slow and dimwitted horse Silver badge

    @ Asgard...

    I think you need to calm down, engage brain and then re read the story.

    Nothing in the outcome of this case will prevent you from tinkering with the innards of any technical kit that you own. What it will do is reinforce the fact that you cannot then make a BUSINESS out of doing so for other people when those mods are blatantly designed to bypass security systems that prevent copyright fraud and piracy.

    By the way, the other way that you could avoid being a "pawn" is to simply refuse to buy products from these companies. But I guess that is too easy a solution for you eh?

  22. Anonymous Coward

    Some people can't see past the DCMA ...


    Crippen, who if convicted faces a maximum three years in prison for selling modded Xboxes

    How can you claim fair use for selling hardware which you have modified to bypass copyright security.

    People claiming fascism and typical US court systems should read the information first before commenting.

    He was making a profit, selling modified hardware designed to allow people to use pirated software. Regardless of how you try to turn that into a pretty picture of someone trying to allow people to use backups of software they own, you can bet your bottom dollar that those people were only interested in using backups of software that "Other" people own.

    He failed, and those saying the system is corrupt fail too.

  23. Anonymous Coward


    Look at all the freetards trying to defend the pirate.

  24. Destroy All Monsters Silver badge
    Big Brother

    Maybe they should read the universal declaration of human rights

    1) Do something in your own home with stuff owned by you.

    2) State, backed by fatcat lobbyists, arbitrarily decides that it can decide that you cannot do that

    3) ???

    4) JEW! errr, I mean GUILTY!

  25. Tigra 07 Silver badge
    Thumb Up

    Tough but fair

    At the start it seems hes a victim of a miscarriage of justice, but to finish by saying he was selling the modified xboxes then i have no sympathy and he deserves everything he gets.

    Reselling modified xboxes SHOULD be illegal if they allow copyright infringement.

    And trust me, im no fan of the DMCA

  26. Mad Mike

    Wrong Angle

    The issue here is not what he was doing per se, but the intent. If you own the equipment, why should you not be able to do with it what you want? Or, for that matter, pay someone else to do it for you. There's no logical difference there. If copyright protection features were used solely for that purpose, then breaking them could be taken as evidence of violating copyright, as what's the point otherwise? However, on most consoles this isn't the case. You have to remove copyright protection features to enable homebrew code etc. and therefore the feature is actually an unreasonable restriction on your ability to use your own, perfectly legally purchased hardware. What they're doing is implementing the assumption into law that violating a copyright protection feature is evidence of copyright infringement, which is blatantly not true. By the same logic, buying a CD or DVD burner for your PC could be treated the same, as it allows copyright infringement, but certainly doesn't require it.

    A good example are the cards for Nintendo DS consoles. Sure, they can be used to play pirated games, but they can also be used to play videos, music or homebrew games. So, saying possession of one is proof of copyright violation is simply not true. But, this is exactly what this law and the judgements based on it are saying. Effectively, it's removing the most basic tenent of any sensible judicial system and that is removing the requirement for proof of violation. This is one, not very large step, away from thought crime. After all, why would you think of a crime unless you intended to commit it. Therefore, by the same logic, surely thinking of a crime is good reason to bang you up? As you can't prove what you have and have not thought of (proving a negative is impossible), you are automatically guilty on accusation.

    All this is the last death throws of various industries trying to maintain an outdated business model that they have been profiting from for years and are too lazy to change. The music/film/games industry are never going to get round people copying their goods. As soon as optical drives and PCs were widely available, this was always going to fail. Rather than change their business models to something that works in this new dawn, they simply get their puppets to implement more and more harsh laws to enable them to keep raking in the profits without doing anything. Used to be they had to find pirated games on you or at least prove use. Now, they simply have to prove you thought about it.

    It will all fall apart in the end (unless they lock everyone up); it's just that in the meantime some quite decent people will suffer at their hands. Their model cannot work long term. Copyright in the old form is dead. Live with it and move on. Give music away to pursuade people to come to your concerts. Make money from the hardware and not the software. Actually encourage people to write their own code etc. for your platform to make it more desirable!! There are plenty of ways of making money in this new world, but these companies can't handle the change.

    Even if he was running a business for profit in modifying these consoles, he has committed no moral crime unless he actually pirated the games. Otherwise, the companies that supplied him with the components he was using are just as guilty for supplying goods allowing someone to do it!! After all, if he is guilty for providing the facility for someone else to bypass copyright, surely his suppliers are guilty for providing him the goods to allow him to provide the facility?

    1. Sir Runcible Spoon Silver badge


      I think an analogy would be one of those custom car shops that take a stock model and soup it up to be the dog's danglies - but it would also have to involve the ability to use replacement parts for the car that were free.

      If that were true I would expect the car companies to cry foul, but I doubt it would be under DMCA 'laws'.

      Protectionism at it's finest. The history of gaming is strewn with 'pirating', yet it is now a larger industry than the movies...go figure.

    2. Mad Mike

      Some people can see past the DMCA.

      Ac said 'Quote:

      Crippen, who if convicted faces a maximum three years in prison for selling modded Xboxes

      How can you claim fair use for selling hardware which you have modified to bypass copyright security.

      People claiming fascism and typical US court systems should read the information first before commenting.

      He was making a profit, selling modified hardware designed to allow people to use pirated software. Regardless of how you try to turn that into a pretty picture of someone trying to allow people to use backups of software they own, you can bet your bottom dollar that those people were only interested in using backups of software that "Other" people own.

      He failed, and those saying the system is corrupt fail too.'

      Yes, he has modified these boxes to bypass copyright security, but that doesn't mean someone is going to. It's the difference between thinking and doing. Thinking of a crime should not be illegal. Even preparing for the crime shouldn't be illegal. Only carrying out or attempting to carry out the crime should be illegal. So, modifying a console to allow the playing of pirated games should not be illegal, but using it to play a pirated game should be. They have failed (as far as I know) to prove anyone did play a pirated game on any of these consoles. They are simply making the assumption and assumptions of guilt should have no part in any judicial system.

      The companies have actually played upon this to their own ends. On other consoles, the regioning system used to keep game prices high in some areas, was deliberately merged with the copyright protection devices. Therefore, anyone simply trying to modify their console to play say Japanese games on a US console, committed the offence even though they may have no intention of playing pirated games.

      In the UK, copying anything under copyright is illegal. There is no 'fair use' in UK law. Video recorders and all later equivalents are all illegal as they copy the material. Difference is, the powerbrokers (e.g. companies) don't want to enforce that as it removes their market. MP3 players are still illegal for the same reason. Don't see Apply being prosecuted for selling a device in the UK that can only be used to violate UK copyright law!! They are enforcing the laws as big business wants and not enforcing it when they don't. If they wish to continue with these preposterous assumptions of guilt and thought crimes, let's actually turn it around and prosecute ALL violations of the law. Apple alone would be liable for tens of billions for providing the hardware to allow copyright violation on an epic scale.

      Don't see it happening though, do you? Why? Because companies pay for politicians and can fight back, individuals can't except through collective action.

      1. Anonymous Coward

        @Mad Mike, 25th November 2010 10:37 GMT

        for all it worth, when it comes to the Xbox360, modding it, is not enough to allow it to play Japanese imports* you have to do something else as well. Modding it _only_ will allow you to play pirated games... errr sorry, I mean, _backup_ games as well as homebrew.

        * I used to think that it would allow me to play Japanese imports, but ended up with a console that I can't use on XBL nor play my legal purchased Japanese imports. Microsoft have actually made it more difficult to make the console regional free then it is to make it play pirated games!

        1. Mad Mike
          Thumb Up

          I wasn't talking about XBOX360s, but general principle.

          @AC 'for all it worth, when it comes to the Xbox360, modding it, is not enough to allow it to play Japanese imports* you have to do something else as well. Modding it _only_ will allow you to play pirated games... errr sorry, I mean, _backup_ games as well as homebrew.'

          That's why I didn't limit my piece to XBOX 360s, but made it a more generic posting on the general issue. The exact implementation will vary from hardware to hardware and what needs to be done for each situation. However, the same general principles apply. That's what I was posting on.

    3. Anonymous Coward
      Thumb Down

      No, no, no....

      I 'maybe' see what you are trying to say (And possibly why), but '..SHOULD be illegal if they ALLOW copyright..'- NO, NO, NO, NO.

      The argument here is that no copyright infringement happened - but something was done to 'allow' it. Well here's some news - most of the applications (even MS apps) on your PC 'allow' copyright infringement.

      Regardless of the 'possibility and probability' of such illegal actions the law should only kick in WHEN copyright is infringed, or for changes that are SOLELY for copyright infringement.

      If you go down the path of banning 'tools' that may allow the law to be broken then ask yourself who decides on what the level of 'probability' for the act has to be before the tool is made illegal. Would it be 100%, 90%, 5%? Even 95% is too low (I've stated before on these boards that, in the UK e-mail spamming is illegal, and over 90% of e-mail is spam, therefore e-mail if a 'tool' that is used over 90% of the time for illegal purposes - so it should be banned - yes?)

      From your point of view then you would also advocate that all P2P should be banned because 'it allows copyright infringement'. And then what, CD burners? File-sharing sites? Newsgroups? e-Mail (see above)?

      Do not confuse the tool with the act. This is lazy law-making and lazy law-enforcement. It is easier to ban the tool (even with legitimate purposes) than identify and prosecute the illegal action - the resultant criminalisation of normal civilians is just collateral damage as far as governments (and major organisations) are concerned. Don't fall for it.

  27. Winkypop Silver badge
    Thumb Up

    Xboxes modded 4 free!

    I mod your box for free.

    You buy my $60 "how to improve your life" manual.


    Ring your Mom


  28. Anonymous Coward
    Anonymous Coward

    As I understand it...

    “[A]lthough the government will have to establish that the technological measure that Mr. Crippen allegedly circumvented was used to control access to copyrighted work, the Government need not show that the modified Xbox’s were actually used for infringing purposes,” (.pdf) wrote Gutierrez

    So the prosecutor must PROVE that it was the INTENTION of Mr. Crippen to break the law.

    Sounds like a handful to me. If Mr. Crippen dispayed a copyright warning on the interwebs or his store, for instance, it would already make the prosecutors job a lot harder.

    Unfortunately for Mr. Crippen, a lot of lobbying ill be going on behind closed doors. It is most likely he is already well and truly buggered before his trial has even started.

  29. Anonymous Coward
    Anonymous Coward

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

    While I think modding your own console / hardware should be fine. Did everyone miss the last line where it mentions he was SELLING them once modded?

    So no it;'s not fair use, and a stupid defence to make.

  30. Anonymous Coward
    Anonymous Coward


    If I sell you a device and advise you that even though the hardware is yours, changing what I have sold breaks the terms of sale, I expect you to adhere to those terms.

    When you purchased the device, you are agreeing to those terms.

    You need to forget the whole "it belongs to me" mantra, and actually read the terms of sale. If you dont agree to those terms, you dont get what you want.

    Purchasing the hardware, doesn't circumvent the terms of sale, it enforces them!

    If you really dont like it, don't buy those items.

    1. Mad Mike


      Unfortunately, you are missing a crucial point. Companies actually enforce terms of sale on their customers all the time and then sell mods that actually break those terms. The reason? The new mod can be sold for some more profit. Therefore, they actually believe they can change the terms of the original sale contract simply because they were one party to it without your permission. This is, of course, not true. If they wish to change that term, I could return the item and claim a full refund as the contract has fundamentally changed. Of course, they won't offer that.

      Let's take an example. Suppose Microsoft sold a version of the XBOX 360 for £5000 that had all the copyright and region etc. protections removed. They sold it at this inflated price knowing people would play pirated games etc. on it, but they don't care because they get £5000 up front. Whether it's a valid business model or not is irrelevant. Would they then be accused under some sort of anti-piracy law? Highly unlikely. Are they not guilty under the DMCA? After all, they have willfully removed a copyright protection device and are selling them at immense profit? Still won't be prosecuted.

      And before someone says they're removing their own protection.......Well, there's lots of game manufacturers out there and not all are owned by Microsoft. So, surely they should be prosecuted by one of the independent software houses for violation? They are encouraging piracy!! Won't happen because Microsoft own the government and the judiciary!!

      Rather makes me think back to the times Microsoft have tried to retrospectively change their Windows licences to avoid people making money out of loopholes in them.

  31. Anonymous Coward

    My hardware

    I will do what I like with it. If it is merely licensed then I expect a level of service that doesn't come with a purchase such as the replacement of a defective unit for as long as I am using it, no matter how many years that may be. Same goes for software - if I own it I should be able to take a backup copy and use that to protect my original disk so I am not faced with purchasing it again if it gets damaged. If it is licensed and I am not allowed a backup then I expect the software developer to provide a replacement free of charge should the original get damaged for as long as I am using it, even if I store it in a cupboard and pull it out in 15 years time for a bit of nostalgia.

    I do NOT condone piracy and always pay for my stuff. However there is a massive difference between owning something and licensing something. The big companies want to have it both ways - they want you to licence it but treat it as if you own it i.e. you break it, you buy another one.

  32. Anonymous Coward


    here is my biased opinion:

    if for every 10,000 pirates there exist 1 homebrew developer, then the main reason for the mod is piracy, homebrew is nothing more then a side effect of what was ultimately used for piracy (don't let the blood go to your head).

    do you guy really believe that there are so many homebrew developers out there to justify that someone will run a _business) modding their consoles for them? (what self respecting homebrew developer will need such a guy any way?).

    this guy made a living helping Joe average play pirated games, he _knew_ that they were going to play pirated games and from the reference article, he even told the customer that they could play their _backup_ games. He was making money out of piracy.

    by the way, the way I understand it, you can actually make homebrew Xbox360 programs, you just need to use C# with XNA Express. If you want to use C/C++ then you have to _buy_ the developers kit. (well, to my understanding).

    1. Mad Mike

      @Anonymous Coward

      "here is my biased opinion:

      if for every 10,000 pirates there exist 1 homebrew developer, then the main reason for the mod is piracy, homebrew is nothing more then a side effect of what was ultimately used for piracy (don't let the blood go to your head).

      do you guy really believe that there are so many homebrew developers out there to justify that someone will run a _business) modding their consoles for them? (what self respecting homebrew developer will need such a guy any way?).

      this guy made a living helping Joe average play pirated games, he _knew_ that they were going to play pirated games and from the reference article, he even told the customer that they could play their _backup_ games. He was making money out of piracy.

      by the way, the way I understand it, you can actually make homebrew Xbox360 programs, you just need to use C# with XNA Express. If you want to use C/C++ then you have to _buy_ the developers kit. (well, to my understanding)."

      Errr....So what you're saying is that you should be prosecuted for the crimes of a majority? If I develop a means of doing something and publish it, if 10,000 people use it for an illegal reason and only 1 for legal purposes, should I be prosecuted for it? I might not have had any idea in the first place!! You can't start prosecuting people for what others might. That way just opens up a whole can of worms. As said by someone earlier, how the hell do people selling guns get away with it? An even better analogy is ISPs. A huge amount of internet traffic is related to illegal activities. Therefore, aren't ISPs guilty of providing something that will be used by a large number of people (possibly even a majority) for illegal purposes. Therefore, aren't they guilty under the same logic? Funny thing is, they're specifically protected under law from the acts of people using their service!! As I said, big business writes the laws, controls the politicians and decides what gets prosecuted. Nothing to do with morals, fairness or anything. If companies are loosing money through it, they'll stop it and prosecute. If it's immoral and unfair, but they can make money out of it, it can carry on.

      1. Anonymous Coward

        @Mad Mike, 25th November 2010 13:56 GMT

        sorry Mike, but you missed the point. This is not about _publishing_ information on how to allow homebrew to run on a protected console. This is about a person who made money from supporting piracy and is trying to use homebrew as a excuse. He knew that they wanted to use his modded console for piracy and still modded it for them. Heck, he even charged them more then US$60 because he knew that they won't be coming back to buy games from him.

        the feds could have asked him for his customer list and visited each customer and charged _them_ with piracy (which they could still do, should they find pirated games at their place), which by the way will fit with the "gun" example. But in this case they went to the seller that they knew was helping people reach their illegal destination and tryed to stop him from help more people (think of it as gun dealer who sale to drug dealer while knowing that they are drug dealer and what they wanted to use the guns for).

        1. Mad Mike


          The analogy is completely wrong. The gun dealer doesn't necessarily know who he's selling the gun to or what they do for a living, illegal or not. He has no idea what they want the gun for. Even if he knows they're a drug dealer, he doesn't know they'll use it for illegal purposes. He may suspect, but he doesn't know. You are missing the difference between 'believing', 'knowing' and 'proving', just as this case and many others are. It isn't illegal to sell something to someone believing them to be something. So, even if he believed they were pirates, it doesn't matter. That's the problem with the DMCA. It makes a huge number of assumptions.

          On the same basis, aren't certain CD writer manufacturers guilty as they modified and sold their devices specifically because they were better at copying and writing bad sectors, weak sectors etc. than others? Aren't they guilty of circumventing a copyright protection device. What other purpose have you come across for weak sectors? Are they in court? Thought not............

          Any which way you cut this, it's big business bullying a small guy because they can. They do exactly the same or worse themselves and therefore their position is morally indefensible. If they were prosecuted as well, they might have a leg to stand on, so they can hardly call for someone else to be prosecuted whilst doing the same themselves and getting away with it.

          Mind you, politicians have been doing that for years...........


      Trying to grease that slippery slope.

      > if for every 10,000 pirates there exist 1 homebrew

      > developer, then the main reason for the mod is

      > piracy, homebrew is nothing more then a side effect

      > of what was ultimately used for piracy (don't let the

      > blood go to your head).

      You could use the same logic to BAN OUTRIGHT all civilian ownership of general purpose computers.

      THIS is the main problem with allowing Hollywood and friends to set technology and legal policy. ANY device that places control in the hands of end users "enables piracy". Copying stuff is one of the most very basic fundemental features of a computing device.

      If they got their way, my Unix production servers would be burdened with measures to prevent the hardware from being repurchased for some dastardly private home use.

  33. King Edward I

    I find it strange...

    ...that in America, modders of consoles get prosecuted for the crime's their customers amy or may not commit, but gun stroes are not prosecuted (As long as they followed the states laws on it) for the crime their customers commit.

  34. Dave 126 Silver badge

    I've never modded an XBOX but...

    ... my XBOX damaged an official legitimate shop-bought XBOX game DVD. I wish I had backed up the disc and had means to play said backup.

    Microsoft admitted to a problem with their console damaging discs, by offering a disc replacement service. However, the price they charged was 10 GBP, which has to a healthy margin above cost, and the service was offered for a limited time only.

    If they played fair, and had a disc-replacement service at cost, then they would seriously weaken the 'backup for own use' defence- the legitimate software discs have bloomin holograms on them. Since their machine is more than capable of damaging its own media, outlawing backups is unjust.

    And yes, I would expect piracy to be rampant if backups could be played. All the more reason for MS to furnish love on its legitimate customers and look after them. Maybe it's time I broke out the soldering-iron, on principle... I haven't practised with lead-free solder yet : )

  35. David 141
    Big Brother


    If you use a tool that can be use to crack encryption on a digital copy of the Bill of Rights, you can still be prosecuted (not for copyright infringement, but for circumvention), if that same encryption is also used to secure 5 minutes of "Steamboat Willie".

    That's right - 5 minutes of Steamboat Willie trumps the Bill of Rights.

    America, you got fucked.

  36. Anonymous Coward
    Black Helicopters

    fair use.......

    I have a Nintendo wii, and as a lot of the games are designed for the younger generation a worry for me is that the expensive disks become damaged.

    There is a software modification that can be done so that I can connect a external USB hard drive to my wii and copy my original game disks to the hard drive and run the games from said hard drive.

    The advantages are that the disks remain perfectly preserved in the original packaging in a location away from the wii. (Have you ever had a console AND games stolen? grrrr), no kids sticky fingers all over the disks. Less stresses on the drive mechanism which will prolong the working life of the wii.

    It is perfectly possible for me copy games to the hard drive I do not own and In some cases I have for the reason of trying a game out (how many times are you prepared to buy a game for it to be total crap). If the game is good I buy it, if it’s poor, it gets deleted.

    The result is that I have quite a large collection of games for my wii, all sorts of accessories, and quite a few of my friends have gone on to buy a wii because they can do the same thing. (Increase console sales?).**

    As far as I am aware, With the exception of the "try before I buy" modifying my wii in this way is not against the law here in the UK but over on state side would be?

    If you buy any hardware, it’s yours, you should be able to do as you please to it, if I was to later sell my wii, what the next person does with it is not my problem. If I sell my car, am I responsible for their speeding/parking tickets? After all I did provide them with the facility to speed and park!

    ** I have never moded a wii for someone else, although I have shown them where to get the software!!!

  37. Anonymous Coward
    Anonymous Coward

    Logic defies the US

    I wonder what it has cost them in expenses to facilitate this prosecution. And prison for MODDING electronics!? This is a civil matter. Stupid is, stupid does!

  38. Anonymous Coward
    Gates Horns

    Yet another reason Microsoft are evil

    This is why you should boycott any company selling a product with stupid restrictions like locking the drives so you can't replace them when they break playing YOUR games that YOU purchased, and punishing those who do by breaking their consoles.

    Why is it people don't wake up and realise that companies like Microsoft are trampling over rights using the DMCA and its ilk as a bludgeoning tool to force consumers to re-buy content they have paid for because the drives damage the game disks (probably because the drives are INTENTIONALLY DESIGNED TO FAIL IN THIS EXACT WAY THEREBY ENRICHING MICROSOFT'S PROFITS!!!!!!!!!!!)

    i wouldn't put it past them to have included this little "feature" in the firmware by crashing the lens into the disk after n hours of operation, call me paranoid if you like but it is possible to do...

    Look at the damage patterns, perfectly circular and nearly identical between drives, that has to be intentional.

    Now you see why they don't want people modding the firmware as it stops their gravy train in its tracks.

    AC, because even Hell has lawyers...


    I bought it, I own it.

    > Look at all the freetards trying to defend the pirate.

    Look at the corporate serf trying to defend corporations stealing rights away from the common man.

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