Modchips: A word of warning

A version of this article was first published in MCV, 5 March 2010.

Following a recent decision of the UK Court of Appeal, Paul Groves discusses the legality of chipping games consoles.

Whether you love them or hate them, the sale of mod-chips continues to thrive in the shadows of the video games market and they continue to be used by significant numbers within the gaming community. However, a recent decision of the UK Court of Appeal combined with increased efforts by publishers and platform owners to clamp down on the use of mod-chips means that gamers should think very carefully before embracing the controversial technology.

So what are modchips?

In very general terms, modchips are small electronic devices that can be attached to games consoles in order to modify or disable the in-built restrictions, such as DRM restrictions or region coding. Therefore, a modchip may, for example, enable a gamer to use their console to play legitimate games from other regions as well as those that have been pirated, undermining the protections that console and games manufacturers put in place to protect their products.

Are they illegal?

There is a marked lack of certainty over the legality of mod-chips due to the inconsistent approaches that have been adopted by the courts of different countries, and even within the UK. A criminal case brought against 'Mr ModChips', Neil Higgs, failed in 2008 but the Court of Appeal recently upheld the conviction of a Christopher Gilham, who ran a business selling modchips and other components for use with a variety of well-known computer games consoles, for copyright offences. Therefore, for the time being at least, the ruling in Gilham has confirmed that the sale of modchips should be considered illegal within the UK.

Why are they illegal in the UK?

Copyright law in the UK makes it an offence to sell “any device, product or component which is primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures”.

Are they also illegal to use?

Gilham’s conviction does not bode well for gamers who purchase and use modchips. The UK courts have now given a clear warning that such people may be liable for copyright infringement. If the copying was sufficient for Gilham’s conviction, then a video gamer’s use of a modchip may also be perceived in a similar light, potentially leading to civil or even criminal sanctions.

Is this the same everywhere?

In a wider context, it does not look as though this approach has been adopted in other countries. Even countries in the EU which have implemented the same legislation as the UK - such as Spain, France and Italy - have, in fact, found the use of modchips to be legal. However, there are a number of decisions and appeals pending, so it is possible that harmonization with the approach of the UK courts could soon follow.

Are there any other risks?

Some console manufacturers are tackling the modchips issue head-on by enforcing their rights under the “Terms of Use” which gamers sign up to in order to access the console’s online services. For example, in 2009, Microsoft banned a number of gamers identified as having modchips from accessing Xbox Live. In a press release, Microsoft stated that the ban was necessary due to the fact that the modification of the consoles using modchips violates the Xbox Terms of Use.

If recent legal developments are not enough to make gamers think twice before using mod-chips, the fact that they might lose access to ongoing services is likely to be an effective measure.