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The Legality Of Modding


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#1 twistedsymphony

twistedsymphony

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Posted 02 August 2007 - 06:53 PM

As many of you have probably heard, and perhaps most people probably have not, the U.S. Immigration and Customs Enforcement (ICE) in conjunction with "representatives" from the electronics industry recently raided 32 different modchip installers and distributors in the US. The largest strike against the modding community of it's kind. I know many of the people who were effected by this, not personally, but I know enough that I could probably name all 32 installers who were hit with a little work. I don't believe I've ever purchased anything from any of these businesses, nor have I ever owned or operated an installer business (if I mod something I mod it for my own personal use).

I decided to take a break from my normal industry chatter to discuss this topic because I take exception to some of the language used in the press releases. Much like the media slant against hackers in general the act of modding is criminalized in the US. I look at modding as an act of expression and something someone does to expand their own knowledge and use of a system. It can be an exploratory learning experience, and yes it can also be used to do illegal things. Compare a modchip to a knife: In the hands of a sculptor a knife could create beautiful wood carvings, in the hands of a chef it could help create culinary masterpieces, it can keep you alive in the woods, and it can protect you in dangerous situations, but in the hands of a criminal it can also be used to destroy property or cause bodily damage. Much like a knife, a modchip's usage is very much determined by the intentions of it's user. In the hands of a pirate it will be used to pirate games but in the hands of programmer it will be used to learn new technologies and create new and interesting applications. Other hobbyists simply like to explore the fruits of other developers. The example of Xbox Media Center (XBMC) is often used, this application transforms a humble Xbox console into a full fledged Media Box capable of upscaling and playing back DVDs, streaming web content like YouTube or Google video, as well as storing and streaming audio, video and picture files. XBMC is not only similar to devices such as AppleTV and Media Center PCs but in many ways it is superior to those products in terms of it's capabilities. Of course XBMC can only be used on a modified Xbox and while it would be possible to build and run such an application on a normal PC the novelty is in the utilization of cheap hardware (the Xbox costs less than $100 these days) and in many cases it's not only hardware you already own but hardware that already fits properly within a TV room environment making it quite ideal, if it weren't for the fact that it is illegal to use the free XBMC software with the Xbox hardware you own under the DMCA.

I have no doubt that many, probably even most, modchip users purchase and use those products with the intention of pirating games but I take offense to those that are so ignorant to label any and all modders and hackers as criminal by association. I'm usually very interested in the hardware side of things I like adding hardware functionality to my possessions but I can see how some people who are more interested in the software side, or even just utilizing wonderful applications like XBMC, opt to have an installer provide the hardware that would allow them to explore the other aspects of modding.

The concept of modding might be foreign to some but imagine if you will buying a car, taking it home and deciding to make some changes to the car. Imagine modifying the car so that it ran on something other than gasoline, and because it runs on something other than the gas specified by the manufacturer you're all of a sudden a criminal. Now what if you decided to offer this modification as a service so that those less technically inclined could enjoy the benefits of an alternative automotive energy source would you be a criminal then? Why are you a criminal? Are you a criminal because your modified the car or are you a criminal because you're no longer spending money on gasoline? Lets say that the modification lets you use legal alternative fuel as well as illegal alternative fuel. Would that mean that the modification should be outlawed because it can be used to illegal things as well as legal? That's basically the situation modchips find themselves in.

It seems to me that the only reason modding and hacking is criminalize is simply because the politicians passing these laws do not understand the issue enough nor do most Americans and as a result lobbyists for the ESA, RIAA, MPAA, etc. have a fairly easy time convincing them to pass laws that criminalize anyone who modifies their products in a particular fashion. The root of the problem is the DMCA. The ideals behind the DMCA are good but the wording really is far too broad. Rather than working in the best interests of Americans and American ingenuity it acts in the best interests of big corporations who would rather just cut off the hands of all their customers than spend the extra effort to go after the real criminals who are stealing their products. Even the penalties for pirates are getting ridiculous. If you shoplifted a CD the criminal penalties would be LESS severe than if you downloaded it from the internet. You actually face less retribution by stealing physical items from a store than you do downloading copies.

I in no way shape or form condone piracy, while I am a big supporter of the open source movement and feel that information should be free, I do understand that some people want to get paid for what they do and I don't have a problem with that. I think if someone creates a song, a movie, a game, a book, etc. and demand money for it's use they should receive that money. My problem comes with the vague wording and unnecessarily broad reach of copyright law, that works to stifle and stomp all over technological advancement and freedoms for the sake of protecting the corporate bottom line.

Some of the text in the ICE press release that I take issue with:

QUOTE
"Illicit devices like the ones targeted today are created with one purpose in mind, subverting copyright protections," said Julie L. Myers, Assistant Secretary of Homeland Security for Immigration and Customs Enforcement.


Spoken as truth when in fact it is not true at all. There are many legitimate uses for these devices beyond "subverting copyright protections" I mentioned previously the use of XBMC. While true that these devices CAN ALSO be used to circumvent copy protection that is not in any way shape or form their "one purpose" as stated. Either Julie L Meyers is ignorant to this fact or is outright lying to make her department's actions seem validated and warranted.


QUOTE
According to the Entertainment Software Association (ESA), the makers of the gaming consoles, game developers, and others in the industry have incurred billions of dollars in losses worldwide due to sales lost to those selling counterfeit and pirated video games.

Counterfeiting and piracy is estimated to cost the U.S. economy between $200 billion and $250 billion annually and results in the loss of up to 750,000 jobs according to the U.S. Chamber of Commerce.


This really has no place in the press release, it is worded cleverly enough that they they can get away without stating hear-say as fact; "according to the ESA..." and "estimated to cost". It really is impossible to estimate these things, and most independent research performed points to gross exaggerations on the part of the ESA and other **AA organizations when estimating losses to piracy.

There are so many factors involved with piracy that the margin for error is large enough to consume the entirety of the estimate. There is no way to tell if a drop in sales is simply related to the market responding to lack of interest in the product or increase in piracy. Probably the biggest contributer to these fabricated estimates is that they not only guess the number of people pirating material but they also assume that every pirated copy would have been a sale. In my own private research I've found that 9 out of 10 infringements in my sample segment was either because the product was not available for sale (discontinued, or not available in a particular region) or the sale price was set high enough that the pirate determined it was not worth purchasing at that price. Of course my own research is just a very small sample but anyone who simply assumes that people who pirate thousands of dollars worth of media would have purchased it otherwise is simply kidding themselves and using that assumption to make their case look stronger. Again, I don't condone piracy, but I think that completely spurious numbers have no place in a DHS press release as sensationalized fodder to validate their actions.

QUOTE

"These crimes cost legitimate businesses billions of dollars annually and facilitate multiple other layers of criminality, such as smuggling, software piracy and money laundering."


Unlike the previous statement where the wording let the reader know the numbers were only guesses and estimates; the quote above, again by Julie L. Myers, states hear-say as fact. Even beyond the arguable cost of piracy to copyright owners "these crimes" refers to modchip installation which alone is, without a doubt, less than whatever piracy costs considering the numerous legitimate uses for modchips.

"facilitate... software piracy" is a bit incorrect to, some modchips enable software piracy but none of them actually facilitate it, once again we're back to the knife example, it's use is determined by the intents of the user.

"Smuggling" is another terms that really has no place what so ever in this text. First of all I do not know of, nor have I ever heard of a single person in all of the US that has ever purchased pirated software that was "smuggled" into the US. As for the modchips themselves, these chips are simple microcontrollers and BIOS chips. These are the same exact chips (same manufacturers, same model numbers, etc.) found in TV remotes computers, phones, cars, even the video game systems where these devices are being installed already have this same hardware inside. Really any electronic devices with even a hint of complexity have some kind of microcontroller inside. This hardware is actually very common, I know how to program these chips myself and I learned it in college, as does every other engineering major in the USA as part of their normal course work. These chips are not smuggled into the country because there is nothing illegal about them, if we were to outlaw these chips we would effectively outlaw nearly every electronic device in America. The only reason many of these chips are imported from China, Canada, and other places is for the same reason most of the products are imported from other locations, because it's cheaper to manufacture off-shore. The only reason I can think that they added this term is, again, to make there case look better than it is, and to make these electronic hobbyists look like criminals when they aren't.

"money laundering" is yet another term thrown about here haphazardly. I can only assume that it was included to make the reader assume that the people who were raided were somehow connected to drugs or terrorism. I can say with certainty that none of the people I know that were raided have any connection to either one of those. Actually most of those people don't even make all that much money doing what they do but rather do it because they love tinkering with electronics and opened up shops so they could spend more time doing what they love and sharing that with other people. Like automotive enthusiast who opens up a garage, or the artist who decides to create art rather than work a more lucrative but less fulfilling job. I'm not saying that these people aren't making a living doing this, because some of them are, but it's not even close to the scale of a drug cartel or organized crime, and trying to loosely associate them with terrorists is beyond ludicrous.

There is more text in there concerning hard numbers of counterfeit media seized, and the trends of those seizures and to that I say good. I have no problems with them taking down pirates, and those who distribute pirated material. I'll say once again that my problem comes from the ridiculous sensationalization of what these people actually do. These are intelligent technological people; engineers, software developers, and the like. They're not hardened criminals, they're not connected to drug rings, or terrorism, they not even victimizing anyone. They only pose a potential threat to the bottom line of media corporations. How big of a threat is even arguable.

I also encourage you to check out their pictures of illegal devices they're confiscating. There is some cruel irony that none of the provided are actually owned by ICE or the DHS but are rather copyrighted images created and owned by the modchip manufacturers and stripped straight off of their websites. They even went so far as to blatantly black out watermarks placed on the images by the legitimate owners and then had the audacity to state that to use any of the images you'd need to get their permission. I got a good chuckle out of the fact that the media attached to the press release about squashing copyright infringement include blatant copyright infringement itself. But who's going to police them?


The DMCA:

While the DHS reports are sensationalized and their representatives are quoted stating unfounded assumptions as fact they are actually enforcing the DMCA. More specifically this:

QUOTE

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that . . . is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.


The real question here is when does it cross the line into becoming a protection circumvention device? I mentioned earlier that these modchips in question are nothing more than the same chips used in nearly every electronic device we use today. The Microchip and Atmel corporations are both legitimate companies they make chips that go into many of the electronic devices we use daily. They are vital elements to nearly ever aspect of modern technology. However they also make up a "part" of a copy-protection circumvention device, so should we ban their import and use into America and destroy every bit of technology we have because of it? You don't even need one of these chips to circumvent copy protection. You could even connect a regular old PC to a video game console and have it circumvent the copy protection, does that mean the DHS should raid Dell and Gateway and confiscate all of the computers in their facilities? No of course not but that's my point. The DMCA is so ridiculously broad that if desired the DHS could theoretically do those things. It basically gives them carte-blanch to target whoever they want.

So where do we draw the line? Sometimes there isn't even hardware involved but software alone. If there is a program running on a console and I replace that program with a different program should that be illegal? I'm not asking is but should; we've already determined that nearly anything could be construed to be considered illegal under the DMCA. What if someone else wrote that program for me? What if I wrote that program myself? What if I help others install and use my program? What if I just write the program and not provide the hardware What if I just tell someone how to do it? the DMCA mentions primary use, who's to say what I intend to use it for primarily. or are they referring to primary use among the public, in which case the hardware is most definitely used more frequently in everyday electronics for legal activities than it is for copyright protection circumvention. When does it cross that line? Or is it always considered illegal and they just pick and choose who they persecute.

This is all part of a larger issue, copyrights were intended to protect the content creator, and I believe in that, even if someone wishes to give away their ideas and art for free they need some form of protection to ensure that they are credited for their work and receive compensation should they decide to extend the privilege of using that work to others. I think many of the copyright laws in place today are a drastic aberration of that ideal and not only does it not protect the right people but severely impairs the freedoms of how Americans can use the material and products that they legitimately purchased and should be free to use how they please.

Digital Rights management is being used beyond just protecting copyrights but abused to technologically lock consumers into a fabricated monopoly which prevents interoperability with other products, what little exceptions the DMCA has to protect against this is being stripped down in the courts and it's breadth is so far reaching that even popular and legitimate products as they're sold off the shelves of the local Best Buy or Circuity City are in violation of the DMCA right out of the box. We're at a point where law abiding American consumers are basically at the mercy of whatever company wants to leverage the DMCA in their favor whenever they want. The government should be in place to act in the best interests of the American people. Instead our laws work to criminalize anyone and everyone and designed not in the best interests of the American people but in the best interests of politicians and big businesses.

It's a shame that most technology available in America is light years behind that of other civilized nations, not because we're weaker, I firmly believe we're still the brightest in those areas, but instead our laws are designed to block the release of new technology for the sake of helping American corporations boost their revenue by milking older technologies as much as possible before advancing to better, faster, and more efficient technologies. Rather than creating an environment with the ideals of the American dream, where a humble garage inventor can compete in an open market and build his business from the ground up we've started criminalizing them for the threats they pose to the larger established corporations. With no competition they have no incentive to improve their product and no incentive to improve the quality of American life.

I don't know what's worse, the soulless corporations that lobby for such broad and unspecific laws that place the interests of capitalism above that of American freedoms, the ignorant politicians who don't understand modern technology and seem to have no hesitation towards just listening to these lobbyists for their technical advice and passing these laws, or the apathetic and oblivious American public that is too busy arguing about the archaic social, racial, and religious issues paraded by the media to care about or even notice all the technological freedoms being taken out back and executed one by one. Even worse is that America has been using it's dominance to force other countries to adopt similar draconian laws, holding trade within the US commerce hostage unless they comply, and for what?

America used to be the place of liberty and freedom, people would flee from their homelands coming here where they could follow the American dream. Something is really wrong when I and many in the technical community look at all of the other civilized nations on the globe and think to ourselves "I wish we had that kind of freedom here."

Edited by twistedsymphony, 03 August 2007 - 01:18 AM.





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