Judge Berates Prosecutors In Xbox Modding Trial

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Opening statements in the first-of-its kind Xbox 360 criminal hacking trial were delayed here Wednesday after a federal judge unleashed a 30-minute tirade at prosecutors in open court, saying he had “serious concerns about the government’s case.”

“I really don’t understand what we’re doing here,” US District Judge Philip Gutierrez roared from the bench.

Gutierrez slammed the prosecution over everything from alleged unlawful behavior by government witnesses, to proposed jury instructions harmful to the defense. When the verbal assault finally subsided, federal prosecutors asked for a recess to determine whether they would offer the defendant a deal, dismiss, or move forward with the case that was slated to become the first jury trial of its type. A jury was seated Tuesday.

Among the judge’s host of complaints against the government was his alarm that prosecutors would put on two witnesses who may have broken the law.

One is Entertainment Software Association investigator Tony Rosario, who secretly video-recorded defendant Matthew Crippen allegedly performing the Xbox mod in Crippen’s Los Angeles suburban house. The defense argues that making the recording violates California privacy law. The other witness is Microsoft security employee Ken McGrail, who analyzed the two consoles Crippen allegedly altered. McGrail admitted that he himself had modded Xboxes in college.

“Maybe two of the four government witnesses committed crimes,” the judge said from the bench. “I think it is relevant and the jury is going to hear about it—both crimes.”

The government had fought to keep the witness conduct a secret from the jury.

Crippen is charged with two counts of violating the anticircumvention provisions of the Digital Millennium Copyright Act, and faces a maximum five years for each count if convicted. The government maintains Crippen, a hotel car-parking manager, ran a small business from his Anaheim home modifying the firmware on Xbox 360 optical drives to make them capable of running pirated copies of games.

The judge on Wednesday even backtracked on an earlier ruling that had prohibited Crippen, 28, from raising a “fair use” defense at trial.

Crippen was hoping to argue to jurors that it was legal to hack the consoles because the modification had noninfringing purposes, like allowing the machines to run homebrew software, or permitting limited fair use of copyrighted material such as making backup copies of video games.

While the judge ruled last week that such a defense was not permitted by the DMCA, he seemingly changed course during his speech.

“The only way to be able to play copied games is to circumvent the technology,” Gutierrez said. “How about backup games and the homebrewed?”

The fair-use issue came up as the judge berated prosecutor Allen Chiu’s proposed jury instructions, which included the assertion that the government need not prove that Crippen “willfully” breached the law, in what is known as “mens rea” in legal parlance. The judge noted that the government’s own intellectual property crimes manual concerning the 1998 DMCA says the defendant has to have some knowledge that he was breaking the law.

“The first prosecution 12 years later, and you’re suggesting a mens rea that is akin to exactly contrary to the IP manual: that ignorance of the law is no excuse?” the judge barked.

“You didn’t even propose a middle ground,” Gutierrez continued. “What’s getting me more riled, it seems to me I cannot communicate the severity to you of what’s going on here.”

As the judge worked through his laundry list of complaints over the prosecution, word of the unusual judicial rebuke spread through the courthouse, drawing a trickle of about a dozen prosecutors and defense attorneys into the courtroom to watch from the gallery.

“I apologize to the court,” Chiu said at the end.

http://arstechnica.com/tech-policy/news/2010/12/judge-in-xbox-modding-trial-berates-prosecution-halts-trial.ars

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"Judge Berates Prosecutors In Xbox Modding Trial" :: Login/Create an Account :: 34 comments

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Aznboy38Posted:

Wow why would they even bring this up?

BribePosted:

shadow1
smashingeddie
shadow1 its about god damn time (excuse my language) that the law is doing something about hacking the xbox. last time i checked, it say hacking in any way, form, or shape is ILLEGAL. Just admit it, modding is illegal. we warned you, but you did it. so we went to long term bans. you did it more and we went to permanent bans. you did it even more, and you get jailed. THANK GOD FOR THE LAW!

The law that refers to hacking means phishing someones personal info it has nothing to do with altering xex's or .ff files.



but still its a hack where you alter it to have super jump and 10th lobbies. modding is a cover up word for hack. its still illegal.
just quit your bicthing woman (miss spelled purposly)

Da_BombPosted:

this is ridicoulus.
i bet all the prosicutors were legit and try hards in mw2. they are the only poeple who would file a complaint because of infections.mmm lol

BlacckReaper97Posted:

i love reading these comments its so much fun. But srsly ppl crying over modding? i mean i can see like tenth lobbies and stuff. But what about nazi zombies, i mod it and i dont really care about lobby leaderboards i do it for fun. I mean i see from both sides like tenth prestige or ppl hacking lobbies online sometimes its not cool. But like hosting a private match on mw2 and modding it shouldnt be a deal like rust its fun.

C_doggPosted:

ahaha got owned!!!

neildee250Posted:

This case has been dropped by the prosecution

Prosecutors call a halt to trial of California man accused of violating Digital Milleniuim Copyright Act; problems with testimony from ESA agent blamed.




Last year, authorities arrested Cal State Fullerton student Matthew Crippen, accusing him of illegally modding consoles for other people to use with pirated copies of games. Crippen finally got his day in court as his jury trial kicked off yesterday, and abruptly ended today, according to a Wired report.



After a single day of testimony, the prosecutor today dropped the indictment against Crippen "based on fairness and justice," and after acknowledging that the government neglected to share certain facts of its witness testimony from the defense in the days leading up to trial. The witness, an undercover Entertainment Software Association agent who said Crippen modded an Xbox for him in 2008, testified that the accused had tested the work with a pirated game. However, that information hadn't been included in his notes, reports, or sworn declaration before trial. The agent reportedly told the prosecution about that on Sunday, but that information was never passed along to the defense.

In May 2009, agents from US Immigration and Customs Enforcement seized more than 10 Sony, Microsoft, and Nintendo consoles from Crippen's home. The ICE officials were granted a search warrant to investigate his house, following a tip it received from the ESA.

One of Crippen's defense attorneys told Wired that the government offered a plea deal last year that would have seen him given probation and restrictions on computer use in exchange for guilty pleas on a pair of felonies. Had he been found guilty at trial, he could have faced up to 10 years in prison.

A 2008 ICE report states that piracy and counterfeiting "cost the US economy in excess of $200 billion per year and more than 750,000 American jobs." According to the ESA, one man was sentenced to 10 months in prison and $5,000 in restitution last year, after police seized about 4,000 pirated movie DVDs and over 300 pirated audio CDs in his residence.

Another notable bust occurred when a San Diego man was arrested in 2007 after a raid of his home yielded over 1,000 counterfeit discs and numerous modchips. He was charged with 10 felony-level counts, including grand theft, computer crime, and trafficking counterfeit marks.

TTG_v_XeX_MoDzPosted:

TTG_EndlessMODZZ looks like im going to jail and everybody else xD

Lol Me 2

DevonUsaPosted:

looks like im going to jail and everybody else xD

xLasersPosted:

this is really more of a DMCA thing which has tons of BS cases every year caused by it, the record companies and game companies love to use it, really do they not have enough money

SecretsPosted:

He shouldn't go to jail. He could help NASA or something to help us.