No Freedom To Tinker: Arrested For Modding Legally Purchased Game Consoles

from the no-innovation-allowed dept

This is hardly a new issue, but it's still troubling every time we hear a story like this. For years, there's been a fight over whether or not it should be legal to modify a legally purchased game console. Those in favor of the right point out that if you've legally bought something, you should always be free to tinker with it. That's just common sense. Those against it say that modifying a gaming console is done mainly to play pirated games or to cheat, which can cause problems for legit players. I find the latter responses unpersuasive, as those are technological or business model issues that can be solved in other ways, rather than a legal issue. But, thanks to that good old DMCA, that's now how the law works.

Instead, we get stories about students getting arrested for "jailbreaking" a video game console. It's interesting to see the use of the word "jailbreaking" here, as that's more commonly been applied to iPhones -- where it's common. Usually, this action has been referred to as "modding" or "modchipping" when it came to consoles. But the basic fact is that the actions are effectively the same -- and both should be perfectly legal. Modifying legally purchased hardware should never be against the law. It's possible that you could then use that modified hardware to break the law -- and no one's saying that's okay. But the act itself of modifying the devices should never be against the law -- especially where it could lead to a ten-year prison sentence, as in this case.

This particular case involves a student who would modify game consoles to let people make use of backup copies of their own games on the consoles. Making a backup copy, by itself, has been well established as being perfectly legal. The problem here (once again) is the DMCA's anti-circumvention clause, which makes it illegal to circumvent any kind of DRM, even if it's for a totally legal purpose. It's difficult to see how that's constitutional. Making it illegal to do something that's perfectly legal, just because someone puts any kind of DRM in the middle doesn't make any sense at all. It's a ridiculous scenario that this kid is now facing 10 years in jail for making video game consoles more useful, allowing people to use perfectly legal backup copies of their games. But, such is the state of the DMCA and copyright laws these days.


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    YouAreWrong, Aug 4th, 2009 @ 4:59pm

    talking head.

    except you forgot to mention a few key facts
    * the guy was selling his modchip services
    * the guy is 27 years old. he's not some 14 year old who doesn't know anything about anything.
    * the US attorney said in one of the many interviews that the guy advertised his services so you could just copy games you rent/borrow. if the guy doesn't plea out, i'm sure they'll prove it.

    nothing like leaving out pertinent facts or anything. but you don't have to present both sides of the story when you're a talking head.

     

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      Mike Masnick (profile), Aug 4th, 2009 @ 5:03pm

      Re: talking head.

      * the guy was selling his modchip services

      How does that change things. You can pay someone to mod your car too. What difference does it make?

      * the guy is 27 years old. he's not some 14 year old who doesn't know anything about anything.

      Again, I'm struggling to understand how that's possibly pertinent.

      * the US attorney said in one of the many interviews that the guy advertised his services so you could just copy games you rent/borrow. if the guy doesn't plea out, i'm sure they'll prove it.

      Yes, and if people did that *they* would be liable. But not the guy doing the modding.

      Modded cars can break the speedlimit too, but we don't throw the mechanics in jail.


      nothing like leaving out pertinent facts or anything.


      Nothing like trying to pretend these totally irrelevant points are pertinent.

       

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        Anonymous Coward, Aug 4th, 2009 @ 5:29pm

        Re: Re: talking head.

        MIke, remember this quote from yesterday?

        "Very disappointing to this longtime reader.

        Fair enough. Message heard. I'll try to keep it in mind in future posts and conversations."

        Do you maybe want to restate your post?

         

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        Casey, Aug 4th, 2009 @ 5:53pm

        Re: Re: talking head.

        As has been shown with the successful prosecution of a number of file-sharing websites / services, you do not need to be doing something illegal to get busted. Just because all you do is provide a service that allows for others to break a law, does not mean you aren't breaking the law yourself. Not sure what he could get busted for, but I would imagine something akin to willful negligence - he should have known that what he was doing would lead to others breaking the law.

         

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          Nick Stevens (profile), Aug 4th, 2009 @ 5:58pm

          Re: Re: Re: talking head.

          I think that all car makers should be put away for 10 years as well then... because obviously they should know making a car go faster than the speed limit... well that would lead to others breaking the law......

           

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          DJ (profile), Aug 4th, 2009 @ 5:59pm

          Re: Re: Re: talking head.

          Willful negligence is only if he knows that what he does :::WILL::: lead to others breaking the law, not if it's theoretically conceivable that someone might have the ability to do so.

          If that were the case, then PAPER would be illegal because it's theoretically conceivable that someone could use a piece of paper to commit murder.

           

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            Anonymous Coward, Aug 4th, 2009 @ 11:29pm

            Re: Re: Re: Re: talking head.

            Willful negligence is only if he knows that what he does :::WILL::: lead to others breaking the law...

            And since it's impossible to predict the future with absolute certainty, that would eliminate all willful negligence.

            But if you're just talking about it *probably* leading to others breaking the law, then I'd argue that that certainly applies to automobile dealers.

             

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              Travis, Aug 5th, 2009 @ 8:52am

              Re: Re: Re: Re: Re: talking head.

              ... And hardware store employees, and computer salesmen, and well any other sales/manufacturing job. Any item can be used to commit crimes. Very bad decision here.

               

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        BobinBaltimore (profile), Aug 4th, 2009 @ 7:04pm

        Re: Re: talking head.

        I completely agree that DMCA is the problem here. From the facts presented (and I also read the PDF), it looks like he very likely did violate the law. Note that the charge says he modded for "commercial advantage and private financial gain." I interpret this to mean that they are differentiating his activity from someone who modded their own device, which is a crucial nuance in how they are choosing to enforce this provision.

        I agree that these DMCA provisions are over-zealous, put the burden on the consumer and need to be revised. But your comparison to modifying cars is really off-point. Firstly, few cars need to be modded to break the speed limit. Secondly, there ARE limitations (emissions, materials, etc.) on the mods that can be made to a car, some of which DO carry criminal penalties, depending on state law. These limits are typically for environmental or safety reasons, not protecting the manufacturers' rights, I'll grant you.

        As for your choice of terms and how you are "struggling to understand how [using the term Student]'s possibly pertinent." I would contend that the fact that he is some kind of student is itself not at all pertinent...student felon, adult felon, both are felons. Wired referred to him as a "man" in the first paragraph, and quoted his age in the second. They, too, chose to use the hook of "student" in their headline, and I assume you just picked that up, then choosing to emphasize it by repeating it twice times in the body of your post. You write a LOT, Mike, and know very well that student carriers commonly held connotations - youth, lack of knowledge, perhaps event innocence via lack of experience. It does look like you (and Wired) selected that term specifically to soften the apparent reality that this guy is a brutish late twenty-something. Yes, it doesn't change his quilt or innocence, just your coloring of it.

         

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          Anonymous Coward, Aug 4th, 2009 @ 7:18pm

          Re: Re: Re: talking head.

          ... and just as importantly, not just modding his own system for fun, but apparently actively selling those mods as a way to steal games (oh sorry, infringe and avoid paying the market price).

          The student thing makes for a great headline, and if nothing else, Techdirt is all about SEO friendly headlines.

           

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            Anonymous Coward, Aug 4th, 2009 @ 11:35pm

            Re: Re: Re: Re: talking head.

            (oh sorry, infringe and avoid paying the market price)

            I don't believe you're sorry. I think you just lie.

             

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            The Infamous Joe (profile), Aug 5th, 2009 @ 10:00am

            Re: Re: Re: Re: talking head.

            (oh sorry, infringe and avoid paying the market price).


            There is no "market price" in a monopoly, because there is no competition. In fact, if the monopoly on games were removed, you'd be lucky to get $5 for a game, I'd bet. (The cost of shipment, packaging, and blank media)

            Furthermore, for entirely digital transactions (with no packaging, shipping, or media costs) infringing is actually to pay market price. (aka, $0)

            Knowing is half the Battle. Not being a douche is the other half. You're now halfway there. :)

             

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              Anonymous Coward, Aug 5th, 2009 @ 3:21pm

              Re: Re: Re: Re: Re: talking head.

              Just wondering where the half of not being a dickhead leech off of other people's hard work fits into your scenario? Oops, I see it doesn't. Well I guess you're only halfway there too.

               

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        ChrisB (profile), Aug 5th, 2009 @ 6:40am

        Re: Re: talking head.

        A perfect example of this: it is illegal (in the Province I live) to tint the front window of a car. My aunt had it done at a shop, and a week later a cop pulled her over and gave her a ticket. She asked the cop why the shop could do it if it was illegal. He said tinting isn't illegal, but possessing a tinted front window is.

        Another example (maybe not so perfect): prostitution (sex for money) is *not* illegal in Canada. However, soliciting for prostitution and being in a "bawdy" house are illegal.

         

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          Anonymous Coward, Aug 5th, 2009 @ 8:20am

          Re: Re: Re: talking head.

          Just as a note, having a tinted front window is not illegal if you have a medical condition which requires it.

          Now, I would assume that most car shops would request a medical note first, but I'm not sure how the law works in this circumstance.

           

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        JH (profile), Nov 10th, 2009 @ 4:26am

        Re: Re: talking head.

        >>>You can pay someone to mod your car too. What difference does it make?>>Modded cars can break the speedlimit too, but we don't throw the mechanics in jail.

         

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      bigpicture, Aug 4th, 2009 @ 6:04pm

      Re: talking head.

      I didn't see the issue being presented here as this side is right or that side is wrong or that this happened or that happened. The issue that I read here (in summary) is that this is just another case of the government being bought by big business to rob the citizen of their constitutional rights. i.e. THE MODIFICATION OF SOMETHING THAT I ALREADY OWN SHOULD BE LEGAL. BUT NOT NECESSARILY WHAT I DO WITH IT SHOULD BE LEGAL. Ergo recording companies buying the government to pass unconstutional laws that make it easier for them to get convictions but jeopardizes law abiding citizens.

      Maybe you should go back to kindergarten and take reading comprehension 101.

       

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      CleverName, Aug 5th, 2009 @ 5:13am

      Re: talking head.

      Apparently, you do not know where the term "talking head" came from.

       

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    Nick Stevens (profile), Aug 4th, 2009 @ 5:35pm

    This is crap

    I have a modded Console, and I can happily mod other peoples consoles, didn't realise it was against the law, well especially not here in Auz, You can buy chips and instructions all over the net.

    The console then becomes a lot more useful, I have a wii which i have put homebrew on, and now I can load games without the need to put the discs in the drive, but straight from ISO's - so when I resell my games (Which I will) they are in good condition and keep their value.

    Sure this allows me to copy games and do illegal activity, but that doesn't mean I will. I do like that with Homebrew there's a bunch more things you can do with your console.... Perhaps those anti should look into it rather than just assume everyone is a criminal.

     

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    Anonymous Coward, Aug 4th, 2009 @ 5:49pm

    If I buy something then it is mine to do with as I please. I did not rent it with conditions when I bought it. My money+buying their product=My product and their money. Pretty simple. I don't tell them what they can and can't do with the money I gave them for their product do I?

     

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    DJ (profile), Aug 4th, 2009 @ 5:56pm

    Apparently the law forgets...

    Q: When I buy something, who owns that thing?
    A: I DO!!!!!!!!!!!!!!!!

    Nobody else owns that item. If I buy a pair of pliers, take them apart and improve upon their efficiency, I am not committing a crime. If that particular improvement :::::COULD:::::: make it easier to break into someone's house, did I break the law? NO!!!!!

    EVERY SINGLE AUTOMOBILE MANUFACTURER MAKES CARS THAT :::CAN::: BREAK THE SPEED LIMIT!! Are they breaking the law? NO!!!!!

    See the pattern yet, people?

     

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      Eric (profile), Aug 4th, 2009 @ 8:41pm

      Re: Apparently the law forgets...

      I've worked in the consumer software business for 20 years.

      The difference here DJ is that Software doesn't follow the same rules as Hardware. When you buy hardware, yes you own it. When you buy software you DONT own it, well you do and you don't. You own the media it is on, and you have the right to use the software, but you don't have the right to reproduce it or make it better (unless it is GPL).

      Certain types of radio hardware is also illegal to modify because of the risk of radio interference.

      This also goes for the software which is part of the hardware (firmware). You cannot modify the software, however the hardware you are free to do whatever you want with it.

      The issue here is simple, if you mod the pliers, you don't automatically get a copy of the pliers that you can sell which cost you nothing.

      When people mod video game consoles, the intent usually is to copy software. You can say you are making a backup, but if you sell the backup you are in big trouble.

      I also agree that these video game companies are really cashing in on their new consoles. $60 - $70 for a game now a days is ridiculous. Sure there will always be a small percentage of the population that figures out the copy protection and uses it for financial gain, the software companies know this and usually don't worry about it.

      What they are trying to prevent is the large scale pirate operations that happen mainly out of China where millions of units change hands without royalties being paid to software companies.

       

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        Anonymous Coward, Aug 5th, 2009 @ 12:11am

        Re: Re: Apparently the law forgets...

        When you buy software you DONT own it, well you do and you don't.

        That's the problem. The software industry want's to have it both ways, depending upon the situation and what works out to be most in their favor.

        You own the media it is on, and you have the right to use the software, but you don't have the right to reproduce it or make it better (unless it is GPL).

        That's kind of like a book, isn't it? So should it be illegal to modify a book by making notes in it or even tearing pages out of it?

        The issue here is simple, if you mod the pliers, you don't automatically get a copy of the pliers that you can sell which cost you nothing.

        But this case isn't about selling illegally copied software, so please quit try to pretend that it is.

        When people mod video game consoles, the intent usually is to copy software.

        Not all copying is illegal. Give that, it makes eve less sense to put people in prison for merely making copying *possible*. If you're going to imprison people for making it possible to do something that might possibly be a crime, then you might as well put everyone in prison.

        You can say you are making a backup, but if you sell the backup you are in big trouble.

        Again, this guy wasn't charged with selling backups of programs. Why do you keep repeating such straw men?

        What they are trying to prevent is the large scale pirate operations that happen mainly out of China where millions of units change hands without royalties being paid to software companies.

        First, that's no excuse. Second, this guy wasn't a large scale pirate operating out of China either.

         

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          JH (profile), Nov 10th, 2009 @ 6:07am

          Re: Re: Re: Apparently the law forgets...

          >>>You own the media it is on, and you have the right to use the software, but you don't have the right to reproduce it or make it better (unless it is GPL).

          That's kind of like a book, isn't it? So should it be illegal to modify a book by making notes in it or even tearing pages out of it?

           

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        hegemon13, Aug 5th, 2009 @ 8:00am

        Re: Re: Apparently the law forgets...

        "The difference here DJ is that Software doesn't follow the same rules as Hardware."

        Except there's no difference because we ARE talking about hardware here.

        "The issue here is simple, if you mod the pliers, you don't automatically get a copy of the pliers that you can sell which cost you nothing."

        And when you mod a game console, you don't automatically get a copy of a game console that you can sell.

        "When people mod video game consoles, the intent usually is to copy software. You can say you are making a backup, but if you sell the backup you are in big trouble."

        He's not selling backups. He's selling a service to modify rightfully-owned hardware so that it is more useful for the owner. For example, I do not use my modded XBOX to play games I don't own. I DO use it to run free homebrew software, like Xbox Media Center. (Actually, XBMC is pretty much all I use it for.) It is my hardware, and I choose to use it as a cheap HTPC rather than a game console. How is that not my right?

         

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        btr1701 (profile), Aug 5th, 2009 @ 1:06pm

        Re: Re: Apparently the law forgets...

        > When you buy hardware, yes you own it.

        Not according to the RIAA. They've sued people for unlawful trespass to property and unlawful acces to a computer system. When the defendants asked which computer system they trespassed upon, the response was "your own".

        Apparently Big Software and Big Copyright doesn't just believe you don't own the software you buy, they believe that your hardware isn't really yours, either.

         

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    DJ (profile), Aug 4th, 2009 @ 6:21pm

    Make an inventory

    Tell you what, if you think there's nothing wrong with this, then I have a challenge for you. Make an inventory of EVERYTHING in your house.

    If you own anything that :::COULD::: be used to commit a crime, then by your own logic, you MUST be convicted of murder!!!! Why? because pretty much everything in your house :::COULD::: be used to kill someone.

    MURDERER!!

     

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    Skeptical Cynic (profile), Aug 4th, 2009 @ 6:26pm

    It all comes down to property rights.

    The erosion of property rights in this and other countries is the cause for and other similar laws.

    We don't own the land we buy, the software we buy, the music we purchase, or the books we download.

    When you can be told you have to sell the land you own to the government for the price they set you don't own it.

    When you can buy a book for your Kindle and they can, without notice delete them you don't own those either.

    When your legal copy of Vista can be disabled because of software that you were tricked in to downloading because the company that sold you the copy says it's a "Critical Security Update" you don't own it.

    When you buy and download a song and but are told you can listen to it in this way or on this device you don't own it.

    The truth is we as consumers and voters have slowly allowed our right to own what we buy fade.

     

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      Anonymous Coward, Aug 4th, 2009 @ 6:40pm

      Re: It all comes down to property rights.

      Well said.

       

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      bigpicture, Aug 4th, 2009 @ 6:40pm

      Re: It all comes down to property rights.

      All the more ironic because that is in the "land of the free" and "the right to pursuit of happiness" and all that. When in good old Russia they have more ownership rights than in the US including the right to family homestead land, which they can pass on to their descendants but not sell.

       

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      JH (profile), Nov 10th, 2009 @ 4:53am

      Re: It all comes down to property rights.

      >>>The erosion of property rights in this and other countries is the cause for and other similar laws... ...the software we buy, the music we purchase, or the books we download.>>When you can be told you have to sell the land you own to the government for the price they set you don't own it.>>When you buy and download a song and but are told you can listen to it in this way or on this device you don't own it.>>The truth is we as consumers and voters have slowly allowed our right to own what we buy fade.

       

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    Avid Gamer, Aug 4th, 2009 @ 6:32pm

    Yeah, but c'mon...

    Seriously, how many people only "back-up" games they own? It's all well and good to wag a finger at people that pirate games as the bad ones that should know better but let's be realistic, that's what happens 99% of the time. I used to download games for my PC but I've stopped as I have finally grown up and realized that there are lots of people out there that have put in tons of effort to make a great (or not so great; doesn't matter) product that I've then enjoyed for free. The vast majority of people with modded systems are not just trying to exercise their legal rights. We have to stop kidding ourselves.

    The unique problem with video game consoles is that unless you're Nintendo, your systems are sold at a loss. The only way they recoup costs and make a profit is if they sell video games.

    If you want to get crack off the street, you don't go after the users. There are too many of them and your resources are too limited to fix the problem at that level. Instead, you go after the guy that's making money off it. This MAN is making a profit on the hard work of others. He didn't just mod his own console so he could run Linux off it like a good geek. He's modding consoles which he knows, 100%, will be used to pirate games.

     

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      minijedimaster (profile), Aug 4th, 2009 @ 7:14pm

      Re: Yeah, but c'mon...

      Hypothetical: You're a mechanic, I come up to you and say: "My vehicle is electronically speed limited at 55mph from the manufacturer. I routinely drive on highways that have a higher speed limit than that, could you please use your expertise and equipment to remove that restriction from my car's computer?" You say to yourself, sure why not? There are plenty of highways with a speed limit of 65 or 75mph.

      Now I drive away and go 75mph on a highway limited at 55mph. BOOM! You get arrested and go to jail because you were caught "modding" cars to do something their manufacturers said they shouldn't do and made profit doing it you evil bastard!

       

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        BobinBaltimore (profile), Aug 4th, 2009 @ 8:20pm

        Re: Re: Yeah, but c'mon...

        You left out a critical item in your hypothetical: is it - hypothetically - against federal law to modify a car in this way?

        Look, I agree that DMCA is overly board, benefits business at the expense of the consumer, and doesn't clearly allow for reasonable things like personal backups. But until it is changed or found in whole or part to be unconstitutional.

        Section 1201e(2) of DMCA says "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--

        `(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

        `(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

        `(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title."

        So, the WHY for the reason for the circumvention is not important. Circumventing (or providing, importing or manufacturing the means to circumvent) is on its face illegal.

        Section 1204(a) says "Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain" is subject to the penalties outlined. The motivation or intent is not a factor in this if he was taking money to do it. So in this case, as I read the law (and I am not an attorney), he is subject to criminal penalties for the circumvention modifications because they was done for commercial purposes (to make money) regardless of whether anyone used them to play pirated content. Which, naturally, I'd venture a guess that a majority of folks who would pursue this type of mod would at some point. Don't flame me for that assertion, I'm open to being proven wrong.

        Again, I am not saying the DMCA is RIGHT with a capital R, just that it is the law.

         

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          Anonymous Coward, Aug 5th, 2009 @ 12:18am

          Re: Re: Re: Yeah, but c'mon...

          Again, I am not saying the DMCA is RIGHT with a capital R, just that it is the law.

          The whole point of Mike's article was an examination of whether the DMCA is justified. No one is arguing whether it exists, so you're just knocking down a straw man there. Sheesh, way to go.

           

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            BobinBaltimore (profile), Aug 5th, 2009 @ 6:06am

            Re: Re: Re: Re: Yeah, but c'mon...

            Actually, AC, if you read the comments here on DMCA posts a good deal, you'll note that there are a goodly number of commenters (which means a probably large number of readers) that DON'T seem to understand 1) what DMCA really says on this stuff and 2) that the law is the law until it is changed or struck down.

            I understand that many comments are about what SHOULD BE. But many other comments are about what people erroneously think IS TODAY.

            Since, of late, Mike does not seem all that interested in providing context to some of his posts, I thought I'd take the liberty. Not because Mike isn't cool or in command, I just thought it was relevant, since it is the piece of the law in question here.

             

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              Anonymous Coward, Aug 5th, 2009 @ 10:06am

              Re: Re: Re: Re: Re: Yeah, but c'mon...

              there are a goodly number of commenters (which means a probably large number of readers) that DON'T seem to understand...) that the law is the law until it is changed or struck down.

              A "goodly number"? Tell ya what then, list the flattened-view comment numbers that you were responding to that claimed otherwise. Otherwise, I'm calling you out for straw man trolling.

               

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                BobinBaltimore (profile), Aug 5th, 2009 @ 12:01pm

                Re: Re: Re: Re: Re: Re: Yeah, but c'mon...

                He, Mr. AC, note that the context for my comment was "if you read the comments here on DMCA posts a good deal...." Not just this post but DMCA posts found fairly regularly on TechDirt. And a careful reading reveals that I'm not saying that people think DMCA doesn't exist (as you oddly introduced to your thoughts above), but just that they misunderstand or have never actually read what it says or they fail to understand that it does carry the force of law, like it or not. Sorry, but there's no real controversy here.

                BTW, you over and mis-use straw man.

                 

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          Vincent Clement, Aug 5th, 2009 @ 4:46am

          Re: Re: Re: Yeah, but c'mon...

          Thing is, the DMCA doesn't benefit a business. If my copy-protected content ceases to function, most people are not going to go out and buy a new copy of that content.

          If they are a wee bit internet savvy, they will find what they need on the internet. If they are not internet savvy, the will likely toss the content and move on.

          The only people benefiting from the DMCA are the lawyers.

           

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          The Infamous Joe (profile), Aug 5th, 2009 @ 7:30am

          Re: Re: Re: Yeah, but c'mon...

          Again, I am not saying the DMCA is RIGHT with a capital R, just that it is the law.

          I'm really annoyed at this attitude when it comes to unjust laws.

          How do you think getting a law changed *really* works? Do people quietly obey an unjust law until their representative changes it for them? No, of course not. People ignore the law until it becomes ridiculous to attempt to enforce it (because doing so would criminalize the majority of the population) and THEN it is changed.

          If a law is clearly unjust, I feel that we, as citizens, have a duty to ignore the law until it can be changed to reflect the demands of the population.

          So, yes there is something wrong with many laws, and we shouldn't stand for it, regardless of what those in control have written on paper.

           

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            BobinBaltimore (profile), Aug 5th, 2009 @ 7:49am

            Re: Re: Re: Re: Yeah, but c'mon...

            Ummm...don't know what "attitude" you are reading into my statement, but it's purely in your mind.

            The fact is that the vast majority of people in the US are likely not engaged in activities explicitly criminalized by DMCA. The uproar - rightly so, in my book - is among those who are engaged in lots of electronic content consumption and manipulation. I know that reading TechDirt all the time makes it *seem* like "everyone" is doing the same thing and is outraged, but I don't think the actual numbers from the complete real world prove that out. Of the millions of XBoxes and Wii's sold in the US, I'd bet (and am open to stats if anyone has them) that the number of modded devices is in the tens of thousands or less. So the percentages done axiomatically lead to public uproar.

            What I do react to is folks who seem to be saying "the government can't do that" or "poor innocent modder" when yes, under the current law, the government CAN do that, and, in this case, it wasn't a guy just tinkering with his own equipment, but a guy who created a micro-economy for himself in modding for others for the (allegedly) express purpose of defeating legally enforceable protection. Civil disobedience is one thing, but creating an enterprise to knowingly break the law for financial gain is another entirely. As I read the law, if he had been doing it for no gain - free - the case would be much weaker, if not disintegrate altogether. But I am not an attorney.

            I want individual consumers to be able to backup and transfer their purchased content within their equipment with impunity, and I want to be able to watch, listen and consume that purchased content ubiquitously on any equipment I chose. DMCA doesn't allow for that so I do want to see it changed. My path (certainly not the only one) is to engage my Congressional representatives...suggest others might want to do the same if you haven't already.

             

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              The Infamous Joe (profile), Aug 5th, 2009 @ 9:49am

              Re: Re: Re: Re: Re: Yeah, but c'mon...

              Ummm...don't know what "attitude" you are reading into my statement, but it's purely in your mind.


              I didn't mean attitude as in "Oh no he didn't! Aw, snap!" I meant the attitude as in "Well, someone wrote it on paper and told me I have to do it, and even though I know it's broken, I'm going to do it anyway." Aka, "Baa.."

              Civil disobedience is one thing, but creating an enterprise to knowingly break the law for financial gain is another entirely.

              ..how?

              the number of modded devices is in the tens of thousands or less

              The wonderful thing about living in a republic is that the minority is protected from the majority. Furthermore, a law that is unjust but only applies to a few is not less unjust. A law that said you, Bob, were not allowed to mod your xbox would not be less unjust.

              My path (certainly not the only one) is to engage my Congressional representatives

              Call me jaded, but I've written off any help from my "representatives". I just don't have the kind of cash required to get their attention.

              Oh, and just to be clear: When I type "I'm really annoyed at this attitude when it comes to unjust laws" I don't mean you, specifically, I mean anyone with that attitude. Yours just happened to be the comment I replied to.

               

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                BobinBaltimore (profile), Aug 5th, 2009 @ 11:50am

                Re: Re: Re: Re: Re: Re: Yeah, but c'mon...

                You're stretching a bunch of things, Joe.

                ""Well, someone wrote it on paper and told me I have to do it..." This isn't a chore that mom wrote on the wall for you to do, it's the law. I agree (for the umpteenth time) that DMCA needs to be changed, but until it is, breaking it is at your own peril.

                As for the difference between civil disobedience and a criminal enterprise...if you can't see that, I'm at a loss. Again, the profit motive in this case is key, as it is in the DMCA legislation.

                "Furthermore, a law that is unjust but only applies to a few is not less unjust" I'm confused because in your earlier post you said that the law would be effectively unenforceable "because doing so would criminalize the majority of the population." So is it a few (hint: the answer is yes) or is it a majority who are impacted? Of course the law protects equally, whether one is affected or 100 million.

                And on "I don't mean you, specifically, I mean anyone with that attitude." Okay, fair enough. But you are still completely misreading my "attitude."

                 

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                  The Infamous Joe (profile), Aug 5th, 2009 @ 1:45pm

                  Re: Re: Re: Re: Re: Re: Re: Yeah, but c'mon...

                  At the risk of posting on an expired thread:

                  This is the attitude I was initally complaining about:

                  A man gets nailed by the DCMA for up to 10 years for modding his (and others) gaming console for money. Your response: Well, he *did* break the law-- that's what he gets.

                  So, sitting on the jury of this guys trial, you'd say "guilty" because he broke a bad law? I'd go for jury nullification, myself. That's the difference in our attitudes.

                  So, am I misreading your attitude? If so, sorry for wasting your time, because besides that, we appear to agree.

                   

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                    BobinBaltimore (profile), Aug 5th, 2009 @ 2:32pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Yeah, but c'mon...

                    In the context you set, yes, if proven true, I'd say he was running a criminal enterprise and broke the law. The job of a jury is to determine guilt or innocence vis-a-vis the law, not to interpret the validity, fairness or constitutionality of the law itself. Jury nullification is a generally bad thing, and when it occurs, it is often for reasons which have nothing to do with the law, rather the circumstances of the case. So yes, you have characterized my point of view. Perhaps I just disagree that "attitude" and "point of view are synonymous or carry equal connotations.

                    And I do agree that, otherwise, we seem to be in violent agreement.

                     

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      DCX2, Aug 4th, 2009 @ 7:24pm

      Re: Yeah, but c'mon...

      A gun manufacturer knows, 100%, that the guns and bullets they make will eventually be used to kill some innocent people.

      You're missing the point. If the guy was selling pirated games to the people whose consoles he modded, THEN I could see him being liable. But if he was just providing a service - the ability to solder surface mount technology - then I don't see how he can be liable for other people's violations of the law. Maybe if he encouraged them to pirate then perhaps "conspiracy to commit DRM circumvention"...

      For what it's worth, I soft-modded my PlayStation 2. Soft mods enabled me to do many things that didn't involve pirating software. It's possible to turn the PS2 into a media player that can play videos from a thumb drive. It's also possible to get saves on and off the memory cards. I can even run my games off of a hard drive, reducing load times.

      Same thing with the Xbox. I bet there are people who, to this day, are using an original Xbox not to play games (pirated or otherwise), but as a media server.

      People assume all owners who chip their console pirate games, but maybe more people would chip their consoles if they knew the vast array of legal things you could do.

       

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        Anonymous Coward, Aug 5th, 2009 @ 12:21am

        Re: Re: Yeah, but c'mon...

        A gun manufacturer knows, 100%, that the guns and bullets they make will eventually be used to kill some innocent people.

        Most guns are NEVER used to kill anyone.
        Get a grip.

         

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        Anonymous Coward, Aug 5th, 2009 @ 6:03am

        Re: Re: Yeah, but c'mon...

        You'd be right about using a modded Xbox as a media server. I have an original Xbox that functions as a media server streaming from several computers in my house. I also bought a 360 that I used to play games and never pirate games for the original xbox.

         

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        hegemon13, Aug 5th, 2009 @ 8:10am

        Re: Re: Yeah, but c'mon...

        "Same thing with the Xbox. I bet there are people who, to this day, are using an original Xbox not to play games (pirated or otherwise), but as a media server."

        Yep. That's all I use my hard-modded original Xbox for. It's the only console I use, and I don't even play my legally-purchased games on it, anymore. I just don't have time to spend on gaming now, but I do listen to music or sit down for an hour or two to watch a movie sometimes, and it's nice to have access to my whole library through an easily-browsed, indexed, and "eye-candied" media-streaming client. It is impossible to purchase a media product with anywhere near the diversity and ease of use as a modded Xbox with XBMC. If it dies, I'll buy another old Xbox to mod, and I won't feel bad about messing with MY hardware.

         

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        JH (profile), Nov 10th, 2009 @ 6:49am

        Re: Re: Yeah, but c'mon...

        "if he was just providing a service - the ability to solder surface mount technology - then I don't see how he can be liable for other people's violations of the law. Maybe if he encouraged them to pirate then perhaps "conspiracy to commit DRM circumvention"..."

        One reason someone is liable is because the act itself was made illegal. There's no need to utilize aiding/abetting and conspiracy laws. Often when a otherwise harmless act is so closely, exclusively or so commonly related to another act that is to be regulated the corresponding act become regulated as well. Aiding and conspiracy laws are designed to regulate conduct with is in furternce of other illegal acts but is so differing in the ways it can be done that it can't be made illegal by itself. The overwhelmingly common reason that consoles are modified is to circumvent DRM systems. Since there was a desire to prevent the circumvention, the common means of doing so was also regulated.

        Your argument can't realistically be against "how" such a law can exist, but WHETHER it should. Which, in this instance, should include whether circumvention itself should be illegal.

         

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      jjmsan (profile), Aug 5th, 2009 @ 10:32am

      Re: Yeah, but c'mon...

      No he is makeing a profit off his hard work the same way a mechanic makes money fixing cars. Your argument is full of unsupportable assumptions.

       

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        Anonymous Coward, Aug 5th, 2009 @ 11:39am

        Re: Re: Yeah, but c'mon...

        No he is makeing a profit off his hard work the same way a mechanic makes money fixing cars.

        You know, if I could get a gov't monopoly so that I was the only one allowed to fix cars, I think I could get rich with little actual "hard work".

        Your argument is full of unsupportable assumptions.

        Well then, why don't you just point point them out along with your evidence?

         

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    NullOp, Aug 4th, 2009 @ 6:38pm

    Grrr

    The greed merchants of America will go to almost any length to insure sales. In an economy based on corporate bloat we can expect even more of this BS as long as we keep accepting it. Get out your farm implements and torches folks and take your place on the hike...

     

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    Bob V, Aug 4th, 2009 @ 6:42pm

    Xbox mod --> xbox 360

    Something I always found interesting was that the usual xbox mod you used to see had many of the exact same features you find in a xbox 360.

    One of the latest updates to the 360 is the ability to copy the game to your HD.

    Its been said here many times competition fosters inovation. Of course to the majority who read this site its just basically preaching to the choir

     

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      The Infamous Joe (profile), Aug 5th, 2009 @ 8:43am

      Re: Xbox mod --> xbox 360

      The CD still has to be in the drive. At least, when I tried it asked me for the CD. Copying to the HD means faster load times, not play without a CD. I'd *love* to not need the CD, but I would instantly turn into a pirate, and the game industry would collapse within the week.

       

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    Chris in Utah (profile), Aug 4th, 2009 @ 7:00pm

    Hell The 360 mods are very nice. My next computer is one Used 360 + mod + other computer accessories = 250$ for a very nice full computer. When most top of the line graphic cards are that much.

    Innovation hell its called a competitive market, where's the FTC talking about artificial limiting competition now?

     

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    FiiK, Aug 4th, 2009 @ 7:37pm

    Big corporations and big government always choose their targets very carefully, said targets are usually weak, as in no general public support and or no general public knowledge of whatever the case may be. The above analogy of the car is a good case in point, no doubt immeasurably more mayhem is caused by the motor car than a million file sharers yet try and hit any transgressor with a 600K+ bill and a quick road to the poor house and see if that works, needless to say the ensuing public outcry would be enough to send even the most resolute poli ducking for cover. The main point here is that many confuse "What Should Be" with "What Is" I should be able to play online poker, but because not enough people are getting their cut and others are taking a cut(in profits)its out, and its only out because 99.99% of people could not care less about online poker. So the moral here is if you are getting involved in questionable activities pick something that everyone does and you will be safe, pick a niche and they will step on you,and hard.

     

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    CleverName, Aug 4th, 2009 @ 7:42pm

    Something is very strange here

    1) Neighbor tips off ESA
    2) dept homeland security, immigration and customes enforcement branch arrests the guy for "breaching the Digital Millennium Copyright Act of 1998"
    3) Prosecutor says it could carry "a maximum 10-year prison term"

    What does this have to do with security? And whose security are they protecting? Does this mean he is a terrorist?

    What does this have to do with immigration or customs? Is possesion of mod chips a crime?

    This whole thing is rather strange.

     

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    Mikael (profile), Aug 4th, 2009 @ 8:46pm

    Makes no sense

    As others have probably already pointed out, this is like arresting the owner of a gun store for selling guns that could be used to kill people, or arresting a car salesman for selling a car that could be used in a drive-by shooting or even speeding. Those aren't even people modifying their products, but people selling stuff that can already be used to break the law. Apparantly it's illegal to modify the console, but not to GET the console modded. O_o When I was deployed to Iraq with the Army, the Iraqis that were allowed to do business to the Coalition forces sold various items and services including modding services and copied games / movies. We were allowed to take advantage of those services as well as purchase the games and movies at $1-$2 a piece. When we came back to the US we were even told we were allowed to have this stuff.

    I whole heartedly agree that modding a console in any way should NOT be illegal. Here's an idea, instead of going after the modder, how about you go after the companies that sell the modification tools?? You're going after the middleman which makes no sense.

    I.Company selling modding tools
    II.Guy buys tools to mod

     

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      Anonymous Coward, Aug 4th, 2009 @ 9:16pm

      Re: Makes no sense

      "I.Company selling modding tools
      II.Guy buys tools to mod"

      One problem. Company selling modding tools uses ads like "Steal all the games you want" "copy your friends games for free!". It goes back to intent. They aren't just selling pieces, they are cooperating in the theft / infringement of software services.

      Gun dealers don't have signs out front that say "kill your pesky neighbor today!" and "Make your next drug transaction safer!", do they?

       

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        Anonymous Coward, Aug 4th, 2009 @ 9:57pm

        Re: Re: Makes no sense

        It depends on the neighborhood.

         

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        Anonymous Coward, Aug 5th, 2009 @ 8:46am

        Re: Re: Makes no sense

        Company selling modding tools uses ads like "Steal all the games you want" "copy your friends games for free!". It goes back to intent. They aren't just selling pieces, they are cooperating in the theft / infringement of software services.

        Gun dealers don't have signs out front that say "kill your pesky neighbor today!" and "Make your next drug transaction safer!", do they?


        Ummm, I think your post is moronic in that I have never seen an advertisement such as what you posted here.

         

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          The Infamous Joe (profile), Aug 5th, 2009 @ 9:55am

          Re: Re: Re: Makes no sense

          Joke: a humorous anecdote or remark intended to provoke laughter

          FYI

           

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          ryan, Aug 5th, 2009 @ 3:31pm

          Re: Re: Re: Makes no sense

          visit craiglist sometime. there are more then a few guys advertising there. Some even advertise and sell a whole list of pirated games in a package deal with the mod.

           

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    Nick, Aug 4th, 2009 @ 10:13pm

    Contributory infringement

    To all those saying "But he encouraged people to steal games to advertise his services!": OK, fine, go after him for contributory infringement or whatever it was that Kazaa got done for. But the act of modifying the hardware in the first place being illegal is still ridiculous.

     

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    Paul Brinker, Aug 4th, 2009 @ 10:34pm

    You car guys are forgeting something, when you buy the car, it can already speed. Now the moment you put a chip in the car that says, THIS AREA IS 30 MPH, then limits the car speed. You cant mod your car to speed anymore.

     

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    Nick Dynice (profile), Aug 4th, 2009 @ 11:40pm

    Bill Clinton's next heroic feat should be to rescue people from bad DMCA prosecution.

     

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      Anonymous Coward, Aug 5th, 2009 @ 1:16am

      Re:

      Bill Clinton's next heroic feat should be to rescue people from bad DMCA prosecution.

      That would be really funny since he's the one who signed it into law.

       

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    PT (profile), Aug 5th, 2009 @ 1:05am

    Perhaps it's no bad thing...

    The DMCA has never been properly used as a penal tool. It's mostly been used as a threat, firing over the crowd's heads, so to speak, without hurting anyone. When it was properly applied in all its draconian force in the Dmitri Sklyarov case - for giving a fucking speech - Adobe couldn't back off fast enough in the face of the public outcry. It was the Federal Government that wouldn't let go and pressed the matter, probably because they wanted a judicial ruling. In the end they didn't get one, because the jury found the defendants not guilty. So that can't even be considered a proper use of the law.

    No, what is needed is for someone - preferably a sympathetic defendant, but anyone will do - to be found guilty and sentenced, preferably to jail time, so the case can be appealed and a judicial ruling made on the constitutionality of the law. If it makes its way to the Supreme Court, so much the better. I'm sure the EFF and ACLU are just waiting for it to happen, and I'm equally sure that the sponsors of the law are dreading the day. So, do your duty, Prosecutor Krause. You have the proof - don't let this Crippen get away with it on some lame plea bargain. Shoulders back, chin up, don't weaken - press on to a verdict no matter what people say. Ram the reality of the DMCA into the face of every household in Middle America that owns a region-free DVD player, or any kind of open-source DVD viewing software. I can't wait to see the fallout when the implications finally sink in.

     

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    Enrico Suarve, Aug 5th, 2009 @ 1:34am

    What constitutes a mod?

    Is it defined?

    Admittedly I am not a law-speaking person but at what point is a console modded?

    What is the definition of console? What items are in scope for this judgement?

    Is my console modded ‘cos I dropped it and it’s got a cracked facia, or is it modded ‘cos I added some lights?

    Should I be concerned that I have circumvented paying for additional stuff from Microsoft by taking parts out of broken consoles and repairing others with them, should my garbage man be worried that if he crushes an old console he is now a modder too?

    Should I be concerned that I modded my console to include built in wireless?

    A popcorn eating public need to know

     

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      BobinBaltimore (profile), Aug 5th, 2009 @ 6:02am

      Re: What constitutes a mod?

      Read section 1201 of the DMCA. It's pretty clear that anything designed to defeat copyright protection mechanisms falls under scrutiny. So, no, dropping your console doesn't qualify and no, adding WiFi doesn't factor in, either. DMCA doesn't even care what a console is...it deals with any device used to playback protected content.

       

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    Ernestas, Aug 5th, 2009 @ 4:53am

    What if look at:
    modification of console by adding "modchip"

    as:
    modification of "modchip" by adding console as "addon" ... Would it be legal or is also not allowed ?

     

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    matt, Aug 5th, 2009 @ 10:54am

    modded xbox

    I used to have one. It was great. It could stream media, make backups of game discs, and run software like XbConnect where you could play games like Halo online with other people. Could also tweak the backgrounds, color of the light on the front of the console, etc.

    I would contend that console innovation is driven by the modding community. Most of the features created by the modding community became features of the retail version of the subsequent system.

    The questions people should be asking are:

    1) Why did the neighbor turn him in? There isn't enough info about the initial snitch.

    2) Why did ICE respond? Does the agency not have enough to do? If so, cut the funding. If not, focus on security priorities. This isn't an issue with human, narcotics or weapons smuggling or importation of hazardous materials. There is no security risk to persons or property and no national security implication. Why get involved?

     

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    anymouse (profile), Aug 5th, 2009 @ 4:43pm

    Wake up and grow a pair people....

    The corporations paid BAZILLIONS to our 'elected' stooges to get the laws they wanted passed, is anyone really surprised with the result? It all starts at the top, if the top doesn't want to change, things won't change (and if you haven't figured it out yet, Corporations are currently the 'top' in the US).

    Our new president (at the Univ I work at, not the US Pres) had a great quote about his view of the role of university staff, "The role of the staff is to advance the university within existing rules and to lobby on behalf of the university to change the rules that make it difficult for the institution to achieve it's mission. The goal is not to constrain progress, but rather to facilitate it."

    For the first time in many years I actually have a small glimmer of hope that things may actually get better around here (they are going to get worse first, but that's just life, we all deal with it). If only this attitude would catch on a little more, I mean it's not like our country was founded by individuals who rejected the heavy handed laws of the time or anything, right?

    Oh wait, that's right we as a nation started out as a group of people who rejected the laws we didn't agree with and so we set out to make things better.... where oh where did we get so far off the mark?

     

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    JP, Oct 9th, 2009 @ 1:52pm

    Just wondering, but is this the first time someone has been arrested just for modding a console to play backups?

     

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    DD, Nov 2nd, 2009 @ 2:10pm

    i dont give a f*ck about the laws, im playing modern warfare 2 about 2wks before release date, for FREE

    if they dont want people doing this, they need to drop the price of games to $20-$30, $60 is rediculous. for $32.99 i can get FIFTY BLANK XBOX360 DISCS!!!

     

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    Legal Fee, Nov 8th, 2009 @ 12:11am

    All this

    I suppose all you that are whining about DRM etc are also stealing cable and would steal electricity if you could. Why stop there? Shoplifting anyone? There's probably an xbox at your local federal prison.

    Since the beginning of time people have been trying to legal get that free lunch. That's what has caused all of the "ridiculous" laws. Now we all suffer.

    BTW - I have no problem with making a backup copy of any intellectual property. its the en mass sale and distribution I have the issue with.

     

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    JH (profile), Nov 10th, 2009 @ 5:00am

    >>>the DMCA's anti-circumvention clause, which makes it illegal to circumvent any kind of DRM, even if it's for a totally legal purpose. It's difficult to see how that's constitutional. Making it illegal to do something that's perfectly legal

     

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    fatalrotary, Sep 25th, 2012 @ 10:09am

    no cheats.

    It's it ok for one to have a better of the same when it comes down to competetion?i think ppl modd for one thing to cheat online or cheat game makers.all nodded gaming systems should be banned.play fair or don't play at all.

     

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    fatalrotary, Sep 25th, 2012 @ 10:09am

    no cheats.

    It's it ok for one to have a better of the same when it comes down to competetion?i think ppl modd for one thing to cheat online or cheat game makers.all nodded gaming systems should be banned.play fair or don't play at all.

     

    reply to this | link to this | view in chronology ]


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