Modding "Fair Use"

As I've mentioned a few times, my main area of interest is in the study of video games.  My undergraduate thesis, however, was about the Internet and some of its many legal issues, so an article that came out yesterday on Wired really caught my eye when I saw that it dealt with copyright law and video games.

The article, "Citing iPhone Ruling, Xbox Defendant Says Mod Chips Are Fair Use", deals with the case of Matthew Crippen, who is scheduled to face copyright violation charges in court any day now.  He could receive a sentence of three years in prison for-- get this-- modifying an Xbox.  Well, a couple of them, but it's still quite a novelty.

 The prosecution is arguing that Crippen's console modding violates the Digital Millennium Copyright Act (DMCA)'s clause against hardware circumvention.  Which seems pretty cut and dried (although I am not an expert on this act by any means)-- he definitely was circumventing Microsoft's attempts to keep the console limited to their approved games and software. 

The whole case just got complicated, as copyright issues normally do, by Crippen's defense, which hopes to get him off on a "fair use" claim.  Fair use is a special caveat in copyright law that says the way in which you are using copyrighted material does not infringe upon the copyright or require special permission.  For instance, using a film clip for educational purposes in a classroom generally does not require permission from the copyright holder.  Parody and news reporting are generally covered as well, as are a few other things.

To support fair use as a defense for Crippin, his lawyers have cited July's iPhone discussion (Wired article here), where copyright lawyers were all trying to determine whether or not it was legal to jailbreak an iPhone, allowing it to operate on a different network or to use unauthorized apps.  Eventually, it was determined that this was allowable.  To quote a court filing, "The Copyright Office cited the fact that the only way for consumers to exercise their fair-use rights by running non-Apple endorsed applications was through circumvention of access controls."  If the court allows the defense to use this, Crippin might be off the hook.  However, he was charging people to mod their Xbox for them, which might mean he's still in trouble-- non-commercial use is generally considered "fair", but making a profit off circumvention might be going too far.

I'm probably going to follow and see how it turns out, and I recommend you do the same if you're interested in either video games or copyright.  This could be a landmark case for console freedom in particular or technological freedom in general.  Giving the growing trend of proprietary technology that comes with limitations built in, this could be remarkably important.  But perhaps I'll detail that trend a bit more at a later time.