I must admit I am breaking what should be a cardinal law of journalism: I am writing about a subject I do not fully understand. However I am including the recent raids on mod shops in my blog precisely because I do not fully understand what “modding” is in a legal sense and I want to get down what I feel while I’m still a n00b. Below is the post I am referring to throughout my writing today:
Then the Google definition for “mod”,
And finally the first mod website which I found. I have linked to the “about us” page because I suddenly realized when reading it that one could make money from reviewing video games–not something I have enough expertise to do myself, but something certain other people close in blood and relationship could do. eh hem.
So in the first article (which I found via the “Hack a day” window from HackADay (http://www.hackaday.com) which lives on my iGoogle page. Just cuz!) a modder is raided by the FBI–ok, now this is scary. In the post above the modder refers to the people who raided his house as “the ICE”. Because I found the post on a game oriented site I thought it might be a slang term (like calling police pig, the popo or the fuz). But I wanted to be sure so I looked it up. My first his I couldn’t believe: ICE = “US Immigration and Customs Enforcement”. And guess what the headline for their mainpage website is? “Game Over: ICE, Industry Team Up in Gaming Piracy Crackdown”.
See, being slightly biased against anonymous postings, I had heaped a tablespoon of salt in with my interpretation of the first article. Below is the above named article with my own commentary inserted. WARNING: I want to say now I don’t really like the DMCA (Digital Millennium Copyright Act) and I am excessively paranoid about government’s views on copyright and intellectual property being influenced by industries with embedded interests (rather than being influenced by the consumer’s need for a public domain or the artist’s need to build on the past. You can tell I’m biased already :-D).
Game Over: ICE, Industry Team Up in Gaming Piracy Crackdown
32 search warrants executed in nationwide intellectual property rights investigation
WASHINGTON, DC – U.S. Immigration and Customs Enforcement (ICE) agents from 22 offices assisted by representatives of the electronic industry today executed 32 federal search warrants in 16 states as part of an investigation into the alleged sale and distribution of illegal modification chips and disc copyright circumvention devices. This investigation represents the largest national enforcement action of its kind targeting this type of illegal activity.
Note how “representatives of the electronic industry” helped federal agents to execute warrants? This is probably my lack of legal knowledge but I thought warrants could only be executed by representatives of the*elected government*. And I never like seeing the government be so coordinated in its enforcement. I believe in inefficient bureaucracy.
The search warrants were executed at businesses, storefronts, and residences located in California, Florida, Hawaii, Idaho, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, and Wisconsin at locations associated with subjects who are allegedly involved in the direct importation, installation, sale, and distribution of the devices that are of foreign manufacture and smuggled into the United States.
Two of the first article’s claims seem to be verified circumstantially here: residences (his grandmother’s house, his girlfriend’s house) were targeted and his stated home state (Ohio) is listed as a state where such raids took place. Also, interestingly, “This enforcement action is the result of a year long investigation conducted by the ICE Office of the Assistant Special Agent in Charge, Cleveland, Ohio”. So Ohio ICE had a home team advantage here. That quote will come up later.
The modification chips and circumvention devices allow users to play illegally obtained, pirated and/or counterfeit software on video game consoles including Sony’s Playstation 2, Microsoft’s XBOX and XBOX 360, and Nintendo’s Wii. Modification chips and swap discs for gaming consoles violate laws under the Digital Millennium Copyright Act of 1998 (DMCA). 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.
See, my suspicion is that modding can have uses other than the illegal. This is like the old refrain in the pre P2P-is-how-you-down-load-any-big-file days when P2P = Pir A Cy (If the RIAA and MPAA had cheers. Which they don’t, really.) Unfortunately this is where my lack of knowledge of the legal implications of modding kicks in. But I generally find the people who do it for a living know more about what they do than the people who were assigned to prosecute them. Here’s a rebuttal from the first site’s admins:
“HSD – Xbox-Scene and it’s affiliate sites do not condone or endorse piracy, however we do strive to discuss, educate, and explore methods of modifying and operating game consoles in ways not originally intended or envisioned by the manufacturers. We whole heartedly believe in the right to backup your investment. ”
So putting those two statements together, I gather than modding can be much like the other weird but not always infringing uses of products which users sometimes get into. The moral equivalent of importing a song bought form iTunes into Garage Band and trying to edit out the irritating crowd noise but being stopped by iTune’s DRM
Maybe someday I’ll tell that story.
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.
Remember when the record industry was selling the line that people who download music are stealing from artists? Remember when the music industry (but sadly not the recording industry) didn’t bother to court online customers until iTunes pushed? I’m sorry, I am cynical about such large claims of American loss to pirates. I’ve heard it before.
“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. “These crimes cost legitimate businesses billions of dollars annually and facilitate multiple other layers of criminality, such as smuggling, software piracy and money laundering.”
Oooh, washable monies. oh, she means the other kind. Again, I would like to point out the many things which the software industry hates because they have potentially infringing uses. But I won’t, because it would make me sad. It is however interesting to note the claim of smuggling, because that is one of the implied accustations in the first article (or that’s what I got from the ICE agent’s questions about the poster’s software from Canada).
As the largest investigative arm of the Department of Homeland Security, ICE plays a leading role in targeting criminal organizations responsible for producing, smuggling and distributing counterfeit products. ICE investigations focus on keeping counterfeit and pirated products off U.S. streets, and on dismantling the criminal organizations behind this illegal activity. In fiscal year 2006, U.S. Customs and Border Protection (CBP) and ICE marked an 83 percent increase in the number of intellectual property rights (IPR) seizures, including 14,675 seizures of counterfeit goods worth more than $155 million, a 67 percent increase from the year before. ICE investigations resulted in 219 arrests, 134 indictments and 170 convictions in intellectual property rights violations.
I’m not going to comment on each of those numbers, but look at the whole picture there: I see a government agency with more power than reputation, with more money than track record and with a burning need to prosecute to prove itself. It is also part of the Department of Homeland Security which is also being given more powers than I am comfortable with such a one-presidency agency having. This stuff makes me scared.
Between fiscal years 2002 and 2006, ICE agents arrested more than 700 individuals for IPR violations and dismantled several large scale criminal organizations that distributed counterfeit merchandise to nations around the globe. At the same time, ICE investigations into these networks resulted in 449 criminal indictments and 425 convictions. Together, ICE and CBP seized more than $750 million worth of counterfeit goods from fiscal year 1998 through fiscal year 2006.
And see, here I get this stuff. We’ve gone from the hacker-next-door to the Russian Mafia in one brisk sweep. Large crime organizations, I like those being taken apart. That “88 percent of software, 80 percent of DVDs and 66 percent of music recordings in Russia are counterfeit” is *not ok*. It speaks of badness in many many ways. But what is the real connection between modders and mafiosos? Really?
This enforcement action is the result of a year long investigation conducted by the ICE Office of the Assistant Special Agent in Charge, Cleveland, Ohio.
// See? I told you I would come up.
The names of those targeted, addresses and case specifics are not releasable at this time.
So here it is. There is no way for me to check to see if the poster from the first article’s claim was accurate. Given then what s/he said s/he was doing sounds a lot like what ICE was cracking down on, it seems a likely story.
The investigation is being coordinated with the U.S. Attorney’s Office for the Northern District of Ohio in Cleveland and assisted by the Department of Justice Computer Crimes and Intellectual Property Section (CCIPS). In addition, ICE has received valuable technical assistance during this investigation from ESA and other industry members.
And here’s the closing theme of the story: “CE has received valuable technical assistance during this investigation from ESA and other industry members”. This article begins and ends with industry helping the government crackdown on stuff that hurts industry. Logical but wrong. Wrong because the government should not be focusing the largest arm of the largest security coordinator in the US (on the planet?) on one group’s needs. Wrong because it means those ICE agents who were ‘assisted’ by “ESA and other industry members” *could not have helped but to be biased against the modders*. In the article at the top, the poster seems to have been doing illegal things. But they took his XBox and 360. Why? In the post at the top the modder says “All the chips and relative parts were taken on the recommendation of the computer forensics guy who was to be doing the analysis on my things”. Was he part of the “technical assistance” which ESA provided? Ok, so here’s the scenario which most wiggs me out: a private citizen (ESA member) advises government agents with the ability to search and potentially seize another private citizen (modder)’s belongings. Maybe the ICE agents have special training in modding. Maybe they don’t. If they don’t, can’t you just see them following the advice of the ESA member on what to take? Sounds a bit like theft to me.
Industry Points of Contact:
General photos and video of the gaming products and circumvention devices and data detailing the impact of counterfeiting and piracy on the industry may be available by contacting industry representatives.
* Entertainment Software Association: Dan Hewitt, 202-223-2400, email@example.com
* U.S. Chamber of Commerce: Katie Wilson, (202) 463-5375 (general impact of counterfeiting and piracy on U.S. industry)
* Nintendo: Eileen Tanner, 509-628-1993, firstname.lastname@example.org Microsoft: Waggener Edstrom Worldwide, 503-443-7070
//Again notice the deferral to industry specialists.
U.S. Immigration and Customs Enforcement (ICE) was established in March 2003 as the largest investigative arm of the Department of Homeland Security. ICE is comprised of five integrated divisions that form a 21st century law enforcement agency with broad responsibilities for a number of key homeland security priorities.
//and we finish with national security. Goodnight.