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

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.

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 :-)

[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: 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.

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: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.

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.

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.