QUOTE(amptor @ Jun 26 2007, 07:31 PM)
both are illegal in the USA beyond a doubt and why people in the US sell them is beyond me. read: DMCA and you will see why. I'm not sure why people still debate it, it is written law.
Wrong. 17 USC § 1201 (The anti-circumvention clause of the DMCA) states:
(2) 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.
(3) As used in this subsection -
( A ) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
( B ) a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
So yes, it is definitely a legal grey area. Basically, it is illegal to sell/make modchips in the United States IF their primary and only real purpose is to get around a copy protection measure.
As such, it could easily be argued in court that a chip's primary use is to enable the play of legal imported games and fair use backups, as well as enable the use of homebrew code that GREATLY expands the capabilities of the system (a perfect example of this is Xbox Media Center for the xbox 1) and thus isn't just about bypassing a copy protection measure to enable piracy.
But I honestly could care less if the DMCA makes selling and using modchips illegal. It's a bullshit law that changes the way copyright has always worked. To quote one of my law textbooks on it:
QUOTE(Cheeseman Pg. 337)
The DMCA changes the traditional fair use doctrine of copyright law. Historically, it has never been a crime to access or make a copy of a copyrighted work; what has been a crime is the misuse of that information. This rule remains valid for the nondigital world of copyrighted works. The DMCA changes this rule for digital protected works, making it illegal to merely access the copyrighted material by breaking through the digital wrapper or encryption technology that protects the work.
In addition, nowhere does the DMCA say it is illegal to USE or BUY modchips, just to make and sell them. So that leaves the end user in the clear so long as they're not using it for piracy.
The sellers and makers on the other hand seem to be where the law is aimed at.
The only precedent for chip sales and the DMCA I could find was a September, 2006 case in which Sony sued Divineo (SCEA vs Divineo Inc, et al(457 F. Supp. 2d 957; 2006 U.S. Dist. LEXIS 74878; 81 U.S.P.Q.2D (BNA) 1045) for selling HDLoader and HDAdvance devices under the DMCA. Divineo Inc, the canada subsidery was found to have been in violation and fined $3.75 Million (no idea if they ever paid it, but...)
And Max/Divineo SARL never showed up in court, and lost by default, with Sony being awarded another $5+ million in damages. Again, doubt it was ever paid (especially since neither were US companies).
I still find it a shame that they lost the case. Divineo Inc's owner and operator Frederic Legault tried to argue (rightfully so), that the chips and devices he sold were the only means to be able to play legally obtained import games, and run homebrew programs. And while the court agreed with him, they still ruled against him, stating:
"Downstream customers' lawful or fair use of circumvention devices does not relieve Mr. Legault from liability for trafficking in such devices under the DMCA"
I just don't see how that's possible. If a device is being used for a legal purpose, how in the hell can they find someone guilty of selling an illegal device? The "downstream use" of the product IS its PRIMARY purpose.. saying anything otherwise is complete and utter bullshit.
I suppose the only real solution to this is to really push the marketing aspect of chips as devices whose PRIMARY PURPOSE is for playing legally imported games and running homebrew software. The DMCA is a terrible law, arguably unconstitutonal as it impedes interstate commerce. But that's another fight for another day. The fact that companies exploit it to harrass and extort their consumers is disgustng (Read: RIAA). In any case, I personally firmly believe that the sale of modchips IS legal under the DMCA. Just because you can kill someone with a baseball bat doesn't mean the sale of wood (or bats for that matter) should be illegal. A bat's intended purpose is to hit a baseball. And likewaise, just because you can use a modchip to commit acts of piracy DOES NOT mean that they should be illegal either. A modchip's primary purpose is to play legally obtained import games and expand the capabilities of your console to run homebrew code (Emulators, web browsers, media centers, etc)