Slashdot Mirror
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."
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.
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!
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.
Donte Alistair Anderson Roberts - hi son!
Karma: Chameleon
Never attribute to malice that which is adequately explained by competence.
Unless of course they are committing unlawful behaviour and tampering with jurors. Oh wait.. RTFA.
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
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.
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
My security clearance is so high I have to kill myself if I remember I have it...
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.
Violence is like duct tape. If it doesn't solve the problem, you didn't use enough.
Just a quick reminder that you're reading /. comments.
Violence is like duct tape. If it doesn't solve the problem, you didn't use enough.
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
"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.
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.
Can I introduce you to the point? I don't think you two have met.
You are welcome on my lawn.
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".
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.
Set your phasers on "funky"!
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.
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.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
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.