Xbox Live 360.com. Games and Games.

A good friend of mine has been following the mod chip issue, and reminded me of a bill that I thought had died in Congress. In reality, the Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (HR 1201 in the 110th Congress) is in committee. Why is this bill important? It would soften many of the copyright restrictions faced in the electronics world, most notably, it would seemingly take mod chips out of the Digital Millennium Copyright Act's jurisdiction.

There is one important part of this bill.

"(g) Certain Hardware Devices- No person shall be liable for copyright infringement based on the design, manufacture, or distribution of a hardware device or of a component of the device if the device is capable of substantial, commercially significant noninfringing use."

A mod chip would seem to fall into this exception, since, as noted previously, there are noninfringing uses for mod chips. Whether homebrew software and region unlocking, among other uses, are "substantial" and "commercially significant" remains to be seen. However, if this bill passes, then it will undoubtedly be tested in that regard.

Also worth noting was the previous list of allowed uses of circumvention technology, found here. It would seem some in the gaming community have presented game related exemptions, but the proposals have all been denied (see the rejected proposals at the bottom of the document). It would seem that if the relevant game consumer groups can get valid proposals with adequate evidence before the next decision is made, then perhaps circumvention for the purpose of region unlocking may be added to the list. It is at least a possibility.

[Thanks Geonex88]

In the wake of the ongoing mod chip raids, I'm sure many people are wondering what happens next. So, whether you've been raided or are just casually following the story with an air of curiosity, here is a general overview of what can happen after the Immigrations and Customs Enforcement raids are completed. Of course, there can by any amount of time lag between these steps, and they can also occur in multiple different orders. In fact, some of these events can span years. Consider the following a general outline of the process that changes in actual application to most situations.

Phase I: Raid Aftermath
1. There is a raid, items are seized.
2. The seized items end up in a warehouse somewhere.
3. The ICE agents, along with the investigators and often the company who requested ICE enforcement examine the items and analyze their course of action. (In this case, it would seem that Microsoft, Sony, and/or Nintendo requested the raids since the mod chips theoretically affect their rights. Based on the press release, the ESA was also involved.)
4. This is the point in the process where there is typically the longest delay, while everyone analyzes their course of action. This would also be the ideal time for someone who was raided to retain counsel, before anything gets worse.
5. At this point, it is typically just an investigation, and no one has been charged or sued for anything yet.

Phase II: Initial Actions
1. During this phase, if someone is going to be released for lack of evidence or error, this is the most likely time. However, this may take some negotiations or arguments to get off free and clear, so to speak. If the party is released, the seized property should be returned in a reasonable amount of time.
2. The companies and/or the government may wish to enter negotiations for settlement.
3. The companies and/or the government may file initial temporary restraining orders or injunctions on those who were raided in order to prevent further activities.
4. The government may begin freezing assets or have warrants issued on future shipments.
5. During this phase, representation by counsel is probably the most important because it is still theoretically possible to avoid Phases III-V.

Phase III: Legal Action
1. The government may proceed with criminal charges, which can result in jail sentences and/or fines and/or forfeiture of seized property.
2. The companies may initiate a civil suit over the rights of theirs which were violated. This can result in monetary damages, permanent injunctions and/or restraining orders.
3. Counsel is necessary at this point. A public defender can be appointed for the criminal trial if the defendant cannot afford counsel.

Phase IV: Legal Outcome
1. If the defendant loses either of the above actions, the penalty will be assessed.
2. If the defendant wins, the property should be returned and the defendant can walk away free and clear.

Phase V: Counter Suit
It is possible for the defendant to counter sue on the civil matter, be that for defamation, anti-trust, or simple damages (this depends on the particular case). The government, however, is immune from suits of this nature in these circumstances.

Phase VI: Future Raids
What is important to remember is that a victory in this raid does not necessarily provide any protection from future raids. ICE may be back a year from now or ten years from now, and the particulars from this raid do not impact that future raid.


That is a basic outline of the process, and it is one that occurs in many industries frequently. While I personally still find it puzzling that the raids were on mod chip sellers rather than sellers of pirated games, as discussed in my prior post, the overall process should still reflect this outline. It is, unfortunately, a long, hard road after being raided by ICE.