First Criminal Trial Over Game-Console Modding Begins Tuesday
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By David Kravets
- November 29, 2010 |
- 6:49 pm |
- Categories: Digital Millennium Copyright Act, Identification
LOS ANGELES — A Southern California man is set to go before a jury here Tuesday on criminal charges of violating copyright law by modifying Xbox 360 consoles to play pirated games.
In the first trial of its kind, defendant Matthew Crippen is charged with two counts of violating the anti-circumvention provisions of the Digital Millennium Copyright Act, or DMCA. He faces a maximum five years in prison on each count.
The 28-year-old Crippen suffered a devastating blow to his defense last week when a judge ruled that he can’t raise a “fair use” defense at trial. Two other key evidentiary issues in the case are unresolved, and are expected to be ruled upon at any time.
One issue is the admissibility of a covert video recording of Crippen allegedly performing the modification. A second is whether the jury can hear the testimony of hardware-hacking guru Andrew “Bunnie” Huang, who is prepared to testify for the defense that the modification did not circumvent a copy-control mechanism within the meaning of the DMCA.
The government maintains that the testimony of Huang, who wrote a book on Xbox hacking, is irrelevant and barred by federal rules of criminal procedure.
Regarding the covert taping, Crippen’s defense counsel is urging the judge presiding over the case to bar the jury from seeing a videotape of the defendant allegedly modding an Xbox for an undercover agent of the Entertainment Association of America. The defense maintains that the two-minute video, which has been edited, was unlawfully produced in Crippen’s Anaheim house without his consent in violation of California privacy law.
Crippen’s attorney has been unable to review the full recording made by the investigator, who claims to have lost it in a computer crash. As a result, only the edited version would go before the jury.
Regardless of the rulings on those issues, the defendant faces an uphill legal battle.
Crippen’s key defense to both counts was “fair use.” He hoped to to argue to jurors that it was legal to hack the consoles because the modification had non-infringing purposes, like allowing the machines to run homebrew software, or permitting limited fair use of copyright material. But the judge presiding over the case ruled last week that such a defense is not permitted by the DMCA.
“According to Mr. Crippen, if circumvention facilitates later fair use of a copyrighted work, then there is no protected copyright interest and no violation of the DMCA’s anti-circumvention provisions. This argument also must fail in light of the text of the DMCA and relevant case law,” U.S. District Judge Philip Gutierrez ruled.
Crippen allegedly had a business modding Xbox 360s for between $60 and $80 apiece. He was indicted last year after allegedly performing the deed for the undercover corporate security investigator, then again for an undercover federal agent.
Crippen’s lawyer, Callie Glanton Steele, compared the modification to jailbreaking an iPhone, an activity explicitly permitted under a recent DMCA exception approved by the U.S. Copyright Office.
The iPhone exemption is irrelevant, Crippen’s judge ruled, because the Copyright Office did not extend that exemption to game consoles.
Lawyers on both sides have declined comment.
Tune in to Threat Level for live coverage Tuesday.
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So he is getting screwed cause the law says it wont work in court….BOGUS
I’m just astounded this is in any way a criminal case. THE GOVERNMENT is bringing the charges?? wtf?? If anyone has a beef with modchips in this case, it should be MICROSOFT- and they should be the ones suing in a CIVIL ACTION. Democracy is totally not working if dodgy laws like DMCA, Patroit Act etc can pass without so much as a whimper from voters…
I actually agree with the gov’t in this case. This guy bought the console and accepted the EULA before proceeding to the main dashboard.
After numerous software mods that MS disabled and via update, this guy went a step ahead and modded the hardware itself therefore breaking DMCA laws and voiding MS’s warranty.
From the earlier decision on Fair Use:
“Copyright law still allows for the fair use of protected material — for example, an educator might be allowed to copy a brief scene from a DVD movie for classroom instruction. But if a hardware-maker deploys technology that prevents that fair use, bypassing that technology for any reason is unlawful.” – http://www.wired.com/threatlevel/2010/11/crippen/
So… bypassing region encoding on DVDs would be illegal; bypassing DRM to store a legal copy of a music track on a hard drive would (presumably – is it limited to hardware?) be illegal; dvd ripping for educational use would be illegal. I’m sure there’s more.
Let me get this straight. I am doing something legal, the copyright owner puts in a piece of technology to prevent me from doing that legal thing, I circumvent that technology therefore I am the one at fault.
Just so as we’re clear.
The iPhone exemption is irrelevant? Its completely relevent. Hes f*cked, that judge has no idea what he is talking about.
Posted by: rockstat | 11/29/10 | 10:47 pm |
I actually agree with the gov’t in this case. This guy bought the console and accepted the EULA before proceeding to the main dashboard.
After numerous software mods that MS disabled and via update, this guy went a step ahead and modded the hardware itself therefore breaking DMCA laws and voiding MS’s warranty.
If I buy a car, and then mod the engine computer to improve the timing, and accept a third party turbo charger, does that violate the DMCA? What if I have to cirmcumvent some of the code or even modify their existing code? Do I have to go to jail for that? Or is it only because of the pirated software ability that this is in court? If that is the case, then it seems it should be the copyright owner’s burden to seek compensation.
This is total bull sh!t. There is absolutely nothing wrong with what he is doing. Yes he accepted the EULA but thats states stuff about copyrights, he never modified the code on the xbox, he never pirated anything, and breaking warranty isn’t a crime you idiot. All you do by taking it apart is forfeit your right to get it fixed by MS. I do xbox mods and I am a moder. Its what I enjoy doing. Its called tinkering get over yourselves and go do something worth while in this country, we are going to fall apart as a union if this crap keeps up.
is this really a criminal case ?
I don’t understand how you can buy some hardware… do a bit of soldering to it.. then suddenly you’ve broken the law… Does this mean I can’t buy a camera and a printer.. join them together, sell them.. and then be done for facilitating copying because people are copying books with them?
In the old days they called it tinkering . This is way over the line, Wall street wrecked our economy no government oversight at all but this is the big concern what total smeg.
that is quite interesting – can Nissan go to court for having changed my tires on my car all by my self ? I really don’t get the point here … if I buy it is mine – I thought I could do whatever I wanted once I have paid for it …
@jmfb_k7
Let’s keep the car analogies on Slashdot where they belong
Here is what i think the difference is between “Tinkering” and “Breaking the law”
He made a business out of it.
He did this for profit.
thats why he got the smack down.
If he did this for himself and his friends.. odds are no one would be the wiser.
When he began doing this as his way of making a living he exposed himself to scrutiny by the feds..
If it wasn’t for the fact he was doing it for money, I would be in his corner. Hardware hackers made this industry. If I buy an XBOX and figure anyway to play 3d on it from say Sony, I shouldn’t have to go to jail for making a mod on a piece of equipment I own. It’s not a rental.
I just love how our so called fair court system can just refuse to allow evidence or certain defenses such as this one, ” when a judge ruled that he can’t raise a “fair use” defense at trial.”
Maybe they should just have a judge say he is guilty and not bother with allowing himself any defense.
Our courts are corrupted as is our government.
3 years in prison for tinkering with a piece of electronics he paid money for. What a country.
The government needs to stop trying to regulate videogames, and start trying to regulate Wall Street.
Xbox Modders aren’t going to screw up the economy.
I’m thinking the only illegal thing he did was charging to do it. Mod chips will still be legal and so will doing it yourself
Ok, an Article about XBOX360 modding from a Tech website and they grab an archive pic of an XBOX 1 Modchip? Weak. In the ends you never own these devices to do as you please. You LEASE them.
And the march of our legal system to the tune of corporate america continues.
Little guy mods a few xboxes in a gray area case that may or may not be illegal, and he might face huge fines and jail time.
Corporate America robs the entire country of trillions of dollars in shady mortgage and investing schemes…they get bailed out with taxpayer dollars. No one goes to jail.
“The government maintains that the testimony of Huang, who wrote a book on Xbox hacking, is irrelevant and barred by federal rules of criminal procedure.”
Irrelevant how? A 3rd party with expertise in the matter demonstrating how such a process works. If such acts do not conflict with the very law(s) being used to prosecute I see such intellectual venues as paramount to relevancy.
“But the judge presiding over the case ruled last week that such a defense is not permitted by the DMCA. “According to Mr. Crippen, if circumvention facilitates later fair use of a copyrighted work, then there is no protected copyright interest and no violation of the DMCA’s anti-circumvention provisions. This argument also must fail in light of the text of the DMCA and relevant case law,” U.S. District Judge Philip Gutierrez ruled.”
Now here we are arguing for the same DMCA guidelines yet omitting factual statements which support a defense against it in the matter on the basis that the Act never considered them in its scope. By this very reasoning any user of a personal computer could be prosecuted for altering their PCs configuration and components to perform various uses outside the manufacturers original idea that COULD over time be used for copyright infringement. In this case the very circumstance which secures innocence is ignored simply because monetary gain is achieved yet I don’t understand why this particular issue is being sought out over the countless other instances of circumstantial modifications which could be subjectively argued over regarding copyright.
Reading this article, and the one leading to it from earlier this month I would say the outcome is predetermined.
Having all of your evidence and case law ruled as “irrelavant” prior to entering the case itself while a shady edited video with no sound filmed illegally in your own home is perfectly fine?
Wired chaps, how about obtaining a statement from Microsoft regarding this matter? Will they seek compensation from him if convicted?
Simply outrageous.
Counter-sue saying it was to fix the three red lights!
[In the first trial of its kind, defendant Matthew Crippen is charged with two counts of violating the anti-circumvention provisions of the Digital Millennium Copyright Act, or DMCA. He faces a maximum three years in prison if convicted.]
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anti-circumvention provisions? are there any ‘thinking poorly of the manufacturer’ provisions … or ‘wouldnt it be nice if i could’ provisions? why is this written into the law? who voted on this law … who contributed to their campaigns … what lobbying firms were involved and who were their clients? is there a ‘follow the money’ act in congress yet? how is it that the company who makes a technology device (hardware/software) has complete immunity from any liability from it’s use … but those who consume the device … and don’t protect the intellectual property of the ‘completely not responsible’ entity have this ridiculous criminal liability if they don’t ‘use’ the device properly? hmmm … i wonder why?
We’re debating the wrong things here. It’s not the interpretation of the law that is the issue – it’s the law itself. It’s wrong.
As long as I’m not physically harming someone, I should be able to adjust any piece of software or hardware I purchase. If I wanna take all my XBoxes (XBoxi?!) and make a giant frekkin robot, I should be legally able to do so. It’s my purvue. I bought it. I’mma do what I want.
The law is clearly wacked here, but no one is going to jail for modding *their own* xbox. An not even for making a video, or telling others.
.
The issue is that even though the law is bogus, he broke the law for money. That’s a crime. Sorry.
only the rich are allowed to steal
[ In the ends you never own these devices to do as you please. You LEASE them.]
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in the end … that’s only because the companies that make devices like this have succeeded at getting the allowance to write into the ownership/license agreement that this is the case. all these ‘use’ laws should be voided … or these companies should carry the liability for exploits for the ‘use’ of ‘their’ equipment/software. they now have it both ways … and that should be changed.
I once soldered a secondary interface onto a friend’s C64’s C2N cassette unit for the explicit purpose of making “backups”. Strange to think I could get arrested for that now.
Since Microsoft is now advertising for app developers for the x-box, I think it’s shifted closer to the iPhone model and away from a simple games console.
So all prior laws, trials, decisions, and rulings that are completely relevant to this case, can’t be used? What do you have to do to become a judge? I guess a logic test isn’t required.