Throughout the games industry there is a big debate on the legality of Mod Chips, those nifty little circuit boards and cartridges that allow for people to do things with video game consoles that the manufacturers did not intend. We all know what they are capable of doing, pirating games being the most hotly debated. What we may not realize is that they have a lot in common with another device that has become a home staple, the VCR.
Back in the 70s, Sony introduced their entry in the home video cassette format war, Betamax. Betamax, much like VHS, allowed for the recording and playback of television broadcasts. Some companies in the entertainment business were not happy as they felt that the ability for home viewers to record shows and movies and play them back at later times constituted copyright infringement and that Sony should be held liable for providing the tools that made it so easy.
So what did these entertainment companies do? They sued Sony. This case went all the way to the Supreme Court of the United States and became known as (http://supreme.justia.com/us/464/417/case.htm)
So what makes this case so important when discussing mod chips? Let's take a look at some of the key points to be found in the case:
What Makes a Contributory Infringer?
At the time there was no precedent for what Universal and Disney were seeking, the complete barring from commerce the Sony Betamax Recorder.
They felt that the fact that people could use video recorders to infringe copyrights held by their studios was enough to ban the recorders from the public.
Unfortunately for them and fortunately for us, the Supreme Court did not agree.
Wait what is that? Lets read that last bit again:
So the product doesn't need to be widely used for legal uses it just merely needs to be capable of legal uses to prevent the manufacturer from being held liable for copyright infringement performed by users of the product.
So if Sony could not be held liable as a Contributory Infringer because their product is capable of noninfringing uses, where does that leave Mod Chips? Let's look again at the next significant part of the Betamax Ruling:
Significant Noninfringing Uses
So we need only consider whether a significant number of uses of Mod Chips is noninfringing.
So let's look at the uses of Mod Chips:
- Playing of games the individual did not purchase (piracy)
- Playing of software that was developed and released through channels other than the hardware provider (homebrew software and games)
- Playing games that are not available for the conusmer's region
- Playing games on platforms other than the ones they were made for (format shifting/emulating)
- Playing of back up copies of games
- Consolidation of game libraries.
Before we get into any detailed discussions of the the legalities of these uses, let's look a bit more at the Betamax case.
Hold on a sec. So even if home recording of copyrighted material were deemed to be illegal, Sony could still make and sell the Betamax recorder because there are people out there that would consent to the recording of their copyrighted work as well as people can record non-copyrighted works?
So does that mean that even if people can play pirated games using mod chips that they can still be legal to produce and sell because people can use homebrew software and play copies of games they have purchased and still retain ownership of?
A harsh remedy indeed. To completely ban mod chips because one of its uses is illegal would be harsh for the owners of the patents and the public as well.
Is it the right of one group of copyright owners to declare contraband the tool used by other copyright holders to get their product into the hands of consumers? In other words, is it the right of Sony, Microsoft and Nintendo to declare that the channel of distribution and playback of homebrew games and software illegal thus depriving those homebrew developers of their consumers?
Is it the right of one group of copyright owners to declare contraband the tool used by consumers to protect their investment in copyrighted works? In other words, is it the right of Sony, Microsoft and Nintendo to declare the tool used by consumers to protect their property from damage and destruction through the use of back ups and consolidation illegal? Is it the right of Sony, Microsoft and Nintendo to deprive consumers the right to do so even if the true owners of the copyrights allow or approve of the use of back ups and consolidation?
Unfortunately these questions cannot truly be answered until a case involving the legalities of mod chips reaches the Supreme Court.