A UK court dismissed the appeal of a convicted console modder who installed chips that enabled Xbox, PlayStation, PS2 and GameCube consoles to play pirated video games.
A Monday filing said that Christopher Paul Gilham sold modded consoles from his Worcester apartment between October 2003 through January 2006. In its dismissal the court ruled that playing a counterfeit game on a console with a modchip results in copyright infringement.
"The various drawings that result in the images shown on the television screen or monitor are themselves artistic works protected by copyright," the UK court said in its ruling. "The images shown on the screen are copies, and substantial copies, of those works."
The filing said that the images of copyrighted characters appearing on a screen are part of the copyright -- so if that image is displayed by means of modding, copyright infringement has occurred. "If the game is the well-known Tomb Raider, for example, the screen displays Lara Croft, a recognisable character who has been created by the labour and skill of the original artist," the ruling added.
The filing also disputed the notion that since data from a pirated game only exists ephemerally on a console's RAM, it's not infringement. "I do not accept this argument," the judge wrote, saying that the RAM still contained at one point a copy of a copyrighted work.
Michael Rawlinson, director general of the Entertainment and Leisure Software Publishers Association, said, “We welcome the Court of Appeal’s dismissal of Mr Gilham's case. Protecting intellectual property theft is an important issue for the country’s video games industry. This judgment strengthens copyright law and will be a significant step in helping us protect the industry."
ELSPA said that "many" consider the ruling pivotal in the fight against piracy in the UK. John Dell with the Worcestershire Trading Standards Office said, "This judgment clarifies the law relating to the supply of modchips and circumvention devices. It now paves the way for a number of future prosecutions by other Trading Standards Authorities who have been awaiting this result."
The trade association said that video game piracy and related illegal activities cost the games industry "in excess" of £750 million a year. Gilham's original case went before a judge in September last year.
I have serious qualms with the Judges definition of "substantial copies" in his ruling as even legitimately purchased games produce an equal number of "substantial copies" as the pirated version. You would think that it would only apply to copies of the complete work and not portions of the work.
There is also a problem with the judges 100% dismissal of any and all legal uses of mod chips. If something that has legal uses that are just as valid and important as the ability to play pirated software is only referred to by its illegal uses, you would make a lot of what we have today illegal.
DVD burners. Illegal. After all you can make pirate copies of video, music, games and software.
VCRs can make illegal copies of films and television shows.
I honestly can't believe how hard it is to get a judge or jury to accept and apply the Betamax rulings to mod chips. Mod chips allow for producing and playing backup copies. They allow the ability to format shift games you legally own. They allow for running homebrew software. etc.
Yes they can play pirated games just as DVD drives and VCRs can play pirated movies.
One problem with that mentality Knight, DVD drives, DVD recorders and VCRs are machines that are used for their intended purpose, how they are used is not the issue. the issue here is that the hardware was modified to accept pirated software. if the hardware played pirated software right out of the box then the the defendant would be charged with entirely different crimes.
"One problem with that mentality Knight, DVD drives, DVD recorders and VCRs are machines that are used for their intended purpose"
That notion is spawned from the same dangerous mentality that Knight has qualms about. Imagine trying to enforce laws about "intended purpose". All of a sudden mechanics can't modify cars (serious), and paper airplanes are illegal (jovial). What if I'm a clever artist and I take Microwaves and build a sculpture from them (semi-serious), can the microwave's brand owner sue me for using their microwave for an unintended purpose (disregarding if I make a profit or not).
Also
"If something that has legal uses that are just as valid and important as the ability to play pirated software is only referred to by its illegal uses, you would make a lot of what we have today illegal"
Correction, you'd make using virtually everything illegal. For instance, anything I can bludgeon someone to death with, illegal, walls and floors by proxy are thus illegal as they are constructed of illegal components (stuff I can bludgeon people to death with). Clothes are illegal, after all one can asphyxiate or strangle another person using clothes. Being naked is flat out illegal anywhere due to public indecency laws......
Sure it seems silly, but that should point out what a joke such rulings are.
You are looking at Mod Chips the exact same way the MPAA and television studios looked at VHS and BetaMax. They saw those technologies as the spawn of Satan and the destroyer of their lively hoods because people could use them to pirate movies and television shows.
Its a good thing intelligent people were able to convince the judges and juries that those technologies had legitimate and legal uses and that even some of the "pirate" uses were legitimate when taking intent into account.
I fail to see why modchips should be lumped into the Betamax decisions. Betamax was allowed because there were "substantial" legal uses -- time-shifted viewing and public, non copyrighted broadcasts among them. Listing backup copies, format shifting, and homebrew software doesn't seem to carry the same weight. Maybe I'm naive, but who really needs to make backup copies? Re: format shifting, if this is really a problem that people can get around, why do format codes exist in the first place? And as for homebrew, Microsoft allows developers to create their own games. With console manufacturers selling development kits and charging licensing fees, again... mod chips are circumventing the legal means the manufacturers provide.
I agree with Scott here; the Betamax decision was important because it made a company not liable for producing a device that COULD have negative consequences in other industries. But mod chips are not the same -- you're producing a device that is meant to circumvent a company's protections. If games can force you to accept an agreement saying you won't reverse engineer their software, why can't consoles say that you can't reverse engineer their hardware? And if they do, then a modchip's existence, unlike a betamax's, is illegal just by itself.
I'm sure there is a lot more legality here, but the world has changed a lot since betamax, and piracy is only getting worse. Especially in this industry, why do so many people try everything they can to make life easier for pirates and those that enable them?
"the Betamax decision was important because it made a company not liable for producing a device that COULD have negative consequences in other industries. But mod chips are not the same -- you're producing a device that is meant to circumvent a company's protections."
How can the Betamax decision not have weight on the Mod chip issue?
Let's bring in another issue. The case made against Grokster and their P2P software. That case found that while the intentions of Grokster, based on their advertising and other promotions, was to facilitate piracy. So the intention was illegal, but the court also found that the technology of P2P had enough legal non-infringing uses to remain a legal method of data transfer.
If you look closely at those two cases you will see where my problem with the industries views on piracy and mod chips come from.
Mod chips have significant non-infringing uses thus satisfying the Betamax judgments. While the makers of Mod chips may have produced them and market them with the purpose of infringement, the technology itself is legal due to its varied non-infringing uses.
I'm really just questioning the "significant non-infringing uses". At least in my experience, defending their use by insisting on backups is rarely done with a straight face. And while it looks like several countries have said that getting around region codes is legal, I don't see how circumventing those codes or the development kits necessary to make certain games flies, especially on systems that were meant to be closed to the public. With Betamax, I think most reasonable people would agree that there are very good uses for it. Compare that to mod chips, where we're grasping at straws like backups; if they're useful, its a very petty use.
Every day I go on craigslist and get angered by the huge number of modded systems or "backups" being sold there. If you were a legal student, I could understand defending mod chips from that perspective (although I'd still think the defense was weak), but as a game developer yourself, I cannot understand why you are willing to hold these people harmless.
As a last note, I learned today that using a VCR to record something like "Friends" is illegal. Maybe I'm stupider than most, but I'd like to think that's a pretty common misconception. It might be reaching, but I'd hate to see some similar misconception in the future where people are shocked to find that copying their friend's game is illegal.
Backups are only one of the non infringing uses of Mod chips. I also don't understand why you don't think that back ups are a good example of noninfringing use.
Primary reason one would want to play off a back up disk and not the original: damage, theft and lost disks. I have 4 kids, 3 are old enough to know what a DVD is and 2 are old enough to know how to get them to work. Those two have damaged a fair number of our DVDs and several beyond repair. I would love to box up the originals and use only backups or images of the originals.
The same can be done for games. use the backups so that you do not have to worry about losing or damaging the originals.
Format shifting is another valid fair use of a product. If I own a library of NES, SNES and Genesis games, I don't have to worry about finding a working console for those games. I can use my Modded Xbox or PC to play the games I legally own through an emulator.
You can take the VHS tapes and convert them to DVD or vise versa. That is fine and legal
Homebrew games and software are yet another form of fair and legal uses of mod chips. Game consoles are pretty much just PCs. By modding the console I can install free or even pay for software that was designed to run on a modded console. Many things like image and video editing. Music and video playback. Games designed for modded consoles. There are thousands of legal things that can be done with a modded console that fall into this category.
VCRs allow for the production, copying and distribution of home videos.
Then there is piracy. The ability to play games you did not pay for. Yet this is only 1 of the myriad of uses mod chips provide. it is not the mod chip's fault and often not the mod chip's manufacturer's fault that this is the primary reason they are used. Just as it is not P2P's fault people use it for pirating or the VCR's fault for pirating.
We need to start looking at technology in a neutral way. Looking at every new technology as evil does not help anything.
I do play backups instead of originals... why? Well, I am a pretty disorganized person sometimes, and I know that I will certainly lose my CDs.
Also I have a friend that is a hardcore fan of BF2 Reality Project, he plays it every single day, and is pissed by the fact that he already bought the game 4 times, because the game demand the CD to be in the drive while playing, and the media quickly gets damaged (he even tried getting more expensive and better drives...)
When this type of situation arises, you guys always get so caught up in discussing the black and white; usually in the form "If this X is illegal, then so are Y and Z! And what's next?!". That's not how it works. This territory is painted in shades of grey, which is exactly why a judge has to make a ruling.
In this case, the judge has decided, based on precedent, and evidence, that playing a copy of a game constitutes copyright infringement. Furthermore, that on a balance of probabilities, someone getting a chipped console intends to use it to play copied games. Ipso facto, someone selling chipped consoles is knowingly providing them to people so they can play pirated games.
Now - are you going to sit there with a straight face and tell me that the OVERWHELMING majority of people with chipped consoles are NOT using them to play pirated games? If you are, then you're wrong, and either delusional or incredibly naive.
If you genuinely want to use a chipped console to backup games etc and are upset that it's illegal, then firstly accept that you are in the minority (in this case, we're probably talking in fractions of a percent), and secondly, blame the pirates, not the legal system.
Try reading my comments again and tell me that again.
nowhere in my comments have I said that people should be able to play pirated games or that playing pirated games should be legal.
If you read my comments you will see that my point is that regardless of what the majority of people use mod chips for, the chip itself is neutral technology and that they should not be illegal.
Charge the people who actually pirate games not the people that make products that are abused for pirating purposes.
The arguments that people make against mod chips are often reflective of the same arguments made in support of gun bans. "People use guns to kill other people and they should be banned."
"The arguments that people make against mod chips are often reflective of the same arguments made in support of gun bans. "People use guns to kill other people and they should be banned.""
Does that logic hold for automatic weapons too?
"Charge the people who actually pirate games not the people that make products that are abused for pirating purposes."
That's nice in theory, but I think we've seen over the last few years that the kind of laws you advocate make this almost impossible to implement in practice. You mentioned one of the good uses of mod chips was to combat theft. So, assuming a pirate's home is raided and thousands of games are found, are you going to accept his statement that these are all legal backups, and that the real copies were all stolen? I suppose we COULD charge people who actually pirate games, but I doubt we'd win any of those cases.
Can you picture a world where a company could restrict the legal uses of its product? Would this be such a frightening world to live in?
Anyhow, I'm new to posting, so I apologize if these kind of back and forth discussions are frowned upon. It's interesting to hear the other side of things.
No, I did not miss your point... To put it clearly: a judge is perfectly entitled to decide that it should be illegal to supply mod chips, given that the overwhelming majority of people who obtain them will use them to play pirated software. It doesn't matter if a handful of people use them for 'good' - someone supplying the chips is not in a position to determine that, nor are they likely to care.
And yes, the same arguments can be applied to gun control... So perhaps you could argue in favour of having to obtain a licence to own/supply chipped consoles.
In summary:
- DVD players can be used to play pirate DVDs. But their intended purpose is to play commercial DVDs, and this is what they are primarily used for.
- Screwdrivers can be used to pry open window locks to rob someone's house. But their purpose is to operate screws, and this is what they are overwhelmingly used for.
- A modded console can be used to play pirated games. And this is generally what they are in fact used for.
Ephriam has been citing the Betamax Case, which is why I think he believes you're missing his point. From the EFF's summary: "...where a technology has many uses, the public cannot be denied the lawful uses just because some (or many or most) may use the product to infringe copyrights."
I disagree with a mod chip having many legal uses. But if you accept the uses that Ephriam has mentioned, I think its a very dangerous precedent to start declaring products illegal because the bulk of its usage is illegal. VCRs/Betamax could then have been declared illegal, and torrents would CERTAINLY be illegal.
"You mentioned one of the good uses of mod chips was to combat theft. So, assuming a pirate's home is raided and thousands of games are found, are you going to accept his statement that these are all legal backups, and that the real copies were all stolen?"
In such a case if he filed a police report and an investigation was opened to investigate the robbery, I think he would be perfectly fine playing his backup disks. AS long as the report and investigation were made before the home raid.
But I am talking about such things as say the R4 cart. Put all your legally purchased games on the R4 and leave the real copies at home. That way if someone steals your DS while you are at school, you are only out a DS and an R4 and not a DS and 30 games.
Edit - I'll just leave it at that. The justiciary evidently agrees with my opinion, so that's good enough for me.
I think the main point for me is that someone selling chipped consoles is - in this case, at least - complicit in illegal activity, so I feel like justice has been done.
As in the case of Grokster, Grokster was held liable for the illegal filesharing that took place on their service because they advertised it for that purpose, but P2P remained legal. That is what I am getting at.
There is also a problem with the judges 100% dismissal of any and all legal uses of mod chips. If something that has legal uses that are just as valid and important as the ability to play pirated software is only referred to by its illegal uses, you would make a lot of what we have today illegal.
DVD burners. Illegal. After all you can make pirate copies of video, music, games and software.
VCRs can make illegal copies of films and television shows.
I honestly can't believe how hard it is to get a judge or jury to accept and apply the Betamax rulings to mod chips. Mod chips allow for producing and playing backup copies. They allow the ability to format shift games you legally own. They allow for running homebrew software. etc.
Yes they can play pirated games just as DVD drives and VCRs can play pirated movies.
For reasons that Knight already stated.
"One problem with that mentality Knight, DVD drives, DVD recorders and VCRs are machines that are used for their intended purpose"
That notion is spawned from the same dangerous mentality that Knight has qualms about. Imagine trying to enforce laws about "intended purpose". All of a sudden mechanics can't modify cars (serious), and paper airplanes are illegal (jovial). What if I'm a clever artist and I take Microwaves and build a sculpture from them (semi-serious), can the microwave's brand owner sue me for using their microwave for an unintended purpose (disregarding if I make a profit or not).
Also
"If something that has legal uses that are just as valid and important as the ability to play pirated software is only referred to by its illegal uses, you would make a lot of what we have today illegal"
Correction, you'd make using virtually everything illegal. For instance, anything I can bludgeon someone to death with, illegal, walls and floors by proxy are thus illegal as they are constructed of illegal components (stuff I can bludgeon people to death with). Clothes are illegal, after all one can asphyxiate or strangle another person using clothes. Being naked is flat out illegal anywhere due to public indecency laws......
Sure it seems silly, but that should point out what a joke such rulings are.
You just validated my point.
You are looking at Mod Chips the exact same way the MPAA and television studios looked at VHS and BetaMax. They saw those technologies as the spawn of Satan and the destroyer of their lively hoods because people could use them to pirate movies and television shows.
Its a good thing intelligent people were able to convince the judges and juries that those technologies had legitimate and legal uses and that even some of the "pirate" uses were legitimate when taking intent into account.
Every time you rip a CD to iTunes or made a "mix-tape" you broke the law.
The fact that it is generally ignored is irrelevant the statutes are still there.
Then that begs the question, "If a law is created and then completely ignored, why does it exist at all?"
I agree with Scott here; the Betamax decision was important because it made a company not liable for producing a device that COULD have negative consequences in other industries. But mod chips are not the same -- you're producing a device that is meant to circumvent a company's protections. If games can force you to accept an agreement saying you won't reverse engineer their software, why can't consoles say that you can't reverse engineer their hardware? And if they do, then a modchip's existence, unlike a betamax's, is illegal just by itself.
I'm sure there is a lot more legality here, but the world has changed a lot since betamax, and piracy is only getting worse. Especially in this industry, why do so many people try everything they can to make life easier for pirates and those that enable them?
"the Betamax decision was important because it made a company not liable for producing a device that COULD have negative consequences in other industries. But mod chips are not the same -- you're producing a device that is meant to circumvent a company's protections."
How can the Betamax decision not have weight on the Mod chip issue?
Let's bring in another issue. The case made against Grokster and their P2P software. That case found that while the intentions of Grokster, based on their advertising and other promotions, was to facilitate piracy. So the intention was illegal, but the court also found that the technology of P2P had enough legal non-infringing uses to remain a legal method of data transfer.
If you look closely at those two cases you will see where my problem with the industries views on piracy and mod chips come from.
Mod chips have significant non-infringing uses thus satisfying the Betamax judgments. While the makers of Mod chips may have produced them and market them with the purpose of infringement, the technology itself is legal due to its varied non-infringing uses.
I'm really just questioning the "significant non-infringing uses". At least in my experience, defending their use by insisting on backups is rarely done with a straight face. And while it looks like several countries have said that getting around region codes is legal, I don't see how circumventing those codes or the development kits necessary to make certain games flies, especially on systems that were meant to be closed to the public. With Betamax, I think most reasonable people would agree that there are very good uses for it. Compare that to mod chips, where we're grasping at straws like backups; if they're useful, its a very petty use.
Every day I go on craigslist and get angered by the huge number of modded systems or "backups" being sold there. If you were a legal student, I could understand defending mod chips from that perspective (although I'd still think the defense was weak), but as a game developer yourself, I cannot understand why you are willing to hold these people harmless.
As a last note, I learned today that using a VCR to record something like "Friends" is illegal. Maybe I'm stupider than most, but I'd like to think that's a pretty common misconception. It might be reaching, but I'd hate to see some similar misconception in the future where people are shocked to find that copying their friend's game is illegal.
Backups are only one of the non infringing uses of Mod chips. I also don't understand why you don't think that back ups are a good example of noninfringing use.
Primary reason one would want to play off a back up disk and not the original: damage, theft and lost disks. I have 4 kids, 3 are old enough to know what a DVD is and 2 are old enough to know how to get them to work. Those two have damaged a fair number of our DVDs and several beyond repair. I would love to box up the originals and use only backups or images of the originals.
The same can be done for games. use the backups so that you do not have to worry about losing or damaging the originals.
Format shifting is another valid fair use of a product. If I own a library of NES, SNES and Genesis games, I don't have to worry about finding a working console for those games. I can use my Modded Xbox or PC to play the games I legally own through an emulator.
You can take the VHS tapes and convert them to DVD or vise versa. That is fine and legal
Homebrew games and software are yet another form of fair and legal uses of mod chips. Game consoles are pretty much just PCs. By modding the console I can install free or even pay for software that was designed to run on a modded console. Many things like image and video editing. Music and video playback. Games designed for modded consoles. There are thousands of legal things that can be done with a modded console that fall into this category.
VCRs allow for the production, copying and distribution of home videos.
Then there is piracy. The ability to play games you did not pay for. Yet this is only 1 of the myriad of uses mod chips provide. it is not the mod chip's fault and often not the mod chip's manufacturer's fault that this is the primary reason they are used. Just as it is not P2P's fault people use it for pirating or the VCR's fault for pirating.
We need to start looking at technology in a neutral way. Looking at every new technology as evil does not help anything.
I do play backups instead of originals... why? Well, I am a pretty disorganized person sometimes, and I know that I will certainly lose my CDs.
Also I have a friend that is a hardcore fan of BF2 Reality Project, he plays it every single day, and is pissed by the fact that he already bought the game 4 times, because the game demand the CD to be in the drive while playing, and the media quickly gets damaged (he even tried getting more expensive and better drives...)
In this case, the judge has decided, based on precedent, and evidence, that playing a copy of a game constitutes copyright infringement. Furthermore, that on a balance of probabilities, someone getting a chipped console intends to use it to play copied games. Ipso facto, someone selling chipped consoles is knowingly providing them to people so they can play pirated games.
Now - are you going to sit there with a straight face and tell me that the OVERWHELMING majority of people with chipped consoles are NOT using them to play pirated games? If you are, then you're wrong, and either delusional or incredibly naive.
If you genuinely want to use a chipped console to backup games etc and are upset that it's illegal, then firstly accept that you are in the minority (in this case, we're probably talking in fractions of a percent), and secondly, blame the pirates, not the legal system.
Then you missed the point.
Try reading my comments again and tell me that again.
nowhere in my comments have I said that people should be able to play pirated games or that playing pirated games should be legal.
If you read my comments you will see that my point is that regardless of what the majority of people use mod chips for, the chip itself is neutral technology and that they should not be illegal.
Charge the people who actually pirate games not the people that make products that are abused for pirating purposes.
The arguments that people make against mod chips are often reflective of the same arguments made in support of gun bans. "People use guns to kill other people and they should be banned."
"The arguments that people make against mod chips are often reflective of the same arguments made in support of gun bans. "People use guns to kill other people and they should be banned.""
Does that logic hold for automatic weapons too?
"Charge the people who actually pirate games not the people that make products that are abused for pirating purposes."
That's nice in theory, but I think we've seen over the last few years that the kind of laws you advocate make this almost impossible to implement in practice. You mentioned one of the good uses of mod chips was to combat theft. So, assuming a pirate's home is raided and thousands of games are found, are you going to accept his statement that these are all legal backups, and that the real copies were all stolen? I suppose we COULD charge people who actually pirate games, but I doubt we'd win any of those cases.
Can you picture a world where a company could restrict the legal uses of its product? Would this be such a frightening world to live in?
Anyhow, I'm new to posting, so I apologize if these kind of back and forth discussions are frowned upon. It's interesting to hear the other side of things.
And yes, the same arguments can be applied to gun control... So perhaps you could argue in favour of having to obtain a licence to own/supply chipped consoles.
In summary:
- DVD players can be used to play pirate DVDs. But their intended purpose is to play commercial DVDs, and this is what they are primarily used for.
- Screwdrivers can be used to pry open window locks to rob someone's house. But their purpose is to operate screws, and this is what they are overwhelmingly used for.
- A modded console can be used to play pirated games. And this is generally what they are in fact used for.
Do you see the difference?
Ephriam has been citing the Betamax Case, which is why I think he believes you're missing his point. From the EFF's summary: "...where a technology has many uses, the public cannot be denied the lawful uses just because some (or many or most) may use the product to infringe copyrights."
I disagree with a mod chip having many legal uses. But if you accept the uses that Ephriam has mentioned, I think its a very dangerous precedent to start declaring products illegal because the bulk of its usage is illegal. VCRs/Betamax could then have been declared illegal, and torrents would CERTAINLY be illegal.
Read the Betamax ruling (VCRs): http://www.law.cornell.edu/copyright/cases/464_US_417.htm
and the Grokster Case (P2P): http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&inv
ol=04-480
After reading those, let me know if you still think mod chips would be banned because the majority of people use them for illegal purposes.
Both cases specifically state that teh technologies have significant legal uses and thus cannot be banned or made illegal.
"You mentioned one of the good uses of mod chips was to combat theft. So, assuming a pirate's home is raided and thousands of games are found, are you going to accept his statement that these are all legal backups, and that the real copies were all stolen?"
In such a case if he filed a police report and an investigation was opened to investigate the robbery, I think he would be perfectly fine playing his backup disks. AS long as the report and investigation were made before the home raid.
But I am talking about such things as say the R4 cart. Put all your legally purchased games on the R4 and leave the real copies at home. That way if someone steals your DS while you are at school, you are only out a DS and an R4 and not a DS and 30 games.
I think the main point for me is that someone selling chipped consoles is - in this case, at least - complicit in illegal activity, so I feel like justice has been done.
As in the case of Grokster, Grokster was held liable for the illegal filesharing that took place on their service because they advertised it for that purpose, but P2P remained legal. That is what I am getting at.