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Understanding the Digital Millenium Copyright Act and the 10 year sentence for modding consoles

The big gaming news of the day has to be that a student from Orange County, CA is facing up to ten years in prison for modifying gaming consoles. After reading the articles that cover Matthew Crippen’s arrest, I still can’t figure out exactly what he’s accused of. Each news source claims that he’s been accused of illegally modifying consoles, which is a violation of the Digital Millennium Copyright Act, but that’s where it stops. I have reached out to Crippen’s attorney and will update this article should I hear back, but in the mean time I thumbed through the DMCA and had a little trouble finding exactly where Crippen’s violation is listed.

The DMCA, found here, was created in 1998 to “criminalize production and dissemination of technology, devices, or services intended to circumvent measures [DRM] that control access to copyrighted works.” But this, like so many other laws, is so loosely written that it’s almost impossible to understand where Crippen is allegedly guilty of a violation. First there is Title 17, Section 204 which states that “(a) In General.- Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain- (1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense.” But Crippen can only be found guilty of this if he was modifying consoles for profit to “an extent that a substantial loss would be caused in the parent manufacturing company.” With over 28 million Xbox 360s, and 24 million PS3s sold, I don’t see how a “substantial loss” could be felt by Sony, Microsoft, or Nintendo.

Then there is the 2003 exemption amendment written into the DMCA that states, “Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.” Under this exemption, modifying consoles for the purpose of playing games that were created for extinct platforms seems to not be illegal under the Digital Millennium Copyright Act.

Now I’m not a lawyer so I won’t pretend to fully understand the laws, but it does seem to me that it is illegal to create a business with the sole purpose of modding consoles and installing copyrighted games. Downloading and distributing games that are available on consoles currently on the market is illegal, and if this is in fact what Crippen was doing then he could face a very real punishment. However, if he was simply modding consoles for friends for the purpose of playing legally purchased imported games, or emulated roms from classic consoles like the NES or Genesis then he’s not guilty of a thing. I would like to point out that in no way do I support or approve of pirating video games, but as gamers we should have the right to modify our own property as long as we’re sticking with the legal guidelines of the Digital Millennium Copyright Act.

Comments

  • UzamakiJ 4 years ago

    As I do not agree with pirating games I do feel tht i have a right to obtain games from past systems and impoted games from other countries such as japan thus having a modded gaming console. Seriously I shelved out $300 - $600 for your system I think I deserve quality serivce and anything i want out of it as long as it within legal limits. Seriously Microsoft,Sony and Nintendo maybe if you treated your consumers better and give them what they initally wanted then we wouldn't have to do such things to supposedly break your terms of service.

  • mahouneko 4 years ago

    @UzamakiJ:
    I think your anger is misdirected. If anything, Sony is the only company of this generation to indirectly endorse video game imports. I bought Death Smiles for a friend while I was in Hong Kong; I came back and gave it to him for his birthday present. Imagine the awkwardness when we found out that his American Xbox 360 wouldn't play Death Smiles. It also didn't help that my copy of Oboro Muramasa wouldn't play on his American Wii system as well.

    In terms of customer service for this generation, I would say that Sony has done a lot more for the consumer by not enforcing region locks for this console generation. This has essentially saved me the cost of modding my PS3, especially since I don't need to mod it.

  • Agent K 4 years ago

    Even if he was making a profit from modifying the hardware, there's still nothing wrong with it... except maybe that the Gov't might want to tax his earnings. It's the same thing if you buy a any device and modify it. If he was merely modifying consoles just to modify them, with no intent of selling pirated games, then there shouldn't be an issue at all. There are many people that modify their consoles to play "backup" games of the games they own. I'm not being naive, as I know most people who mod their consoles do it TO play burned games, the fact remains that unless he was burning and selling pirated games, there is no case IMO. Does the ESA need reminding that early Xbox360 consoles (and some newer ones) are and were notorious for scratching discs? If that happens, what does the consumer have to do... buy a new copy for $60? Do they think the consumer wouldn't rather make copies, for far less money, of those games to ensure their $60 doesn't go to waste? It's a tough subject.

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