IV. Conclusion

Sony v. Divineo should not be allowed to stop the innovation and creativity of video game mod chip distributors and users. Despite the hefty three million dollars in damages awarded to Sony, there may be a light at the end of the tunnel. The fact that many of the uses for mod chips are noninfringing should be given greater weight than given by the Divineo court. The DMCA is not likely to overwrite years of precedent, despite its anti-circumvention bent, since a balancing test is still required to determine whether the use is one that public policy dictates should be allowed despite other potential infringing uses.

Video game system manufacturers have attempted to use the DMCA to protect their copyrights from piracy and because of this they have kept their hardware and software under wraps. Under the guise of the DMCA, video game manufacturers also may have attempted to expand the use of abusive copyright protections by the extension of the DMCA to cover noninfringing mod chip uses. A legislative effort to allow for substantial noninfringing uses of items that can potentially circumvent technological protection measures is a good place to start repairing the copyright system's treatment of mod chips. An effort to utilize the protections of patent rather than copyright law to alleviate some of the negative consequences mod chip manufacturers are facing could impact the duration of current copyright holders' protection. Fair use is a valid argument for legalizing a consumer's noninfringing use of their products. Reverse engineering provisions are a robust way to allow the tinkering that helps to improve consumers' experience with their video game systems, and mod chip distributors play an important role in creating interoperable software. Legalization would boost the consumer use and commercial sale of mod chips not used for piracy, and benefit the video game economy.137 Implementation of a system similar to that of Australia, for example, could improve the market for both consumers and manufacturers.

I do not have a mod chip in my Xbox 360, nor would I ever try to solder electronic connections or add functionality to my game system. But one thing is certain: I highly value the contributions of those who improve technology, both the video game system manufacturers and the mod chip maker. It is wrong to pirate video games, but it is not wrong to improve your own video game system through creativity and innovation. Somewhere, the Sonys and Divineos of this world should be able to meet in the middle and work together to improve the video game experience. There must be some middle ground where the noninfringing uses of the mod chip and the copyrights of video game manufacturers can blend together without conflict.138 In the meantime, a potential defense can be crafted to support the use of mod chips in video game systems.