Xbox-Modding Judge Berates Prosecution, Puts Trial on Hold
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By David Kravets
- December 1, 2010 |
- 3:36 pm |
- Categories: Digital Millennium Copyright Act, intellectual property
LOS ANGELES — 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,” U.S. 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 anti-circumvention 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 non-infringing purposes, like allowing the machines to run homebrew software, or permitting limited fair use of copyright material such as 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.
Court is recessed until 1:30 p.m.
See Also:
- Judge Bars ‘Fair Use’ Defense in Xbox Modding Trial
- Prosecutors Seek to Block Xbox Hacking Pioneer From Mod-Chip Trial
- Student Arrested for Jailbreaking Game Consoles — Update
- First Criminal Trial Over Game-Console Modding Begins Tuesday
- Corporate Cop’s Covert Video at Issue in Xbox Modding Case …
- Jury Seated in Landmark Xbox Modding Trial
I’m glad Gutierrez is slamming the prosecution on these important issues. I tip my hat to this judge, especially for the following quote:
“How about backup games and the homebrewed?”
This sounds like the judge comprehending the fact that xbox modding isn’t solely for using pirated games. He hints towards the fact that the consoles are property of the purchaser, who deserves the right to do with it what he or she pleases.
Hypothetically speaking, if a law was to be introduced to prevent circumvention in automobiles, people would be appalled. Why should owning an xbox be any different than owning a car?
“Why am I being sued again?”
“Oh, well, we recorded a video of you modding your car, when you converted it to use a remote starter. Have fun trying to defend yourself, lol.”
I’m glad to see that some judges are actually thinking rather than just going along with the big corporations crying over how the big bad consumer wronged them.
hurray for judge. finally he’s getting it.
This article just made me happy. The fact that this was cruising through trial was very unsettling.
Wow, progress. Amazing!
MS should hire Crippen to work in the security dept. with McGrail.
“What’s getting me more riled, it seems to me I cannot communicate the severity to you of what’s going on here.”
What a surprise, the government breaking it’s own rules and not giving a crap about the laws it put into place. This is just another example of fear mongering, the government trying to make an example out of this guy to ward off the INDIVIDUALS that do break copyright laws. This has nothing to do with the guy that sells mod chips anymore than it has to do with the corporations that sell CD and DVD burners. I think some politician in the prosecutors department is getting his pockets lined by corporate lobbying.
Gutierrez, Philip S.
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Born 1959 in Los Angeles, CA
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Federal Judicial Service:
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Judge, U. S. District Court, Central District of California
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Nominated by George W. Bush on January 9, 2007, to a seat vacated by Terry J. Hatter, Jr.; Confirmed by the Senate on January 30, 2007, and received commission on February 16, 2007.
Excellent. Lots of new details here that were not in the last article.
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Wow, picture that, a Bush era judge that is big on the letter of the law.
So he contradicted himself…either he’s getting old or he did a little research in between sessions and educated himself, I’m hoping it’s the latter because that would be quite a sight. An aging government official understanding any kind of technology…
The dmca law stands against circumventing the copy protection. If he is only providing the system that plays the ‘already copied’, thus ‘unprotected’ (and access control REMOVED) games, then this is not circumventing the copy protection. The (illegal) circumvention occurred during process when the game was actually copied.
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If the software he provides is capable of actually copying or ‘ripping’ the games, then this would break the dmca law.
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This case is like going up against Winamp because their software plays illegally ‘ripped’ mp3s, or going up against Microsoft because their media player software plays video files of illegally copied dvd movies. This is an extremely weak case and I hope it gets thrown out. -Dan
This all points at the larger issue at hand: Real innovation, creative and scientific, is being restricted by modern concepts of intellectual property. Free your ass and your mind will follow. rip, mash, hack, unlock, mod, etc. I don’t even play video games (Gasp!) but the future belongs to us all, not just those who can pay the lawyers.
always so shocking when someone like a federal judge suddenly displays symptoms related to common sense
One Word: Fascism
Why are our tax dollars paying our lawyer to press criminal charges against one of our citizens on the behalf if a multi-billion dollar multi-national corporation for altering legally purchased private property?
I remember when AT&T was forced, gasp, to use non AT&T phones on their service because the government protected its citizens. It seems we’ve come reversed ourselves.