Judge in Xbox 360 modding trial: what are we doing here?

By on December 2, 2010, 3:56 PM
US District Judge Philip Gutierrez berated prosecutors for half an hour over their conduct in the criminal case against Matthew Crippen, a California man who is charged with two counts of violating the Digital Millennium Copyright Act for modding Xbox 360s. Update: "The government has decided to dismiss the indictment," prosecutor Allen Chiu told the judge shortly before the jury was to be seated on the third day of trial. If convicted, Crippen would have faced a maximum five years for each count.

The judge said he had "serious concerns about the government's case" against Crippen for running a small business out of his Anaheim home which opened and modified the firmware on Xbox 360 optical drives so they could play pirated games. The case is the first to have a criminal jury examine the legality of jailbreaking a game console.

"I really don't understand what we're doing here," Gutierrez said according to Wired. "Maybe two of the four government witnesses committed crimes. I think it is relevant and the jury is going to hear about it - both crimes."

Gutierrez was especially concerned that the prosecution planned to use two witnesses who have allegedly broken the law themselves. Crippen's defense lawyers argued that one of the government's witnesses, Entertainment Software Association investigator Tony Rosario, violated privacy laws when he secretly video-taped Crippen allegedly mod an Xbox at his Los Angeles home. The second witness, Microsoft security employee Ken McGrail who analyzed two Xboxes Crippen allegedly modified, admitted to modding Xboxes himself in college. The government fought to keep the witness conduct a secret from the jury but the judge decided against doing so.





User Comments: 26

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Kibaruk Kibaruk, TechSpot Paladin, said:

Seriously... what are we doing here? Ok then... someone who steals and kills that know how the law works go in and out of the system, and this guys for modding a console could face jail time?

In what world are we living in?

cardriverx said:

What a retarted waste of time and money.

gwailo247, TechSpot Chancellor, said:

I would understand MS going after him, right or wrong, aggressive defense is a part of our copyright laws, but the US Gov't, with a war going on and all that, needs to pick its priorities.

Zilliak said:

....wow so thats my im taxed 30% of my paycheck. F*** this.

Cota Cota said:

This makes so much sence... like a hooker suing a guy for not paying.....

princeton princeton said:

*waits for tomSEA's rant about piracy"

Guest said:

The prosecutor went for an easy kill to improve his won/lost record. So he goes for the throat with an incredibly weak case and trys to shield his lameness from the jury. Since a favorable percentage positively affects his year end bonus he should be fired and prosecuted for trying to game the system. That would be an interesting gamer on gamer twist.

Guest said:

I completely agree. IP laws go too far and need reform. Unfortunately, they also make some people very rich and it's the rich that call the shots, except in rare cases like this one.

PanicX PanicX, TechSpot Ambassador, said:

Judge Gutierrez said:

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

I want to give this judge a high five.

vangrat said:

princeton said:

*waits for tomSEA's rant about piracy"

HAHAHAH, omg I was thinking the exact same thing! I noticed that he hasn't popped in yet...wait for it...

vangrat said:

PanicX said:

Judge Gutierrez said:

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

I want to give this judge a high five.

Screw a high five, lets send this man a cake...wonder what his favorite is?

treetops treetops said:

To bad the american people cant use there tax dollars for campaign contributions, if that was the case we would actually run the government. Lobbyist decide where our tax dollars are being spent, sad as usual go bust some meth labs...

Regenweald said:

Maybe sanity is on its way back. Or maybe Judge Gutierrez is a beautiful fluke.

mosu said:

The modded X-boxes were legally purchased? ..if so, WTF are they trying to prove?

whiteandnerdy said:

I don't understand why they care. you gave them your money to make the xbox your own. otherwise the price tag is like a lease. this would be like car manufacturers saying that putting a turbo on your car is not allowed because it would allow the car to go at illegal speeds. waste of time and money.

Guest said:

TomSEA must be sick today....

lawfer, TechSpot Paladin, said:

vangrat said:

princeton said:

*waits for tomSEA's rant about piracy"

HAHAHAH, omg I was thinking the exact same thing! I noticed that he hasn't popped in yet...wait for it...

Wait...for...it...!

Guest said:

What? So because there's higher priority stuff, this is irrelevant? By that logic we should send all the govt's environmental agents to afghanistan to help over there.

The judge did NOT say it's ok to mod your xbox, he said the prosecution both a) failed to prove he was modding it with the intention of breaking the law b) that Crippen KNEW modding xbox's was illegal, and c) used illegal methods to collect their evidence. The judge was mad the prosecution wasn't following THEIR OWN rules. He doesn't think the defendant was right.

This is completely different from modding your car. Modding your xbox to play pirated games (and let's be honest, no one pays someone to modify their xbox to make backups), would be like modding your car to install a beer tap to the left of the steering wheel and then defend it by saying, 'well the tap works when the car is off too'. Adding turbo isn't creating a product whose sole purpose is to do something illegal.

I think it should be ok to mod your xbox, just like I can buy a DVR, but "reproduction of this broadcast without express written consent of the NFL is prohibited." This stoner Crippen is not a hero or revolutionary, he's an *****, he crossed the line. If you're gonna break the law, be smart and do it under the table like the rest of us. If the govt went after him I doubt he was making $100 a month on this. He was probably advertising and had lots of customers.

PanicX PanicX, TechSpot Ambassador, said:

The judge did NOT say it's ok to mod your xbox, he said the prosecution both a) failed to prove he was modding it with the intention of breaking the law b) that Crippen KNEW modding xbox's was illegal, and c) used illegal methods to collect their evidence. The judge was mad the prosecution wasn't following THEIR OWN rules. He doesn't think the defendant was right.

Not completely accurate. The judge reversed a previous decision that allows the defense to use Fair Use as a case for proving that modding is legal.

This is completely different from modding your car. Modding your xbox to play pirated games (and let's be honest, no one pays someone to modify their xbox to make backups),

How can you be honest and make such a ridiculous assumption? I've got 3 young boys that CONSTANTLY destroy games, movies, and countless other products. If I was certain that modding wouldn't lead to my Xbox getting bricked at some future firmware update, I'd do it in a heartbeat just for backups.

would be like modding your car to install a beer tap to the left of the steering wheel and then defend it by saying, 'well the tap works when the car is off too'. Adding turbo isn't creating a product whose sole purpose is to do something illegal.

lol, wait, what?

Guest said:

@Panic, You're right, i never thought of making backups to prevent kids from breaking them. That's a valid reason. But do you think the justice depart was going after this guy because he was helping dad's protect their kids toys? or because he was helping college kids pass games around dorms? I really think you're the exception, not the rule.

And modding your car to install a beer tap was about the only thing I could think of to do to a car that would be so obviously illegal, yet still have a defense, however pathetic.

Guest said:

My hat is off to Judge Philip Gutierrez for upholding the primacy of JUSTICE. Any lazy adjudicator can read the law and apply by rote the penalties asked for by the prosecutors, but it is a man of the laws, and of justice who can view the larger matter and apply his good sensibilities to the law, and derive good old justice from the thing.

There appears to have been malfeasance by those who point the finger of accusation at the defendant in this matter, and the Judge is not having any of it. It appears from here that the prosecution has dirty hands, and is appearing to subvert justice, and this principled Judge Philip Gutierrez has seen the misdeed, and will purge his courtroom of that disgraceful conduct.

Perhaps there was entrapment, perhaps a breach of wire-tap laws, perhaps underhanded double dealing by agents of the state, and these crimes may indeed outweigh in severity, and overall importance the relatively innocuous matter of making adjustments to a legally purchased gaming device.

Good on ya Sir. You do the legal profession honor by your far seeing handling of this case.

Salute from Canada

Anon

stewi0001 stewi0001 said:

Err... xiaojiehhj == spam, ^ anyone??? (maybe russian XD?)

Hey maybe Microsoft will try to sue you for spilling HOT coffee on your Xbox. gezzzz Ya know ok pirating games are bad, ok we know and we've seen it before with the music industry.... But a freakin game system is like a toned down computer and you don't see DELL and HP sueing people for overclocking or modding their computers.

Also, Heck ya for da Judge! Living with lawyers, I've heard alot of stupid stuff going on in the legal world and it's good to hear about some common sense again.

Guest said:

Microsoft themselves did some serious modding of Apple system.

Guest said:

This is the kind of horse crap you get when big corporations run the country.

stensland said:

Under fair rights use don't we have the legal right to make a single copy of any media we purchase? If so then the makes should not be allowed to make it so you can't use YOUR media be it the original disc or your copy.

And yes I know that "well how can we make sure they are only using a copy of their media that they purchased?" You can't, but you could require a verification that you own the media before you can use a 1: burned copy of your media or 2: a digital copy on such a thing as a home-network or a thumb drive.

I mean how awesome would it be if you could either load up all your Xbox games onto a CD changer on your home network and flip through them all in one organized and safe place like in a 6 disc CD player or just play straight digital media from a server at your own home.

DriverJ said:

Stensland,

I think being able to use the hardware we pay for in anyway we sit fit shouldn't be prosecuted. I love the idea of having all of my games in one safe spot. However I don't like the idea of not owning a physical copy of my media.

I can't remember the specific game, but I remember a few years back when a game came out it required authentication from the server to play the single player mode, and the server went down either just before or just after launch so most people couldn't play.

I can understand if a company will not support a modified piece of hardware, but to attempt to sue or disable the use of a console because someone decides they want to control their equipment is bogus to me.

to an earlier posters part we don't see PC manufacturers or ISPs saying, eh you don't have the latest drivers or security patches on your PC, so you are being banned.I think the way MS and some of the manufacturers have handled the console modding revolution has been down right stupid.

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