Console Modification : The Next Anti-Circumvention Exception to the Digital Millennium Copyright Act? - Fordham Intellectual Property, Media & Entertainment Law Journal
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Console Modification : The Next Anti-Circumvention Exception to the Digital Millennium Copyright Act?

Console Modification : The Next Anti-Circumvention Exception to the Digital Millennium Copyright Act?

Charges have been dropped in the federal trial of a California man charged with violating the anti-circumvention provisions of the Digitial Millenium Copyright Act (the “DMCA”). The trial revitalized the issue of whether video game console modification should be exempted from the anti-circumvention provisions of the act.  Andrew “Bunnie” Huang, author of the bookHacking the Xbox and one of the most well-known video game console hackers, was set to testify on behalf of Matthew Crippen, who was charged with commercially modifying xBox consoles in violation of the DMCA.

Console modification (“modding”) is the process of adding a modification chip to a console to get around the console’s restrictions and allow the user to play unlicensed or homemade games. The Anti-Circumvention Provision of the Digital Millennium Copyright Act (“DMCA”) states, “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”  In its latest rulemaking on exceptions to the DMCA in 2008, the Library of Congress granted an exception for modification of the software of cellular phones, also known as “jailbreaking.”  Every three years the Library of Congress accepts requests for exceptions to the anti-circumvention provisions. In Hacking the Xbox, Huang argues that in light of the recent exception to the DMCA to allow for the jailbreaking of cellphones so that users can run third-party applications, modification of game consoles should be treated the same way.

Though the issue has yet to be determined because the trial was not dismissed on the merits, the trial has likely brought further attention to the question of console modification and the possibility of exemption under the DMCA, and as a result may bring an interesting result at the next rulemaking of the Library of Congress.

Karen Muiter