The offender, who has not yet been named, had developed a new
method of modifying Microsoft Xbox consoles, discovered in October
2004 by an "Internet Investigator" for ELSPA, the Entertainment and
Leisure Software Publishers Association. ELSPA informed Caerphilly
County Borough Council Trading Standards and Gwent
Constabulary.
A chipped console will play pirated games and games purchased
legitimately in other regions of the world. The man prosecuted had
sold the chipped Xbox consoles for £380 on his website after
fitting them with a 200GB hard-drive and 80 pre-installed games, a
package that would cost around £3,000 at retail prices.
Mike Rawlinson, deputy director general of ELSPA, said: “This
case sets a major precedent which marks a milestone in the fight
against piracy and in protecting the games industry’s intellectual
property."
He added: "It sends a clear message to anyone tempted to become
involved in ‘chipping’ consoles that this is a criminal offence and
will be dealt with accordingly. The modification of consoles is an
activity that ELSPA’s anti-piracy team is prioritising – it is
encouraging to see the UK courts do the same.”
The penalty imposed yesterday was a 140-hour community service
order to be carried out in the next 12 months, £750 costs, and
forfeiture of all equipment seized (including three tower PCs, two
printers, three Xbox consoles and 38 hard-drives). ELSPA said it
was a lenient sentence that reflected the man's youth and the fact
that it was his first offence.
The modification of consoles has been an illegal practice since
31st October 2003 when Regulations were passed that made an
amendment to the Copyright Designs and Patents Act.
The new regime allows rightholders to take action against
individuals who circumvent what the law calls Technological
Protection Measures, or TPMs, to make unauthorised use of
copyrighted works. Action, including criminal action, can also be
taken against those who make and distribute equipment designed to
circumvent TPMs.
Accordingly, the whole process of chipping consoles illegal,
including selling and advertising chips as well as providing a
service for chipping.
Relying on these rules, Sony Computer Entertainment Europe won a
High Court ruling in July 2004 against a British seller of
mod-chips which could be used to bypass the regional and piracy
protections on PlayStation 2 consoles.
ELSPA also warns that the chipping process, which enables
counterfeit games to be played on a console, leaves the consumer
with no recourse under any guarantee from the manufacturer and can
damage the console.
