First Trial Over Video Game Console Mods Begins
The trial is bound to be controversial for several reasons. First, the primary piece of evidence in the case against Crippen is a video of the defendant performing the mod for an undercover agent. The defense is disputing the use of the video on the grounds that it was made in violation of California state privacy laws, and because investigators have edited the recording down to two minutes. The full video is unavailable to both the defense and the jury. (The investigator that recorded the meeting claims to have lost the original material to a computer crash.)
More importantly, though, the outcome of the trial will have a significant impact on the rights of consumers to alter the products they've purchased. Judges have already ruled that Crippen cannot mount a defense based on fair use. His lawyer, Callie Glanton Steele, maintains that the modding procedure is not too different from jailbreaking an iPhone, though -- something that was explicitly approved in a recent ruling by the U.S. Copyright Office. While the hack does allow for the potential to run pirated games, Crippen was not selling pirated material. He was offering services to modify a privately owned piece of consumer electronics. The modification offers benefits beyond simply pirating games, such as playing user-created titles, backing-up games purchased legally and playing titles purchased from overseas.
The charges of violating the anti-circumvention provisions of the DMCA carry a maximum sentence of three years in jail.