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Australian Federal Court Overturns Legal Modchip Sales

timothy posted more than 10 years ago | from the in-their-infinite-wisdom dept.

The Courts 177

An anonymous reader writes "Yesterday, the Australian Federal Court overruled the previous ruling on modchips in Australia. I am pretty sure the overruled case is the mainstay for the 'legal' use of modchips in Australia (predominantly Linux on the Xbox). Haven't seen this hit the media yet, with the exception of the Australian Financial Review referring to it in the Free Trade Agreement context. The ruling can be found here. Although not a lawyer, it appears the original judgement was made on the basis that Sony did not provide a copy protection system. Also noted is that there is limited commercial use for the mod other than circumvention. Wonder what will happen to modchips for the Xbox, given that it can be argued that running Linux could easily be seen as commercial."

Reader silne adds "According to the article in The Australian's IT section, it's not illegal to possess or use a mod chip, just illegal to sell them. Looks like another win for Sony. Hopefully the ACCC is going to appeal this one." Bigthecat supplies a link to coverage at news.com.au, as well.

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like it matters much (1)

cyrax777 (633996) | more than 10 years ago | (#6577993)

I doubt Aussie police are going to be kicking down some gamers door becouse they have a mod chip and are running Linux on there X box.

Re:like it matters much (0)

Anonymous Coward | more than 10 years ago | (#6578031)

Of course not.

However expect the Australian chapter of BSA to target sellers.

Re:like it matters much (5, Insightful)

halowolf (692775) | more than 10 years ago | (#6578057)

Well it won't actually take much for the Australian Police to find them. Some people at a place I used to work ordered XBox mod chips from overseas, and before they were allowed to receive them through customs they had to give their name, residential address and I think drivers license number to ensure that they as recipients were properly identified.

At the time however it wasn't clear as to why this information was needed, other than the fact that they ordered mod chips of course. At the time they did this mod chips were considered legal.

I hope the ACCC in Australia does something for the Australian people, as we all know that the primary purpose of the "security" of consoles is to provide for the construction of artificial markets to decrease competition and raise prices for consumers and revenue for the companies that manufacture them.

The thing that that hacks me off, is that console makers bundle the region encoding along with their security. Region encoding has nothing to do with security and everything to do with creating false markets which is something that should not be tolerated. Its about high time that the manufactures of these devices were forced to abandon region encoding all together so that consumers have the choice of what to purchase and where. The same goes for DVDs.

I will of course freely admit that most peoples use of mod chips however is for piracy which is not an act that I condone or participate in. I would be more than happy to have a console with strong security and no region locking. Its high time that these companies realise thats whats good for consumers is good for them. Stuffing consumers around will only hurt these companies in the long run.

Rant over

Re:like it matters much (4, Insightful)

csteinle (68146) | more than 10 years ago | (#6578255)

What really infuriates me is that a lot of the companies that create these false markets (which allow them to charge the highest price a particular area, rather than the global market, can reasonably sustain) are often the same ones that are right now shipping as many jobs as possible "overseas". So they can take advantage of cheaper markets, but we can't.

Re:like it matters much (3, Insightful)

sholden (12227) | more than 10 years ago | (#6578456)

The ruling doesn't make owning mod chips illegal, it makes selling them illegal.

Of course in this specific case they guy was selling copied games as well as mod chips. If he would have just sold mod chips and not sold the obviously illegal games things might have turned out different. The circumstances show his intent.

Of course with the Australian legal system he now gets to pay Sony's costs (and QCs don't come cheap). And of course then there's damages, but that comes later (and of course there's still room for appeal to the High Court - but losing there would further increase costs).

Oh well, I'll have to stick to PC games and skip on the PS2...

Re:like it matters much (2, Insightful)

quinkin (601839) | more than 10 years ago | (#6578068)

It's more about catching local stores stocking the modchips, than persecuting end users.

Q.

Will this ruling really matter? (0, Redundant)

tpearson (621275) | more than 10 years ago | (#6577994)

People who want them probably already have them and those who don't have them either don't care, or will still be able to import them.

Re:Will this ruling really matter? (3, Insightful)

Rogerborg (306625) | more than 10 years ago | (#6578142)

It sets a precedent. Will it still not matter when you can't buy the tools to uncripple a DRM "enhanced" PC and run/write your own software on it?

ACCC might not do anything (5, Insightful)

darnok (650458) | more than 10 years ago | (#6578007)

They've got a new boss, Graeme Samuel, who is widely perceived as more business-friendly. If mod chips are truly going to be banned, this might be an interesting indicator of whether the ACCC is about to become less of a public enforcer of individuals' rights than before.

So much for Aussie egalitarianism.... (1, Funny)

Anonymous Coward | more than 10 years ago | (#6578008)

I was willing to apply for Aussie citizenship until this. Now, as far as this potential migrant Yank is concerned; I'm fraggin' goin' home. G'luck Sydneysiders.

Re:So much for Aussie egalitarianism.... (0)

Anonymous Coward | more than 10 years ago | (#6578075)

Haha, what a fucking dork you are!

Re:So much for Aussie egalitarianism.... (1, Funny)

Anonymous Coward | more than 10 years ago | (#6578106)

Oh no. We are really short of immigrants... how will we cope?

Re:So much for Aussie egalitarianism.... (0)

Anonymous Coward | more than 10 years ago | (#6578189)

Please - never type what you believe to be Australian colloquialisms. Very few people like Steve Irwin exist in Australia and they are kept in the farthest reaches of Queensland.

Not to be a dork, but (0)

Anonymous Coward | more than 10 years ago | (#6578476)

Who the hell is Steve Irwin?

Re:So much for Aussie egalitarianism.... (0)

Anonymous Coward | more than 10 years ago | (#6578223)

I'm fraggin' goin' home. G'luck Sydneysiders.

Thou art a fool my friend.

Simple summary for all of us... (-1, Flamebait)

jkrise (535370) | more than 10 years ago | (#6578009)

There's little point fiddling around with XBoxes and YBoxes to get them running Linux. It's better to focus on commodity boxes and move on.

-

The judgement was for sony modchips.... (2, Insightful)

splerdu (187709) | more than 10 years ago | (#6578020)

MOD chips on the playstation were only good for circumvention. Sony itself released a linux pack for the PS/2, so running linux is definitely not an argument.

The PS and PS/2 modchips basically allow pirated game discs to be played, without any other real use. The XBox case might be handled differently.

Re:The judgement was for sony modchips.... (1)

chriskenrick (89693) | more than 10 years ago | (#6578050)

MOD chips on the playstation were only good for circumvention. Sony itself released a linux pack for the PS/2, so running linux is definitely not an argument.

The PS and PS/2 modchips basically allow pirated game discs to be played, without any other real use. The XBox case might be handled differently.



Wasn't DVD region coding an issue? I seem to remember that being the ACCs argument for the mod chips around the time of the original decision.

Re:The judgement was for sony modchips.... (1)

Joe Tie. (567096) | more than 10 years ago | (#6578103)

without any other real use.

I'm not much of a gamer anymore, but don't they also allow one to play games not released in the region of his console? I think I wound up with about as many Japanese games as American for my Dreamcast, and easily more for the saturn before that. I'll agree that playing games from outside the intended area is still circumvention of the region lockouts, but I wouldn't place it anywhere near the same area as piracy.

Re:The judgement was for sony modchips.... (2, Insightful)

Anonymous Coward | more than 10 years ago | (#6578149)

Which is all good and fine. I agree with stopping pirates and illegally copied games.

However, I have two reasons why I want modchips to be legal (or at the very least region-locking of PS2's to be gone).

I currently live and work in Japan. I have been buying lots of japanese PS2 games while here. Next year I will return to Australia.

1) A lot of these games have not and never will be released in Australia, because the games market is so much smaller than in Japan. The only way around this is to own a japanese PS2. Should I be forced to buy a japanese PS2 (which, by the way, Sony Australia will refuse to service if something should break) just to play these games?

2) When I return and bring my japanese PS2 with me that I have here now, I will not be able to play australian-released games on it. Should I be forced to buy a second PS2 just so I can now play "local" games?

I know lots of people who face scenario #1. I admit scenario 2 isn't likely to apply to me as I have never been interested in a game that has been released in Australia...

Still, the customer SHOULD have the choice.

Region coding (1)

tempmpi (233132) | more than 10 years ago | (#6578167)

PS(2) games are also region coded and you need a modchip to play back US or Japan games on a australian PS(2). Many games are never released in PAL regions and many gamers there got modchips to play US games because they are released much sooner and are usually better. (bad ntsc->pal conversation, borders, wrong speed etc.)
Using regioncoding they can still sell shitty outdated, overpriced games in Europe and Australia.

Re:The judgement was for sony modchips.... (2, Insightful)

BobSutan (467781) | more than 10 years ago | (#6578305)

"MOD chips on the playstation were only good for circumvention."

In the USA there are many legal uses for circumvention--playing backups is one of them.

Re:The judgement was for sony modchips.... (5, Insightful)

NanoGator (522640) | more than 10 years ago | (#6578325)

"MOD chips on the playstation were only good for circumvention. Sony itself released a linux pack for the PS/2, so running linux is definitely not an argument."

I'm not a big fan of current modding efforts because they're negative-ruling-bait. However, I must argue with this point. Sony's release of the Linux pack for the PS2 is certainly not the end of that argument. It is limited, you cannot distribute Linux apps to other PS2 owners unless they have the $200 kit as well. Worse, you have limited access to the hardware.

What's really hurting the MOD development for the PS2 is that there really isn't a whole lot of reason to do it. Play any region DVD? Well the law's not going to side with that. Play MAME? Nope, law's not going to side with that either. Play MP3s or DivX videos? That area's a bit gray, but there's the issue of how those Mp3s or DivX vids are acquired.

I agree with your first point, but the second one is probably what earned ya the troll rating. Pity the dude with the mod point didn't just respond, its not like you were out to be a jerk. There's a difference between trolling and having an unpopular opinion.

Not a troll; good argument! (1)

TrollBridge (550878) | more than 10 years ago | (#6578508)

Yet another case of obscurity through moderation. This guy's got it nailed!

From the headline: "Wonder what will happen to modchips for the Xbox, given that it can be argued that running Linux could easily be seen as commercial."

Someone explain that little pearl to me. Either the submitter doesn't know what 'commercial' means, or is simply making a huge stretch to justify X-Box mod chips.

The fact remains that while there will always be a few hobbyists who actually do use these things to run Linux on various devices, MOST people only use them to circumvent copy protection and play copied games. Anybody who argues to the contrary is only fooling him/her-self.

Re:The judgement was for sony modchips.... (1)

Lussarn (105276) | more than 10 years ago | (#6578523)

No one shall dictate under what terms I use hardware that I have bought. Illegal or not, it's my stuff. I use it as I see fit or don't sell it to me.

A console is essentially a computer. These days very much so. There are tons of uses for computers and the fact that I bought it makes it mine and I use it to satisfy my needs. This is no different from buying any other stuff. Gadgets gets used for things not intended by the manufacturer even though most people use there consoles to play games on.

Who cares about as you say it "any other real use". I say it again. It's mine. I payed for it. I use it as I see fit even though you don't call it a "real use".

I have this crazy idea (5, Insightful)

Anonymous Coward | more than 10 years ago | (#6578021)

..that i should be allowed to create, buy and sell any tool i want, even if that tool can be used for illegal purposes. If the people buying the tool from me use them for illegal purposes, that's illegal, but THEY are the ones who committed the illegal act.

Everyone tells me that this is a bizarre, extremist, stupid idea, and would never work.

Unless the tools being described are weapons designed to kill people. In that case, having a right to make, buy, and sell these things even if they're going to be used for illegal purposes seems unquestionable, and it's extremist and stupid to state otherwise.

Of course you don't have a right to bear arms in Australia, right? But still I wonder if you'd get help from gun advocacy groups in Australia and told them about the plight of modchippers, and explained to them that modchippers and gun owners have common problems. I doubt it.

Re:I have this crazy idea (1)

91degrees (207121) | more than 10 years ago | (#6578128)

Why should we allow tools that have no possible legal use? Surely this can only be considered Aidin and abetting. Just because you don't know what the crime is doesn't mean that you don't know that someone is planning to commit a crime.

Re:I have this crazy idea (3, Insightful)

Rogerborg (306625) | more than 10 years ago | (#6578148)

> Why should we allow tools that have no possible legal use?

It's illegal to write your own software for PS2?

Argue that you can't find anybody doing it, but as they can't do it legally, is that really surprising?

Re:I have this crazy idea (1)

91degrees (207121) | more than 10 years ago | (#6578151)

I have no problem with modchips. They do have potential legal uses. Playing imported games is one of the more common ones. It's just that the grandparent suggested that anything - whether it has legal uses or not - should be legal to sell.

Re:I have this crazy idea (2, Interesting)

Qrlx (258924) | more than 10 years ago | (#6578183)

In America, we draw the line at .50 cal machine guns. Somehow, I dont' quite see a modchip being quite on par with a gun that is typically used to render industrial equipment functionless.

But then, I'm kind of a Luddite.

Modchips that don't allow copied games to run? (1)

Ed Avis (5917) | more than 10 years ago | (#6578694)

Surely it is possible to make a modchip which allows the system to boot Linux or other free OSes, but will reject copies of proprietary games? The Linux CD might have a special marker (not a digital signature, just a marker) to say that it can be loaded. Of course no game maker would put this marker on its CDs.

In the current legal climate, wouldn't that be the best way to sell modchips legally and widely?

Re:I have this crazy idea (1)

algie_f (686210) | more than 10 years ago | (#6578864)

With most products there exists some sort of legal use. Even if the majority of uses are illegal, a seller should be able to assume the buyer will behave innocently.

Re:I have this crazy idea (1)

iapetus (24050) | more than 10 years ago | (#6578154)

Except, of course, by using the reasonably priced PS2 Linux kit, available from Sony. They've always been pretty good about this sort of thing compared to the other manufacturers.

Re:I have this crazy idea (0)

Anonymous Coward | more than 10 years ago | (#6578178)

Except, of course, how to use PS2 Linux kit, when it is unavailable in your country?

Or, how to use all hardware on PS2, not only pieces that Sony wants you to use?

Re:I have this crazy idea (1)

Rogerborg (306625) | more than 10 years ago | (#6578356)

Kudos to Sony for that, and granted that this is Slashdot, but it's not all about linux. There are other OSs out there, or perhaps, just perhaps, you feel like writing your own. You know, like Linus did.

I have this even more crazy idea... (1)

thebigbadme (194140) | more than 10 years ago | (#6578194)

How about we start to manufacture modchips that can be used as hand grenades. Maybe what you had ment in your example was guns... in which case someone should work out a design for a small handgun.

Re:I have this crazy idea (0)

Anonymous Coward | more than 10 years ago | (#6578737)

Like selling nuclear bombs to al queda?

Its not YOUR fault, you just made the tool!

This is Disappointing (5, Interesting)

Joel Carr (693662) | more than 10 years ago | (#6578025)

I find this very disappointing given that third party tying is well and truely illegal here in Australia, and mod chips allow consumers to regain the rights console makers have been trying to take away from them.

Essentially a mod chip allows a consumer to run whatever they like on the hardware they bought, not only what company X says they can.

The problem is that company X has total control over what can be run on the hardware without mod chips. This means they can sell a product and then say you can only run a select list of programs on the hardware from companies as dictated by them. This is third party tying, and this is illegal in Australia.

In short, mod chips return to Australian consumers the rights they're entitled to under Australian law. This rulling removes them again.

Re:This is Disappointing (1)

Kris_J (10111) | more than 10 years ago | (#6578104)

Two comments:
  • Buy a GameCube and Freeloader -- region free, no hardware modification
  • Sony make available a Linux Kit for the PS2, which allows you to do almost anything with your PS2. It's hard to argue that they're specifically restricting anything execpt illegal copying
Perhaps I'd be more upset with the decision if I wasn't so fed up with the only PSX and PS2 games I find at swapmeets being pirated. It's hard to feel that Sony are just price gouging when one guy at one swapmeet is selling 300+ games at A$10 each each weekend.

Re:This is Disappointing (1)

Joe Tie. (567096) | more than 10 years ago | (#6578124)

Sony make available a Linux Kit for the PS2, which allows you to do almost anything with your PS2.

Admitingly I lost interest in their kit quite a while back, but I was under the impression that you were quite limited with what you could do with it. You can't even access the DVD drive, can you? Is it actually possible to use it to play games from a region outside the intended area? Heck, I might have to re-evaluate what it would be worth to me if it'd be an easy way to both play around with Linux on it and play the Phantasy Star, and other remakes of old games coming out for it in Japan.

Re:This is Disappointing (2, Interesting)

bakes (87194) | more than 10 years ago | (#6578260)

Sony make available a Linux Kit for the PS2, which allows you to do almost anything with your PS2. It's hard to argue that they're specifically restricting anything execpt illegal copying

Except for the region coding factor. If I buy LEGAL games from overseas, either by visiting those countries or by mail order, I cannot play them. This reduces consumer choice, and is exactly why the ACCC were interested in this case.

The ACCC kicked up a fuss about DVD region coding some time back, now pretty much any DVD player you buy in Oz is region free. I bought a DVD player last week, and there was a sticker on the box saying 'this product has been modified to conform to Australian regulations'. It had been de-region-ified.

So anyway, if I was to buy a console now (I currently don't have one, but I could be a potential customer within 12 months) then the Sony PS2 would definitely be OFF my list.

Re:This is Disappointing (1)

AndyS (655) | more than 10 years ago | (#6578309)

Cool, so if I get the Linux kit I can stock up on American PS2 games! Fantastic.

(Note, I'm a Brit, and I wish I wish I wish that we had judges and laws that would give us some of this stuff over here. Maybe I should write to my MP)

Re:This is Disappointing (1)

antin (185674) | more than 10 years ago | (#6578313)

Be serious - I know everyone likes to use the argument that it is for backup purposes, or because they own it, or because nobody should interfere with your rights...

But deep down everyone realizes the only basis is for pirating games. I know a half dozen people with mod-chips, and they only did it for games... Maybe there is the odd honest person out there - but I bet that 99% of people just want to pirate.

Just because there is the odd person who would make a legal use of it, does not justify allowing the horde to do so. Think about gun restrictions, and various similar limitations.

Re:This is Disappointing (1)

PainKilleR-CE (597083) | more than 10 years ago | (#6578856)

Just because there is the odd person who would make a legal use of it, does not justify allowing the horde to do so. Think about gun restrictions, and various similar limitations.

Yes, think about gun restrictions. For most lethal firearms, the majority of people in America are welcome to get a minimal background check and then buy said firearm. Of course, if the weapon they wish to buy can take out a city block in half a second, it's significantly less likely that they can get it. On the other hand, in most states in the US, if said person attempting to buy a single-shot rifle happens to be a convicted felon, than he usually can not buy the weapon.

On the other hand, you have a mod chip, which won't kill anyone or anything, which enables piracy, independant development, the playing of independantly developed titles, and removal of region encoding (artificial trade restrictions).

If I buy a piece of non-lethal hardware, I should be able to do whatever I want to it (short of making it into a piece of lethal hardware, at least lethal to anyone other than myself).

If someone commits a crime, feel free to stop them. Hell, make a database of people convicted of piracy and prevent them from being able to buy the mod chips for all I care. Don't spend tax money trying to enforce corporate schemes that setup artificial trade barriers (which are illegal in many countries, though many haven't bothered to try to stop region encoding).

If companies really want to make mod chips illegal and aren't making artificial barriers to trade but are actually trying to help the consumers, they can seperate the region encoding from the rest of their security, make it possible to remove region encoding (or never put it on in the first place) without allowing copied games to work. It's really simple if you go into the project from the start with the idea that the two should be seperate.

G O A T S E . C X (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#6578036)

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Re:G O A T S E . C X (0, Offtopic)

mcbridematt (544099) | more than 10 years ago | (#6578049)

If I had mod points, I would mod you -1 offtopic

Well, at least it's in Internet Protocol Version 6.

cut here

The ACCC might appeal, since that decision also made it a bit more legal to sell multiregion DVD players here.

also at theregister: (4, Informative)

spiny (87740) | more than 10 years ago | (#6578039)

http://www.theregister.co.uk/content/54/32088.html

some content in this one this time too :)

Ironic (3, Interesting)

Matrix2110 (190829) | more than 10 years ago | (#6578042)

Very ironic that the big companys wish to deny us new open hardware and at the same time ramming DRM into legacy hardware. Ala media player 9 (Plan 9?) I would normally be a lot more concerned, however since Microsoft is set to embrace and extend this new field of DRM, I am not worried.

Go to Google and try to find a method for saving a Quicktime video stream. It can be done but you have to be persistant. Now try the same thing with Media Player... Google goes nuts showing you freeware up the wazzo to do just this very thing.

I am not worried.

It was in today's newspaper (2)

bakes (87194) | more than 10 years ago | (#6578047)

I read about the ruling this morning in 'The West Australian' (newspaper).

Online link here [thewest.com.au].

Ahhh. (0)

Anonymous Coward | more than 10 years ago | (#6578051)

Legislating from the bench ROCKS! I'm so psyched about the law changing because someone not elected by or accountable to the process we use to select legislative representatives thought it should change.

So what? (4, Informative)

rasteri (634956) | more than 10 years ago | (#6578053)

You don't really NEED a modchip these days anyway. Solder a couple of points on the motherboard (MUCH easier than soldering in a modchip) and use the 007/Mechassault/Whatever hack to flash the TSOP. Worked for me, worked for my friends, worked for (probably) hundreds of other people.

erm... that's for an MSX-box, not psx (1)

sarabob (544622) | more than 10 years ago | (#6578119)

Except that wouldn't work on a sony console now, would it?

And in that case you still need a way to get the buffer-overflow files on your xbox - which requires a mega x-key (read: circumvention device) or some jiggery-pokery swapping IDE cables around while your hard drive is on.

Re:erm... that's for an MSX-box, not psx (1)

Qrlx (258924) | more than 10 years ago | (#6578177)

If they want to believe in all this jiggery-pokery raising the ghoulies rot, well... why not let them?

Re:erm... that's for an MSX-box, not psx (1)

rasteri (634956) | more than 10 years ago | (#6578320)

Except that wouldn't work on a sony console now, would it?

True, true... but I was referring to the part in the article where it speculates on what this would mean for the Xbox. Sorry, I should have made that more clear.

And in that case you still need a way to get the buffer-overflow files on your xbox - which requires a mega x-key (read: circumvention device) or some jiggery-pokery swapping IDE cables around while your hard drive is on.

The mega x-key isn't a circumvention device, it has FAR more legal uses than illegal ones. And swapping around IDE cables is (IMHO) a lot easier than soldering dozens of wires to an easily-damaged motherboard.

Re:erm... that's for an MSX-box, not psx (1)

sarabob (544622) | more than 10 years ago | (#6578375)

The mega x-key is as much a circumvention device as a modchip if you are basing your judgement on the number of legal/illegal uses. Although it now appears that there's an msx-box version of action replay which is basically a usb->memory card adapter, so you could use that rather than the mega x-key.

Something about swapping the IDE cables while the drive is running scares me though, and the soldering isn't really very difficult. Although as you say, soldering the bridge and flashing the tsop is much simpler assuming you have the save file on a memory card and a copy of 007.

But with a cheapmod at 16 delivered, it's almost cheaper than a memory card and a rental 007.

Re:erm... that's for an MSX-box, not psx (1)

gearheadsmp (569823) | more than 10 years ago | (#6578681)

It either requires a 3rd party memory card with a PC uplink connector, or knowing someone with a hacked Xbox who can put the save game on a normal memory card for you. So if you live in a big city you can just swap memory cards at a meeting. Tutorials Here [xbox-scene.com].

Re:So what? (0)

Anonymous Coward | more than 10 years ago | (#6578184)

Well to be honest, installing a xbox chip isn't a whole lot more harder than the bridge required for the 007/Mechassault/Whatever hack.

The LPC bus connections used when installing a modchip are pretty simple solders, the d0 bridge is another matter entirely for the n00b solderer :)

Only thing is by installing a modchip you don't have to touch the tsop. This is an advantage as you can turn off the modchip and go straight to the unhacked xbox bios making xbox live compatibility just the flick of the switch away.

A bad flash to the tsop would require a modchip to fix also. A bad flash is pretty unlikely though, but can happen (power interruption).

the 49lf020 mod rules. kudos to andy

Case opens (2, Interesting)

Rogerborg (306625) | more than 10 years ago | (#6578100)

Two years ago Mr Eddy Stevens sold unauthorised copies of computer games on CD-ROMs for use on Sony PlayStations. He also supplied and installed modifying chips in PlayStation consoles

Case closed. We really need to find better cause celebres rather than letting rights owners pick the fights.

Several Issues (2, Interesting)

fven (688358) | more than 10 years ago | (#6578105)

The ruling seems to indicate that not only are modchips illegal, but software solutions that allow playing of ah.. unauthorised discs are also illegal.

In Australia it is illegal for vendors to 'lock' products with products from third parties.
This ruling seems to side with the manufacturers without addressing any of their failings. There is possibly wrongdoing on both sides here (ie offering a product for sale that does not comply with these 'third party lock in' laws)

With respect to the 'could reasonably know that a device would be used for copyright infringement' or 'that commercial viability of non-infringing uses for such device would be minimal' there are a couple of cases in point:
The playing of legally purchased games from overseas.
The use of backup copies of legally purchased material.

One way a number of companies remove the need to allow backup copies is to offer exchange at no or minimal cost of damaged media. I have not seen any examples of game manufacturers offering this service.

Wny doesnt someone make a modchip that... (2, Interesting)

jonwil (467024) | more than 10 years ago | (#6578109)

only allows linux to be used and doesnt allow any pirated games to be played (i.e. it would be pre-flashed with a linux bios image that had no (C) microsoft code in it)

Also, it could be built to boot bootable cdroms (such as a sutably modified knoppix disk or something), so that you could e.g. modify the installer for a sutable linux distro and make a set of ISOs ready to install that would give you e.g. red hat or mandrake or whatever with sutable mods for xbox and xbox h/w

Since the digital signature on xbox disks is the "access control" and since this doesnt allow one to play xbox games, pirated or otherwise and since it doesnt circumvent the "access control" as far as I can see (although IANAL and I dont know exactly what the relavent laws say)

Given that the chip would be flashable, someone would come up with a bootable ISO that will put some other bios (such as "lets you play pirate games" one) on there but since the chip makers arent selling it or even linking to it, they cant get in trouble for it.

Re:Wny doesnt someone make a modchip that... (1)

hsoom (680862) | more than 10 years ago | (#6578340)

only allows linux to be used and doesnt allow any pirated games to be played (i.e. it would be pre-flashed with a linux bios image that had no (C) microsoft code in it)

Hibana over at Aussie Chip [aussiechip.com.au] claim that they have. From their website:
"The AussieChip DualMod modchip cannot in fact be used to play unauthorised copies of XBox games. The legal Cromwell BIOS that we ship pre-programmed onto the chip can only be used to run Linux."

However they have suspended [smh.com.au] the sale of their modchips while legal advice is sought.

And now... for something stupid. (-1, Flamebait)

Anonymous Coward | more than 10 years ago | (#6578112)

All you motherfuckers are gonna pay. You are the ones who are the ball lickers. We're gonna fuck your mothers while you watch and cry like little bitches. Once we get to Australia and find those AFC fucks we're gonna make 'em eat our shit, then shit out our shit, then eat THEIR shit which is made up our shit that we made 'em eat. Then you're all fucking next.

- Love, Jay and Silent Bob.

The real reason Australia is scared of modchips (3, Funny)

Anonymous Coward | more than 10 years ago | (#6578113)

The Australian game publishers are terrified of trying to keep up with the frantic schedule of one or two games per year seen in Linux gaming.

what is wrong with australia? (-1, Troll)

Anonymous Coward | more than 10 years ago | (#6578125)

It really seems as though they don't care about civil rights at all, or at least their version of rights are totally different than the rest of the Western world. I'm not trying to be a troll, but their internet access is totally restricted, they have wacked computer rules, and now this? Is there no EFF in Australia, or does it not even make a difference?

Re:WHAT?!?! (1)

quinkin (601839) | more than 10 years ago | (#6578185)

Um, we aren't the ones who came up with the Patriot Act....

No internet access isn't restricted - it is crap. Bandwidth just sucks in australia, though this has begun to slowly change.

"...whacked computer rules" - I'm not even sure what this one means... perhaps you mean how our federal police/intelligence agencies have finally been granted the same rights as the comparable american agencies???

Australia has EFA [efa.org.au] - but we don't neccesarily have to rely on volunteer organisations as we actually have a government commission (the ACCC [accc.gov.au]) that is specifically to protect the rights of the citizens - except in this case... :) heh...

Don't get me wrong, we are in no way a truly "free" society, but show me one that is...

Q.

FTA = Bend Over (3, Insightful)

quinkin (601839) | more than 10 years ago | (#6578130)

A bit OffTopic, but I have to vent my feelings.

"Free Trade" - what a misnomer.

Australia already has 0-5% tariffs on nearly all imports - the real sticking points here are removing PBS (Pharmaceutical Benefits Scheme), removing australian TV content restrictions, full privitisation of Telstra (the now half state owned telecommunications giant), removing distilled liquor duty, relaxing food labelling laws, relaxing quarantine restrictions, and basically anything else that a major American lobby group objects to...

So basically - we have to remove all of the things that Australians believe in and have spent many decades nurturing - for a marginal at best gain...

Let us hope negotiations progress...

Btw, I'm not anti-american, I would feel the same way if any other country tried to dictate australian domestic policy.

Q.

Re:FTA = Bend Over (2, Insightful)

Qrlx (258924) | more than 10 years ago | (#6578166)

I love how these capitalists love to push schemes like privatisation of drinking water, even though none of them would ever live in a country with a privatised water suppply.

Here in America, we've got NAFTA, and it's not much better. Well, it's better than being in Iraq, but I swear, Democracy is flourishing at home, too!

Re:FTA = Bend Over (0)

Anonymous Coward | more than 10 years ago | (#6578242)

yeah NAFTA, go talk to the Zapatistas about that one!

Re:FTA = Bend Over (0)

Anonymous Coward | more than 10 years ago | (#6578214)

Heh, you know what they call PM John Howard....

Bonzai, because he is a little Bush

Re:FTA = Bend Over (0)

Anonymous Coward | more than 10 years ago | (#6578286)

What has PBS have to do with free trade?

PBS subsidises the cost of medicine to the public, not subsidises to the Australian drug industry.

ie: It provides cheaper medicine to the public. In some cases the government pays more than $5 for every dollar the consumer pays.

Re:FTA = Bend Over (0)

Anonymous Coward | more than 10 years ago | (#6578299)

Under GATS, something like the PBS is considered 'a barrier to trade', kind of like when the goverment pays for schools.

Re:FTA = Bend Over (2, Interesting)

jquirke (473496) | more than 10 years ago | (#6578666)

I couldn't care less about the Australian TV content restrictions. If it means less bloody backyard/renovation shows, than so be it. Let's face it - that's all Australia can afford to put on TV anyway.

Re:FTA = Bend Over (0)

Anonymous Coward | more than 10 years ago | (#6578706)

It's also radio content. And that means less aussie bands on the radio, and more US shrinkwraped shit.

I don't get it (5, Insightful)

73939133 (676561) | more than 10 years ago | (#6578172)

It's bad enough that companies are simultaneously claiming copyright protection under the law while trying to make their content uncopyable even for fair use; companies should have to choose between enjoying copyright protection or employing copy protection. Copyright law loses its meaning and purpose if the content being copyrighted never has a prayer of making it into the public domain.

But this ruling goes even further: in addition to copyright protection, the legal system is now also being burdened, at taxpayer expense, with prosecuting people who circumvent copy protection. If Microsoft or Sony can't figure out how to make their boxes unmoddable (it's not that hard technically), why should the taxpayer pick up the tab for their incompetence? And, no, it's not just Australia: of course, this nonsense is even more widespread in the US.

Re:I don't get it (1)

BobSutan (467781) | more than 10 years ago | (#6578288)

I couldn't agree more. In seems to me, at least in the US, that Copy protection is unenforcable. After all, if the copy protection being implemented doesn't automatically expire when its designated to, then it's effectively permanent. The constitution still states its a limited monopoly. If the disk is permenantly locked down, how is that limited?! Sure the disk will be unusable in a hundred years or so when the copyright eventually expire, but that's a moot point. Heh, that point in of itself should illustrate how ludicrous our IP and copyright laws have become over the last couple of years!

Re:I don't get it (0)

Anonymous Coward | more than 10 years ago | (#6578330)

Try a class action, but 6 games at $100 a pop, and import 6 games at $35 a pop, and sue for the difference as regional extortion, in a class action, for designs what willfully inhibit competition. An injunction in the local small claims court should do the trick. Also write to bony demanding to buy a title 'not available here'. After 60 days, it is legal to get your own copy if they are unable to supply, according to the copyright act. Either way, this puppy belongs in athe civil arena. A discovory supona aking bony(Aust) to the economic rent premium will allow damages to be calculated.

i don't get it ... it's mine or is it? (2, Interesting)

Anonymous Coward | more than 10 years ago | (#6578209)

i don't get it. i bought the damn thing. if i want to i can just trow the damn XBox out the window! i bought it, it's mine! if i want to remove the chip, ram what ever it's up to me! it's MINE!

it's like buying a calculator and then the law forbids me to use it to calculate how much plutonium i will need to reach critical mass!!! damn!

What is the jurisdiction here? (1)

Aropax20 (636154) | more than 10 years ago | (#6578301)

IANAL (though I *am* an Aussie) but... does the Federal Court have the power to make laws concerning civil matters?

I would have thought the whole mod chip thing was a civil issue, not criminal when you're talking copyright infringement

Oh, wait... we're only talking potential copyright infringement aren't we?

It's legal for me to own a firearm (if properly licensed & registered) until such time as I actually commit a criminal offence with it. Surely I should be able to buy a mod chip for my Sony or whatever on the assumption I won't break any laws. If I do, so sue me, but until I actually break the law, I'm not a criminal.

Anyone here know much about the jurisdictions involved?

Re:What is the jurisdiction here? (0)

Frogbert (589961) | more than 10 years ago | (#6578618)

In a nutshell:

District Court of New South Wales - The District Court has jurisdiction to hear all indictable criminal offences (except murder, treason and piracy); and civil matters with a monetary value up to $750,000, - or greater with the consent of the parties. The Court also has an unlimited jurisdiction in respect of motor accident cases.
The Court can also deal with applications under the De Facto Relationships Act 1984, and the Family Provision Act 1982, that involve property worth not more than $250,000.
The Court's judges hear appeals from the Local Court and also preside over a range of administrative and disciplinary tribunals.

The Supreme Court of New South Wales - The highest court in the State is the Supreme Court of NSW. It has unlimited civil jurisdiction and handles the most serious criminal matters.
The Court of Appeal and Court of Criminal Appeal hear appeals from decisions made in most of the Courts of New South Wales and from decisions made by a single judge of the Supreme Court.

Federal Court - The Court's jurisdiction is broad, covering almost all civil matters arising under Australian federal law and some summary criminal matters.

High Court - The High Court is the highest court in the Australian judicial system. It was established in 1901 by Section 71 of the Constitution. The functions of the High Court are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts.

It also should be noted that any court decision techinicaly could be overturned by the hourse of lords in England and ultimately our Queen by way of our Governer General, of course this wouldn't happen unless there was a very extreme circumstance

Re:What is the jurisdiction here? (1)

ZenJabba1 (472792) | more than 10 years ago | (#6578650)

could be overturned by the hourse of lords in England

Australia's access to the Privy Council was removed in the 80's

Re:What is the jurisdiction here? (0)

Anonymous Coward | more than 10 years ago | (#6578704)

Point One, intellectual property and copyright especially is in the exclusive jurisdiction of the Commonwealth. Point two, the Federal Court has the first instance (ie before appeal to the High Court) hearing of ip cases. If noteworthy enough an appeal to the High Court can occur. No further appeals exist outside the Full Court of the High Court. Ignore any garbage about House of Lords appeals or the Queen being able to overturn a High Court decision, the House of Lords never heard cases from Australia only the Privy Council did and that right was abolished almost twenty years ago. As for Queen, the monarch has no jurisdiction in the matter although the Commonwealth Parliament can pass legislate on the matter.

By the way the mod chip seller seems to have been a pirate and scum bag, so lets not elevate him to a hero eh ?

Toldja so. (-1, Troll)

NanoGator (522640) | more than 10 years ago | (#6578315)

" However, his Honour said that on the evidence he would have held that the chips had only a limited commercially significant use other than that of circumventing or facilitating the circumvention of Sony's device. Accordingly, if that device had been a "technological protection measure", the chips would have been circumvention devices."

I said [slashdot.org] it [slashdot.org] before [slashdot.org], I'll say it again: Come up with the legitimate reason before making large-scale attempts to mod game systems!

Now ya'all got a legal precedent against you. Sorry to sound inflammatory but man, choose your battles wisely, seriously.

Re:Toldja so. (0)

Anonymous Coward | more than 10 years ago | (#6578723)

Even better idea is to release the modchip design itself. You can't make money on it, but everyone with an EPROM burner (or in some cases a PonyProg device) can make it from off-the-shelf parts.
Which doesn't make it legal, but makes it technically impossible to prevent its proliferation and to find the people who have it. Also serves as a nice side income source for notoriously cash-strapped EE/computing students.

Thats good news for Australia (1)

SpiritedAway (693048) | more than 10 years ago | (#6578319)

Good news for Australia. At least when you buy a console you can do whatever you want with it. The way it should be.

Game Backups (3, Interesting)

henele (574362) | more than 10 years ago | (#6578332)

If you ring up Microsoft's European Customer Support and ask for a replacement (even at a fee) for a damaged disk of a game they publish, you are told flately 'no' (in three different examples I know of).

Since then I haven't bought any of their games, and I'd also strongly argue the case for me to backup the ones I do.

Limited use (1)

The Famous Brett Wat (12688) | more than 10 years ago | (#6578351)

Also noted is that there is limited commercial use for the mod other than circumvention.

Making the chips illegal to sell strikes me as a pretty good method for making sure it stays that way.

Shit, can't he use non-lawyer speak? (0)

Anonymous Coward | more than 10 years ago | (#6578374)

Say, yes or no, legal or illegal, because I couldn't make it out from the text. And don't mod me down till there's a yes-or-no answer to this post.

Re:Shit, can't he use non-lawyer speak? (0)

Anonymous Coward | more than 10 years ago | (#6578436)

yes-or-no.

Well... (1)

unclethursday (664807) | more than 10 years ago | (#6578411)

Looks like Microsoft might have a case against the modchip maker who released their specs for their modchip on the Net, now. Even if MS follows the clickable lisence that states any and all legal action must go through Queensland, Australian court systems, MS may have a chance.

Pity, really, as it would have been fun to watch MS squirm under a clickable lisence, or try and say the clickable lisence was invalid (thus them saying all clickable lisences are invalid, even their own).

Oh well.

Thursdae
up too early with nothing to do.

Has anyone called a PS/2 a PC? (1)

erioshi (671381) | more than 10 years ago | (#6578772)

Would the modchip view be changed if the PS/2 was successfully argued to be a full fledged computer? IANAL, and have no idea what the legality of this might bring; but I'm pretty sure Dell doesn't have the right to limit what software you run...
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