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Comment by anfilt | Hacker News Reader

A charge in "trafficking in circumvention devices"!!!!!!!!! A mod device should not be illegal. This is horrible for device owner freedoms. I am worried this could be used to set a precedence for that fact. The EFF or some good legal team is needed to make sure that does not become precedent.

If they did something else to facilitate copyright infringement the hardware should not be part of the issue.

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It's black-letter law that modchips and other copyright circumvention devices are illegal and trafficking in them is a felony. No precedent is necessary, and the courts are unlikely to overturn it on constitutional grounds.

"Copyright circumvention device" is really a broad and dangerous definition. Pretty much every electronics lab contains at least one of these devices in the form of a logic analyzer, and network sniffing tools can be downloaded from every software repository.

It is not a definition, it’s shorthand for something that is precisely defined so as to exclude the examples you have given.

> No person shall … traffic in any … device … that (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person … for use in circumventing a technological measure that effectively controls access to a work protected under this title.

https://www.law.cornell.edu/uscode/text/17/1201

IANAL but it seems like there's a fine line between being seen as a "circumvention device" (which is used mainly for piracy of copyrighted content, and perhaps even sold and advertised for this purpose) and being seen as something more like a "rooting tool" (root your device! not responsible for piracy! wink wink).

Yes, iOS jailbreaking is a good example of this. Clearly it involves circumventing a technological measure that prevents some kinds of copyright infringement, but that’s not its sole purpose. In the US it now seems pretty clear that it’s legal, but which side of the line it falls on in most other jurisdictions remains uncertain. https://en.wikipedia.org/wiki/IOS_jailbreaking#Legality

Ten years ago, the Library of Congress which operates the Copyright Office declared jailbreaking to be "fair use". This was then accepted by the EFF, which set a precedent but only in the specific act of jailbreaking Apple devices it seems.

But I think that even when it comes to Apple devices, the battle is far from over. Just this year, Apple had a lawsuit against the company Corellium, which specialices in iOS virtualization. This company is also working on Project Sandcastle, which lets one run Android on Apple devices.

It is overly broad, but not because of this. AFAIK there is precedent for arguing cryptographic keys and even code implementing drm algorithms are such a "device". This is extra great because as soon as you slap any encryption or algorithm that could feasibly be called "drm" into your code, it becomes illegal to reverse engineer. This is being used by lots of companies, but most memorably for me by John Deere to make repairing their tractors a jailable offense.

Unfortunately it doesn't need to be well defined as circumventing copyright "protections" is illegal under the DMCA.

I don't think the constitutionality of the law has been tested here. Can you point to an example of it being held up in these circumstances?

I’ve read the indictment, and the meat of it seems to rest mostly on their involvement in pirated ROM distribution and the marketing of their product as a piracy enabling device.

It seems as though the way they operated had simply made them party to the ‘crimes’ of the end users. Ignore the grandiose language of the DOJ. An indictment is essentially a prosecutors wish list, it presents the ‘facts’ in the way the prosecutor wants them to be presented, and represents the law in the way the prosecutor wants it to be represented. When the DOJ say “this person committed this act”, or “this act is illegal”, it’s just an accusation. Those accusations aren’t “proven” until they’ve been tried in court. Only pay attention to the core details of the allegation and ignore the rest of it.

Software is constitutionally protected speech. But if your software contains copyrighted material, or is accompanied by copyrighted material (as is the case alleged here, with their ROM library), then it can still break the law. I’m also pretty sure the way that you market it can influence this too. I imagine marketing software as “to help you play pirated games” would be the same as marketing a gun as “to help you commit armed robberies”.

Also the fact that they sold their software seems to have made things worse.

The EFF is running a First Amendment challenge to the DMCA’s anti-circumvention provisions. In June 2019 the government lost a bid to have the case thrown out for lack of jurisdiction [1]. The court accepted that the anti-circumvention provisions “burden the use and dissemination of computer code, thereby implicating the First Amendment” (p 26), but dismissed the claims that the provisions were inherently unconstitutional. I’m not sure when the court will resolve the outstanding question of whether the provisions are unconstitutional as applied to the specific research the plaintiffs claim they prohibit.

[1] https://www.eff.org/document/green-v-doj-memorandum-opinion

What do you think is unconstitutional about the law? It seems pretty solid to me.

To be clear, I don't appreciate the law as written and support its repeal, but I think legislatures need to do that, not courts.

Trying to advance the art & work on this stuff should in no way illegal & any law written so is impressively immoral & unjust. That will include sharing & working with others, necessarily.

Trafficking however is understandably punishable.

Edit: there are almost certainly many such immoral laws. Sorry protectionists but humanity has a moral obligation to reverse engineer everything, it's called science.

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