“Playing with games in this way is not a game, it is criminal”

Thus spoke an Immigration and Customs Enforcement agent when asked to comment on the arrest yesterday of an Orange County man accused of modifying video game consoles to enable them to play pirated games.

Wired reports that 27 year-old Matthew Crippen was arrested by Homeland Security officers and charged with violating US copyright law. He allegedly charged customers a hundred bucks to "jailbreak" their consoles, meaning he would circumvent coding in the consoles that prevented people from playing illegally copied games.

Have a look at the story for the details. For the purpose of this blog, two elements of this arrest highlight interesting characteristics of 21st Century copyright law enforcement.

Since the consoles were (presumably) legally purchased by Crippen's customers, weren't they the property of the owners? Why can't they tinker with their own video game consoles?

In 1998, Congress passed The Digital Millennium Copyright Act, which expanded the control that copyright owners had over their property. That controversial legislation altered Title 17 (which contains U.S. copyright law) to include a prohibition of "circumvent[ing] a technological measure that effectively controls access to a work protected under this title." If the manufacturer of an electronic product (video games, CDs, DVDs, software, etc.) includes in the product coding that prevents unauthorized copying, it is against the law for consumers to tinker with that code in order to circumvent the copyright protection.

You can probably imagine that this is a controversial law. If you're interested, here are some resources for further reading:

Stanford Copyright and Fair Use Center: A top-notch collection of resources, and a great place to start.

Princeton's Center for Information Technology Policy and, specifically, the Freedom to Tinker blog.

The Electronic Frontier Foundation, right here in San Francisco.

Copyright Office: Section 12, plus full text of Title 17.

The American Library Association has some resources available here.

And, finally, the U.S. Customs and Border Protection agency site with information about intellectual property. This last one brings us to the other point of interest regarding Crippen's arrest, which is: Why was he arrested by Homeland Security officers?

According to their website, the Cyber Crimes Center division of the U.S. Immigration and Customs Enforcement, both of which are under the Department of Homeland Security, investigates intellectual property violations. Here's a blurb from their website:

The CCS has encountered thousands of web sites based in the United States, as well as foreign that are engaged in the sale of counterfeit merchandise (including music and software) via the Internet. The CCS continues to work closely with the National IPR Coordination Center, the Computer Crimes and Intellectual Property Section (CCIPS) at the DOJ, and industry representatives to identify web sites responsible for the sale of the counterfeit items.

They are not the only agency that investigates intellectual property cases; depending on the type of intellectual property, the Department of Justice, the Food and Drug Administration, the Department of Commerce, and the Postal Service may conduct an investigation. In fact, these agencies all cooperate at the National Intellectual Property Rights Coordination Center.

If it sounds complicated, that's probably because it is. Traditionally, intellectual property rights have been enforced by the owner. That is, as the owner of a copyright, patent, or trademark, it was generally up to me to bring infringers to court.

Two related things seem to have happened over the last two decades to change that. First, the Internet seems to have facilitated intellectual property infringement by making communication (and file sharing, graphics production, black market sales, etc.) easier. Second, Congress passed the DMCA as a response to new methods of infringement. The agencies mentioned above have all been called upon to investigate intellectual property cases.

Which brings us back to the question: Why Immigration? I'm not sure, but probably because they got the tip -- according to the AP, from the Entertainment Software Association -- and, since it does fall into their mission, they acted upon it.

You can find more information about Federal efforts to stop piracy at StopFakes.gov.