Judge "Berates" Prosecution in Xbox Modding Trial

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Judge "Berates" Prosecution in Xbox Modding Trial

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The judge in the case of a man facing a ten-year sentence for modding Xbox consoles tore prosecutors a new one yesterday, blowing up at them for proposing flawed jury instructions and trying to suppress possible illegal behavior on the parts of at least two government witnesses.

Matthew Crippen is in a tough spot. The 27-year-old student was arrested in the summer and charged with two counts of violating the Digital Millennium Copyright Act for modding game consoles. The maximum penalty he's facing is an astonishing ten years in jail; worse, the judge in the case denied his attempt to mount a "fair use" defense, ruling that the non-infringing applications of console mod chips are irrelevant because the DMCA doesn't allow circumvention for fair use.

But things may be looking up a bit. Judge Philip Gutierrez "unleashed a 30-minute tirade" on prosecutors yesterday, blasting them over "serious concerns about the government's case." Those concerns stem from the government's apparent over-eagerness to make an example of Crippen, which may have driven it to bend the rules a little too far.

At least two of the prosecution's witnesses are alleged to have broken the law themselves. An undercover Entertainment Software Association investigator secretly filmed Crippen allegedly modding an Xbox in his home, an act which the defense argues is in violation of California's privacy laws. Perhaps even more damning is the participation of Ken McGrail, a Microsoft security employee who analyzed the two consoles Crippen allegedly modded on behalf of the prosecution - and who admitted that he'd modded Xbox consoles in college himself.

The prosecution wanted to keep these shenanigans on the down-low, but the judge was having none of it. "Maybe two of the four government witnesses committed crimes," he said from the bench. "I think it is relevant and the jury is going to hear about it - both crimes."

He also appeared angry over jury instructions proposed by the prosecution stating that the government did not have to demonstrate "mens rea," meaning that it doesn't have to prove that Crippen knew he was actually breaking the law. That instruction goes against the government's own DMCA manual, which states that knowledge of the illegality of the act is in fact a necessary component of the crime. "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 asked.

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

The judge even appeared to question his own decision to deny the fair use argument in the case, opening up the possibility that some discussion of non-infringing use of mod chips could be allowed. "The only way to be able to play copied games is to circumvent the technology," he said. "How about backup games and the homebrewed?"

When the dust had settled, prosecutor Allen Chiu apologized to the court and asked for a recess to plan the next move. Three hours later, Chiu told the court that the government would move ahead; testimony in the case has now begun.

Source: Wired

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Well, well...to catch a criminal, you have to be a criminal. That's a new one.

Good to see a judge who understands what's going on here. Kid's probably going to be guilty, but at least he has a shot of being found not guilty.

so this story finally got posted, it's nice seeing a judge who's more serious about this and not just going with whatever the prosecutors say. Also it was pretty funny reading about this on it's own.

Huh, well that sure sheds some light on things. Interesting.

Andy Chalk:
When the dust had settled, prosecutor Allen Chiu apologized to the court and asked for a recess to plan the next move. Three hours later, Chiu told the court that the government would move ahead; testimony in the case has now begun.

So the judge told him he was being an asshat for a half an hour, took a reccess for three hours, came back and promptly ignored everything, pretending it never happened.

I'm actually raging over this -.- Yesterday I lost my respect for the judicial system, today is working on the faith for the whole country.

Hey look, they're trying to make an example of the kid. I think prosecutors take ut too far nowadays

I love this jugde. He literally tore a new one on these people, I hope the kid doesn't get jailed ten years just to be an example. But nobody will be afraid of this kind of thing!

10 YEARS? there was a drunk driver that hit a kid in my area a while back and he only got 3 years.
this is bullshit, if they are doing this to make an example then they should set him free sooner regardless.

That Judge is a hero of the system. Now lets see if he either gets replaced or suddenly changes his stance inexplicably, since it's pretty clear that trial is more crooked than a crushed beer can already.

30 Minute Tirade? Must've been one angry felow. He has a reason to be mad, though. I do not envy that man.

Wow, potential 10 year sentance for modding some electronics? I bet the American prison industrial complex (or however its called) has its eyes on this one!

Someone give the Judge a cookie! Glad to see that he is paying attention and not letting the government just steamroll this guy. I don't know all the details of this case so I am not taking sides here. It does seem though that the gov't went too far, and could now possibly lose their case.

Wow. Judge Rage.

I approve. Even if what he was doing was wrong, that doesn't mean his prosecution can say bollocks to due process.

One of the components of the future of media is "media scarcity." The only way media companies (music, video game, Hollywood) can force software to be scarce (and therefore force the consumer to repeatedly buy the same media) is by A)Having laws passed that make it illegal for people to own media as long as they don't infringe upon copyright; This sounds very much like DRM does it not?: B)Scarcity can be forced by "magic words" in the form of End User License Agreements (EULAs); Media companies can completely revoke legitimately acquired software on a whim simply by rewriting a EULA and then retroactively implimenting it, therefore making consumers lose hundreds of dollars of legally bought software.

The judge is competely cogent when he asks the question, "What about homebrew or copied games?" In the future of media, the end user has no rights what so ever because there is no recourse. Since physical media is being replaced by downloads, what options will we have? None, if media companies have anything to do with it. I've been saying this for a long time, and I'll say it again: The media companies hate the paying customer, and they will make us pay for it -- both literally and figuretively. They only love our money.

What a charade.

coldshadow:
10 YEARS? there was a drunk driver that hit a kid in my area a while back and he only got 3 years.
this is bullshit, if they are doing this to make an example then they should set him free sooner regardless.

Could be worse, you could get sued for eighty eight billion dollars for playing an illegal copy of WoW...well...actually it was only 88 million but that's besides the point.

O_o. I really don't know what to say here, I'm just in shock...A 10 year prison sentence for modding a console???

Now I hate modders but come on, a 10 year prison sentence for modding? That's a little extreme isn't it.

coldshadow:
10 YEARS? there was a drunk driver that hit a kid in my area a while back and he only got 3 years.
this is bullshit, if they are doing this to make an example then they should set him free sooner regardless.

Exactly, Stuff like this is getting worse and worse: All the piracy sites are being shut down and it's being made more illegal to mod a console than to get drunk and run over some children.

Give´em hell, judge! That dude is my new hero.

Another example of a Judge actually knowing his place in his OWN DAMN COURTROOM! Well done sir, well done indeed.

This is a law that must be so hard to explain in another context:

Buy a car, remove the engine, use it in a go-kart... get arrested for altering the car because you could have used the engine in a motorized death machine. The fact that you didn't is apparently irrelevant. Oh, and if you sell anyone else a manual or piece of equipment that helps them alter the car, then that's illegal too.

What ever happened to being allowed to do whatever you want with the equipment you buy? I mean, I don't see anyone getting sued for using Q-tips in their ears despite a very clear warning on the box not to use them that way...

Fucking hilarious, I'm so sick of prosecutors treating a few pirates of games, or ones that may not even have pirated, as if they walked into the middle of a city with a machine gun and open fired into a crowd of pregnant teen orphans.

Lord_Beric:
This is a law that must be so hard to explain in another context:

Buy a car, remove the engine, use it in a go-kart... get arrested for altering the car because you could have used the engine in a motorized death machine. The fact that you didn't is apparently irrelevant. Oh, and if you sell anyone else a manual or piece of equipment that helps them alter the car, then that's illegal too.

What ever happened to being allowed to do whatever you want with the equipment you buy? I mean, I don't see anyone getting sued for using Q-tips in their ears despite a very clear warning on the box not to use them that way...

Apple happened.

I'm kidding (well, maybe half kidding)

It was around before Apple, but they sure as hell are the leaders of it now.

Suddenly I'm actually a bit more interested in the outcome of this trial. If this were just another case of every part of the legal system trying to 'stay friends' by negotiating and deciding on this man's future, I'd dismiss it as another wonderful little travesty of justice in regards to how vehemently anything is prosecuted these days regards to this topic, even in contradiction of their own pre-agreed laws.

Now however...this doesn't look like your average trial anymore. A judge that actually looks like he wants to point out the inherent hypocrisy for once? We'll see how far this can go...

Lord_Beric:
Buy a car, remove the engine, use it in a go-kart... get arrested for altering the car because you could have used the engine in a motorized death machine.

Sigh.

Your analogy isn't at all reflective of what the guy was doing. If you want a car-related analogy, the guy was selling "slim-jim" lockpicks to anyone walking in the door. Sure, an average driver might use the lockpicks only on his own car should he lock himself out... but the way to bet is that anyone picking one up (who doesn't work for EMS or a towing company or something similar) is going to use them for lawbreaking.

I have no sympathy for the guy; he wasn't modding his own consoles for his own enjoyment, he was doing it for others for pay. I think anyone who can't chip their own console isn't responsible enough to use a chipped console responsibly, and I'm sick of cheaters using modded equipment online to act like CENSOREDs. I want to see fewer guys offering that service, thank you.

That being said, more power to the judge for calling the prosecution on its BS moves as much as he does the defendant's.

-- Steve

I wonder how many gamers on this site trust the game industry. Surely things like this have to be shaking some loyalty foundations.

There is no doubt in my mind that he game industry wants to remove all consumer rights.

Anton P. Nym:

Lord_Beric:
Buy a car, remove the engine, use it in a go-kart... get arrested for altering the car because you could have used the engine in a motorized death machine.

Sigh.

Your analogy isn't at all reflective of what the guy was doing. If you want a car-related analogy, the guy was selling "slim-jim" lockpicks to anyone walking in the door. Sure, an average driver might use the lockpicks only on his own car should he lock himself out... but the way to bet is that anyone picking one up (who doesn't work for EMS or a towing company or something similar) is going to use them for lawbreaking.

I have no sympathy for the guy; he wasn't modding his own consoles for his own enjoyment, he was doing it for others for pay. I think anyone who can't chip their own console isn't responsible enough to use a chipped console responsibly, and I'm sick of cheaters using modded equipment online to act like CENSOREDs. I want to see fewer guys offering that service, thank you.

That being said, more power to the judge for calling the prosecution on its BS moves as much as he does the defendant's.

-- Steve

In the US we have a right to back up our media. However, backed up media is useless unless you mod the console, which is apparently also illegal. There is a conflict that needs to be resolved.

Can you imagen being sent to jail for 10 years, FOR THAT!

Hardend Criminal 1: "What you in for? I killed a man in cold blood"
Hardend Criminal 2: "Gun running"
Hardend Criminal 3: "Drug dealing and Murder in the 1st"
Matthew Crippen : "You guys think thats bad, I chipped my Xbox"
Hardend Criminal 1: "WOW, SHIT!"
Hardend Criminal 3: "WARDEN!! I DONT WANNA BE IN A CELL WITH THIS MAD MAN!"

Anton P. Nym:

Lord_Beric:
Buy a car, remove the engine, use it in a go-kart... get arrested for altering the car because you could have used the engine in a motorized death machine.

Sigh.

Your analogy isn't at all reflective of what the guy was doing. If you want a car-related analogy, the guy was selling "slim-jim" lockpicks to anyone walking in the door. Sure, an average driver might use the lockpicks only on his own car should he lock himself out... but the way to bet is that anyone picking one up (who doesn't work for EMS or a towing company or something similar) is going to use them for lawbreaking.

I have no sympathy for the guy; he wasn't modding his own consoles for his own enjoyment, he was doing it for others for pay. I think anyone who can't chip their own console isn't responsible enough to use a chipped console responsibly, and I'm sick of cheaters using modded equipment online to act like CENSOREDs. I want to see fewer guys offering that service, thank you.

That being said, more power to the judge for calling the prosecution on its BS moves as much as he does the defendant's.

-- Steve

You have no sympathy for a man getting fucked by a vicious prosecution, who have the kind of financial powers that one can only speculate on? You want to see this relatively harmless geek get locked in a prison full of GENUINE criminals? Your mainline peeve being, people cheat online...

The kind of crimes that get 10 years can only be described as the fucking serious kind, and this man would be entering the lower circles of hell for a long time.

You seriously need to look at yourself in the mirror IMO. Where is your humanity.

Jesus, you could get less than 10 years for killing someone. I'm glad those bastards got blasted for pretty much being the pot in this situation.

The_root_of_all_evil:
Wow. Judge Rage.

I approve. Even if what he was doing was wrong, that doesn't mean his prosecution can say bollocks to due process.

Think he looked like this?

EightGaugeHippo:
Can you imagen being sent to jail for 10 years, FOR THAT!

Hardend Criminal 1: "What you in for? I killed a man in cold blood"
Hardend Criminal 2: "Gun running"
Hardend Criminal 3: "Drug dealing and Murder in the 1st"
Matthew Crippen : "You guys think thats bad, I chipped my Xbox"
Hardend Criminal 1: "WOW, SHIT!"
Hardend Criminal 3: "WARDEN!! I DONT WANNA BE IN A CELL WITH THIS MAD MAN!"

Pfft. More like:

Criminal 1: What you in for?
Criminal 2: Triple Homicide and two counts of rape. You?
Criminal 1: Chipped my Xbox.
Criminal 2: Come here sugar, you can call me daddy.

viper3:

coldshadow:
10 YEARS? there was a drunk driver that hit a kid in my area a while back and he only got 3 years.
this is bullshit, if they are doing this to make an example then they should set him free sooner regardless.

Could be worse, you could get sued for eighty eight billion dollars for playing an illegal copy of WoW...well...actually it was only 88 million but that's besides the point.

That was for hosting a private server, while taking "donations" from people so that they can get in game items and you can get rich, I think she made 1.6 million off of it. All in all, I think Blizzard just wants to crack down on private servers (not just the ones that make cash from "donations").

It's nice to see the justice system actually doing its job.

Straying Bullet:
I love this jugde. He literally tore a new one on these people, I hope the kid doesn't get jailed ten years just to be an example. But nobody will be afraid of this kind of thing!

Literally? Wow, that's pretty fucked up.

Om Nom Nom:
That Judge is a hero of the system. Now lets see if he either gets replaced or suddenly changes his stance inexplicably, since it's pretty clear that trial is more crooked than a crushed beer can already.

Drunk driving/hit and run is peanuts compared to tinkering with consoles made by poor ol' Microsoft!

Wow, the judge flew off the handle? Cool. Gives me the impression of a 'harsh, but fair' kind of man.

Made me think of this fellow.

image

Anyone who knows Boston Legal knows this guy - best judge on the entire show, and I can totally see this character giving the prosecution (or anyone, really) a run for their money.

Tin Man:
You have no sympathy for a man getting fucked by a vicious prosecution, who have the kind of financial powers that one can only speculate on?

In this particular case, no. Explanation to follow.

You want to see this relatively harmless geek get locked in a prison full of GENUINE criminals? Your mainline peeve being, people cheat online...

The kind of crimes that get 10 years can only be described as the fucking serious kind, and this man would be entering the lower circles of hell for a long time.

He's not going to get ten years. Ten years is a theoretical maximum figure floated in the press to get eyeballs. (And it worked. See?) In the real world, if convicted (hey, the trial has yet to even start) the guy will probably get parole as it's a non-violent crime and a first offense. Even if he does get time, it won't be in a Federal supermax with the really dangerous criminals; it'll be in a lower-security facility, more like the Club Fed they send other white-collar criminals to.

You seriously need to look at yourself in the mirror IMO. Where is your humanity.

I got my humanity just fine, thank you. I wonder at the humanity of all the "Chicken Little" types running around in circles over this and screaming that the sky is falling, though.

-- Steve

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