Xbox-Modding Judge Berates Prosecution

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Xbox-Modding Judge Berates Prosecution

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Xbox-Modding Judge Berates Prosecution, Puts Trial on Hold
By David Kravets
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Xbox modding defendant Matthew Crippen (David Kravets/Wired.com)

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.
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Re: Xbox-Modding Judge Berates Prosecution

Post by massiah »

This is getting pretty sticky...
I think with the advent of new tools about to be released to the public that Microsoft has probably lost the battle on this one.
Then again, this may be the beginning of the next shot fires at piracy. The business of modding will be the next thing they attack if they cannot stop us from backing up the games.

Anxiously awaiting the verdict in this case...
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Re: Xbox-Modding Judge Berates Prosecution

Post by C4pt41n 5k33t »

I don't think that it should be anybody else's call on what you can and can't do to your console. If you buy it then you should be able to modify it, un-modify it, eat, poop on it, whatever floats your boat. If you buy a car you can paint it and put a new engine in it...as long as you don't use it to go 230mph in a 25mph kids zone. The law trust you so that you can have freedom to do what you please. They should trust us to abide by the law and not download someone else's back up; Although I do think they should let us have SMC-Hacked xbox's so that we can still play homebrew and do testing to push the console to it's limits. If it wasn't for modders and hackers I don't believe the console scene would be where it was today. They need to make an open-source console. Because then it would be a-lot better in the long run. Games could be made by the public so that solves the piracy problem, then just have a forum so people could go there and hit up radio shack for the stuff they need to fix it.
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Re: Xbox-Modding Judge Berates Prosecution

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C4pt41n 5k33t wrote:If you buy it then you should be able to modify it, un-modify it, eat, poop on it, whatever floats your boat.
you are 100% right :D
C4pt41n 5k33t wrote: The law trust you
i would disagree with you on that
the law never trust anyone completely
that is what makes them the law.
C4pt41n 5k33t wrote: freedom to do what you please.
any thing that is giving me more freedom of course gets my vote
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Re: Xbox-Modding Judge Berates Prosecution

Post by C4pt41n 5k33t »

Yea, I just read over that and it does sound stupid lol...it was meant to say that they allow us to modify our cars so why shouldn't we be able to modify our consoles too.
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Re: Xbox-Modding Judge Berates Prosecution

Post by keithkramer »

Amazing
2 day ago MSN had an article that was predicting the exact opposite on their home page. This guy was on a fast track to prison and .... now you can't find the article and this story is no longer front page news.
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Re: Xbox-Modding Judge Berates Prosecution

Post by tonyuk73 »

i think this chap should get his counter claim in now. :D
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Re: Xbox-Modding Judge Berates Prosecution

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No Deal in Xbox Modding Case, Trial Begins
By David Kravets
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LOS ANGELES — Federal authorities in the first-of-its-kind Xbox modding trial opened their prosecution here Wednesday, hours after the judge called a recess to give the government time to reach a plea deal or dismiss the case.

The government decided to forge ahead in the landmark trial after U.S. District Judge Philip Gutierrez gave the government a little breathing room on the standard of proof required to convict defendant Matthew Crippen on two counts of breaching the Digital Millennium Copyright Act.

The 28-year-old Southern California man is accused of modding Xboxes — a hack circumventing technological measures designed to block pirated or unauthorized games from being played. It is the first such jury trial of its kind. Each of the two charges carries a maximum five years.

“After consulting with the front office as well as the Department of Justice, the office has decided to move forward,” prosecutor Allen Chiu told Judge Gutierrez after a three-hour recess.

“The government,” Chiu added, “believes it has the evidence to prove each and every element beyond a reasonable doubt.”

The recess earlier in the day, as opening statements were to begin, came as the judge berated the prosecution on a number of fronts — from alleged unlawful behavior by government witnesses to proposed jury instructions that would almost certainly have resulted in a conviction.

In the end, the judge said the government must show that Crippen knew he was breaking the law — an acceptable position to the government that earlier had argued it did not have to prove that.

The defense maintained that, if the government proved Crippen circumvented copyright controls, the government must show that Crippen knew he was violating the DMCA.

The government said it would have dropped the case if that more onerous standard was required.

Toward the government’s end of proving that Crippen knew what he was doing was illegal, prosecutors put on the stand an Entertainment Software Association private investigator who told jurors that he paid Crippen $60 to modify a console at Crippen’s residence in Southern California in 2008.

“Hey, I’m hoping you can get this thing modded for me,” Rosario described the verbal encounter ahead of the transaction. “He reassured me that it would be OK. He said, ‘Not a problem.’”

The hiccup with Rosario’s testimony centered on whether Crippen was modding with the express knowledge that the undercover ESA agent wanted it done so he could play pirated games. After Crippen spent about 90 minutes re-flashing the console, Rosario said Crippen inserted a pirated game into the machine to test his hack.

“He produced a pirated video game. He placed it into the ROM he had just worked on. He initiated the game and it played. He showed me that the actual game would play,” Rosario testified.

But on cross examination, Rosario conceded he did not write that fact on any of his notes or reports. Nor did it appear on a secret video he took of the encounter. (Only two minutes of an edited video of the transaction was played to jurors, as Rosario said his computer ate the full version.)

Jurors, meanwhile, watched the video on large monitors on each side of the jury box, with about half of the panelists looking one way and the remainder the other way.

Defense attorney Callie Steele told the judge after the jury was excused for the day that whether Crippen knew he was modding for illicit purposes “is a very important fact.”

Before the jury, Steele grilled Rosario on the piracy angle.

“That is something you just happened not to capture on your videotape?” Steele asked.

“It was just not part of the element of the crime,” Rosario replied.

Still, the prosecution introduced 150 pirated video games the authorities said they seized from Crippen’s residence in Anaheim. Their titles were not immediately made public.

Prosecutor Chiu, in his opening statement before Rosario took the stand, urged the jury to convict.

“Ladies and gentleman, this case is about using technology to steal,” he said. “He did it so that other people could exploit copyrighted works.”

The defense told jurors in opening remarks that they would show that Crippen didn’t even breach the DMCA to begin with.

“That work on those two consoles did not willfully circumvent a technology measure that effectively controls access to a copyrighted work,” defense co-counsel Koren Bell told jurors.

Crippen’s lawyers intend to call Andrew “Bunnie” Huang in a bid to make that point. Huang, the developer of the Chumby, has written a book on Xbox hacking.

“Basically, what he did was insufficient on his own to violate anything,” Huang said in a recent telephone interview.

Rosario is expected to continue on the stand Thursday morning and be followed by a federal agent who allegedly paid Crippen $80 to mod an Xbox. A Microsoft employee who is an expert on Xbox security is also expected to testify.

The defense is likely to begin its case here Friday.
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Re: Xbox-Modding Judge Berates Prosecution

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All charges have now been dropped by the prosecution. Case dismissed.
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Re: Xbox-Modding Judge Berates Prosecution

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Prosecutors Dismiss Xbox-Modding Case Mid-Trial
By David Kravets

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LOS ANGELES — Federal authorities in the first-of-its-kind game-console–modding criminal trial abruptly dropped their prosecution here Thursday, “based on fairness and justice.”

“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.

The announcement came a day after a whirlwind of legal jockeying in the case against defendant Matthew Crippen, a 28-year-old Southern California man. The government charged that 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 or unauthorized games.

It was the nation’s first jury trial to test the anti-circumvention provisions of the 1998 Digital Millennium Copyright Act as applied to game consoles. The law makes it a crime to offer a product or service that circumvents a technological measure designed to protect copyright material. Each of the two charges carried a maximum five years.

“It still has not hit me yet,” Crippen said outside court, moments after Chiu dismissed the indictment.

U.S. District Judge Philip Gutierrez had blasted the prosecution’s case Wednesday, prompting a brief recess for prosecutors to decide whether they would forge ahead. The prosecution’s decision to continue would come back to haunt them as the government’s first witness ultimately unraveled their case.

Witness No. 1, Tony Rosario, was an undercover agent with the Entertainment Software Association. He told jurors Wednesday that he paid Crippen $60 in 2008 to modify an Xbox, and secretly videotaped the operation. Rosario had responded to Crippen’s advertisement on the internet and met Crippen at his Anaheim house.

All of that had been laid out in pretrial motions. But during his testimony, Rosario also said Crippen inserted a pirated video game into the console to verify that the hack worked. That was a new detail that helped the government meet an obligation imposed by the judge that very morning, when Gutierrez ruled that the government had to prove Crippen knew he was breaking the law by modding Xboxes.

But nowhere in Rosario’s reports or sworn declarations was it mentioned that Crippen put a pirated game into the console. During the opening statements shortly before Rosario’s testimony, defense attorney Koren Bell told jurors that there would be no evidence of that kind.

Defense attorney Callie Steele objected to the new testimony. And as court was to get underway here early Thursday, prosecutor Chiu told the judge that he first learned of Rosario’s newfound recollection days before trial. Chiu conceded he never forwarded that information to the defense.

“That fact was disclosed on Sunday,” Chiu told the judge. “We should have disclosed that to the defense right away.”

In light of that omission and “based on fairness and justice,” Chiu moved to dismiss the case, conceding that the government had made errors in its prosecution.

Jurors, who heard only one day of testimony, left the courthouse with mixed opinions on the case. “When we left yesterday, I was thinking, ‘What are we doing here?’” said juror Paul Dietz, a 27-year-old actor. He said he “probably would have” acquitted.

Another juror, Jerry Griffin, a 63-year-old trial attorney, said “I think Microsoft has a right to protect its proprietary information.”

Steele, one of Crippen’s three publicly appointed defense attorneys, said afterward that the government last year offered a plea deal in which the defendant would get probation and have his computer usage restricted in exchange for pleading to two felonies.

Rejecting that and going to trial, she said, “was a roll of the dice.”

“This was a risk that needed to be taken,” she added.

A felony conviction, she said, would have precluded Crippen from fulfilling his dream of becoming a high school special-education and math teacher.

Crippen said he has a year left of school before he gets a liberal arts degree from Cal State Fullerton. His studies have been on hold since he was indicted last year.

“I’m going back to school,” he said.
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Re: Xbox-Modding Judge Berates Prosecution

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This is truly a wonderful day to be a modder/hacker!
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Re: Xbox-Modding Judge Berates Prosecution

Post by CoFree »

well
"IMHO"
The top person that said yes prosecute this case (take it to court)
Should be took to court on one of many things he has split hairs on in his life
and his life put on hold and in ruin
like this guys was
They should have to pay for every thing that has took place
and no im not talking about My damn tax money paying for it, but they should have to pay
from there personal bank account even if they have to sell there damn house
they are doing what ever they want with no Consequences
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Re: Xbox-Modding Judge Berates Prosecution

Post by xtnod »

Nice... though I agree with most of you guys. If you bought the device than it's yours.
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