krazy8 done by crazy DMCA
after all the histeria created by this case (as well as the Sony v Paul Owen and Ors litigation in th UK aka the "messiah" decision) i feel compelled to clear up the air on some of these matters. The DMCA through section 1201 makes it an offence to (amoung other things) have commercial dealings in circumvention devices as well as making it an offense to circumvent a technical protection measure, like what the xbox has. In the UK section 296 of the Copyright Designs and Patents Act also creates a similar offence but does not outlaw the mere act of circumvention as does s116A of the Copyright Act 1968 (Cth) in Australia. Everyone now knows about the Sony v Stevens (2001) case in australia where modchipper Eddy Stevens was found NOT to have contravened s116A because the ps1 did not contain a technical protection measure - this was because the protection in the ps1 (arguably similar to ps2 protection) does not prevent or inhibit the infringement of copyright.. So chipping is allowed in Australia but not the UK - howver has that stopped anyone in the UK from getting their ps2's chipped??? no - Sony and microsoft usually only prosecute ppl who chip as well as selling pirated games or go after the big distributors since a court would probably be reluctant to find joe blow guilty if all he did was chip a couple ps2's each week. The solution? sell unflashed chips or chips that do not circumvent any technical prtection ie like the cromwell chips for the the xbox. The DMS3 is a step in the right direction, i highly doubt sony or microsft would win anything if unflashed or chips flashed with bioses that do not allow backups to play are sold/installed. The best way around the DMCA and all the other laws above is to sell chips flashed with a bios that lets you use linux or legitimate overseas games since it would be very difficult for gaming companies to argue that they will be used to circumvent compared to unflashed chips. Had krazy8 done that the DOJ would be stuffed and he'ld still be running his site.
krazy8's illegal activities clarified
sega had tried to shut down the site before s1201 of the DMCA came in - i doubt they would have gotten a criminal conviction for it (there was nothing around before the DMCA to stop ppl discussing how to break copyright protections like what sega alleged isonews was doing with the dreamcast). The DOJ got him on importing 450 Enigmah chips from the UK and selling them through the site for approx $28,000; the fact he used a site that discusses methods for circumvention added to the criminal aspect (that he 'conspired to violate copyright law') although i think he SHOULD NOT have plead guilty. Most ppl assumed it was shut down because of the discussion boards - this is wrong - it was shut down because he sold modchips through the site, it would have been difficult to get a criminal prosecution solely based on discussion of circumvention ie breaking copyright protections (which was done mostly by members and not krazy8 himself.) Criminal prosecutions under the DMCA are only made when the act is done "willfully and for the purpose of commercial advantage "s1204 - willfully means that he had to have known that selling the chips was breaking a law (like copyright infringement). I think pleading guilty was a huge error - he could have argued it wasn't willful becuse the chips have legitimate purposes other than breacking the xbox's protection (like developing independent game, running homebrew stuff and playing imported games). He could of also said that once sold he didn't know if ppl were going to just use them to pirate games or to play their own backups of games they own or whatever. In USv Elcomsoft the US gov't lost on a similar point about the DMCA. In that case a piece of software that allowed ppl to break adobe reader protection was held NOT to be developed 'willfully' because the guy was a russian and he wouldn't have known much about US copyright law (there was also nothing in Russian law that stopped him from selling the software there), in addition, the law was complex (withalot of exceptions/ procedures) and hard for any person to have 'willfully' violated it - krazy8 had an excellent chance at beating the criminal prosecution although mabe not so good on civil liability - he should get the eff to help him appeal while he can.
for some info on the DMCA check out this easy to understand explaination as well as doom9's guide - they're both an excellent read.
