Judge "Berates" Prosecution in Xbox Modding Trial

Andy Chalk

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Nov 12, 2002
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Judge "Berates" Prosecution in Xbox Modding Trial


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 [http://www.theesa.com/] 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 [http://www.wired.com/threatlevel/2010/12/xbox-judge-riled/]


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maddog015

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Sep 12, 2008
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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.
 

Warachia

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Aug 11, 2009
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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.
 

ShadowKatt

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Mar 19, 2009
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Andy Chalk said:
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.
 

Celtic_Kerr

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May 21, 2010
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Hey look, they're trying to make an example of the kid. I think prosecutors take ut too far nowadays
 

Andy Chalk

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Nov 12, 2002
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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!
 

coldshadow

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Mar 19, 2009
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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.
 

Om Nom Nom

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Feb 13, 2010
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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.
 

Crossborder

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Oct 16, 2008
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30 Minute Tirade? Must've been one angry felow. He has a reason to be mad, though. I do not envy that man.
 

RandV80

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Oct 1, 2009
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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!
 

Monshroud

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Jul 29, 2009
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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.
 
Feb 13, 2008
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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.
 

galaxygamer

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May 23, 2008
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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.
 

fgdfgdgd

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May 9, 2009
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coldshadow said:
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[small]...well...actually it was only 88 million but that's besides the point.[/small]
 

ssgt splatter

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Oct 8, 2008
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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.
 

Svenparty

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Jan 13, 2009
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coldshadow said:
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.
 

googleboy

Lost in Space
Jul 27, 2009
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Another example of a Judge actually knowing his place in his OWN DAMN COURTROOM! Well done sir, well done indeed.