Xbox Modding Trial Dismissed

It seems the harsh words from District Court Judge Philip Gutierrez on Wednesday had their intended effect; prosecutors in Matthew Crippen's Xbox modding case have now dismissed the indictment. Quoting Wired: "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. ... [Prosecutor Allen Chiu] conceded he never forwarded that information to the defense."

Comments

'Never forwarded that information'

[unity100]

Basically, they lied. dipshits. And how the hell did that Rosario guy knew that cd was pirated in the first place anyway ? did he understand it from its smell ? cd wasnt labeled ? what if the guy made a backup ? huh ?

ehh. pointless. they are lying and slyfoxing their way. that is as good as justice gets in a land where money buys everything.

Re:'Never forwarded that information'

[DreamMaster]

Basically, they lied. dipshits. And how the hell did that Rosario guy knew that cd was pirated in the first place anyway ? did he understand it from its smell ? cd wasnt labeled ? what if the guy made a backup ? huh ?

That's a very good question, and precisely what I was wondering myself - how could they be so sure that it was a pirated game, and not a backup of a game he legitimately owned? Given the original article said that they had to prove he knew/was breaking the law, I can't see how they could prove that it was indeed a pirated game. Or did they previously execute a search warrant to see if he had the original disc for the game or not?

DreamMaster.

Re:'Never forwarded that information'

[justin12345]

Unless he invited Rosario to take the (assumed copyrighted) disc with him it wasn't pirated, just a copy. Copies are protected under fair use, distributing copies is not. Using a copied disc would be a necessary step in determining if the procedure was effective, so it would be impossible to perform the procedure without one. Therefor he did nothing wrong, even if the DMCA (which contradicts the CoTUSA) might disagree.

Re:'Never forwarded that information'

[tx_kanuck]

Who knows, but at least the prosecutor did the right thing and dropped the charges instead of dragging it on and on and on (and so forth).

Re:'Never forwarded that information'

[icebike]

Did Tony Rosario get indited for video taping without permission and without a warrant? Though not.

Let this be a lesson: Never let the customer watch.

Re:'Never forwarded that information'

[dmomo]

My guess is that they knew it was a pirated game because the modder said "That about does it. Let's test if it works. Here's a pirated game that otherwise wouldn't work. Hey lookie there, it works!". Sure, he could have said "copy", but I doubt it. People I know that hack stuff like this don't aviod saying the "P" word even to strangers.

Still. There's no proof of this, and further, even if there was proof, the prosecution never told the defense before they used it in court. That is against the rules, and that's why the case was thrown out. Maybe they can focus on putting sex offenders in jail now.

Re:'Never forwarded that information'

[zach_the_lizard]

He only dropped it because of this judge. With any other, he would have plodded along just as he before. He is doing the right thing in spite of himself.

Re:'Never forwarded that information'

[flimflammer]

Why do you doubt it? It's very possible he had his own legitimate backup, or even homebrew? Why would someone intentionally incriminate themselves when there is plenty of legal alternatives? It's not like these mod chips are solely for pirated games, even if they are a big part of it. Just because your friends don't avoid it in a more casual manner doesn't mean someone making a business out of this would incriminate themselves like that.

Why would Rosario never mention in his extensive reports that he put that he put a pirated game into the machine, if he actually had done so? No matter how you look at it, it sounds like once he realized he didn't have enough to go on, he lied and claimed that this guy specifically put a pirated game into the machine in order to make the charges stick.

Re:'Never forwarded that information'

[Anonymous Coward]

If he made a copy of his own disc to test the mod, then he is using his own disc (and considering you are putting a disc you paid for into someone elses machine, its a reasonable safety precaution because you don't know where their drive has been). Is he selling copies? No. Is he giving a copy? No. What if he gave his original disc? That would put a crapper on Christmas, wouldn't it! If I bring my disc over to my friends house, to play the game with my friend on his machine, am I breaking the law? Is there a tie between my machine and my my disc? What if I own a disc but no machine? They are assuming (somehow) that he is offering up pirated games (which is not something he did). This is the same kind of over-reaching crap that they had with torrent files. Torrent files don't contain anyones content. Put a torrent file onto a dvd and try to play a movie. You can yelp "derivitive work" and I can claim every movie ever made is a derivitive work of all movies preceding it. I can claim that every story ever told is a derivitive of 7 basic plot types (they teach this shit in schools). Over reaching at the extreme. With the DMCA and Mickey Mouse Protection Act, the pendulum has swung too far. Fair use got killed with the Draconian Measures, Corporate welfare Act, and 'reasonable times' got killed (actually after 1790) and more aggregiously by Sonny Bono's widow. What a Bozo law it is!

Re:'Never forwarded that information'

[Roskolnikov]

I've always wondered about the idea that the RIAA and in this case the ESA can use 'pirated' materials as evidence.

If I am an agent of the RIAA and I knowingly download a song am I not within the rights to copy in as much as I am an agent of the copyright holder?

If as an agent of the RIAA/ESA I download what I believe to be protected works of those whose interests I protect is making available (to me) a crime? after all, as a agent of the 'artist' I should be
able to do so without committing a 'crime'

Which brings me to the point I find funny.

How could this undercover agent believe that the game was pirated? if it was he violated the copyright and so called shrinkwrap license but as an agent of the game publisher(s) working with their
consent he wouldn't dare as technically he would be just as (if not more) guilty of the perceived crime.

If this same man produced child porn and handed it to the defendant, who would be perceived as the larger criminal?

This guy got real lucky that the prosecution's star witness got caught in either a direct lie or they got caught in a lie of omission and/or lack of disclosure hoping that the defense would be caught
unaware.

Re:'Never forwarded that information'

[dadioflex]

I think we all agree that the most likely explanation for this would be that the prosecution introduced false testimony because they thought it would bolster their case, perhaps in light of a specific point the judge had raised.

What I don't get it is why so many people automatically assume the prosecution lied and there can be no other explanation, but will twist logic into pretzels to explain the what if and maybe scenarios that justify what the defendant did in the first place. I mean, maybe he was modding Xboxes because he'd been sent back in time and that was the only way to stop the Martians stealing our women in 2050. That seems more likely than an explanation that turns him into a Robin Hood character, hacking Xboxes to run Famicon emulators and using the money he charged to help the local orphanage.

Re:'Never forwarded that information'

[Anonymous Coward]

A backup, and subsequent copy to the other device's RAM when it's inserted, is against U.S. law. Don't tell me you think that downloading owned games "because I already purchased it" is legal too? It isn't.

Not like it matters anyway unless the copyright holder presses charges. This Rosario guy can't do anything about that. So who cares.

Re:'Never forwarded that information'

[Anonymous Coward]

It should be legal though. That would be the right thing.

Re:'Never forwarded that information'

[hairyfeet]

Uhhh...maybe because there are plenty of uses besides pirated games, and some of us may actually use them for those reasons? If there would have been a local guy like that when I stuck the boys original Xbox in the closet I could have reused that machine as a movie player for my mom. My boys still have my old Dreamcast because without needing to be modded they can play my old SNES and Genesis games without having to deal with the "fun" of having tons of machines and blowing on the carts.

Just because some assholes do something doesn't make everyone that does it an asshole. To use a /. car analogy: Putting a blower on a car means I could theoretically outrun most of the local cops and break the speed limit, or I can take it down to the local track and make legal legitimate money racing it. Does that mean I should be busted because some asshole uses his to rob a bank? There are PLENTY of us that like to tinker with our devices, plenty that like foreign games, plenty that dig homebrew. Just because there are assholes out there doesn't mean the state gets to take away our rights to tinker.

Re:'Never forwarded that information'

[Anonymous Coward]

"As good as justice gets..."? Well, maybe, until you consider that the judge convinced them to drop the case altogether. The fact that the judge didn't let the prosecution steamroll someone is part of the administration of, well, "justice".

Re:'Never forwarded that information'

[sjames]

Are you sure he didn't have scare quotes around 'pirated' to indicate his sarcasm for stupid industry types who claim a backup is piracy?

If not and the imaginary witness can prove it, I guess the imaginary defendant in your head will have to go to imaginary jail.

Re:'Never forwarded that information'

[Anonymous Coward]

No, it's not protected under fair use, which you can confirm by reading the fair use laws yourself. A judge's opinion may differ (within reason) but that isn't the same thing as saying fair use explicitly (or implicitly) protects personal use & copying. This is an incredibly stupid myth propagated after the RIAA's crusade against infringing distribution.

Also, you seem to be suffering some illusions regarding the DMCA.

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(this covers software cracks, too.)

The problem where the government's case fell apart was in their failure to show intent to circumvent, i.e. that it wasn't just coincidental in the normal modding process.

Re:'Never forwarded that information'

[Anonymous Coward]

Please list all those uses - remembering that we're discussing DVD firmware hacks on X360 which do not in any way enable homebrew.

Other console hacks generally do, but that's not the case here.

Re:'Never forwarded that information'

[Fjandr]

The law is never applied the same way to those committing crimes to entrap others as it is to those entrapped. It's not even necessary for the entrapping agent to be actually committing a crime, they only have to represent that is their goal. In stings, people setting others up are given broad leeway in committing other crimes in order to facilitate the sting. Lots of undercover cops have gone to drug rehab on the taxpayer's dime as a result of "maintaining" their cover, then coming back to their old job without a single black mark on their jacket as a result.

Those whose job it is to assault others with the judicial system are not held to the same standards as the mere mortals who are at their mercy.

Re:'Never forwarded that information'

[cobaltnova]

It might be a DMCA violation. Otherwise legal actions that involve circumventing copy protection have the nasty habit of becoming illegal under that awful law.

Re:'Never forwarded that information'

[Anonymous Coward]

I think so too. It actually is legal to make backup copies, in case my earlier post was confusing. It just isn't legal to use both copies.

(a) Making of Additional Copy or Adaptation by Owner of Copy. -- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

        (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

        (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation. -- Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.

Also, I was wrong earlier. I thought Rosario represented some software company ("ESA"?). I learned that he works for the government after reading TFA (and TFS again). I guess he wouldn't need the copyright holder's cooperation after all.

Re:'Never forwarded that information'

[91degrees]

Why do you doubt it? It's very possible he had his own legitimate backup, or even homebrew? Why would someone intentionally incriminate themselves when there is plenty of legal alternatives? It's not like these mod chips are solely for pirated games, even if they are a big part of it. Just because your friends don't avoid it in a more casual manner doesn't mean someone making a business out of this would incriminate themselves like that.

I'd say at that point it's up to the defendant to explain that he thought it was a legitimte copy and explain why he made absolutely no effort to check the legitimacy of the disc when it should be very obvious that it's highly likely that it is pirated.

Of course, even if he was selling exclusively to pirates it would make sense to insist that it only be tested on a copy that was most likely a backup.

Re:'Never forwarded that information'

[Rakishi]

Maybe they can focus on putting sex offenders in jail now.

Yeah, because those 21 year olds who pee behind a garbage can when drunk are such a menace to society. Or are you assuming they're magically more fair when prosecuting other crimes?

Re:'Never forwarded that information'

[hairyfeet]

Backups for one. If you have kids you know that handling original discs is a BIG no no, and one of the reason why my customers have been sticking with DVD over Blu Ray. It really isn't hard for the average Joe to pick up how to make a copy with something like AnyDVD, and keeping the originals FAR away from little Johnny is a really really good idea. in fact one of the hot sellers with my customers is those little no name "media tanks" that allow them to just rip the movies onto a flash or HDD and not have to worry about discs being scattered or little Suzy crying because her favorite Dora got messed up and skips.

And since you are allowed under DMCA under Fair Use to make a single copy of any media you own for backup purposes that really should frankly be enough. Having the right to make a backup really doesn't do you any good if you can't actually use the backup for anything, right? And I can tell you after moving three times in four years having my PC games backed up has saved my butt more than once when an original disc got trashed in the move. It would be different if it was like Good Old Games or Steam where you can just redownload any game you own with NO hassle, but ATM you get a scratch you're boned friend.

Re:'Never forwarded that information'

[Anonymous Coward]

He was facing criminal (i.e. misdemeanor/felony) charges. There wasn't any evidence at all (none) to convict the guy. In a civil case you might be correct, but at least here the burden of proof is much higher; and suspicion alone typically doesn't cut it.

Re:'Never forwarded that information'

[wiredlogic]

Actually, in the US, the creation of complete copies of copyright protected materials other than audio recordings is not covered by fair use. It's just that without subsequent distribution there isn't enough incentive for a copyright holder to press for damages (and they're unlikely to ever find out anyway). The AHRA is the only legislation that explicitly permits copying for the purposes of format shifting and backups and it only applies to audio recordings. Everything else defaults to fair use which only permits excerpts to be reproduced without authorization, even in the privacy of your own home.

Re:'Never forwarded that information'

[Anonymous Coward]

The point is, it shouldn't matter WHY he's modding them. Modding them doesn't automatically mean they will be used for illegal purposes. Even if his attitude is "screw da man, I'm going to enable widespread piracy", that doesn't mean everyone who buys a modded box uses it for piracy. If nobody used it thus, his crime would essentially be being angsty. That's absolutely ridiculous. The crime should fall on those people who DO use the modded box for piracy, not on the guy who mods the boxes (unless he's also distributing pirated works or giving explicit instructions on how to pirate). This is just a lazy law that makes it possible to harras people who are otherwise causing no direct harm because it's too difficult or expensive to go after the people who are actually infringing copyright. Let's see a law making the manufature of guns illegal because arms manufacturers know they're often used for illegal purposes and THEN this law will be fairer. Until then, stupid broken law is stupid and broken.

Re:'Never forwarded that information'

[delinear]

Agreed - I'm not sure why all uses have to be listed when this one alone would be invaluable to a lot of people. I've had a couple of slightly warped disks that self destructed in the XBOX due to the issue where, if the alignment is off while the disk is spinning, the disk gets scratched. I assume it was warped disks, I've put hundreds of other disks in there and never had any issue, although I do keep my XBOX lying on its side instead of its end these days just in case... in any case it would be nice to be able to play backups because, even in the absence of kids in the area, accidents seemingly do happen (I was lucky enough to get a refund or store credit for my two disks, I know plenty of others have been less so).

Re:'Never forwarded that information'

[Sockatume]

I'm pretty sure that fair use allows for total reproduction in fringe cases, and conversely prohibits even trivial reproduction in extreme circumstances. It's a very wooly term. Off the top of my head, attempting to duplicate a game with copy protection to demonstrate or investigate how that particular copy protection system works in an academic setting.

Re:'Never forwarded that information'

[magus_melchior]

If the copy is from an ISO downloaded from TPB, then technically it's illegal-- the restrictions on copyrighted material isn't exclusively on distribution. (D/Ling a copy when your physical master is unreadable is a grey area, IMO, and should be considered as a legal equivalent to using a backup copy-- unfortunately I doubt the pro-corporate courts will rule in favor of that interpretation)

Now, Rosario has no way of knowing whether the defendant downloaded and burned the disc (unless he saw the entire process), nor does he make any assertion to that effect, so his testimony on that matter should have been treated as hearsay.

Not that it matters now, since the prosecution gave up to avoid getting a conviction by misconduct.

Re:'Never forwarded that information'

[hairyfeet]

Scratches is one of the reasons I gave up on console gaming. I ended up with too many discs that got toasted for one reason or another and got tired of feeling burnt. I was able to build me a nice quad for less than $600 that will easily last me another good 6 years or so at the curent rate, with only the occasional $70 GPU upgrade and I can always pass those machines I outgrow down to family. Nobody wants that old Xbox or Gamecube but they are quite happy to take that 3.6GHz P4 with an x1950 in it. Now my nephews are both gaming on my hand me downs and their MMOs play just fine. It just cost me a whole $60 to upgrade BOTH of their machines to Pentium Ds (the biggest chip those boxes will take) and since they only use them for MMOs and schoolwork they'll probably get another 3-4 years out of them, and then they'll get passed down yet again.

That is why to me the consoles are just a rip off. If they made it easy to either mod them or use that power for other purposes (like XBMC) that would be one thing, but instead if you don't game on it anymore it is pretty much junk. Compare this to my circa 1999 P3 733MHz SFF with a Geforce MX4000 that now sets in my mom's kitchen and gives her an easy way to look up recipes and play her Age Of empires and match three games. After switching thanks to two burnt PSOnes I've never looked back and can't be happier, and now Good Old Games and steam make things even better. After dealing with busted consoles I can't fix and busted discs I can't back up they can keep their "DRM in a box". it is just a shame that all that decent hardware will end up in a landfill or in someone's garage gathering dust when if it was easily moddable it could be given new life doing all sorts of things like custom media players or web boxes for other rooms.

Re:'Never forwarded that information'

[Dunbal]

No, but I'm sure a counter-suit will be coming shortly.

Re:'Never forwarded that information'

[ourcraft]

That kind of posting is allowed on slashdot? Please delete(#34428130)

Re:'Never forwarded that information'

[demonlapin]

"The right thing to do" would be to ignore any law that considers console modding - which, at worst, promotes copyright violation - a felony. Felonies are supposed to be real crimes - rape, murder, arson, armed robbery. Felons lose their right to vote. They often are denied entry to other countries, even on a tourist visa. A college dropout who works as a hotel car jockey isn't someone we need to be afraid of having on the streets.

Re:'Never forwarded that information'

[LordKronos]

And as someone pointed out in yesterdays thread, the prosecutor may simply be dropping the charges simply to attempt to refile them in a different venue with a more favorable judge.

Re:'Never forwarded that information'

[commodore64_love]

>>>the prosecutor did the right thing

Unlikely. I suspect this is the backroom conversation that went on:
PROSECUTOR: "We need to drop this case like a hot potato. We're going to lose and don't want that precedent."
ESASPY: "How?"
PRO: "Tell them you inserted a pirated CD into the Xbox. I can then argue that new information was not shared w/ the defense and serve motion to dismiss this lousy case."
SPY: "But that's a lie. I never put a CD into the modded console."
PRO: "You're point?"

Re:'Never forwarded that information'

[commodore64_love]

>>>>What I don't get it is why so many people automatically assume the prosecution lied and there can be no other explanation

Because that's Modus Operandi for the soulless, moral-free entities known as corporations. They lie to us all the time. There's no reason to think they suddenly became angels when they routinely act like devils.

Re:'Never forwarded that information'

[Anonymous Coward]

The mods may have worried about it being ruled a felony.

Re:'Never forwarded that information'

[commodore64_love]

If Sellers can videotape us, why can't we tape them? A store is a public facility.

Also most states allow recording of conversations, as long as one party is aware the taping is happening.

Re:'Never forwarded that information'

[Moryath]

Calling it "Piracy" is the wrong word. We should call it "Jesusing."

Think about it. Jesus took fish and bread, copied them, and gave the copies out to the hungry poor for free. I bet the fishermen and bakers weren't too happy about it either.

Re:'Never forwarded that information'

[TheLink]

I bet the fishermen and bakers weren't too happy about it either.

Perhaps, but I believe a few fishermen were actually helping to give out the free food.

Re:'Never forwarded that information'

[Moryath]

One of the ones getting me is DLC expiration.

How am I supposed to get the Halo 2 map packs from the old Xbox DLC service if I have to buy a new Xbox due to hard drive failure or other death, if not for "pirates" who preserved them? How about all the other DLC for original Xbox titles?

What happens a few years down the road when the DLC for the Fable series, or Halo 3, or for that matter just all the Xbox Live Arcade titles I've bought is unavailable because Microsoft shuts down the servers in favor of the Xbox 3rd-generation console Live service?

The "DMCA" says that it's illegal to "circumvent" the "anti-piracy" measures. But without that circumvention, I am unable to safeguard my investment into MY PURCHASED PROPERTY that came in a download form.

Sure, I still have the "original game disc" - minus any patches needed to fix the game-breaking bugs. Minus any map packs and DLC items that make up what most people would consider the complete game.

What to do? Seems like "Piracy" is the only answer, because the answer from the game companies is "fuck you, we already got your money, go away you little peon."

Re:'Never forwarded that information'

[hedwards]

Citation needed.

Re:'Never forwarded that information'

[Legion303]

What I don't get it is why so many people automatically assume the prosecution lied

Because that's what prosecutors do.

Re:'Never forwarded that information'

[Svartalf]

That's quite very wrong there on your supposition on things...

US Code 17, Chapter 1, 117a specifically and explicitly allows this sort of thing.

(a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Do note that 2 explicitly covers "backups" as they're known- regardless of whether it's a personal computer, mainframe, or gaming console.

It's not a case of fair use...it, like anything that would be covered by something like the AHRA, is ALLOWED USE regardless of whether or not the rights holder "permits" it or not. Fair use is the usage of stuff outside of the domain of laws like the one I just mentioned, that gives additional allowed usages that have been defined over time by jurisprudence. "Fair use" is not an affirmative defense to prosecution, but it's one that can be used to defend oneself as needed- it's something that weakens an infringement case accordingly. "Backup", though, if it can be proved...it kills the case outright. Allowed use.

Re:'Never forwarded that information'

[jank1887]

man, where are my mod points when I need them...

Re:'Never forwarded that information'

[Svartalf]

Got a physical copy of the "original", damaged or otherwise? Prove that it wasn't you that made the backup.

That simple, really.

Now, providing copies FOR someplace like the TPB...different story.

Re:'Never forwarded that information'

[noidentity]

Therefor he did nothing wrong, even if the DMCA (which contradicts the CoTUSA) might disagree.

Therefore he did nothing illegal.

Re:'Never forwarded that information'

[Anonymous Coward]

IANAL, but ... a backup of legally bought software IS legal provided you don't share it, you did it yourself, you don't discuss how you made it with anyone else, and you retain the original as well.

Even the evil DMCA allows personal fair use backup copies; it just provides no way of making said backups.

Re:'Never forwarded that information'

[Anonymous Coward]

Don't forget the winemakers. That whole wedding incident really hurt them, since the water-wine was described as being better quality than the stuff the bridegroom purchased from them earlier.

So not only did he convert a readily available substance into one with a lesser supply, he also destroyed the status quo on quality and price. Clearly he was a menace. Or a savior. Your choice.

Re:'Never forwarded that information'

[zeroshade]

As was also pointed out in yesterday's thread, double jeopardy is attached so they cannot file the same charges for the same thing again unless they go through the whole rigmarole of getting the undercover agents again to get evidence of him doing it again, etc. You can't simply voluntarily drop the charges and try again. It would need to be new charges for a new instance of the "crime"

Re:'Never forwarded that information'

[Anonymous Coward]

And free video games are such an essential part of the human existence. I'll be sure to look forward to my free copy of GTA next time my family is hungry.

Re:'Never forwarded that information'

[j00r0m4nc3r]

Your mod points have been encrypted and the originals deleted. For $120 I will decrypt them.

Re:'Never forwarded that information'

[zeroshade]

Technically, at least in the US, most jurisdictions find downloading to not be illegal. It is the uploading which is illegal. The problem is the distribution and making available. The reason why they can apply this and sue people who torrent things is because when you're torrenting you're also allowing others to download from you because of the nature of Bittorrent.

Therefore it is technically completely legal to download a game you own because you've already purchased it under the fact that you are allowed to make a backup copy.

Re:'Never forwarded that information'

[davev2.0]

No, you miss the point entirely. It is not about Crippen pirating, but rather about Crippen violating the anti-circumvention part of the DCMA. By allegedly using a pirated copy, Crippen is demonstrating that he has circumvented the protections which is a violation of the DCMA.

Re:'Never forwarded that information'

[zeroshade]

Therefor he did nothing wrong, even if the DMCA (which contradicts the CoTUSA) might disagree.

Therefore he did nothing illegal.

I'd say both. Nothing wrong and nothing illegal.

Re:'Never forwarded that information'

[Anonymous Coward]

Regardless of whether it was pirated it or not. The guy f'ing lied to the court; where the hell are the perjury charges?!?

IANAL so my understanding may be skewed.

Re:'Never forwarded that information'

[zeroshade]

Why do you doubt it? It's very possible he had his own legitimate backup, or even homebrew? Why would someone intentionally incriminate themselves when there is plenty of legal alternatives? It's not like these mod chips are solely for pirated games, even if they are a big part of it. Just because your friends don't avoid it in a more casual manner doesn't mean someone making a business out of this would incriminate themselves like that. I'd say at that point it's up to the defendant to explain that he thought it was a legitimte copy and explain why he made absolutely no effort to check the legitimacy of the disc when it should be very obvious that it's highly likely that it is pirated. Of course, even if he was selling exclusively to pirates it would make sense to insist that it only be tested on a copy that was most likely a backup.

Except if the disc is just a backup that he made of a game he owned, why would he have to "check the legitmacy of the disc"? How could it be obvious that it's "highly likely that it is pirated" if he made it himself by copying a game he owned?

Re:'Never forwarded that information'

[mcgrew]

Good thing those fish and that bread weren't copyrighted. They'd have crucified him.

And in a GPL-like move, he took a bunch of jugs of water and turned them into jugs of wine!

Somehow, I think Jesus would be in favor of file sharing. I'm sure he'd be totally against suing grandmothers for millions of dollars for infringing copyrights.

Re:'Never forwarded that information'

[blueZhift]

It's okay. His dad owns the copyright on that stuff anyway!

Re:'Never forwarded that information'

[Anonymous Coward]

According to the article the prosecution said that the defendent put the pirated disc into the console, not the agent.

Re:'Never forwarded that information'

[Anonymous Coward]

It's okay for Jesus - his dad made the originals.

Re:'Never forwarded that information'

[Anonymous Coward]

LMAO

Re:'Never forwarded that information'

[Langfat]

Comment of the entire fucking YEAR right here. Bravo good sir/madam, bravo.

Re:'Never forwarded that information'

[tomkost]

Great observation of how the legal system is supposed to work. The prosecutor has the burden of proof, while the defendant has presumption of innocence and reasonable doubt on his side. If there is any reasonable explanation of the defendants actions and the prosecutor can not prove it false, or prove what really happened, then that should be enough doubt to dismiss the case or be found not guilty. What "seams more likely" has absolutely nothing to do with it.

Re:'Never forwarded that information'

[hairyfeet]

I fell your pain friend, and I can give you an example of the same bullshit that requires piracy on the PC side: OS specific DRM. I have PLENTY of games where the game itself runs absolutely beautiful on my Windows 7 HP X64, just as it ran on my XP X64 before that, but what does NOT run on either OS is their $&^$%&^%$&^ DRM! All their sucktastic DRM is ring 0 crap designed to run on X86, which means if we don't pirate the games WE PAID FOR are as worthless as the plastic they are printed on.

Oh, and a bit of warning for fellow X64 users: be damned careful and backup before installing games with DRM, as some of the DRM CANNOT BE UNINSTALLED and the ONLY way to remove is to be lucky enough to have a dual boot or if not a wipe and reinstall! No shit, try installing one of the nastier SecuROM or Starforce x86 versions on X64, it will happily install but their DRM uninstaller WILL NOT WORK and the DRM will cause all kinds of glitches and screwups, like refusing to hibernate, restarting instead of shutting down, little freezes, it is just a mess. And Lord help you if you get the wrong combo of Starforce +Safedisc or SecuROM installed side by side in either X86 or X64 because they will fight with each other and cause all kinds of hell! I have seen machines that acted like they were badly infected by malware turn out to be badly infected by shitty DRM drivers.

So I have to agree with you 100%, piracy is more and more often becoming the ONLY way to get to play the games we played good money for. Sadly it has gotten to the point on my classic games if it don't come from Good Old games (which I can't rave enough about as ALL their games come with NO DRM and x86 AND x64 support OOTB) I end up downloading a pre cracked copy of WHAT I PAID FOR so I don't have to deal with broken x86 DRM screwing up my nice X64 OS. There should have to be a rule that after 2 years they should have to release a DRM removal tool that will strip that crap from an ISO so when they quit supporting it you don't have to risk getting screwed by broken DRM malware. But sadly as you said the attitude is "bite me, I already got your money" and we are just supposed to take it.

Re:'Never forwarded that information'

[Xserv]

For $75 I will undelete the originals!

Capitalism FTW!

Re:'Never forwarded that information'

[Chris Burke]

Perhaps, but I believe a few fishermen were actually helping to give out the free food.

"This sucks. Why are we handing out fish copies for free, again?"
"I'm telling you, Isaac, it's great advertising! We hand out the fish, everyone loves them, and tomorrow once this Jesus guy is gone they'll want more. And they'll come to us!"
"But we could be selling these fish, Jeremiah! Look at all the money we're losing."
"We're not losing anything. We didn't have to catch these fish, and the whole point is these people were too poor to buy their own food anyway."
"Oh, okay, so let me see if I have this straight: Today, they're too poor to buy fish, but tomorrow, they're magically going to have the money to pay for our fish? Is Jesus handing out coins too?"
"..."

Re:'Never forwarded that information'

[GasparGMSwordsman]

While slightly amusing your story makes no sense. If the prosecution wanted to drop the case they would simply withdraw the charges. That simple. Also the prosecution can not make a motion to dismiss their own case, the defense has to do that. Lastly in this instance such an dismissal is going to remain as a giant stain on the prosecutor's record.

Re:'Never forwarded that information'

[Anonymous Coward]

"You're point?"

But who was point?

Re:'Never forwarded that information'

[bmk67]

This is generally true only in cases where a jury has already been seated - which is true in this case. It's not universally true.

The prosecutor did the right thing, although probably for the wrong reasons.

Re:'Never forwarded that information'

[zeroshade]

I'm sorry for not clarifying. Yes, the assumption was made that I was speaking about a trial that has already started (ie. a jury has been seated and sworn in). Obviously if the jury has not been seated yet, the trial has not technically begun (it's pre-trial hearings/arguments/indictments, etc.) and thus the charges can be dropped and refiled.

Re:'Never forwarded that information'

[91degrees]

Is someone came to me with a DVD-R and the name of a game written on it in permanent marker, my immediate assumption would be that it's likely to be pirated. If they guy assured me it was a legitimate backup then I'd still be a little suspicious unless he could also show me the original. I can't help thinking that anyone who didn't even suspect that it might be pirated is hopelessly naive and that "I really am that stupid" is rarely a good legal defence.

I just think that if you're providing a service with obviously illegal applications you should at least make a cursory attempt to be sure that your customers aren't breaking the law. Just seems like common sense for anyone who doesn't want to charged with contributory actions.

Re:'Never forwarded that information'

[lordmage]

I hate that Jesus can be used in things like this... but dang I love it. That was an insane reach but really cool.

so the next step is: Replicators. If given a part, you can replicate and sell it?

Still Jesus was a Love Envoker, one who said love trumps all and proved it.

I wonder if the fish he replicated was tasty. I bet it was heavenly.

Re:'Never forwarded that information'

[zeroshade]

If your service has obviously legal applications, then you shouldn't be responsible if your customer performs illegal actions with the results of your service.

Case in point, should every seller of dvd drives be required to be sure that their customers will not burn pirated media with it? Just seems like common sense that the manufacturer's should have no liability whatsoever if their customers perform illegal actions. Or, if you prefer a closer analogy, if I install that DVD drive into someones computer for them, can you charge me with contributory actions for performing that service if they burn pirated media and sell it? Of course not.

There are many legal reasons to mod a console. It is not and should not be the responsibility of the person doing the modding to know whether their customer is going to perform the legal or illegal actions with the modifications.

Is someone came to me with a DVD-R and the name of a game written on it in permanent marker, my immediate assumption would be that it's likely to be pirated. If they guy assured me it was a legitimate backup then I'd still be a little suspicious unless he could also show me the original. I can't help thinking that anyone who didn't even suspect that it might be pirated is hopelessly naive and that "I really am that stupid" is rarely a good legal defence.

If someone came to me saying how they were setting my console up to play backed up games and then produced a DVD-R with game's name written on it to test that the modification worked, the obvious assumption is that it is a game he has backed up and uses for testing purposes. Whether or not it is pirated, he owns the original, or not is irrelevant to me. Not to mention that if it is pirated, I can't get in trouble for his piracy if I did not help him commit the infringement.

Re:'Never forwarded that information'

[LordKronos]

Not true. If a verdict (guilty or not guilty) has not been reached, there is no double jeopardy invoked. It doesn't even matter if (as someone else has suggested) the jury has been seated. In fact, you can go through the entire legal process and at the end, if you wind up with a hung jury then the case can still be retried without it being double jeopardy. You can even be tried by a state prosecutor, found not guilty, and then be tried by a federal prosecutor without it being double jeopardy.

http://en.wikipedia.org/wiki/Double_jeopardy#United_States

Double jeopardy also does not apply if the defendant was never tried from the start. Charges that were dropped or put on hold for any reason can always be reinstated in the future if not barred by any statute of limitations.

http://www.lectlaw.com/def/d075.htm

'[T]he Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.' U.S. v. Halper, 490 U.S. 435, 440 (1989).

Re:'Never forwarded that information'

[91degrees]

Case in point, should every seller of dvd drives be required to be sure that their customers will not burn pirated media with it? Just seems like common sense that the manufacturer's should have no liability whatsoever if their customers perform illegal actions. Or, if you prefer a closer analogy, if I install that DVD drive into someones computer for them, can you charge me with contributory actions for performing that service if they burn pirated media and sell it? Of course not.

No. But the case was dropped for pretty much this reason. He provided a service that may or may not be intended for a legitimate purpose. If it was tested with a disc that he knew was pirated then I'd say there was intent, similarly, if I explicitly asked you for DVD drives to set up my pirate DVD operation then you'd be a contributor to the infringement. Whether he knew or should have known the disc was pirated would be up to the prosecution to show. Since the prosecution has failed to even show there was a disc it's kind of academic.

If someone came to me saying how they were setting my console up to play backed up games and then produced a DVD-R with game's name written on it to test that the modification worked, the obvious assumption is that it is a game he has backed up and uses for testing purposes.

Yes. If he says it's a backup and not pirated I agree that it's perfectly acceptable to take his word for it. If he's just presented with the disc, is it really reasonable that it never even crossed his mind to ask? And should the prosecution not at least have the chance to ask him why he didn't even ask?

It would make sense to ask for some sort of proof just to reduce the risk of legal complications.

Re:'Never forwarded that information'

[zeroshade]

Once again, wrong.

The U. S. Supreme Court has held that jeopardy attaches during a jury trial when the jury is sworn.

http://legal-dictionary.thefreedictionary.com/double+jeopardy

And from the same wikipedia article you quoted:

Jeopardy attaches in a jury trial once the jury and alternates are impaneled and sworn in.

Here's another reference:

http://openjurist.org/367/us/364

Once a jury has been impanelled and sworn, jeopardy attaches and a subsequent prosecution is barred, if a mistrial is ordered—absent a showing of imperious necessity.3 As stated by Mr. Justice Story in United States v. Coolidge, 25 Fed.Cas. page 622, No.14,858, the discretion is to be exercised 'only in very extraordinary and striking circumstances.'

Only in the case of a mistrial (a hung jury is considered a mistrial) would Jeopardy not attach after a jury is sworn in. In non-jury trials it attaches when the first witness is sworn in and begins to testify.

Re:'Never forwarded that information'

[zeroshade]

Considering that his testimony (regardless of it's truth) was that Crippen produced a disc of his own and placed it in the console to test it in front of him. I don't see why it would matter or cross his mind to ask if it was pirated or not considering that Crippen was not giving him the disc, he was simply showing him that the mod worked. Therefore, why would it matter at all to the customer whether or not the disc was pirated or not since he wasn't receiving it.

No. But the case was dropped for pretty much this reason. He provided a service that may or may not be intended for a legitimate purpose. If it was tested with a disc that he knew was pirated then I'd say there was intent, similarly, if I explicitly asked you for DVD drives to set up my pirate DVD operation then you'd be a contributor to the infringement. Whether he knew or should have known the disc was pirated would be up to the prosecution to show. Since the prosecution has failed to even show there was a disc it's kind of academic.

I can agree that if he tested it with a disc he knew to be pirated then there might be intent. Whether that is grounds for anything at all remains to be seen because, as you said, the prosecution failed to even show there was a disc in the first place.

Re:'Never forwarded that information'

[TheoMurpse]

Technically, at least in the US, most jurisdictions find downloading to not be illegal. It is the uploading which is illegal.

[[citation needed]]

This is the kind of thing high school freshmen tell each other on the school bus. I've never seen a court in the US definitively hold this, let alone an appellate court.

To quote S.D.N.Y.,

the use of P2P systems to download and distribute copyrighted music has been held to constitute copyright infringement. See A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013-14 (9th Cir.2001) (holding that downloading and distribution of copyrighted music via P2P network Napster constituted copyright infringement); In re Aimster Copyright Litigation, 334 F.3d 643, 653 (7th Cir.2003) (affirming grant of preliminary injunction against P2P network Aimster in absence of evidence that system was used to transfer non-copyrighted files), cert. denied, Deep v. Recording Indus. Ass'n of America, Inc., ___ U.S. ___, 124 S.Ct. 1069, 157 L.Ed.2d 893 (2004).

Re:'Never forwarded that information'

[TheoMurpse]

(I should also point out that S.D.N.Y. (NYC), the the federal district courts in California--in particular C.D. Cal. (Hollywood) and N.D. Cal. (Silicon Valley)--and their superior courts the 2d and 9th Circuits are the courts for this type of copyright litigation. There's almost nothing anywhere else, except maybe one or two out of the 7th Cir. (Chicago).

Of all of these, the 7th Cir. is probably the most friendly to Slashdot-type beliefs. This is the circuit that recently held that, in effect, a cloud computing Tivoesque service offered by a cable company did not infringe copyrights despite making unauthorized copies and streaming them to users (said to be "public performance" but the 7th Cir. didn't think so, IIRC)

Re:'Never forwarded that information'

[TheLink]

"Oh, okay, so let me see if I have this straight: Today, they're too poor to buy fish, but tomorrow, they're magically going to have the money to pay for our fish? Is Jesus handing out coins too?"

Not exactly, you have to fish for them: http://www.biblegateway.com/passage/?search=Matthew+17%3A24-27&version=NIV :)

BTW, seems to me Jesus likes "audience participation".

Some kid had to sacrifice his lunch (I think he got kind of got it back though ) for the feeding of the five thousand: http://www.biblegateway.com/passage/?search=john%206:5-6:15&version=NIV

Turning water to wine - people had to fill up the jars first.

Re:'Never forwarded that information'

[Anonymous Coward]

You is point!

Re:'Never forwarded that information'

[suutar]

You appear to be assuming it was Rosario who supplied the disk, in which case the defendant would be right to be leery of it. The impression I got was that it was the defendant's disk, and presumably the defendant knows durn well what's on it...

Re:'Never forwarded that information'

[Doggabone]

... Or a savior. Your choice.

I see no reason for these to be mutually exclusive.

Re:'Never forwarded that information'

[noidentity]

I'd say both. Nothing wrong and nothing illegal.

So you believe it's wrong to copy something outside of fair use?

Re:'Never forwarded that information'

[Weezul]

I was initially torn about whether only seeding should be called jesusing, but actually jesus ate his own copies with the poor, so just any piracy could be called jesusing, provided your sharing too.

Re:'Never forwarded that information'

[zeroshade]

Here's a great link to look at http://techliberation.com/2007/03/20/is-downloading-illegal-wanna-bet/

Looking at the quote you used, what was found illegal was the distribution. The P2P systems that were used allowed sharing and distribution. The argument that downloading in and of itself is not illegal goes like this:

I read every bit of information I could find, including case law. I studied the DMCA. Since then I have studied the NET Act. I have studied everything I could find. Guess what? I could not find a single line in any act that said that downloading anything was illegal, or even anything that could be construed to mean it. I submit that there’s a legitimate reason there is no law covering the downloads. I believe it’s because you cannot know for certain that a file is pirated until it is in your possession. File names mean nothing. Fake music files planted on Kazaa prove it. Fake video files planted on torrent sites prove it. Even non-pirated files get named with titles that could be misconstrued as being pirated. I also believe that intent is insufficient to come to the conclusion that a person is attempting to download a pirated file.

Furthermore, in reference to the Napster decision:

The district court further determined that plaintiffs’ exclusive rights under 106 were violated: “here the evidence establishes that a majority of Napster users use the service to download and upload copyrighted music. And by doing that, it constitutes-the uses constitute direct infringement of plaintiffs’ musical compositions, recordings.” The district court also noted that “it is pretty much acknowledged by Napster that this is infringement.” We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders’ exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights. Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights.

And explaining it...

The Supreme Court essentially adopted this application of the law in its Grokster decision (545 U.S. 913, 936-39). The Court looked to the defendants’ own advertisements that users could download copyrighted files “to prove by a defendant’s own statements that his unlawful purpose disqualifies him from claiming protection.” (id. at 938). In other words, defendants’ promotion of an unlawful activity (downloading) was proof of their unlawful purpose.

A shrewd attorney could argue that this aspect of the opinion is dicta–that is, inessential to the outcome of the case–because file distribution by uploaders (which is certainly infringement) was also present.

Now, if you can quote an actual law or case where the it was explicitly stated that downloading in and of itself (there was no uploading occurring at all) is counted as infringement, then I will retract my statement and admit you are correct. Until then, it is pretty clear that there is no law nor precedent that states that downloading by itself is infringement and thus it depends on what judge/jury you end up with. There are other places where this is the situation, such as Canada. But logically consider that fact that since when is being in receipt of an unauthorised copy a copyright infringement on the part of the recipient? Since there is no law against "receiving infringing material" only distributing it logically makes sense that if you were downloading a new copy or something you legally owned it is no different than if you made that copy yourself. There is no distinguishable way to tell the difference and thus there is no way to enforce a downloading infringement. Or else don't you think

Re:'Never forwarded that information'

[zeroshade]

That depends on where you draw the line of fair use. For the most part, I do not believe it is wrong to copy something outside of fair use. Though I do believe one should support any music/developer/author that you like and enjoy either by donations or, if you like the media, buying physical copies from them.

That's the approach I take. I will download music and share with my friends and enjoy. For the artists that I listen to and enjoy greatly, I will go see them perform, pay for concert tickets, and purchase CD's and other media directly from them at shows (only when I'm getting the media directly from them. I want my money to go directly to the artist, not the labels).

Re:'Never forwarded that information'

[TheoMurpse]

Looking at the quote you used, what was found illegal was the distribution. The P2P systems that were used allowed sharing and distribution. The argument that downloading in and of itself is not illegal goes like this:

I read every bit of information I could find, including case law. I studied the DMCA. Since then I have studied the NET Act. I have studied everything I could find. Guess what? I could not find a single line in any act that said that downloading anything was illegal, or even anything that could be construed to mean it. I submit that there’s a legitimate reason there is no law covering the downloads. I believe it’s because you cannot know for certain that a file is pirated until it is in your possession. File names mean nothing. Fake music files planted on Kazaa prove it. Fake video files planted on torrent sites prove it. Even non-pirated files get named with titles that could be misconstrued as being pirated. I also believe that intent is insufficient to come to the conclusion that a person is attempting to download a pirated file.

This argument is absolutely a losing argument. The Copyright Act says that making copies is an exclusive right that can be infringed. When you download, there is an argument that has not been rejected yet that the downloader makes a copy, and therefore infringes.

I'm not arguing downloading is infringing; I'm arguing against the assertion that courts have held it is not infringing. Can you see the difference?

Until then, it is pretty clear that there is no law nor precedent that states that downloading by itself is infringement

Correct. I never said otherwise. I was responding to someone saying "clearly downloading is not infringement" or some other bogus statement.

and thus it depends on what judge/jury you end up with.

Judge? Yes. Jury? No. This is a question of law, and, as such, the jury does not get to address it.

The jury serves only as "fact finder," not "law finder."

But logically consider that fact that since when is being in receipt of an unauthorised copy a copyright infringement on the part of the recipient?

Come on, you're on Slashdot. I hope you have more respect for my understanding of technology than that.

If you hack into my Windows box and get remote access, make a copy of an MP3, and send it back to yourself, did I make the copy or did you?

I guarantee you a court is going to say you did. Requesting a file via Kazaa is very arguably the same thing but with only slightly more consent on my part. You're still the one doing the copying.

it logically makes sense that if you were downloading a new copy or something you legally owned it is no different than if you made that copy yourself

So you admit you make the copy. Making a copy of a copyrighted work is infringement.

Or else don't you think that there'd be a lot more downloaders sued?

No, because it's really, really hard to prove download. That's the only reason only uploaders are being sued.

The way to prove download is to be the RIAA, share a song, and sue the guys who download it from you. But then you'd have to fight against their claims of "I was trying to download a different song with the same name" and "you, the copyright owner's agent, gave me permission to download the file by enabling it in the first place." That is why you don't see downloaders being sued.

subpoena the logs from Rapid Share find the IP addresses of everyone who downloaded files and thus use that the same way they use the rest of their evidence and start suing

They don't do that because it's more expensive than going after RS, and likely less effective.

The RIAA may have deep pockets, but they're not infinitely deep. They do actually have to make decisions about costs.

So, in summation: I didn't say it was definitive that downloading is infringement. I said it's not definitive that it's not.

Surprised? Surely not.

[Loopy]

The ESA, government and ??AA caught being sneaky and underhanded in order to fuck over another citizen? I'm surprised it's even news except when the tallies of nefarious activities they've been caught at passes each 100/1000/n+^10 milestone. And yet they still get to do business.

Re:Surprised? Surely not.

[RobertM1968]

The ESA, government and ??AA caught being sneaky and underhanded in order to fuck over another citizen? I'm surprised it's even news except when the tallies of nefarious activities they've been caught at passes each 100/1000/n+^10 milestone. And yet they still get to do business.

This story is definitely news. The judge went back and read up on the DMCA, allowed for a fair use claim as reasons to mod the things, and then slammed the prosecutors for each and every mistake and lie and crime they committed.

I dont think I've ever seen such happen in any such case brought on by the BSA, ESA, RIAA or MPAA before. Sure, there've been ones where the judge used common sense and was stern... but this judge truly went all out to put the ESA and the prosecutors in their places.

Re:Surprised? Surely not.

[Jah-Wren Ryel]

I dont think I've ever seen such happen in any such case brought on by the BSA, ESA, RIAA or MPAA before. Sure, there've been ones where the judge used common sense and was stern... but this judge truly went all out to put the ESA and the prosecutors in their places.

Makes one wonder if they've pulled other shenanigans in his court before or on the cynical side, if they didn't contribute to his last reelection campaign.

Re:Surprised? Surely not.

[RobertM1968]

I dont think I've ever seen such happen in any such case brought on by the BSA, ESA, RIAA or MPAA before. Sure, there've been ones where the judge used common sense and was stern... but this judge truly went all out to put the ESA and the prosecutors in their places.

Makes one wonder if they've pulled other shenanigans in his court before or on the cynical side, if they didn't contribute to his last reelection campaign.

Or one of us is the slashdotter who lives in his basement, and set him straight on things when he came home from work/court one day during the trial. ;-)

Re:Surprised? Surely not.

[NNKK]

I dont think I've ever seen such happen in any such case brought on by the BSA, ESA, RIAA or MPAA before. Sure, there've been ones where the judge used common sense and was stern... but this judge truly went all out to put the ESA and the prosecutors in their places.

Makes one wonder if they've pulled other shenanigans in his court before or on the cynical side, if they didn't contribute to his last reelection campaign.

Why are you speculating on something you are clearly completely ignorant of? Federal judges do not have reelection campaigns. They do not have election campaigns. They are nominated by the President of the United States and confirmed by the Senate exactly once, after which they are in until they die, resign voluntarily, or are impeached and removed from office (the latter being incredibly rare, in over 200 years 14 judges have been impeached, and only about half were removed from office).

Re:Surprised? Surely not.

[Jah-Wren Ryel]

Why are you speculating on something you are clearly completely ignorant of? Federal judges do not have reelection campaigns.

Because I thought it was a california district court judge who do have reelection campaigns.

Re:Surprised? Surely not.

[Anonymous Coward]

Because I thought it was a california district court judge who do have reelection campaigns.

Actually, he was, until just a couple of years ago. He might still harbor a grudge.

Re:Surprised? Surely not.

[Sockatume]

Don't worry, I'm sure whatever judge they use next time will not be so thorough.

Re:Surprised? Surely not.

[Apothem]

Well it's about time. I was wondering if the ??AA was just going to keep walking all over people or if some judge would actually take a stand AGAINST them for once.

Re:Surprised? Surely not.

[ElectricTurtle]

State and Federal courts are completely different things.

Re:Surprised? Surely not.

[Ckwop]

Maybe the judge had a modified Xbox?

My question is

[Aerorae]

Don't they have bigger issues/bad guys to take care of than some college student POSSIBLY playing PIRATED VIDEO GAMES?
Drugs, gangs, violence, terrorism, rape, murders...need I go on?
last time I checked the courts and jails were rather full...

Re:My question is

[DreamMaster]

Don't they have bigger issues/bad guys to take care of than some college student POSSIBLY playing PIRATED VIDEO GAMES?
Drugs, gangs, violence, terrorism, rape, murders...need I go on?
  last time I checked the courts and jails were rather full...

Reminds me of the Simpsons X-Files episode:
Mulder: There's been another unsubstantiated UFO sighting in the Heartland of America. We've gotta get there right away.
Scully: Well... gee, Mulder, there's also this report of a shipment of drugs and illegal weapons coming into New Jersey tonight.
Mulder: [scoffs] I hardly think the FBI is concerned with matters like that.

---
DreamMaster.

Re:My question is

[Aerorae]

touché

Re:My question is

[Anonymous Coward]

Sorry, any residual bandwidth is currently taken up by finding out who leaked the documents to wikileaks, or whether we should prosecute or kill everyone involved.

Fark that stuff about discussing whether or not we should be writing down that we're thinking of killing foreign leaders or that their ambassadors are fat and smell funny.

Re:My question is

[Jupix]

To play devil's advocate for a second, seeing as though the courts dismissed the case, and the legwork was done by the ESA (not exactly competent in catching drug dealers), I think very few actual crimefighting man-hours were lost here... Unless you count the prosecution's time, in which case, if I as a foreigner understand correctly, there's still no shortage of lawyers in the U.S.

One thing, though. Ever played EVE Online? Let me tell you a little story.

The game's got some issues. Mainly technological (it lags like hell under a special set of circumstances) and some to do with game content, balancing, etc. These are other issues but the point is, they have existed for years.

When they were identified as serious problems by the community, for a while there was a wall of silence from the game makers (CCP). For some issues this went on for years, months for some. All the while the community whined away through every channel available to them, most publicly on the game's official forums. At some point the whining had gone on long enough without response that the hopelessness became an in-joke.

Recently, EVE has gained popularity and matured as a product. As a result, CCP has grown and matured as well. And so, they now have some more-or-less strict and very public standards for fixing important issues. What they do now is put together teams of specially hired developers with skills in problems of a specific nature, and assign that team a specific issue. The aforementioned lag, for instance.

What this means for the players is that the issues I was talking about have started to get fixed. There's steady improvement that's visible to the naked eye. All the while, game development goes on normally by the actual developers according to their internal roadmap. Fixing issues goes on in parallel.

Every time there's a new version of EVE, with shiny new features and goodies like ships or other content, there's handful of noisy idiots who start whining on the forums about fixing lag, game balance, the UI or whatever. They demand that CCP halt whatever they are doing until the lag etc. are fixed. Even though the developers are mostly in no way up to to the task like the actual issue-fixing-teams are. Those whine posts on the forums are among the most annoying stuff you could possibly read on there.

Now...

"Whoever enforce IP laws are full of shit, they should be out fixing real issues like murder, like the FBI/police homicide divisions are."

Get my drift?

Re:My question is

[StikyPad]

Gosh, if only the FBI had more than two agents!

Woulda rathered the trail complete ...

[cyrus0101]

... in favour of the defendant. Sets a(nother) legal precedent supporting the idea that modifying something you own is legal.

Re:Woulda rathered the trail complete ...

[atomicstrawberry]

It's quite likely that the prosecution in this case deliberately torpedoed themselves so that they could have an excuse to dismiss the case and avoid setting exactly this precedent.

Re:Woulda rathered the trail complete ...

[zach_the_lizard]

I doubt it; such a level of planning and forethought is likely beyond their grasp. This is a group of people who think suing potential customers is a good thing.

Re:Woulda rathered the trail complete ...

[Anonymous Coward]

Prosecutors work for the state. They bring criminal complaints, not civil suits. The prosecutors aren't "suing potential customers".

Re:Woulda rathered the trail complete ...

[Burpmaster]

Prosecutors work for the state.

Officially, yes. But it feels more like they work for the ESA.

Re:Woulda rathered the trail complete ...

[Anonymous Coward]

Prosecutors work for the state, and get appointed by politicians. Prosecutors often prosecute cases that is in the interest of the politicians (or voters, for cases where prosecutors are directly elected), to stay in their jobs. Politicians need a lot of money to get elected, so they get it from rich conglomerates of corporations. The RIAA is a conglomeration of very rich companies, which is suing potential (and actual) customers.

See any connection in behavior there?

Re:Woulda rathered the trail complete ...

[Sockatume]

Doesn't require forward planning, just opportunism. They were given a way out that would avoid a whole lot of damaging decisions against them, and they took it. If the circumstances were different I'm sure they would've continued the case on whatever other grounds they had.

Re:Woulda rathered the trail complete ...

[Charliemopps]

They could have simply dropped their case rather than put themselves in legal jeopardy like they did.

Re:Woulda rathered the trail complete ...

[CODiNE]

If they knew they'd loose the case then why would they start it? They knew their methods before the whole thing got moving, they knew who they hired to do the investigating. At what point before the judge yelling at them did they know they were going to lose the case?

Re:Woulda rathered the trail complete ...

[GasparGMSwordsman]

It's quite likely that the prosecution in this case deliberately torpedoed themselves so that they could have an excuse to dismiss the case and avoid setting exactly this precedent.

How does that make any sense? The prosecution could simply make a motion to withdraw the case at any time. All they have to do is stand up and say, "never mind" and the case is done. They don't have to introduce any testimony or evidence to do that.

What happened here is going to be a big negative on the prosecutors record. It is BAD for him. It is not far off of getting fired (for cause) from a job because you were watching porn at your desk.

Well now lets see it...

[joocemann]

... if thats what happened, and he had video of the whole shebang... lets see it.. is that what we see in the video?

Lets quit playing silly games here... if you can mod an xbox you know what it can/will be used for. DUH. Right, lets look at a burned CD and pretend its all open/free music. Oh wait ! Its just some GS Wavetable played re-created MIDI files.... pfft no... its Lil' Wayne's Discography on 320kbps mp3.

Lets get to the point where we should be able to do what we want with our own equipment. I don't care if some lawyer wrote up some 'license agreement' for me to read; in the end I never bought a product from its maker, I buy it from a store. At no point do I agree with anyone. I give money to a person, they hand me what I picked out. I go home and after i already OWN the thing, there's some agreement there... nah... But I'm glad I still own this THING I have here now! And it's great I paid a fair price for everything that went into it. But its mine now. You don't get the cake and to eat it all --- I got this piece and its mine. Its not yours (the company) anymore. Be gone. /rant off

Re:Well now lets see it...

[joocemann]

I should lightly reiterate something. If I already OWN the thing, and from there I receive a paper with some agreement on it... Well then what if I don't agree? I still own it. Its mine and I paid for it. The 'agreement' says what I can and cannot do, but I simply don't agree. Get me? I buy the whole box of stuff... And I don't agree with that paper that came with it, so I just toss that out... I don't want *THAT* anymore, so I don't own the 'agreement' anymore -- I think trash becomes public domain @ the curb... So tha'ts when the agreement and I are now in no way related. Cool thing I still have an xbox!

Oh.. and agreements in software are only agreed as a product duress caused by the software holding my technology hostage. I think people either agree with me that they do not read and or care about EULAs, or they ironically violate them on accident, even if they oppose my view here and tell me they make sense.

Fun topic.

Re:Well now lets see it...

[cgenman]

Certain agreements are maintained because while you have ownership over a physical thing, you still don't have copyright. And to run, certain things require copying. Software has to be copied to disk, videos have to be copied to RAM, etc.

Really, the whole idea of copyright needs to fall by the wayside to DISTRIBUTION rights. You own a thing, you can copy it as many times as you need to for your own use. You just can't give those copies to anyone, and you can't retain those copies if you sell the original. At minimum, everything digital requires copying to function internally anyway. This would cut out a lot of the BS.

Re:Well now lets see it...

[Anonymous Coward]

Oh.. and agreements in software are only agreed as a product duress caused by the software holding my technology hostage.

Let's see here. If I open the packaging (obviously a prerequisite to reading a shrink-wrapped license or agreeing to a click-through license), I have now made the product non-returnable. So it's obviously no longer the owner's and he refuses to re-assume ownership -- that leaves me as the owner, right?

Fuck any bullshit "contract" that says otherwise. Contract law, the last time I looked, said that there had to be a meeting of minds between buyer and seller. If, after opening the product (to make a meeting of minds possible) and after disagreeing with the "contract", I should be able to cancel the contract. Since I can't, the product is fucking mine. Argument terminated.

Re:Well now lets see it...

[wierd_w]

Nevermind the non-digital, ephemeral copies of content that one carries inside their brain after "Consuming" the content.

While some people have better memories than others, this inherent copying ability of the human brain renders the whole "Copy" nonsense absurd. "Distribution" would make more sense. It is impossible to consume any kind of media without creating a neurological copy, either in full or in part.

Re:Well now lets see it...

[RobertM1968]

I'm not entirely sure what you are trying to say, but if it is what you think it is, you're wrong in just assuming such, and the law does not allow such assumptions in criminal prosecutions.

Here's an example. I have 4 shelves (and 2 more boxes) of CDs that I have collected over the years. I ALWAYS burn them to mp3 and then DONT use the CDs ever again (except in the case of a bad mp3 or lost file). I used to go through the "scratched disk, buy another" routine (back in the day before mp3's) but have learned my lesson. I don't pirate music. It's all bought-and-paid-for-CDs-turned-to-mp3s. I had my PS2 modded... and made copies of some of my heavily played disks... then put the originals someplace safe. Why? Not because I played pirated games, but instead because I was tired of having bought FF7 THREE damn times, and FF8 TWO times, as my original PS1 had eaten 2 and 1 copies respectively. I don't give out copies, I dont download copies... but I also sure as hell don't wanna have to buy another "OEM" version because it gets fucked up in the player or in handling.

Re:Well now lets see it...

[Todd Knarr]

Yep, but when trying to claim you don't have a right to make the copies of software onto your hard drive and into memory to run, the copyright holders run afoul of USC Title 17 section 117(a) which says that, since those copies are essential steps in the utilization of said program, making them is not an infringement of copyright. And that one's held up in court. You have to actually own the copy, which is why the rightsholders try so hard to claim that you agreed it wasn't a sale, but I've always held that UCC Article 2 says it was a sale if they can't show an explicit agreement otherwise made before payment was accepted and the goods delivered. And that what I bought was not merely the physical media, because every bit of description on the box and every bit of advertising for the goods describes only the software on the disc, not the box or the disc. The seller's selling what the seller claims to be selling, no more and no less, and they can't handwave away all those claims they made before just because they're inconvenient now.

Re:Well now lets see it...

[Svartalf]

Software copied to disk/RAM does NOT require ANY licensing.

US Code Title 17, 117a explicitly allows for this thing.

(a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

In the US you don't need permission to use the software once you've gotten it into your hot little hands- unless they slap an EULA on top of it in some legal maneuvering manner and you do something that implies agreement or sign an actual agreement document.

If, for example, the EULA on Windows forbade transfer of rights, and you sold a machine with it on there to me, I'm not in trouble, you are. And each of my usages when I boot up, are still legal. I obtained my copy of a protected work from you. The EULA applies to YOU since you agreed to it or did an action implying it. Selling it to me, you violated the same- but since I didn't agree to it, wasn't appraised of it, ever, it doesn't apply to me. Now, I can't just make copies of it willy-nilly as a result of that but in the same vein, none of the restrictions on use, etc. placed upon me by the EULA would apply to me. I have the rights anyone would have having bought a book from someone with regards to that software at that point, so I could sell the whole machine, lock, stock and barrel- and they would be bound by copyright as would I. So long as I dispose of all copies I might have of the work in hand once I've disposed of the originals from whence it came, I'm still legal. And, if I'm owning one of the originals still, I'm entitled to archival (Backup) copies of the protected work in question.

It's only when you start taking copies of things outside the proper relationships (i.e. downloading a "backup" from TPB or similar without at least having the original in hand...) that you start getting into trouble with the law.

Turnabout is fair play

[mykos]

The case they brought was merely to scare modders into thinking they were doing something hyper-illegal.

Since they had no problem charging him with a crime that held a maximum of five years in prison, their penalty should be that the Xbox arm of Microsoft will not be allowed to conduct business operations for five years.

Corporations want the same rights as a human? Give them the same responsibility.

"Knew" it was illegal?

[Cinder6]

I always thought that "ignorance of the law does not exempt you from punishment". And how does inserting a pirated game mean he knows that modding the Xbox is illegal? At best, it means he knows that modding the Xbox can let you play pirated games, which is illegal. But I can sharpen a knife and then stab somebody with it. Doesn't mean that the knife or the act of sharpening are illegal.

Of course, the usual disclaimers: IANAL, and of course I didn't RTFA.

Re:"Knew" it was illegal?

[RobertM1968]

Copyright law, as specified in the DMCA, is different in that it spells out differences. Willful infringement, and such. Intentional or commercial/for-profit infringement (for music sharing for instance) and not. Some are civil violations, some are criminal. Some of the criminal ones require willful violations (such as this), others (certain civil aspects, such as file sharing) do not.

That's a grossly limited summary that doesnt even come close to covering all bases, and IANAL, thus wont go into more depth on it, but if you read the thing, you'll get an idea of what I am discussing.

Re:"Knew" it was illegal?

[Cinder6]

Cool, thanks for the info.

Re:"Knew" it was illegal?

[SharpFang]

Ignorance of law or doesn't exempt you from punishment, but changes the severity of the crime, possibly reducing the sentence. It's not "guilty" vs "not guilty" but "guilty, jail" vs "guilty, probation".

Additionally, DMCA makes a provision about mechanisms/devices/programs whose *primary* purpose is to circumvent copyright protection. If copyright protection circumvention occurs as a side-effect to some more important, legal operation (say, developing a homebrew game) then modding is okay, or if the device used has a different primary purpose (sharpie pen to black out outermost path on the CD) then producing this device is legal.

Re:"Knew" it was illegal?

[Quince alPillan]

He saw him put in a burned disk into the Xbox that had what he assumed was a game on it. That doesn't mean the game was pirated. Assuming that its even a game (and not a Linux CD for instance), you still have to prove that he didn't already own a copy of the game and the burned copy was a duplicate of a game he already owned, which is allowed under fair use.

Hurray, one man's life only ALMOST ruined

[SashaMan]

While I'm glad the correct outcome was made in this case, I shudder to think what would happen if the prosecution had NOT made a mistake and had notified the defense.

Before trial, prosecutors offered a plea deal that included pleading guilty to two FELONIES. A guy whose sole "crime" was to let people use their own purchased hardware as they saw fit had the choice between:

1. Having his life ruined - try to get any kind of job if you're not famous with 2 felonies on your record.
2. Rolling the dice with 12 folks who couldn't get out of jury duty with the downside being years in prison.

That this case even got as far as it did is a very sad commentary on our legal system - what if the defendant had been scared enough about the prospect of spending years in prison that he HAD taken the plea deal?

Re:Hurray, one man's life only ALMOST ruined

[Registered Coward v2]

2. Rolling the dice with 12 folks who couldn't get out of jury duty with the downside being years in prison.

That this case even got as far as it did is a very sad commentary on our legal system - what if the defendant had been scared enough about the prospect of spending years in prison that he HAD taken the plea deal?

While I realize many people have a very cynical view of who winds up on a jury; in my experience with jury duty there really wasn't anyone who tried to use teh system to get out of it. Everyone called did there time; which involved a lot of sitting around (thankfully with free WiFi) waiting to be selected. As for deliberations, the jury I was on took their job very seriously - we deliberated what the law meant and how to apply it; asked the judge a number of questions about the law, reviewed evidence multiple times before we reached our verdict. I felt that we gave the defendant a very fair shake.

As for judges, ours seemed to be very intolerant of even long winded or repetitive questions from the prosecutor while giving the defense a lot of leeway.

I was really surprised the lawyers seated two engineers - we spent a lot of time analyzing the technical details of the evidence and often reached conclusions different from what the defense implied to try to discredit test result. The defense actually hurt their case every time they provided data into evidence because while they probably thought they were confusing the issue all they did was strengthen the case against their client.

Re:Hurray, one man's life only ALMOST ruined

[Tacvek]

Interesting. Out of curiosity, hoe confident are you that the jury would have spent as much time and as much attention to detail had you not been on it?

I mean I would expect that most people on Slashdot to work to ensure a proper fact based finding (as opposed to a purely emotional one, or one based on facts but only on a very cursory overview of them) so their presence may have a significant impact on how the jury operates.

I would hope many juries do try to do a good job. Unfortunately it is definitely the case that at least some juries simply don't care, and want to be done as quickly as possible. I wish i had some good numbers on this, but that would be very hard to come by.

Re:Hurray, one man's life only ALMOST ruined

[Registered Coward v2]

Interesting. Out of curiosity, hoe confident are you that the jury would have spent as much time and as much attention to detail had you not been on it?

It's hard to say, but enough of the other jurors had similar questions and issues as I did, they just didn't have the same understanding of probability as I did. Specifically, if 25% of test results are false positives; and that is true for all the tests run; it means that after four independent, different tests the chance of a false positive is about 2%, despite the defense attorney's constant "the test are unreliable" argument. At the start, the jury was split on guilt; even without me I think they would have had the same amount of deliberation on the most serious charge. My argument gave weight to the "the defendant failed all four tests" argument from a logical POV; they probably would have reached the same conclusion but have less of a factual basis for it.

Oddly enough, my main input was on a relatively minor charge where the law was very unclear - I eventually convinced the holdouts that if the law is not clear about what constitutes an offense you can't find someone guilty since the law, as written, both allowed and disallowed the conduct in question. I guess all that time "rules lawyering" during boardgames while in college wasn't wasted after all.

I mean I would expect that most people on Slashdot to work to ensure a proper fact based finding (as opposed to a purely emotional one, or one based on facts but only on a very cursory overview of them) so their presence may have a significant impact on how the jury operates.

I would hope many juries do try to do a good job. Unfortunately it is definitely the case that at least some juries simply don't care, and want to be done as quickly as possible. I wish i had some good numbers on this, but that would be very hard to come by.

I don't know if its not caring - all of us realized the impact we would have on someone's life. The problem is you are trying to sort out which facts are true and convincing, understand the facts and what happened, and stay within the judge's explanation of the law as it applies.

The most important things I learned was get the best lawyer available; and if your case is shaky cutting a deal may be better than betting everything on a jury verdict. As our judge explained - the jury is the most feared part of the court - because no one knows how we will decide; as a result most cases get pleaded to avoid the risk of a really bad verdict.

Re:Hurray, one man's life only ALMOST ruined

[Anonymous Coward]

It was no mistake. The defense would probably have motioned to dismiss the evidence as irrelevant.
Backups are legal. It might have been illegal, but a possibility is far from a proof.

The prosecution would have lost the case and set a precedent.

Admitting they withheld evidence from the defense gets the case dismissed, and avoids setting a precedent.

Apparently, the defendant was not willing to settle out of court.

Re:Hurray, one man's life only ALMOST ruined

[Tacvek]

Interesting. Out of curiosity, hoe confident are you that the jury would have spent as much time and as much attention to detail had you not been on it?

It's hard to say, but enough of the other jurors had similar questions and issues as I did, they just didn't have the same understanding of probability as I did. Specifically, if 25% of test results are false positives; and that is true for all the tests run; it means that after four independent, different tests the chance of a false positive is about 2%, despite the defense attorney's constant "the test are unreliable" argument. At the start, the jury was split on guilt; even without me I think they would have had the same amount of deliberation on the most serious charge. My argument gave weight to the "the defendant failed all four tests" argument from a logical POV; they probably would have reached the same conclusion but have less of a factual basis for it.

That is quite good to hear. Few accounts I have heard before had juries sound as logical, rather than primarily emotional. The latter is a very disturbing idea to me.

One thing to keep in mind though, is that while you calculated the probability of 4 false positives on the test,to actually calculate probability of the accused having committed the act, given the four positives would depend on knowing the probability that the accused did it in the absence of the tests.

You may well be aware of that though, and at least implicitly determined that any other evidence available indicated a high enough initial probability of guilt.

Oddly enough, my main input was on a relatively minor charge where the law was very unclear - I eventually convinced the holdouts that if the law is not clear about what constitutes an offense you can't find someone guilty since the law, as written, both allowed and disallowed the conduct in question. I guess all that time "rules lawyering" during boardgames while in college wasn't wasted after all.

You may be aware though, that technically the way the law works is that whichever part was newer would apply in the event of contradiction in a statute. Of course if the contradictory portions were introduced at the same time, then your conclusion is indisputably correct. There though is also other long standing legal concepts that would support the notion that if the codified law is inconsistent, regardless of the order of the statutes it consists of, then it would be unreasonable to ever find somebody guilty in the ambiguous part. The law can be rather strange like that.

Why isn't the prosecutor and the FBI agents

[ancient_kings]

arrested? *THEY* broke the law and *THEY* should know better. These type of cases will continue to happen unless a judge arrests all the agents involved in this case. Show these agents zero mercy. Make an example of them to other agents to show this is what happens when you waste the courts time and lie and cheat. This is also very clear example that there are way too many law enforcement officials. TIme to cut the fat and fire/lay off 60-80% of the FBI, DHS, most of the state/local police forces. The USA is quickyl becoming the 1980's USSR police state...

Re:Why isn't the prosecutor and the FBI agents

[Anonymous Coward]

"The USA is quickyl becoming the 1980's USSR police state..."

It hasn't yet? Gee, the president can kill who he wants, what else do you need? Or is that China?

Re:Why isn't the prosecutor and the FBI agents

[Anonymous Coward]

TIme to cut the fat and fire/lay off 60-80% of the FBI, DHS, most of the state/local police forces. The USA is quickyl becoming the 1980's USSR police state...

60 / 80 PERCENT? Are you insane? While I'm not a please-think-of-the-children nutjob nor a "WAAAAAA ITS 1984" nutjob, law enforcement agencies do have a valuable role. When reading the news you have to remember that good news almost never makes the pages. Every time a cop saves a little old lady , a fireman pulls a kid out of a burning building, or the FBI nab a gangster for money laundering we do not hear about it. Sometimes we do, but most of the time we don't. This leaves people with an incredibly one sided and often jaded view because all the media show us is the negative aspects of our world.

If you got rid of 80% of law enforcement your freedoms that you ( probably ) hold so dear would be suffering a lot more than they are at present. It wouldn't be the government taking them from you though - it would just be other citzens. Personally, I think this is just as bad. There are other kinds of oppression that don't stem from government and they are visible in much of the world. Hang around in a really shitty neighbourhood after dark for a couple of days ( more likely a couple of hours ) if you want to witness it first hand. The rule of law stops citzens infringing the rights of other citzens.

Liberty and law enforcement are two sides of the same coin bud, you can't have one without the other.

Re:Why isn't the prosecutor and the FBI agents

[Anonymous Coward]

They didn't break the law, they violated procedure. You are not allowed to sneak in facts in a civil or criminal trial.

Re:Why isn't the prosecutor and the FBI agents

[ElectricTurtle]

Lies. Go study some history. Law enforcement in the first century of the United States was extremely limited. FBI? Didn't exist. Municipal police forces? New York City didn't even have one until 50 years after the close of the Revolution. The only real federal law enforcement before the Civil War was the US Marshalls, and they did more to quash freedom than to support it. They violated their oaths to the Constitution and enforced the Sedition Act, arresting people for merely speaking against government policy. They also worked to round up fugitive slaves, but at least that was Constitutional if not moral.

The whole pattern of law enforcement in the first American century was one of integration and cooperation with the public. Full time sworn officers were few in number, and when they needed to execute warrants or search for suspects they deputized upstanding members of the community (who of course employed their own firearms). Law enforcement officers acted more to organize the public to police itself than they did or even could police it themselves.

Re:Why isn't the prosecutor and the FBI agents

[hypergreatthing]

but i thought lying under oath or to a federal agent is against the law and people have been prosecuted exactly for that, but the same isn't applied when they lie?

Things are often different in a criminal trial

[Sycraft-fu]

Remember there's a different standard of evidence and all that. I'm not saying this judge wasn't an exceptionally good jurist, just that part of the reason is probably because all the *AA shit we've been hearing about has been civil. Given that there's no presumption of responsibility or lack thereof and the standard is more or less "Whoever had a slightly more convincing case," that is probably part of the reason they stayed out of it more.

An additional good thing is this happened after the trial started, so this guy is in the clear. Double jeopardy applies the moment all the jurors are sworn in. So before the actual trial, the prosecution can dismiss a case, but be able to re-present it later. They dismiss it, straighten their shit out, re-indict and so on. Not here, jury was already sworn in, so this is final and binding. He cannot be retried for this particular crime ever.

Re:Things are often different in a criminal trial

[Anonymous Coward]

More to the point, they still can't prove it was a "pirated" disc that the man inserted- only a copy. It's already been made clear through precedent, etc. that backup copies are legal, even under the DMCA. It's just that the DMCA prohibits circumvention of means to prevent copying or the use thereof- except for the purposes of compatibility, being able to use backups, etc.

They lied about this. The witness injected something that the prosecution hoped would bolster their weak case, either because he recalled it or that he "recalled" it (Do note that they allegedly had him on video doing the mod and there wasn't any mention of "pirated" discs within that video...). When the defense attorney put up a challenge, the prosecution had to honestly do this one, especially in light of the dressing down they got from the Judge earlier this week. If you want to know the truth of the matter, if it were me, I would have dropped the case- it was pushing a weak case and with some really, really dodgy testimony (At least two of the prosecution's star witnesses were guilty of similar crimes in the past...not helpful to the case in the slightest...), and a dodgy legal theory off of the DMCA. I'd have just simply dropped the thing the moment I had the chance once it was made clear by the Judge presiding that most of this wasn't going to fly. But...they ran it up the flagpole anyway. Nice.

Re:Things are often different in a criminal trial

[Solandri]

Remember there's a different standard of evidence and all that. I'm not saying this judge wasn't an exceptionally good jurist, just that part of the reason is probably because all the *AA shit we've been hearing about has been civil. Given that there's no presumption of responsibility or lack thereof and the standard is more or less "Whoever had a slightly more convincing case," that is probably part of the reason they stayed out of it more.

If the guy was facing jail time and felony charges, then it was a criminal trial. The only punishment you can get from a civil trial is a fine.

Thank the Founders justice has prevailed

[Rogerborg]

Just because he advertised and performed a commercial service for personal profit, so that others could harm the producers of the games that they went on to pirate, in clear violation of a law drawn up specifically to target his behaviour, well, Chewbacca lives on Endor, so you must acquit.

Re:Thank the Founders justice has prevailed

[Svartalf]

Oh, this wasn't the Chewbacca defense...

The Prosecution did everything it could to try to convict this man- in what appears to be a case to "make an example" of the young man. They had two "star" witnesses that were guilty of the same acts as was being claimed by the prosecution for the defendant- which is bogus to say the least and the Judge was going to highlight that fact to the Jury when the time came. Then they had the one that was the one in on the "sting" "recall" on the stand that the defendant "put in a 'pirated' disc" and that this "recollection" happened just slightly before the hearings occurred and that it was "accidentally" not disclosed to the defense. They had the guy on video and I do believe that there was no mention of "pirated"- just that a copy was used to verify that it could play copies, backups or otherwise.

Sorry, this was a case of the prosecution doing anything and everything, regardless of it's legality, to get a case win there. Once they got caught doing that, the only thing they could do was drop the case- else they could face misconduct sanctions, and possibly, since some of these shenanigans occurred within the investigation phase, Color of Law charges. There pretty much wasn't any options for the prosecution once they had that "oops" like they did there with their witness.

Fascism

[mlwmohawk]

I said it before....

Why should our tax dollars and our lawyer be prosecuting one of our citizens for a multi-billion dollar multi-national corporation?

It should be our taxes and our lawyer DEFENDING one of our citizens against the CIVIL charges of an out of control multi-billion dollar multi-national corporation!

In the air, I sense pitch forks. I sense a people who feel that the workings of government no longer work for us. When justice is not measured out fairly and justly by the organizations charged with doing so, citizens have a tendency to take it into their own hands.

Until now, these people have had a very safe existence, but they better start to realize that they must at some time walk amongst us, and if, at some point people start taking the law into their own hands -- as a last resort, they may better start thinking of a greater "right and wrong" sooner rather than later.

While I don't think I'm about to pick up a pitch fork any time soon, I know a number of people who are out of work, the anger is growing in a serious way, can you feel it? I don't believe the status quo can survive much longer.

"Undercover agent"? Puh-leeeese.

[mattdm]

The article says "... Tony Rosario, was an undercover agent with the Entertainment Software Association ...". I'm gonna call O RLY on that one.

Even though not surprising that the entertainment industry lives in such a fantasy world, private corporate organizations do not get undercover agents. This was some random guy playing at cloak and dagger cops under the label of "private investigator".

Modding 360 vs. using MCE and XNA

[tepples]

You say one might mod an Xbox 360 to run homebrew. What does this let you do that the stock firmware doesn't and, say, hooking your PC up to your HDTV doesn't? Unlike the stock Wii firmware, the stock 360 firmware can already play videos, and there's even an official $99/yr mod to make and even sell homebrew games.

Re:Modding 360 vs. using MCE and XNA

[mrchaotica]

What does this let you do that the stock firmware doesn't and, say, hooking your PC up to your HDTV doesn't? ...there's even an official $99/yr mod to make and even sell homebrew games.

It allows the console owner to not have to pay a $99/year ransom to make full use of his own property!

Re:Modding 360 vs. using MCE and XNA

[tepples]

There's no $99/year ransom on a PC. What's the advantage of modding an Xbox 360 vs. developing for PC?

Re:Modding 360 vs. using MCE and XNA

[mrchaotica]

There's no $99/year ransom on a PC. What's the advantage of modding an Xbox 360 vs. developing for PC?

There doesn't have to be an advantage; the point is that modding the Xbox is the property owner's Right!

It's like we're living in some Bizarro world where virtual "intellectual property" rights are more important than real, physical, property rights! Do you not see the problem with that?

Re:Modding 360 vs. using MCE and XNA

[tepples]

It's like we're living in some Bizarro world where virtual "intellectual property" rights are more important than real, physical, property rights! Do you not see the problem with that?

I do, but Congress doesn't. This might have something to do with the fact that one can't get elected to federal office without the help of MPAA members.

Im surprised microsoft doesnt ditch DRM

[voss]

In favor of disc registration. If each disc has an unique encrypted signature or code, you can make backups but
you would only play the disc (whether original or backup) it with the account that its registered to.

1) It would allow legal backups and homebrew making legal modchips unnecessary
2) It would also get stolen xbox discs out of the channel. Legal disc owners
could still deregister the discs when they want to resell.

Re:Im surprised microsoft doesnt ditch DRM

[zeroshade]

How do you bring a game over to a friend's house then?

Re:Im surprised microsoft doesnt ditch DRM

[Xenophon Fenderson,]

That would drive manufacturing costs through the roof while simultaneously reducing media quality to that of your average CD-R or DVD-R.

Amen!

[Weezul]

You made my day!

bnetd

[tepples]

USC Title 17 section 117(a)

The opinion of a U.S. court in the bnetd case was that for any computer program primarily designed to connect to a network service, the end user waives any rights under section 117 as a condition of accessing the service.

I've always held that UCC Article 2 says it was a sale if they can't show an explicit agreement otherwise made before payment was accepted

Before payment is accepted, you have access to view a notice on the package: "By purchasing this product, you agree to the standard form contract at http://www.example.com/eula/productname." What does the UCC say that rules out notices on product packages that include the EULA by reference?

Re:bnetd

[mrchaotica]

Before payment is accepted, you have access to view a notice on the package: "By purchasing this product, you agree to the standard form contract at http://www.example.com/eula/productname [example.com]."

First of all, normal boxed software doesn't actually have that sort of notice written on it.

Second, it's still irrelevant because when you buy an item the contract is between you and the retailer, not you and the copyright holder. In order to create an actual valid license agreement, the store would have to be acting as the legal agent of the copyright holder or something.

Re:bnetd

[tepples]

normal boxed software doesn't actually have that sort of notice written on it.

I've seen such references to EULA URLs on the packaging of Microsoft Windows and Microsoft Office.

Second, it's still irrelevant because when you buy an item the contract is between you and the retailer, not you and the copyright holder.

It appears you're raising a privity point. Wouldn't requiring product activation work around the limitation of privity?

Re:bnetd

[Todd Knarr]

What does the UCC say that rules out notices on product packages that include the EULA by reference?

Well, UCC Article 2 section 401 says this: "Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place". Note the use of the term "explicit" there. According to the lawyers I've spoken to, "explicit" there has a legal meaning that bars assumed or implicit agreement. A notice like you mention would be an implicit agreement, attempting to impose one without explicit acceptance by the buyer. The word "explicit" in section 401 was chosen specifically to prohibit exactly the kind of thing in your example. And that's not even getting to the question of how the seller would prove there was an agreement if the buyer says "No, I rejected that standard form contract.". After all, the buyer's got possession of the product and he's got a receipt showing the seller accepted his payment for it, and if he says the seller completed the sale without the agreement what evidence does the seller have to the contrary?

The bnetd case differs in that acceptance of the terms is explicit and is required not for the purchase of the software but to gain access to Blizzard's servers. The defendant there did in fact access Blizzard's servers, so Blizzard has some legal footing to claim that the terms do apply to him. We're talking here, though, about a situation where I don't need and in fact don't want to access the seller's equipment or services after the sale.

Re:bnetd

[mrchaotica]

I've seen such references to EULA URLs on the packaging of Microsoft Windows and Microsoft Office.

Better than nothing ("better" in the sense of "less legally worthless," anyway), but don't real contracts have to be actually presented to the interested parties, not merely alluded to in passing?

It appears you're raising a privity [wikipedia.org] point. Wouldn't requiring product activation work around the limitation of privity?

How do you go about "requiring" the activation? In the (irrelevant) EULA? By disallowing a technological workaround (i.e., infringing upon the user's right to modify his own property)? It still seems problematic to me...

Re:bnetd

[Todd Knarr]

Pretty much. I liken it to this: I go and buy an air conditioner. The store charges my credit card, the charges are paid, the store delivers the air conditioner to my doorstep. But they deliver it in a locked steel crate, and refuse to give me the key until I pay an access fee and agree that I didn't buy the air conditioner, I'm only leasing it and they can terminate the lease and take back the air conditioner at any time. Oh, and if they take it back they won't refund what I paid for it. Under the law, am I out of luck? Or can I call a locksmith to open the crate, take my air conditioner out and tell the store I'm available whenever they want to arrange for the return of their crate? Every business law class I've taken, and every lawyer I've talked to, all agree it's the second. So why is software, which is governed by the same law, different?

Re:bnetd

[tepples]

don't real contracts have to be actually presented to the interested parties, not merely alluded to in passing?

That depends on how courts define "presented". Sufficient information to retrieve the contract's text from the Internet is clearly presented on the box. It's not much different from the common practice of linking to the "Commons Deed" summary of a Creative Commons license instead of including the text of the license proper on your own web site, even if that is with respect to a gratuitous license rather than a contract.

How do you go about "requiring" the activation? [...] By disallowing a technological workaround (i.e., infringing upon the user's right to modify his own property)?

The 105th Congress of United States chose this route in October 1998.

Re:bnetd

[tepples]

We're talking here, though, about a situation where I don't need and in fact don't want to access the seller's equipment or services after the sale.

If you do not access the seller's equipment, you cannot activate the installed software.

Re:bnetd

[Todd Knarr]

True, but that's by the seller's choice. And the access isn't needed for operation of the software, it only restricts access to the software I've bought. It's the equivalent of the lock on the shipping crate: unlocking it's not needed to use the goods, it only restricts access to them. Compare this to an on-line game, where access to the servers is required as a normal part of operation (without it the game'd be a standard off-line single-player game).

Re:bnetd

[joocemann]

The word presented does not need any redefinition, lol. And we could use DIFFERENT words to describe the same relationship we are trying to discuss -- one where the licenser and assumed 'licensee' actually come to an agreement. So please don't even point at the semantics of it that way --- its not the word 'presented' that we're even talking about here; we're talking about something bigger than one word. Get it?

And so what if they even have it printed there. I'm not required to read the contents of a coke before I can open it and use it. I'm not required to even speak english, or actually jump through odd hoops to get translated versions of senseless and unagreed legal babble.

Don't you get it? I buy a box with a CD in it and some agreement. I bought all the stuff in the box. But, well, I have this CD, and its mine. Great. Thanks to the store I have what I wanted... But then I look in the box and there's this 'license agreement'. Well I *bought* the agreement, too, but I don't want that and I wouldn't agree to it anyway... So i toss that. The garbage company gets that now and its not mine... Whatevs. Fortunately, the software, or xbox, or whatever I bought, is still mine. Great!

Don't you get it? I never had to agree before I PAID and OWNED the thing. And even if I did, it would only be an agreement under the duress of the thing I own being kept hostage by their stupid attempt at making me agree. ITS MINE. LET ME USE IT. I"M NOT ACTUALLLY HURTING YOU OR ANYONE ELSE. GO BE A TURD SOMEWHERE ELSE. (thats what I say to their lawyers).

   

For Great Justice!

[billstewart]

I certainly hope so. It's not actually real likely, since he'd have to find a lawyer willing to take the case on spec, but at least he can get the perps, er, prosecution embarrassed in public and maybe even fired.

The DMCA exists

[tepples]

It's the equivalent of the lock on the shipping crate: unlocking it's not needed to use the goods, it only restricts access to them.

And according to an act of the 105th Congress in October 1998, restricting access is enough.

Re:The DMCA exists

[Todd Knarr]

Except that same Congress included this in USC Title 17 section 1201(c)(1): "Other Rights, Etc., Not Affected. -- (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.". So if I have a right to do something under copyright law, the copyright holder can't change that merely by applying a restrictive measure and claiming section 1201 means I can't do what I've a right to do.

Re:The DMCA exists

[tepples]

Fair use and other related limitations are defenses to copyright infringement. As I understand Universal v. Reimerdes, defenses to copyright infringement are not necessarily defenses to providing a circumvention device because copyright infringement and providing a circumvention device are separate violations.

Reading a bill

[tepples]

The word presented does not need any redefinition, lol.

Then explain how the U.S. Congress considers a bill to have been read when the only thing "read" about it is its title. If reading a bill's title is reading the bill, then presenting the EULA's URL is presenting the EULA.

I never had to agree before I PAID and OWNED the thing.

You PAID and OWNED a coaster unless you click through the license and activate the software on the coaster online. Circumventing the activation requirement can get you sent to jail because Congress said so.

Sick

[Anonymous Coward]

I'm sick and tired of stories about stories that tell the tale of stories. Is this how it will be from now on ? seems to me the /. articles get here after a bunch of people already passed judgment on them.
For ex. on this piece of article and the prior one and the original story in ''wired'' there's some folk telling me how the judge did this and that and he was using harsh words and ... where are the words ? a link ? I want to decide for myself what's the news all about.
In my opinion this is /. ! one of us finds some material and we all discuss it and mod the thing until we reach some sort of understanding regarding the circumstances and validity of the matter at hand not the other way around.

In regards to backups

[NuKe_MoNgOoSe]

As i understand it having copies of your own purchased materials is legal, so regardless of where you get that copy from as long as you have a original to indicate that you did at one time in fact purchase the product. You can legally have a backup of that software, its distro that the government is really hungry for.. back on IRC piracy was rampant through the use of XDCC servers, for those who dont know this was like logging into a virtual flea market where everything was free. You are given access to the host computers libraries and able to download whatever they give access too. Torrents have made the practice a lot less practical but it was also more descreet.. The big issue with XDCC and distro is the host computers were often bot-infected machines hosting hundreds of gigs of files and the most popular content was often expensive software, movies games and music far before release.