At half past midnight on Tuesday morning, insomniacs like me were greeted by the uber sexy, glowing blue light of the Wii.  A message from Nintendo had arrived advising of a system update that would streamline and add additional functionality to the Wii’s main interface.  Nifty as that is, my attention was captured by a warning in Nintendo’s message:

Following our in-depth weekend coverage, GamePolitics is pretty well talked out concerning last week's mod chip raid conducted by U.S. Immigration & Customs Enforcement (ICE).

But before we move off the topic, we should note an observation made by one twistedsymphony of Xbox Scene.

The embittered modder notes that while the ICE operation was, at least in theory, all about protecting copyrights, the agency itself appears to be using photos of mod chips and related items lifted from website advertisements.

So, if twistedsymphony is correct, the IP enforcement operation is being bragged about with um, borrowed IP.

From the modder's lengthy rant:
 

There is some cruel irony that none of the [photos] provided are actually owned by ICE or the DHS but are rather copyrighted images created and owned by the modchip manufacturers and stripped straight off of their websites.

They even went so far as to blatantly black out watermarks placed on the images by the legitimate owners and then had the audacity to state that to use any of the images you'd need to get their permission. I got a good chuckle out of the fact that the media attached to the press release about squashing copyright infringement include blatant copyright infringement itself. But who's going to police them? 

GP: We're not sure if twistedsymphony is correct about the origin of the photos. However, ICE's image gallery of mod chips and related items certainly doesn't appear to have originated in the agency's evidence room. Most, if not all, of the photos look professionally produced and some are obviously marketing images. In fact, the pic seen at left can readily be found on the Swap Magic 3 website.

That being the case, the following admonition on the ICE website seems a bit misguided:
 

Use of appropriate byline/photo/image credit of "Photo Courtesy of ICE" or "Image Courtesy of ICE" is requested.

 

Negative reaction to last week's raid on mod chippers in 16 U.S. states appears to be coming from both ends of the political spectrum.

On the right, Conservative Gamer offers sharp criticism of the enforcement action, especially when viewed through the lens of the current immigration debate:
 

While the United States currently plays host to anywhere from 12-20 million illegal aliens, and states and cities are being forced to handle the problem themselves, it seems that Immigration and Customs Enforcement (ICE) is playing games instead of focusing on more pressing matters...

 

ICE appears to be diverting resources to going after people with mod chips instead of dealing with the illegal alien influx that’s actively encouraged by the Mexican Government and aided by the Mexican drug cartels... It’s great to know our government is looking out for us. Next time I hear someone complain about illegal aliens in their town, I’ll just remind them that ICE has more important things to do...

On the left, the Freedom Democrats have jumped in:
 

The Copyright Mafia is going to greater and greater lengths to take ownership of American culture. First there is the Digital Millennium Copyright Act, which effectively allows electronics manufactures to own our equipment even after they have sold it to us. This past week, we received news [of the mod chip raids] that reminded us that the Feds are serious about enforcing this new form of ownership...

GP: We note that Conservative Gamer is sporting an ECA banner. Hmmm...

At the Xbox Scene forums, a modder who goes by twistedsymphony pens what is probably the most lucid, detailed and passionate criticism we've seen concerning last week's Homeland Security raids on mod chippers. From his rant:
 

I look at modding as an act of expression and something someone does to expand their own knowledge and use of a system... In the hands of a pirate [mod chips] will be used to pirate games but in the hands of a programmer it will be used to learn new technologies and create new and interesting applications... 

The example of Xbox Media Center (XBMC) is often used, this application transforms a humble Xbox console into a full fledged Media Box...  if it weren't for the fact that it is illegal to use the free XBMC software with the Xbox hardware you own under the DMCA.

 

I have no doubt that many, probably even most, modchip users purchase and use those products with the intention of pirating games but I take offense to those that are so ignorant to label any and all modders and hackers as criminal by association...

 

The only reason modding and hacking is criminalize[d] is simply because the politicians passing these laws do not understand the issue enough... as a result lobbyists for the ESA, RIAA, MPAA, etc. have a fairly easy time convincing them to pass laws that criminalize anyone who modifies their products...

 

The root of the problem is the DMCA... our laws work to criminalize anyone and everyone and designed not in the best interests of the American people but in the best interests of politicians and big businesses.

twistedsymphony also objects to the ICE press release's invocation of terms such as money laundering and smuggling:

While gamers and non-gamers alike debate the merits of last week's mod chip raids, an Illinois man received a two-year sentence in a 2006 game piracy arrest.

As detailed in an FBI press release, Timothy Hall, 35, pleaded guilty in federal court. In addition to jail time, Hall received a $1,200 fine and must serve three years probation.

 The FBI said that from 2001-2006 the Mount Vernon, Illinois man earned $266,000 selling pirated games and T.V. shows via his now-defunct website, morbidbackups.net.

Hall's piracy operation walked the plank in May, 2006 when an undercover FBI agent ordered 70 Xbox game and 48 episodes of the hit T.V. show 24.

The ESA and the MPAA assisted the FBI in the investigation.

GP: It's difficult to gather much sympathy for Mr. Hall, who was obviously in the longterm business of ripping off the game industry. Unlike some of those raided in last week's mod chip roudnup, it's clear that Hall wasn't just making backup copies or playing region-locked import versions of games.

On Thursday the ESA, which represents the interests of US video game publishers, sent out a press release trumpeting a federal government take-down of mod chip purveyors in 16 states.

Game-oriented websites, including this one, covered the story using fairly straightforward reporting: searches were executed, evidence was seized, blah-blah-blah...

Over at Dvorak Uncensored, however, maverick tech guru John Dvorak questioned the entire operation, writing:
 

Are you kidding me? With drug dealers everywhere, murder, porous borders, terrorism the Feds are concerned about game mods?? Holy crap.

Next I supposed they will be cracking heads over unlocked phones. Great.

Judging from coments to the article, Dvorak's readers were of a similar mind. One griped about the unfairness of regional restrictions built into games:

If the photo is any indication, the game piracy business has not been especially lucrative for this Twin Falls, Idaho resident. The suspect, raided along with 31 others earlier this week, possessed but a single mod chip when the feds came calling.

A message posted on the Console Tech forums includes scans of what appear to be a federal agent's search warrant application as well as an inventory of items seized in Wednesday's sweep, which targeted game piracy suspects in 16 U.S. states. The inventory list includes:
 

6 Xboxes, an Xbox 360, an (unspecified) Nintendo console, 38 Nintendo games, a computer, a mod chip, various circuit boards, hard rives, discs, manuals, etc.

It would seem that the unnamed resident of the Idaho Falls home must have provided the scanned documents after receiving a copy from the agents who conducted the search. Not shown is the probable cause affidavit, which would have explained the government's basis for the search. That document apparently remains sealed by a federal court.

An Ohio man was reduced to sleeping in his car following this week's mod chip raid by agents of the U.S. Immigration and Customs Enforcement (ICE).

As reported by Xbox Scene, the suspect, who goes by the screen name FallsInc, penned a first-person account of what happened when the feds came calling:
 

When ICE hit me, they had a warrant for my grandma's house where I had all my packages sent... They took anything that was related to gaming... They showed me the list of modchips that they collected, and asked me if I ever imported modchips from Canada...

 

They took my laptop, and desktop, and the soldering iron (which was one of their main things to find for some reason)... Now I can't mod, and I can't even sell anything off to pay for bills either since it has all been confiscated due to a ludicrous interpretation of the DMCA...

Because of what happened I'm not allowed to see my girlfriend and our 4 month old daughter, and last night, I slept in my car... They took my life away. I would like to formally thank Microsoft and Nintendo for cracking down on the little guy with a soldering iron in his garage, rather than going after the people that are responsible for the bootlegs being available.

 

It was, apparently, quite a roundup.

On Wednesday, agents of U.S. Immigration and Customs Enforcement (ICE) executed 32 search warrants in 16 states. The feds were seeking illegal mod chips, pirated game software and related items. From the ICE press release:
 

This investigation represents the largest national enforcement action of its kind targeting this type of illegal activity.

 

The search warrants were executed at businesses, storefronts, and residences... at locations associated with subjects who are allegedly involved in the direct importation, installation, sale, and distribution of the devices that are of foreign manufacture and smuggled into the United States.

Said Julie L. Myers, Assistant Secretary of Homeland Security for Immigration and Customs Enforcement:

For the ESA, selling more games is good and software piracy is bad.

No wonder then that the organization, which represents U.S. game publishers, has jumped on board with the recently-signed USA-South Korea Free Trade Agreement. Said ESA boss Mike Gallagher:

The U.S.– Korea FTA will provide enhanced intellectual property protections and more favorable trade treatment for a range of digital products, including computer and video games.

The ESA expects the deal to result in:

...non-discriminatory and duty-free treatment for all digital products, including computer and video games, whether imported in physical form or over the Internet.

Game publishers expect the deal will help in their battle against pirates, as well: 

Recognizing South Korea’s high broadband penetration, the FTA includes additional commitments to augment enforcement efforts against Internet piracy.

South Korean publishers are widely-regarded as innovators in the entertainment software industry, particularly with respect to online games. Industry experts believe that this treaty will promote additional opportunities for U.S. and South Korean game publishers with regard to sales, investment and future collaboration.

Mike Gallagher has been something of a mystery man - until now.

With his first E3 looming, the new ESA president gives a revealing interview to Seth Schiesel of the NY Times. Most notably, Gallagher professes to being a gamer, something his predecessor, Doug Lowenstein, was most certainly not.

Gallagher spoke of getting started as a lad with Pong and progressing to more grownup fare:

In the 1990s, as chief of staff for Representative Rick White, a Washington State Republican, Mr. Gallagher helped network the office computers to play Doom, the seminal first-person shooter game.

“I was the chief of staff, so it was my prerogative to be the office champion,” he said.

Gallagher also mentioned playing Zelda with his children on the SNES:

“So it’s 1995 and I’m working on Capitol Hill,” he recounted. “My kids are 5, 3 and 1, and we did the Zelda game for the Super Nintendo, and I really saw how games could be a catalyst in the home because my 3-year-old son is sitting in the middle with the girls on both sides, and he had the manual dexterity to run the controls, but he couldn’t read yet.”

“But my 5-year-old could,” he added. “So my daughter would read the screen to my son, and my 1-year-old is sitting watching this masterful production being put on by her brother and sister.”

Of the game industry's political troubles, Gallagher said:

I think there is a bit of a generation gap, federally, given that a number of the legislators — especially since Congress operates on the seniority system — are older. Video games came very late in their content-consuming careers, and so they’re not as familiar with the intense innovation, competition and excitement that come from video games.

Gallagher also touted Manhunt 2's Adults Only (AO) rating as an example of the industry's ability to self-regulate:

Mr. Gallagher defends the industry’s record on regulating and monitoring itself. He noted, for example, that the [ESRB] which operates independently from the [ESA], recently effectively banned the violent game Manhunt 2.

He also vowed that the ESA would begin to play the political contributions game:

The main challenge is connecting with decision makers and creating champions for the video-game industry in the policy-making arena. So working to set up a way for the [ESA] to participate in the federal election process is one of my top priorities. Contributing on the federal level is a very important part of our success going forward.

Ninjas still run rampant in my home town of San Diego but at least I can sleep better at night knowing there is one less pirate out there.

Earlier this month, the San Diego County District Attorney’s Office and the Computer and Technology Crime High-Tech Response Unit (CATCH) raided the home of Frederick Brown, seizing over 1,000 pirated games and mod chips. 

It is alleged that Mr. Brown has, for several years, been advertising on sites like Craigslist to sell pirated games and devices that enable consoles to play the illegal software. Said new ESA pres Michael Gallagher:

We're watching you, Canada.

That's the word from U.S. Trade Representative Susan Schwab, who added America's northern neighbor to a priority watch list of countries which, the United States alleges, inadequately enforce intellectual property laws. 

As reported by the Globe & Mail, Canada managed to avoid being placed on a trade blacklist which could have lead to sanctions by the World Trade Organization. Said Schwab:

We must defend ideas, inventions and creativity from rip-off artists and thieves.

As previously reported by GamePolitics, the International Intellectual Property Alliance, of the which the ESA is a member, has complained that mod chips, used to play pirated game software on consoles, are legal in Canada.