A number of news wires are reporting that two men face criminal charges for Xbox tampering (see also news.com). The real kicker appears to be that they sold pirated games illegally preloaded onto the systems; according to the Yahoo story:

They charged from $225 to more than $500 for the modifications, depending on the extent of the modifications and the number of games preloaded onto the hard drive.

The men appear to have been charged on two counts; according to the News.com story these are:

“conspiring to traffic in a technology used to circumvent a copyright protection system and conspiring to commit criminal copyright infringement,” in violation of the Digital Millennium Copyright Act, according to a statement from the U.S. Attorney’s Office for the Central District of California.

This raises two interesting questions: first, why the conspiracy counts? If the story is right as to the facts alleged, and if those facts are proved, it would appear that they have already committed at least two counts of copyright infringement. Conspiracy is usually used when the offence is inchoate; it is generally preferable to charge the completed offence once it has actually occurred. I wonder whether there are procedural advantages, or, more likely, advantages as to potential penalties under the conspiracy counts.

Secondly, it will be interesting to see whether the XBox DRM is considered to be a technological protection measure for the purposes of the DMCA, given the High Court’s recent decision in Sony v Stevens, where the analogous PlayStation DRM was not sufficient under the Australian law then in force.