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'

[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'

[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'

[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'

[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'

[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'

[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'

[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'

[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: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: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: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.

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?

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: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.