Canadian Copyright Lawyer Debates ESA VP Over Mod Chips & more

As GamePolitics has reported in the past, the Entertainment Software Association (ESA), which represents the interests of US game publishers, is backing a proposal to bring tougher, DMCA-syle copyright laws to Canada.

Along those lines, GP just picked up on this video of a May, 2008 TV debate on the issue between ESA VP Stevan Mitchell and Howard Knopf, a Canadian attorney. Mitchell is specifically worried about mod chips. He holds one aloft during the program.

For his part, Knopf is aghast at the notion that American corporate interests might force copyright changes in Canadian law. Knopf seems to have the interests of Canadian consumers at heart.

Unfortunately, Knopf does not articulate his points especially well – perhaps due to the tight time frame of the debate – while the hosts of the program seem to jump right in line with Mitchell of the ESA. Maybe that’s because the program aired on the Business News Network. shiny dot bulletin comments:

It’s amazing how the hosts are really willing to bend to American market interests as opposed to listening to Howard about the facts and issues.

Knopf runs the Excess Copyright blog, the motto of which is:

Copyright is good. Excess in copyright is not.


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  1. Gus Tav Too says:

    I thought the court said that modchips are not equitable to piracy thus modchips are not illegal i this case even if UK law still says modchips are illegal.

    The Court of Appeal did reject the prosecution arguement that modchips were unlawful as they facilitated a trade in pirate software. They ruled that the connection was too tenuous; the way the law is drafted it requires that the measure ‘prevents’ an unlawful copy being made, not that it merely hinders or discourages it. As that argument was the basis of Higgs’ prosecution they quoshed his conviction.

    But, in the judgment Jacob LJ made it clear that if the prosecution had argued that the modchip allowed an unlawful copy of code to be made in a console’s RAM they would have ruled differently – a modchip does ‘prevent’ such a copy being made. My reading of that is that modchips are still unlawful, and the Court gave guidance as to why they are unlawful for future cases. The cite for the full judgment is Higgs v R [2008] EWCA Crim 1324, I’m not sure if it has made it out onto the web yet.

  2. NovaBlack says:

    lol no worries zippy mate!


    makes way more sense now soz i misunderstood!!


    Personal sharing in non profit environments should not even be considered a crime but if the media mafia would change focus on real criminals and not squashing consumers via raping fair use I could see making sharing violations a minor criminal offence with strict guidelines of what the penalties and idenfcation of illegitimate data are.’

    100000000000% agree with that! destroying  fair use so completely stupidly (like they currently do) is what makes people pirates in the first place! completely daft if i buy some music for say one mp3 player, i have to buy it again for another. completelly unfair and money grabbing!

  3. ZippyDSMlee says:

    Gus Tav Too

    I thought the court said that modchips are not equitable to piracy thus modchips are not illegal i this case even if UK law still says modchips are illegal.


    Bascaily one court ruled against president and now need more cases against the anti modchip laws to show the lawmakers and the whole of the court the law regarding modchips is ill-founded.


    I is fuzzy brained mew =^^=
    (in need of a bad overhaul)


  4. Anonymous says:

    "We don’t them [the consumers] copying our software or being able to play our software." –  Stevan Mitchell

    Pretty much sums up the publisher’s stance.

  5. DeepThorn ( User Karma: 0 ) says:

    haha, ever since I said that in a GameSpot/GameFAQ forum I have seen it everywhere, haha.  I wonder how many other people came up with the idea at the same time, or if it just really spread from that one post.

    Either way, I am happy to see that that idea is spreading as fast as it has, and hopefully by the end of the year there will be a noticable change in sales for some of these companies due to that idea spreading.  Between GameStop, EB Games, GameFly, Amazon, Ebay, and other places, there are plunt of used games to buy.  I suggest going back any playing older games as well.  Playing Super Mario World, Mario Bros. 3, the original Final Fantasy, and other classic games is amazing.  My NES still works and I played Duck Hunt yesterday.  (707,000 on the disc shooting)

    The reason I like the idea is because you can just wait and get Madden or any other game for dirt cheap.  Out of the top 5 publishers, they all have lame games that come all too often.  Some ideas you wonder why they even waste the time making those types of games… 

    Come on, games like:
    Boogie (I can’t believe how much advertising I saw for this one.)
    Pimp My Ride
    History Channel: Battle for the Pacific
    Space Invaders (for N64 and PS)

    I love how the biggest publisher that doesnt make a console has NEVER had a game rated over 9.5 on GameSpot/GameFAQ, haha come on.  How does a company make over 4,000 games and not even accidently make a game that is at least a 9.8?  The highest rated Madden is 9.4, while 2K made NFL 2K that got a 9.9…

  6. odc04r says:

    My modded original Xbox running XBMC is the most versatile media player I have ever owned and gets used almost every day still. Without the chip and XBMC I’m sure its main use would be gathering dust.

  7. Gus Tav Too says:

    AS far as the R4 thing goes, i know as a UK resident, that recently a court here just ruled them perfectly legal.

    Sadly that’s not true. While Mr Modchips conviction was quashed in R v Higgs, the court made it pretty clear that modchips, and other simlar devices like the R4, are still considered unlawful in the UK. If you are trading them you still risk prosecution.


  8. NovaBlack. ( User Karma: 0 ) says:

    @ Zippy

    ‘then finish it off with criminal fines of 100$ to start then no more than 20$ a item at a max total charge of 2 grand, of course for this to be enforced in court you need IP data + seizure of the hardware, wiping data would be eligible to contempt of court charges left up to the judge.

    Nice idea but huge problem with that is that it will actualy encourage people to make profit from  selling pirate goods.

    If all you fine is $100 for the first item, and $20 for each subsequent item, to a max of $2000 (if i understand what your saying right! sorry if im not!) then there is absolutely no reason for a professional pirate not to pirate. What if a pirate is selling copies of a game say at $30 each….? and he has sold say 100 copies.

    Thats $30 per item * 100 = $3000. Yet with your system he/she would only be fined $20 per item, * 100  = $2000 max….

    That means even when caught, if caught every time, the pirate is still making $10 per sale, and everything over $2000 (in this case $1000) he/she keeps.

    Heck id pirate, if i could make around £10,000 every 6 months and only get fined $2000 (i know it can be done….. i have a friend once who used to pirate software when he was a student to make extra money, and its AMAZING how much you can make)

    All in all though, i realy dont think pirating is the huge problem peopl make it out to be. I am of the mindset that the people who ALWAYS download movies/games would simply not buy them anyway if they werent available to download. I dont think its true atall that one pirated copy = one lost sale. in fact.. no. it just plain ISNT true. and in some cases, as i have said before, pirated copies actually = more sales for a developer, as i personally know, as word of mouth can spread regarding a good game/tv series, and result in consumers making purchases they would never have otherwise made (for example a friend of mine never watched prison break, thought it sounded crap, wouldt watch/buy it, watched one downloaded episode, loved it , and has now bought 3 seasons of box sets.. making a nice tidy profit for the IP owners!.


    AS far as the R4 thing goes, i know as a UK resident, that recently a court here just ruled them perfectly legal.

    And i agree with that. You cant ban something that has LOADS of uses (my favourite being playing region locked games, e.g. japanese imports that i would never be able to play otherwise) simply because it CAN POTENTIALLY be used criminally. Sorry but thats unfair. You have to let consumers use it, and catch the ones that use it dishonestly.

    For example…. kitchen knives. They CAN technically kill somebody, so do we ban all cutlery and go back to eating with hands and fingers? No, because they have lots of good uses that outweight the bad, and it wouldt be fair to classify everyone as a killer before they have commited the act. Innocent till proven guilty isnt it? well .. its supposed to be…

  9. SS says:

    "There are many people in this world with little to no morals and ethics because they rather make money." 

    I agree completely.  Its sad that gamers often don’t care when a corporation is being too greedy and gouging their customers.  Its as if greed is a virtue.  Frankly I find it disturbing that companies often do the wrong thing so they can recieve truckloads of money.  Make a profit, but don’t trample over customers or use unfair business practices such as monoplies.  I think we know which company(yearly sport games) you are talking about and the least we can do is buy used copies so we do not feed them or at least make them change.  Sim City Societies was an abdomination and cash in(played it once and its sitting on my shelf) and that publisher lost my respect.  Except for Spore, all games from that publisher are gonna be bought used.  Spore will be bought new because its amazing and Maxis deserves our money.  Just buy used games or hardware if you do not like the practices of certain companies.  They need to earn our money by treating us with respect and delivering great products.  Otherwise just buy used copies.  I had my 360 rrod on my birthday and I won’t be helping that company out by buying its new products.   

    Another sad thing in the industry is the fact that fanboys defend the actions of huge corporations to whom we are just sales figures. 


  10. DarknessDeku! says:

    Sorry, I meant region coding for console games and tough copyright protection and such on PC games.

  11. DeepThorn ( User Karma: 0 ) says:

    Man I hate US’s dirty corperate and political world… 

    As a game developer, I don’t want my games stolen, BUT if the person likes the company and game enough they will buy a legal fully capable copy instead of risking their computer or console getting damaged.  I buy CDs of the music I like and respect the artist, I have many ways to listen to music for free without buying anything, and most of them are 100% legal.  Heck, once my company releases our games, we will be living off of donations instead of charging for games.  Our website will have advertisement space being sold, but my goal is to make everything as rationally priced as possible.  Have people play the games and rate them, and that rating will have a very high impact on the price once full length games that do have an actual price are made.

    As a gamer, some companies don’t deserve money from consumers because of how they run their business.  I would be buying more sports games if this wasn’t true.  Some companies are very dirty in how they do things, and I can’t believe enough people buy games from them to keep them alive.

    I have an extreme amount of respect for Howard.  Him flat out saying what he did about corperationg and the government trying to benefit themselves instead of doing what is best for consumers is 100% right.  There are many people in this world with little to no morals and ethics because they rather make money.

    As a US guy, ESA needs to stay the hell out of Canada, and the government doesnt needs to leave Canada alone to run their own damn country.  There are greater issues at stake right now that the US needs to deal with, and the education system, government, and economic situation are key parts of that, but unluckly these idiots waste their time acting like they are helping the people when they are fattening their wallet…  So maybe I do want them to stay away from the education and economic problems…  They would most likely make it worse, like they already have with the economic situation…

  12. Alteffor says:

    That has to do with acquiring rights to sell outside USA. It has nothing to do with our copyright laws.

  13. A-wel Cruiz ( User Karma: 0 ) says:

    Riiiight. Canada’s copyright laws aren’t strict enough. Then why isn’t PSN’s video download service available here yet, huh?

  14. Anonymous says:

    Knopf looks so content to be there!  I am actually a Canadian myself, and am really glad to see we have individuals like him standing up for this.  I would.

    There are a few major differences between the U.S. and Canada when it comes to copyright overall and them pushing the mod-chip button is so weird because that is just a portion.  As Knopf said though, in many of the situations ours makes more sense and we are protecting the rights and creations of the Canadian companies.  It is not like out big entertainment companies are uprooting because of great profit loss.  Why does it seem that no one can focus on real issues?

  15. Unique ( User Karma: 0 ) says:

    That host… she seems like he’s is love with american corporation. "This is something I feel is close to home because my 3 year old breaks every movie I give her…" … "but I don’t want to make a backup and break the law if she does (I’ll just go buy another … and another… and another… and…)

    Holy fuck. Grow a pair lady.


  16. gs2005 says:

    While I didn’t buy my Playstation 3 to exclusively play Japanese titles, I’d love to play the Sega Ages 2500 Playstation 2 series, but region coding (which has not been cracked AFAIK), prevents me from doing that for now.

  17. DarknessDeku! says:

    Why do we even need mod chips?  Can’t we just play the games the way they are meant to be played?  I all for being able to buy a game from any country you want, but mod chips should just be illegal.  The copyright laws are tight enough, just look at PC games.

  18. ZippyDSMlee says:



    Thos fines I listed are for sharing violations NOT selling CP work you are not licensed to, in cases of bootlegging you should be fined hard and given some jail time, over 10K worth of bootleg sales and you should lose all your property gained from those sales, basically treat the “sale of” illicit CP works like drugs and share the liquidation of the property with the organized media industry.


    Personal sharing in non profit environments should not even be considered a crime but if the media mafia would change focus on real criminals and not squashing consumers via raping fair use I could see making sharing violations a minor criminal offence with strict guidelines of what the penalties and idenfcation of illegitimate data are.


    I am not a complete fool(even tho I play one on the net…ZOMG!!!.NARF!!!)  there needs to be a understanding of the issues at play and a balancing of the whole, not just a part there of.


    I is fuzzy brained mew =^^=
    (in need of a bad overhaul)


  19. ZippyDSMlee says:


    ""Copyright is good. Excess in copyright is not.""


    This is true it also becomes pointless after a certain point, in a consumer driven society nit picking over “free distribution” is moot at best it’s not something that can be stopped, you might be able to control it but only if you see where pressure zones are and build release spots around it.

    Some of my trains of thought are change CP as so the owners can buy and sale the rights as they see fit through whatever contracts they make with themselves, use a 2 year out of publication clause as so anything that’s not made readily available by the owners through their publishers is free to trade in non profit settings (akin to how fair use is now only more focused to keep things in publication longer), then finish it off with criminal fines of 100$ to start then no more than 20$ a item at a max total charge of 2 grand, of course for this to be enforced in court you need IP data + seizure of the hardware, wiping data would be eligible to contempt of court charges left up to the judge.

    And before you start whining about small business and the lil guy, the lil guy works on commission more than on royalties thus they have already been paid, small business are doomed by the wimps of the market anyway and with the prepension of consumes to stay woolie and buy what is being sold over making your own DVDs with the data ingredients they have to mine for(like going to the store and buying a bunch of ingredients to make your own cookies and pizza).

    What this will do is keep media in publication alil longer and force them to do better with their repacking jobs, it will also expand media saturation thus getting people to buy more not only from hardware and blank media but from the media industry both retail and 2nd hand because people want to buy but don to always feel like it’s worth it or what they want to buy it but its either grossly overpriced or unavailable, there are issues beyond simple not willing to pay for it that the industry constantly refuses to address as they tighten up authoritarianistic  opinions and pushing hard for blantly bad laws.


    Hell if we had the right of return still I do not think I would be so disenfranchised with the media industry.



    What I am getting at is that CP owner rights will always be bought and sold, so make it more like a contract both sides can agree on doing away with the need to limit how long something can be CP’d, on the consumer end expand fair use to make sure if its out of publication then its free to share you then balance it by making low level criminal laws for data sharing cap what the CP owners can get and make sure that once the CP owners win and are paid the one found to do all that stealing will wind up receipts that make it so they own 1 end user copy of the media the other side sued for, all this means is you own a personal copy this keeps corporate from double dipping  but does not protect the end user from distribution claims, although I suppose if you heavily limit what is sued for “receipts” are not needed.



    edit 2

    The above fines are emnt for shareing violations not bootlegging thats a whole other kettle of fish to fry.

    I is fuzzy brained mew =^^=
    (in need of a bad overhaul)


  20. Unruly ( User Karma: 0 ) says:

    PC games don’t suffer from region coding like console games do though. You say that you’re all for being able to play any game you bought from any country, but at the same time you’re wanting to ban the only way that its currently possible to do that. If consoles weren’t region locked, they would have a much bigger argument against modchips because there would be no complaining about not being able to play Japanese or European games on an American console.

  21. Anonymous says:

    Well, unlike the US there are very strict laws about how much money a politician can receive from a person or corporation. You must not be canadian because that is not how things happen in Canada. Also, do you understand how NAFTA works? It would be illegal for the US to put sactions or tariffs on anything unless the sactions or tariffs already exist and if they do it would be illegal to raise them.

  22. gs2005 says:

    The US copyright cartel is really irritated that Canada doesn’t have a DMCA-style law, especially hollywood.  While I fully respect professor Dr. Michael Geist in rallying awareness of the issue, Canadian poliiticans are not that different from USA-based politicians, they like lobbying money and are happy to make and pass laws in secret.  If that doesn’t work the US copyright cartel will ask Bush 43 (or Obama or McCain) to initiate trade sactions, raise tarrifs, whatever it takes until the US copyright cartel are happy.  The US copyright cartel will do whatever it takes for this to happen, but I don’t believe Canadian citizens are ready to really fight the US copyright cartel in a long, entrenched war on the political front for this to not occur.

    I could be wrong though-in a loosely related topic, US corporations have NOT been successful in getting "software patents" approved (they can be filed though) in Europe, despite intense, unending lobbying, and politicians who love money over there too, which has been going on for years…there are enough citizens in Europe who do not the USA to set policies for them, and keep US corporations from being successful.  That battle also is "eternally retold"…



  23. Anonymous says:

    I disagree with you, I’m willing to bet a lot of mod chips were created for the sole purpose of importing games. Also making mod chips illegal is not going to stop people from doing something that was already illegal in the first place (pirating games).

  24. point09micron says:

    The problem though, is that for every person who uses a mod chip legitimately (to run Linux or make a backup or whatever), there are tens or even hundreds of people using them to pirate games.  And let’s not beat around the bush here, piracy is why they were invented in the first place, and is their primary intended use.

  25. Father Time says:

    Aye it’s akin to banning knives. Sure you can use them to stab people and cut up a body for easier storage but you can also chop food, whittle and cut open things (like packages).

  26. Anonymous says:

    Mod chips have many purposes.  If they are used for more than pirating games – if they have legitimate uses – then it’s wrong to make them illegal.  Banning mod chips is like putting people in jail based on ‘suspicion’ that they will commit a crime.  That sort of thing was only illegal in the book 1984 – do we really want to go there?  I don’t think so.

  27. Lost Question ( User Karma: 0 ) says:

    somehow i thing the harshest laws thing might be related to a 10 to 1 ratio of lawyers to engineers in the states ironically japan has ten engingeers to every lawyer

  28. Anonymous says:

    There seems to be some confusion so I thought I’d make it clear that mod chips are ILLEGAL in the US but not in other developed countries like Australia, Canada and Britain. In the US you can go to prison for owning, using or selling a mod chip. The US has the harshest laws in the Western world on almost every issue. Did you know it’s illegal to hitch hike in the US?! And substances like guarana that are found in Boost chocolate bars and energy drinks in other countries are classified as illegal drugs!

  29. Anonymous ( User Karma: 0 ) says:

    Uhmm…. guarana isn’t illegal in the United States. Many energy drinks, including Rockstar, Tab Energy, Full Throttle, Monster, Bawls, as well as various other beverages produced and sold in the U.S. contain liberal amounts of guarana. There’s also no federal law against hitchhiking in the U.S.; legality varies by state, and in most states it’s legal, though frowned upon by authorities because of the dangers.

  30. Alteffor says:

    That host sucks: "Well obviously theres something wrong with our laws because they won’t let big companioes step over our citizens"

    Also, 3 reasons for modchips:

    -Region locks



  31. Murdats says:

    "we don’t want people copying music, we don’t want people playing music.."

    At least he is being honest

  32. Haggard says:

    If you would ordinarily buy several games between new 360s, it might actually be worth it. A 360 here in the UK is about £160, a game is £40. Buy 4 games and it’s worth it.

  33. Corey says:

    Modchips should not be a problem so long as they’re not being used to pirate games. They have plenty of other legal uses. That’s why Canada wont outlaw them. I don’t believe they’re illegal here either but I’m not sure. One things for sure though, installing a modchip voids your warranty and with a console like the 360, you really do need that protection. Actually, I wonder if thats some sort of Microsoft conspiracy. They build an unreliable console to dissuade us from modding them. Maybe the cost of fixing broken 360’s is worth it to them. 

  34. Anonymous says:

    I’m an Englishman living in the US.  I like the English game of Cricket.  Currently, if I want to buy a Cricket game for the Xbox 360 I have to buy an English copy of the game because Cricket is not popular in the US and Cricket games are not made for the US market.  English games will not work on US Xbox 360 systems WITHOUT a modchip.  It’s completely ridiculous to say that people in the US should not be able to play English-made console games, but anti-modchip activists are saying that.

  35. SS says:

    hey i love cricket.  When I used to lived in India i used to play cricket a lot.  I used to be addicted to it and played on my school team.  I guess you could buy a pc version.  what we need is more people to play cricket here. 

    Looking at the bright side, English made cricket bats will work here.  You just need to find a place and someone to play with.  Pieterson is my one of my most favorite cricketers.

    ON topic, the ESA is definately needs to learn to find some real solutions to piracy rather than just stepping on the rights of their customers.

  36. Kyle McCann says:

    their’s something wrong with our laws cause the US does not like them gimme a break and Mod Chips have only one purpose come on I mean seriously and we are not the only country in the world that has not branded Mod Chips illegal seriously 

  37. gs2005 says:

    The USA is a litigation-happy country.  There is huge money in litigation, whereas in other (more sane, IMHO) countries you can’t just sue anyone for anything nearly as easily.

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