Prosecutors Drop Charges in Xbox 360 Modding Trial

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Prosecutors Drop Charges in Xbox 360 Modding Trial

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Defendant Matthew Crippen, facing prison for modding Xbox 360 consoles, is walking free after the government abandoned its case.

This has been an interesting week for Matthew Crippen, a 28-year-old resident of Southern California. Yesterday, we reported that Crippen could face ten years in prison for running a side business that modded Xbox 360 units to play pirated (and homebrewed) games. Earlier today, we reported that the judge in the case had torn the prosecution a new one regarding some aspects of their case - but the government had elected to proceed with its case nonetheless.

That decision to proceed was abruptly reversed today, and Matthew Crippen is a free man. According to Wired, prosecutor Allen Chiu told the judge that the government had "decided to dismiss the indictment ... based on fairness and justice" shortly before the jury was to be seated on the third day of trial.

The Crippen trial was the first jury trial testing how the anti-circumvention provisions of the Digital Millennium Copyright Act - which make it a crime to physically alter hardware to circumvent copyright protection - apply to videogame consoles.

Unfortunately for pirates, modders, and anti-DMCA activists, it's unclear if the dismissal of the case will actually set any legal precedent against the DMCA. From what I understand, the prosecution's abrupt abandonment based on "fairness and justice" had nothing to do with any change of heart regarding the DMCA provisions, but because the case was shoddily built on questionable legal grounds.

The prosecution's first witness, Tony Rosario, was an Entertainment Software Association agent who purchased Crippen's modding services, and videotaped him in the act. This was already a dubious matter - and one that the judge had previously chewed the prosecution out over - but in his testimony, Rosario said that Crippen tested that the modification worked by inserting a pirated game into the system. However, the pre-trial reports and sworn declarations earlier filed by Rosario included no mention of this at all.

Presumably, Rosario's statement was an attempt to convince jurors that Crippen knew that what he was doing was against the law - a key question in order to establish guilt. It's certainly possible that Crippen did know that he was breaking the law and that he did in fact insert a pirated game, and that Rosario's pre-trial briefs simply neglected to mention this (whether it is likely, however, is another matter entirely). Either way, defense attorney Callie Steele objected to the matter, sending the whole case crashing to the ground.

Chiu claimed that Rosario had only just recalled the matter on Sunday - too late for it to be included in pre-trial filings - and admitted that the prosecution should have forwarded it to the defense right away. However, given that the prosecution had made grievous errors in the handling of the case, the damage had been done, and the government dropped all charges.

But how would the jury have ruled, anyway? Paul Dietz, a 27-year-old actor admits that - based on the single day of testimony that the jury had heard - he "probably would have acquitted." On the other hand Jerry Griffin, a 63-year-old trial attorney, said that Microsoft had the right to protect its proprietary information.

This may not be a victory for DMCA activists - rest assured that the government will try to build a more legally sound case the next time this sort of thing goes to court. That said, it's certainly a victory for Matthew Crippen. "It still has not hit me yet," Crippen told press outside the court shortly after the dismissal. He plans on returning to Cal State Fullerton to get his liberal arts degree.

(Wired)

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The case itself wasn't solid and like the article stated, they used certain questionable methods to catch him.

Either way, he can walk away without any charges against him, he should learn from the experience and be more legit in the future.

AND JUSTICE IS SERVED!
Faith in humanity: +1
Thank you!

If jail breaking your crappy iproduct is legal then there is no reason why modding your xbox should not be. As for him testing with a "pirated" game, how do they know it was not a legal back up of a game he already owned?

Its about fucking time that justice over ruled the wishes of the industry.

Okay okay, so maybe justice was not actually served but the dude got off free and I am content with that.
Even so though, I do kind of wish it had ran its course and that the dude had won just so puture modders could point to this moment and be like "fuck you!"
Still, it brought some interesting questions to the limelight so lets just hope the next case is more interesting.

Grilled Cheesus:
AND JUSTICE IS SERVED!
Faith in humanity: +1
Thank you!

If jail breaking your crappy iproduct is legal then there is no reason why modding your xbox should not be. As for him testing with a "pirated" game, how do they know it was not a legal back up of a game he already owned?

Its about fucking time that justice over ruled the wishes of the industry.

Okay okay, so maybe justice was not actually served but the dude got off free and I am content with that.
Even so though, I do kind of wish it had ran its course and that the dude had won just so puture modders could point to this moment and be like "fuck you!"
Still, it brought some interesting questions to the limelight so lets just hope the next case is more interesting.

I wouldn't be so sure about that, they probably just dismissed the case themselves because they saw their chances waning of getting a beneficial ruling out of it (with a seemingly "biased judge") creating a precedent for more cases and general fearmongering.

They will probably try again in a few months/years, letting this go through would have only damaged their chances for success later.

Sounds to me like the government backed out so that they don't accidentally set a lenient precedent. Charming.

So it was his birthday today?

the lawyers did the only thing they really could do - if they pursued the case and lost, then that would pretty much destroy the DMCA. the DMCA is just the starting point of the law - it's upto jurors and judges to pontificate over how it applies in the real world, and if the first ever trial based on the act was an acquittal, that would really cause precedents problems for the act and future trials.

Altorin:
the lawyers did the only thing they really could do - if they pursued the case and lost, then that would pretty much destroy the DMCA. the DMCA is just the starting point of the law - it's upto jurors and judges to pontificate over how it applies in the real world, and if the first ever trial based on the act was an acquittal, that would really cause precedents problems for the act and future trials.

The precedent for jailbreaking smart phones has been set and it's only a matter of time before that applies to other types of electronic devices.

As others have said this was really the best course of action. The moment the Judge slammed them for 30 straight minutes they knew they were on shaky grounds.

If they went forwards with the case and lost, there would be a huge loss of money, even bigger than what has already been sunk into it, not to mention credibility and setting a precedent.

By backing out they learned from there mistakes of this case, don't set a precedent, and the next case they can destroy the opposition.

It's a tactical retreat honestly.

I don't see why messing with the product you payed for angers the manufacturers. It belongs to you.
It's like a car manufacturer complaining about you putting a new engine in your car.

Fighting pirated games is one thing. Telling people not to mess with their own property is another.

Edit: It appears I was wrong and when you buy an XBox it's technically not your property.
So I payed over two hundred dollars to borrow my game system?

I told you so.

I think the judge still has to answer for all the flame wars spirited debates this case sparked off on Escapist forums and across the internet in general.

Still, them dropping the case is GOOD. I think this shows how vulnerable that side of the argument feels that they don't even dare take it to trial to spite going this far already.

I think this does set a precedent of sorts... by the fact it so obviously tries to avoid legal precedent.

But how would the jury have ruled, anyway? Paul Dietz, a 27-year-old actor admits that - based on the single day of testimony that the jury had heard - he "probably would have acquitted." On the other hand Jerry Griffin, a 63-year-old trial attorney, said that Microsoft had the right to protect its proprietary information.

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this bit right here is probibly the most heatening statment in the whole piece. It shows( or at least I hope) that this generation of people wont put up with tis kind of crap from the government and that the people that would are going to be dead in the next 2 decades

They had a TRIAL ATTORNEY on the jury?

Is this regular practice in the states?

As far as I understand it, that kind of practice is considered a conflict of interest in the UK to have members of the legal establishment sit in as part of a deciding jury, I could be wrong.. and if I am, please correct me.. it just sounds pretty bad.

(I'm interested in a REAL answer to this.. so, no supposition please, if you don't actually 'know', then any answer you give isn't going to help.)

Anyway.. I certainly give kudos to the Judge for being so upstanding about this, it wasn't something I expected from the US judicial system when corporate entities are involved.

BenzSmoke:
I don't see why messing with the product you payed for angers the manufacturers. It belongs to you.
It's like a car manufacturer complaining about you putting a new engine in your car.

Fighting pirated games is one thing. Telling people not to mess with their own property is another.

Unfortunately as the law stands, even if you have 'bought' it you only actually have a licence to 'use' it with in the bounds of the terms the maker puts out.. in so far as console hardware is involved... It doesn't actually 'belong' to you as the word is understood. :<

The TINKER wins again !

Fumbleumble:
They had a TRIAL ATTORNEY on the jury?

Is this regular practice in the states?

As far as I understand it, that kind of practice is considered a conflict of interest in the UK to have members of the legal establishment sit in as part of a deciding jury, I could be wrong.. and if I am, please correct me.. it just sounds pretty bad.

(I'm interested in a REAL answer to this.. so, no supposition please, if you don't actually 'know', then any answer you give isn't going to help.)

Anyway.. I certainly give kudos to the Judge for being so upstanding about this, it wasn't something I expected from the US judicial system when corporate entities are involved.

As long as there was no particular conflict of interest regarding any of the parties involved, there's no reason why he couldn't be there. Going into law doesn't suddenly exempt oneself from jury duty.

Both prosecutors and defense attorneys need to agree on jurors, so if either side thought there would have been a conflict he wouldn't have been allowed.

BenzSmoke:
I don't see why messing with the product you payed for angers the manufacturers. It belongs to you.
It's like a car manufacturer complaining about you putting a new engine in your car.

Fighting pirated games is one thing. Telling people not to mess with their own property is another.

They probably saw it as their own IP, I guess its like taking WoW in a way and modding it to be a singleplayer game to sell it.

At least that example makes sense at the moment, I'm f**king tired.

I agree though, this case is pretty bullshit, and modding shouldn't be pursued against so much as Pirating, if they had taken a list of his customers and looked to see what they're up to, that'd be fine imo.

John Funk:

Fumbleumble:
They had a TRIAL ATTORNEY on the jury?

Is this regular practice in the states?

As far as I understand it, that kind of practice is considered a conflict of interest in the UK to have members of the legal establishment sit in as part of a deciding jury, I could be wrong.. and if I am, please correct me.. it just sounds pretty bad.

(I'm interested in a REAL answer to this.. so, no supposition please, if you don't actually 'know', then any answer you give isn't going to help.)

Anyway.. I certainly give kudos to the Judge for being so upstanding about this, it wasn't something I expected from the US judicial system when corporate entities are involved.

As long as there was no particular conflict of interest regarding any of the parties involved, there's no reason why he couldn't be there. Going into law doesn't suddenly exempt oneself from jury duty.

Both prosecutors and defense attorneys need to agree on jurors, so if either side thought there would have been a conflict he wouldn't have been allowed.

Thanks for the answer... but WOW, that's a bit of an eye opener. The legal system is even worse that I thought :(

Grilled Cheesus:
As for him testing with a "pirated" game, how do they know it was not a legal back up of a game he already owned?

Yeah I don't think there is such a thing as legal back up copies for games.

Good to know government has the time and money to help big business chase down people costing them money.

Well good, I'm actually glad, this was almost close to destroying a man's life to prove a point, no middle ground suggested, poorly constructed case, and questionable ground in itself in regards to the technology and the ethics surrounding this type of thing.

He should though just stop what he does, I'm sure the scare will be enough to stop him asking money for it at least, can probably keep doing it for friends and the like but, I would stop until there is a clear law instated about this sort of thing.

I do myself find it a bit questionable to alter and allow for ...lets say 'iffy' and unofficial software to be used on a piece of technology which can potentially allow for illegal acquisition of media and then charging money for the service. HOWEVER, putting a man away for it? Have you gone batty?

Dexter111:
I wouldn't be so sure about that, they probably just dismissed the case themselves because they saw their chances waning of getting a beneficial ruling out of it (with a seemingly "biased judge") creating a precedent for more cases and general fearmongering.

That's exactly what would have happened. The government didn't want to set a precedent that would basically pull the teeth from the DMCA's copy protection circumvention provisions.

The fact that this resulted from the presiding judge not putting up with their cock ups and corner cutting just makes it funny.

Charli:
Well good, I'm actually glad, this was almost close to destroying a man's life to prove a point, no middle ground suggested, poorly constructed case, and questionable ground in itself in regards to the technology and the ethics surrounding this type of thing.

He should though just stop what he does, I'm sure the scare will be enough to stop him asking money for it at least, can probably keep doing it for friends and the like but, I would stop until there is a clear law instated about this sort of thing.

I do myself find it a bit questionable to alter and allow for ...lets say 'iffy' and unofficial software to be used on a piece of technology which can potentially allow for illegal acquisition of media and then charging money for the service. HOWEVER, putting a man away for it? Have you gone batty?

Well, would it bother you if your DVD player refused to play burned discs?

Charli:
I do myself find it a bit questionable to alter and allow for ...lets say 'iffy' and unofficial software to be used on a piece of technology which can potentially allow for illegal acquisition of media and then charging money for the service.

See that 'potentially' you put up there? That's very important in legal matters because it means there are also other uses it could be put to, actions that are entirely legal.

Don't most people mod their 360 to play pirated games?

Garak73:
Well, would it bother you if your DVD player refused to play burned discs?

Or imports... If the DMCA existed back when most DVD players shipped region locked we'd still be forced to put up with it because it was the popularity of backyard regioning fixes that made the manufacturers rethink the whole deal... and that shit would have been illegal under the DMCA.

General_Potatoes:
Don't most people mod their 360 to play pirated games?

Most people I know with modded 360s use them for playing imports and back ups...

Which is to say, no one knows for sure what most modded 360s are used for. It's not like there was a questionnaire passed around and even if there was most of the pirates would have lied.

Fumbleumble:

John Funk:

Fumbleumble:
They had a TRIAL ATTORNEY on the jury?

Is this regular practice in the states?

As far as I understand it, that kind of practice is considered a conflict of interest in the UK to have members of the legal establishment sit in as part of a deciding jury, I could be wrong.. and if I am, please correct me.. it just sounds pretty bad.

(I'm interested in a REAL answer to this.. so, no supposition please, if you don't actually 'know', then any answer you give isn't going to help.)

Anyway.. I certainly give kudos to the Judge for being so upstanding about this, it wasn't something I expected from the US judicial system when corporate entities are involved.

As long as there was no particular conflict of interest regarding any of the parties involved, there's no reason why he couldn't be there. Going into law doesn't suddenly exempt oneself from jury duty.

Both prosecutors and defense attorneys need to agree on jurors, so if either side thought there would have been a conflict he wouldn't have been allowed.

Thanks for the answer... but WOW, that's a bit of an eye opener. The legal system is even worse that I thought :(

Er, I don't see how this is a bad thing. The entire point of a jury is that it's an unbiased group of citizens of all walks of life. Choosing law as your profession shouldn't disqualify you at all.

Again, both the prosecution and defense must agree on the twelve jurors. If either group thinks there is a conflict of interest, they can dismiss any juror the feel like.

"Presumably, Rosario's statement was an attempt to convince jurors that Crippen knew that what he was doing was against the law - a key question in order to establish guilt."

That's a defense now? Gee, I didn't know murder was against the law, officer. Is this law so shoddily written that they have to paint him as a supervillain just to enforce it?

RhombusHatesYou:

Charli:
I do myself find it a bit questionable to alter and allow for ...lets say 'iffy' and unofficial software to be used on a piece of technology which can potentially allow for illegal acquisition of media and then charging money for the service.

See that 'potentially' you put up there? That's very important in legal matters because it means there are also other uses it could be put to, actions that are entirely legal.

I should have been more clear, I leave that issue up to courts and people versed in law, the only problem I had with him was charging money for it... I'm not sure that was the smart thing to do, just knowing what lengths companies go to 'protect' their property.

It's really a personal opinion, I wouldn't do something like that unless it was my own console because I'm paranoid of these ridiculous crusades... *looks at dismantled Wii*

I am not understanding why he is wrong to charge money to mod an XBOX. Do people charge money to mod a car? Do people charge money to repair an XBOX?

If modding is illegal then THAT should be the problem, not that he charged for it. If it isn't then charging for a LEGAL service shouldn't be a problem.

Dammit! They obviously didn't pursue this because it was in the defendants favor, and that would have set precedent that they can't persecute for this.

I wish they hadn't dropped the charges so the precedent could be set

zelda2fanboy:
"Presumably, Rosario's statement was an attempt to convince jurors that Crippen knew that what he was doing was against the law - a key question in order to establish guilt."

That's a defense now? Gee, I didn't know murder was against the law, officer.

That's not what they mean at all. Using a pirated game (and what if he was just using his own backed up game to test the system? what about that?) to show the system could play them would have been evidence that Crippen was not only aware of the ability to use modded consoles to play such games but was also displaying such ability to customers as a desirable outcome... which, in plain english, means he'd have shown intent for his mods to be used for playing pirated games and that would have taken a large shit on his grounds for defence on principles of 'fair use'.

Is this law so shoddily written that they have to paint him as a supervillain just to enforce it?

Not really. The prosecution fucked up badly and were trying to recover from it.

Well that is good news to hear, indeed. These types of legal actions are the types of movements that all consumers should take note of for our own collective betterment. The treatment over a modded console should match that of a rooted phones as the crime of piracy is otherwise being assumed rather than proven. Modifying a video console in it of itself is being treated like "thought crime."

But what I find especially sickening is the blur between "ownership" and what is essentially leasing a product under a corporation's license. Since when did a cash transferal equate to complying with and signing a document specifying your "rights" with the item in question? Is there a EULA for a pound of bananas I bought from Dole that I should be aware of as well? I would hate to face a prison term for breaching an imaginary contract at the bottom of my receipt stating that those bananas could only be used for banana nut muffins and not banana nutbread.

If he was using a backup of a game he owned to show that it worked, then he wasn't showing that it could be used to play pirated games, he was showing that it could be used to play backed up games.

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