Judge Berates Prosecutors In Xbox Modding Trial

mrbongo writes with this excerpt from Wired: "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.' ... 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."

Comments

And tomorrow...

[ShakaUVM]

And tomorrow the feds drop the case since they don't want to set a precedent, and try again next month with a friendlier judge.

Re:And tomorrow...

[Anonymous Coward]

you know... precedent is only set by cases they (judges) choose to publish. They can rule anyway they want and then not let the case be published in the proper way which then prevents it from ever being referenced in future trials.

Most people are also unaware that judges regularly edit the transcripts after the fact. (The reason they don't let you tape record proceedings without permission.)

Re:And tomorrow...

[Foobar of Borg]

you know... precedent is only set by cases they (judges) choose to publish. They can rule anyway they want and then not let the case be published in the proper way which then prevents it from ever being referenced in future trials.

Most people are also unaware that judges regularly edit the transcripts after the fact. (The reason they don't let you tape record proceedings without permission.)

Actually, precedent is set at the appellate level. The trial court level does not set precedent. And, even then, the precedent is only binding on lower courts. Although, other appellate courts at the same level sometimes use those decisions as "persuasive authority" in their own decisions, even though they are not strictly bound by them.

Re:And tomorrow...

[cpt kangarooski]

No.

First, thanks to the ease of putting and accessing cases on the computer, some federal courts now accept the citing of 'unpublished' opinions.

Second, all previously-decided cases establish precedents, but only some are binding precedents, which a court must follow, while most are merely persuasive, which a court may or may not follow as it sees fit. It's perfectly acceptable to cite the opinions of trial courts, if that's the best thing you've got.

Re:And tomorrow...

[slack_justyb]

Basically that's absolutely how it will go down. At some point during the trial the feds will drop the case since the judge is extremely hostile.

The only change is that they can't pull this guy into court again, but that's not to say tomorrow they arrest some other guy and try again with a friendlier judge.

Re:And tomorrow...

[zeroshade]

Actually, double jeopardy applies to trials regardless whether it was an acquittal or conviction. The defense cannot ask "for another trial" when found guilty, they can appeal. There has to be a basis for the appeal but an appeal is not another trial of the same kind, you go to the court of appeals and a judge or judges will determine if something was done wrong during a trial in order to warrant a change in the decision.

Also, the only way a trial can be retried over different charges that cover the same actions is if they are significantly different charges (you can't charge someone with manslaughter and then later charge them with murder for the same death. You can however charge them later with robbery if the murder arose from the robbery).

And from wikipedia: "Nor can the state voluntarily dismiss a case after trial has begun in order to start over." If there is declared a mistrial, or if the Judge dismisses without prejudice then yes, they can start over. But a prosecutor cannot voluntarily drop a case and then restart it. Double jeopardy forbids it.

Re:And tomorrow...

[Darinbob]

What's interesting to me, aside from the actual case itself, is that a judge is deciding not to let prosecutors get their own way which is somewhat rare.

Re:Translation: Judge's son/nephew owns modded Xbo

[Anonymous Coward]

more likely he realizes the court has more valuable things to allocate time and taxpayer money on than going after some kid who hacked his xbox. Or maybe he saw that their argument was pushing beyond the confines of the allegedly broken laws, and he wasn't about to let his courtroom be a tool for them to advance their agenda.

Whatever his motivation was, good for him!

Danger Will Robinson

[maroberts]

Often the side that gets the most serious sledging is the one that the judge thinks is likely to win, because he wants to make sure that he has addressed any points that could be appealed.

Re:Translation: Judge's son/nephew owns modded Xbo

[Anonymous Coward]

Never attribute to malice that which is adequately explained by competence.

Re: No Rage Allowed

[anomaly256]

Unless of course they are committing unlawful behaviour and tampering with jurors. Oh wait.. RTFA.

Lets get the facts straight :-)

[Anonymous Coward]

Whoa ... lets get the facts straight here :-)

The judge initially dismissed fair use arguments by the defense, but now seems to be reevaluating that decision. Probably because he too the time needed to understand all the technical and legal details of the case. The DMCA is not a 1-pager you read overnight and its implication on other lega areas is huge.

And the kid absolutley did not just hack his X-box. He had a small business selling modded X-boxes to other people, and was recorded by an agent doing exactly that.

I absolutely think that modding should be allowed for several reasons - so I am not siding with the prosecution here. I am just trying to make the facts clear to everyone.

:-)

- Jesper

Re:Lets get the facts straight :-)

[WCMI92]

What is the difference in buying, customizing, then reselling an XBox and in buying, customizing, and reselling a vehicle made by Ford?

None.

This is the insidiousness the IP monopolists are trying to get away with, the ability to sell something yet still OWN it.

Unless the XBox modder bought an XBox, then used it to make other XBoxes, they have no beef.

Re:Lets get the facts straight :-)

[espiesp]

Love the car analogies...

A (performance) modded car could be used almost exclusively to exceed the speed limit. Easy argument against the practice (lets ignore for a moment emission laws).

Where as an end user could argue that the modifications make their life more convenient by allowing them to reach the posted speed limit more expediently.

Just because something allows you to potentially break the law doesn't always make it illegal.

Re:Lets get the facts straight :-)

[poetmatt]

that's pretty much every state, except that it was an undercover agent - it was not a support call.

the Judge stating it was a violation of cali law tells you that this consent was not obtained.

Re:Lets get the facts straight :-)

[b1t r0t]

Guess what they called the stuff they were delivering?

Homebrew.

Re:Lets get the facts straight :-)

[profplump]

Refusing arguments by analogy is absurd. Analogy is the only way to compare what we know and have experience with to new situations. The vary basis of language is analogy and categorization -- we come to a common agreement on what constitutes "yellow" and treat all things of that class the same way even though it's unlikely that your yellow schoolbus is the the same color as my yellow lemon.

Argument by analogy is incomplete, in that there are differences between the actual point of contention and the analogous situation, and those differences might make a particular analog inapplicable to a particular situation, but dismissing analogy as an invalid tool for legal or other argument is just silly.

The category of "things protected by IP laws that you can modify aftermarket" seems like a pretty relevant place to start comparison. If you want to object to the analogy based on some specific difference between cars and game consoles feel free, but don't try to dismiss the comparison out of hand.

Also note that "street legal" is an irrelevant comparison for game consoles, as their operation is not regulated by the state, nor is the case at hand about the operation of the modified device -- which the defendant did not do -- only the modification itself and the sale thereof.

Re:Lets get the facts straight :-)

[Phreakiture]

Let me beef up the car-mod analogy a tad.

Example the first: a car modded to run over different terrain. Examples: someone local to me, with a love of VW Beetles, put a VW Beetle body on a Jeep CJ Chassis, and called it a "Veep". It's every bit a 4X4 as the Jeep was, and also every bit as street-legal, but now he has something that is truly unique.

Example the second: a car modded to run on a different fuel. Examples: Propane, natural gas, vegetable oil, wood, electricity. Some of these are available as factory-original, but I have seen all of these done as home-brew.

Example the third: a vehicle modded to make it more energy efficient and/or less polluting. Example: Late-80's VW Westfalia van fitted with a late-90's Subaru engine, making it more efficient, capable of passing emissions tests, and able to climb a hill without slowing down.

My point in all of this is that not all car modifications are for purposes of exceeding the speed limit, or for breaking any other law, and some are even altruistic.

Re:Lets get the facts straight :-)

[Demonantis]

A lot of the older laws actually articulate this(not so much recently). Giving someone the means to commit a crime is not a crime until the crime is committed. I can break and enter a building as long as it is not with the intention of committing a crime. It protects people that hear screaming in a house or see a burning house and break in to provide assistance.Same with lock pick equipment is in most places. Ownership is not a crime unless you are intending to use them to commit a crime. I really think the change in how the laws are written is warning of how much countries are becoming parental states(kinda like police states).

Re:Lets get the facts straight :-)

[sribe]

that's pretty much every state, except that it was an undercover agent - it was not a support call.

Actually no, most states (39?) are one-party consent states, not all-party consent, making it perfectly legal for any party to a phone call to record it without getting consent from any other party.

Re:Lets get the facts straight :-)

[RulerOf]

A (performance) modded car could be used almost exclusively to exceed the speed limit.

Which is completely necessary for robbing banks, which is of course the only reason to have such fast cars.

Re:Lets get the facts straight :-)

[Dishevel]

That is not rape. That is just a gold digging bitch trying to get one over on someone and instead having one gotten over on her.

Re:Lets get the facts straight :-)

[suomynonAyletamitlU]

Refusing arguments by analogy is absurd. Argument by analogy is incomplete, in that there are differences between the actual point of contention and the analogous situation, and those differences might make a particular analog inapplicable to a particular situation, but dismissing analogy as an invalid tool for legal or other argument is just silly.

To put it differently, an analogy is not an argument, it is a tool for communication. You cannot end a proof on an analogy; it's not logic, and it doesn't show anything. What it does is open up the floor to a new, related discussion, in order to make a related argument in isolation from complications that arise in the original.

Re:Lets get the facts straight :-)

[sorak]

Agent: I record all purchases for quality purposes; is that ok?
Store Owner: Get the hell out of my store.

Re: No Rage Allowed

[jav1231]

The quotes seem pretty direct. He has some valid points. You're going to bring into open court two witnesses that had to break the law to get your evidence and then seek to have that fact kept from the jury? This is no different than getting warrants after the fact or say a vice cop not just propositioning a hooker but going ahead and sleeping with her, paying her, then arresting her and seeking to keep much of that out of court.

No disrespect for the court allowed?

[SplatMan_DK]

As much as I want people to be able to jailbreak their own devices and despite my prejudice against the prosecutors' case any judge that lets lose with a tirade in a court room needs to be removed from the bench. Nobody should be subject to a verbal assault by a judge or other public employee.

There are rules to follow in the legal system. In this case the judge believe that the prosecution may have seriously failed to follow those rules - in spite of the fact that his job is to know those rules very well indeed. And if the judge suspects your failure to follow the rules are deliberate or due to laziness you may be found to be in contempt of the court - something which can have serious consequences for your case and perhaps even your job in the legal business.

If you show up in front of a judge with a blatant disrespect for the court, the court will give you a hard time for it.

What is the surprise here?

- Jesper

Re: No Rage Allowed

[The Mighty Buzzard]

Nobody should be subject to a verbal assault by a judge or other public employee.

Conversely, I find it hard to believe that a lawyer has ever received more than 1/2^64 of what they had coming to them in the ass-chewing department.

Jury Nullification Time!

[XxtraLarGe]

I hope it does get heard, this would be a great time for jury nullification. Hopefully, the Fully Informed Jury Association will be around to educate jurors.

Re:Jury Nullification Time!

[Sloppy]

Actually, this would be the proper time for the defense to prove that he did not in fact break the law

This is one time that I agree. If you actually read the DMCA, there isn't any part of it that applies to the situation. Modifying a player that is already capable, on its own, of accessing the work protected by the tech measure, simply isn't an act of making/selling a device that circumvents tech measures that control access to the work. There just doesn't seem to be any part of DMCA as written, that prohibits this sort of thing. All the jury has to do is apply the law that Congress wrote, rather than bad precedents, and it'll be an innocent verdict.

If the industry buys a new law to amend DMCA to prohibit this sort of thing, then I'll start to disagree with you, and say the people should uphold fairness. You say that thinking about fairness is what legislatures and supreme courts do, and that is a noble thing for us to strive to get our governments to do. Yes, it is our responsibility to some day elect legislatures that think about fairness, and if the law isn't fair, then it's our fault.. But if a person does not believe the public has successfully done that yet, then from their point of view, thinking about fairness has not yet happened at any point in the process, so when it's their turn to be on a jury, that is last chance for fairness to play any role in the system. If Congress didn't worry about fairness, then jurors are the only place fairness can be considered before an innocent person is harmed by government force for no good reason. If you're a juror and you don't think the lawmakers have tried to be fair, then you must nullify.

And let's remember, this is DMCA we're talking about here. Go ahead and just try to make a case that congress and the courts even paid lip service to fairness. It's one thing for a racist to disagree with a legislature that insists a black man be allowed to vote. He might wish the legislature hadn't done that and disagree that they should have. But deep down he knows that at least they did that due to public pressure and a shitload of people demanding to be treated like people. Fairness is the whole point of civil rights laws, and a desire to not let fairness go too far, is the "reason" someone would nullify such laws. You can't compare this type of situation to how DMCA got passed. The section 1201 prohibitions are pure bullshit.

Let me try another tack: if nullification has been used for injustice, does that mean it shouldn't be used for justice? A juror can't blow off his responsibility just because some people in the past have fucked it up.

Re:Jury Nullification Time!

[Hatta]

The jury has one purpose.

This is a myth. The founding fathers were quite clear that the jury has the power to judge both the facts and the law.

Prosecution Moves Forward Despite Judge's Outburst

[Anonymous Coward]

I didn't see it shared in the comments, but regardless of the tirade, the prosecution has decided to move forward with the case:
http://www.wired.com/threatlevel/2010/12/no-deal-in-xbox-modding-case-trial-begins/

Re: No Rage Allowed

[dragonhunter21]

I don't think this is a case of rage. I think this is a case of a judge expressing his opinions of problems in the prosecution's case. And they are serious problems.

Re:Ars has a few more details and links

[lxt]

If you RTFA, you'd realise the link you just posted *is* TFA. It's the same Wired content reposted on Ars... :/

Re: No Rage Allowed

[The Mighty Buzzard]

Just a quick reminder that you're reading /. comments.

Common - Judges often have issues with these cases

[Anonymous Coward]

Having been prosectued under the NET act and DMCA the judge in our cases expressed conserns as well. While the goverment had a better case, the judge felt this was closer to a civil case then a criminal a case, and went on to explain the futher education is required by the goverment of what this legislation means for the average person. In the end I plead guilty, as we were one of the first cases to go and had no money for a real attorney, plus probation is much better then 3-5 years in jail.

I think the goverment should prosecute in severe cases where monterary gain or where there is conterfit good involved. But for modders of an Xbox, that is like prosecuting a mechnanic for installing upgrades to your car. At best a Civil case, at worst a waste of federal tax payers dollars and judicial resources

Re: No Rage Allowed

[ledow]

"Please place the weapon the floor, pretty please, and then we'll put you in these nice, shiny handcuffs"

"I would very much appreciate it if you didn't cross that safety barrier that you're now crossing, thank you very much."

Nobody should be subjected to anything *unnecessarily* but this is a judge dealing with witnesses who broke the law while collecting evidence, jury-tampering and a prosecution that doesn't see the harm in what they did and continually asserts that to the court and doesn't see the severity. He's probably also extremely annoyed at how a valid court case in quickly turning into a farce at tax-payers expense.

Shouting is not about aggression - it's about tone of voice, volume, and choice of words. If you're shouting in someone's face directly, or pushing forward towards them, that's just rude and confrontational. But it doesn't mean you can't *shout* at them without doing that, only making them realise your displeasure through their own obstinacy and yet not feel threatened.

Shouting at someone, especially someone who should know how irate people behave and be performing their *own* simple professional duty, won't kill them. Teachers shout at kids in school. I shouted at my letting agent last year (and without that, I wouldn't have working plumbing, or my landlord removing their contract, reporting them for breach of contract, extracting *my* deposit from them via a legal process, and dealing with me direct for even the most minor of problems and actually doing a better job). Parents shout at their children in supermarkets. I'm actually *glad* when some kids get told off because it means that the parent is paying attention to their actions and cares about the outcome for everyone - those parents who just say "Come on, now. I won't tell you again. No, really, come on. This is the last time I'll ask you. Please come on, Jack. Jack, if you come now, I'll give you sweeties" REALLY, REALLY need to have a room full of other parents shout at them until they understand why that doesn't work.

It's not a first resort, but it's the last (legal) resort of the ordinary man. We can't all be martyrs and speak perfectly calmly no matter how annoyed we are, and the *WORST* we can do without committing a crime is shout at someone. It's also, generally, incredibly effective. Try politely asking someone on a complaints desk to get their supervisor. In quite a lot of cases it won't happen, especially if they know they are in the wrong. Without shouting, you end in the the same position. Now try shouting only AFTER they refuse to do that. Now try being obstinate and refusing to leave the building until your problem is solved. Now try shouting some more. Nobody gets hurt, injured, threatened or abused, they just get talked to in a loud and certain tone. It has a surprisingly greater result at no significant psychological cost and it's the most you can *legally* do (I do not in any way condone actually threatening or hurting people - by that point, you've lost the argument and sight of what you're trying to achieve).

If you're really that devastated by someone shouting at you, it makes me wonder just how much of global life you're ready for, what your parents did when you ran into the road, and what attention your teachers were paying to you at school.

Shouting *is* the non-aggressive alternative here. The judge is showing that the lawyers are on their last chance and if they don't buck their ideas up, he'll be seeking sanctions against them. This is his way of warning them, and if it was done in a polite note about "The court disagrees with the prosecution", no-one would pay it any attention and if sanctions were then applied, the lawyers would claim there was no way they could see it coming. The judge has been definite, assertive, perfectly clear, aired all his concerns, indicated the seriousness of this to everyone and yet NOT ONE PERSON has been hurt in any way. I just wish a few more parents were like him, really.

Re:Better yet, prosecute those who modded mortgage

[digitaldc]

LOL 'democracy' and 'freedom' are an illusion

Re:Logic

[asicsolutions]

Actually, a better argument is modding a boiler so you don't have to buy a particular gas companies gas, but now can use 'homebrew' gas.

Re:Translation: Judge's son/nephew owns modded Xbo

[PopeRatzo]

You mean incompetence.

Can I introduce you to the point? I don't think you two have met.

Xbox 360 vs. Wii and original Xbox

[tepples]

The modded XBox will be used almost exclusively to run stolen software.

You may be right about the Xbox 360 platform. But if it were a modded Wii or a modded original Xbox, there might be more evidence of actual substantial noninfringing use. Unlike the Xbox 360, which has XNA, these older consoles have no official environment for running original software developed outside a traditional corporate environment, and for this reason they have picked a vibrant modding community for running such "homebrew".

Re:Xbox 360 vs. Wii and original Xbox

[Anonymous Coward]

A modded X360 cannot run new, non-infringing content; content still needs to be signed by Microsoft's key. Modding just tricks the disc drive into thinking DVD-Rs are pressed DVDs.

Re:Xbox 360 vs. Wii and original Xbox

[SighKoPath]

Except if you want to actually test/debug your XNA-developed games on the 360, you need to pay a $99/year subscription fee. If you don't pay that fee, you can't do anything with your homebrew game other than play it on PC. Additionally, XNA only allows development of games - there's far more to homebrew than just gaming.

Re:Xbox 360 vs. Wii and original Xbox

[SighKoPath]

Yet iPhone developers accept this.

Yet people still legally jailbreak their iPhones to get around the lockout on devices they own.

Can you name some examples?

Sure, a couple quick examples for Wii: Wii Earth, Wiihttpd.

Moonshine

[srussia]

The modded XBox will be used almost exclusively to run stolen software. I don't believe you can say the same thing about vehicle customization.

O RLY?

From A Brief History of Nascar From Moonshine Runners to Dale Earnhardt Jr.: "Its roots go back to Prohibition when runners—people who delivered moonshine, a home-brewed whiskey distilled from corn, potatoes or anything that would ferment—souped up their cars so they could give the slip to the federal tax agents determined to bust them.

Its always been "assumed" mod chips are illegal

[voss]

Im surprised the defense hasnt considered a "substantial non-infringing uses" defense. For instance playing backup disks and homebrew. The well known issue of scratched disks, and the desire for interoperability with non-microsoft approved software. This is separate from "fair use" in that the illegality of the mod chip itself is challenged.

Re: No Rage Allowed

[metalmaster]

May i introduce you to Judge Judith Sheindlin ...

She's got no issues with berating people in her courtroom whether they be plaintiff, defendant or some random member of the audience. Granted, her show is dramatized for daytime tv ratings purposes. However, she was given the show because of her outspoken nature.

Whether you like it or not, when you step into a courtroom you're in the judge's domain. S/he has rule, and if you are wasting time I'd let you know about it too.

Fascism

[mlwmohawk]

Why are our tax dollars paying our lawyer to press criminal charges against one of our citizens on the behalf if a multi-billion dollar multi-national corporation for altering legally purchased private property?

I remember when AT&T was forced, gasp, to use non AT&T phones on their service because the government protected its citizens. It seems we've come reversed ourselves.

Re:Fascism

[mlwmohawk]

The term "Fascism" is derived from the Italian word "fascio" which means bundle. It was first applied by Mussolini describing an economic philosophy (different from capitalism) where government and business are one "bundle" of "fascio."

To enforce such an arrangement, you eventually need a harsh dictator ship, but as an economic principle we are almost there.

So, no, I am not exaggerating.

Re:Logic

[Sloppy]

Most people who mod their XBoxes do so in order to play pirate games.
 
If this was the primary purpose of the mods then he's committed a crime

If that's what this trial was about, they should have charged him with contributory copyright infringement.

Instead they blew off all the concerns about game piracy, and charged him with two bullshit counts of DMCA violations, in an attempt to widen the application of DMCA beyond its original wording. This is about prohibiting people maintaining their own equipment, not copyright. RTFA, it says DMCA. The government is doing something very slimy here.

To go back to the gas meter analogy, suppose it were against the law to steal gas. (Analogy to copyright.) Suppose it was also against the law to make curved pipes that happen to be well suited for going around gas meters (analogy to DMCA). Suppose you modify boilers to have two gas inputs (analogy to what this guy is alleged to have been doing). Instead of prosecuting you for helping people steal gas, they're claiming you were making curved pipes. (Except he didn't do that, and they're not putting forth any evidence that he did.) They're hoping the court will get confused and conflate curved pipes and double-input boilers (because there's overlap in the kinds of people who use those things) in the hopes of expanding the prohibition against making curved pipes, into a prohibition against people doing any sort of work on boilers. Fuck that.

BTW, back to mushdot's comment:

If you modded the boiler so that it fully or semi bypassed the gas meter in order to provide cheap/free heating then the boiler manufacturer and gas companies would complain.

Fuck the boiler manufacturer in that instance. They have no legitimate grounds to complain, but are doing so because they also happen to be be the gas company and they don't want to open the door to people eventually having boilers that can let them switch over to other gas companies, even if all the boilers are still using their gas right now. And that's what this case is about: the government wants to serve the interests of the boiler manufacturer.

By getting the government to use DMCA in this case, Microsoft is showing that they're afraid of (example; feel free to think up others) someone using a homebrew application to access network services from an XBox instead of people signing up for an XBox Live account. Microsoft should be allowed to fight game piracy but we (society) shouldn't be helping them prevent legitimate competition, or helping to build DMCA precedents that prevent competition on a much wider scale than mere XBoxes. This case is fucked up.

Re:Translation: Judge's son/nephew owns modded Xbo

[marcansoft]

The purpose and actions are most certainly not the same. As I understand it, modding Xbox 360 drives doesn't even enable you to run homebrew (except through obsolete hacks that no longer work on recent Xboxes). Same with modding Wii drives. They don't even let you use imported games. The only two purposes for drive-hacks on secure consoles (which sign code and region restrictions) are piracy and backups, and you can take a guess as to what the actual, practical percentage of people doing either of those is. The age of modchip = copies = homebrew was last generation. This generation people who want to pirate games just compromise drive security, which is useless for homebrew because the code is signed.

It's easy to compare all "mods" to iPhone hacks, but the majority of jailbreak users do so either to run unofficial software or to unlock their phones, while the vast majority of console modders (especially hardware modders) do so exclusively to pirate games.

Now, if this were about PS3 hacks (which are software-based), or Wii homebrew (software-based) hacks, both of which can be used for homebrew or piracy, then you'd have a point. But it isn't, it's about drive hacks attacking the weak point in media security, doing nothing for homebrew.

finnly seems to be starting

[luther349]

as the old judges are retiring the new ones just as tech savoy as us are looking at this stuff and going wtf.

Re:Translation: Judge's son/nephew owns modded Xbo

[marcansoft]

The purpose and actions are exactly the same.

No, because iPhone hacks can be used for copying copyrighted software (legally or not) and for running unauthorized software. Xbox 360 drive hacks can only be used for copying copyrighted software, legally or not. If you want to run unauthorized software you need an entirely different class of modification, which as far as I can tell is not what this guy was performing.

It's a freaking computer that's locked down.

And after patching the drive firmware, it's still locked down, and you still can't run your own applications or improve functionality in any way. All you can do is copy games. This is not comparable to iPhone jailbreaks in any way, shape, or form.

Your whole post is extremely misinformed. What can't you figure out? You can't come to grips with the fact that drive hacks can only be used and are exclusively performed for the purpose of copying games? This is a technical issue, not an argument or an opinion. It's not that people do this mostly to pirate games (which, in my opinion, they do); it's that that you can't physically do anything other than copy games. The only technical use for drive hacks is copying games.

You take an Xbox to this guy's shop. You get it back. There are only two functional changes to the xbox after coming out: it can run games burned to DVD-Rs, and it's likely to get banned on Xbox Live. Nothing more, unless we're missing information and he was also performing other classes of modifications. It won't let you run Linux on it.

FYI, I'm one of the people responsible for enabling and encouraging homebrew software on the Wii, so I think I know a little bit about secure systems with signed code. On the Wii, buying a modchip will gain you absolutely nothing with regards to running homebrew software. Or even imports. Period. The only reason why people buy Wii modchips is to copy games, because that is their only technical purpose.

Re:Its always been "assumed" mod chips are illegal

[preflex]

From TFA:

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.

Firmware modifications to the Xbox360's optical drive do not allow the device to play homebrew, only backups. There is no issue wirh "non-microsoft approved" software here. For that, you'd need to do a more sophisticated J-TAG mod or maybe a modchip. Any mention of homebrew in his defense is utter bullshit.