Just to give an example of how technical these reverse engineering cases get, see
http://www.bunniestudios.com/blog/?p=1472
The evidence presented by the US government included 150 non-original games in Crippen’s possession, along with two Xboxes that prior to Crippen’s modification, did not play copied games; but, after such modification, they did.
However, the author contests that the DMCA is not well-phrased:
So the first question upon which a jury must deliberate is: given that the document is entirely readable despite anti-counterfeit measures, do these anti-counterfeit measures constitute an effective access control that requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work?
And it seems to me that he tries to conclude via the traditional "trafficking
parts of illegal weapons is not the same as trafficking illegal weapons" defence (also done with rip-off clothes and designer labels -- possession of either by itself is not a crime, but...):
The most important fact to be cognizant of in this system is that the “answer table” is not contained anywhere within the Xbox360 ODD mod applied by Mr. Crippen. Without the user of the modification also contributing the “answer table”, the mod is entirely incapable of performing any function.
Essentially his claim seems to be that Mr. Crippen was only providing a service that would allow the user to do something illegal. His opinion seems to be that this does not fall under the DMCA statute:
No person shall circumvent a technological measure that effectively controls access to a work protected under this title, as further circumvention by the user was necessary. Again I find this to be reminiscent of the divide-and-conquer approach to claiming that nothing illegal was done.
