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Berating Judge Forces Recess in Xbox-Modder Trial, Prosecution Forges Ahead

by Warren Riddle on December 2, 2010 at 03:40 PM

xbox 360The trial of alleged Xbox-modder Matthew Crippen began this week, and a stern lecture from the bench has already forced a courtroom apology -- from the prosecution. The unprecedented trial hinges on the Digital Millennium Copyright Act (DMCA), but discrepancies in the Act -- combined with problematic behavior from the prosecution -- reportedly left U.S. District Judge Philip Gutierrez with "serious concerns about the government's case."

The case's issues relate to the DMCA's ambiguous approach to "fair use," and whether or not Crippen is actually culpable if he wasn't "willfully" breaking the law. Gutierrez also reportedly questioned the "alleged unlawful behavior" of two key government witnesses. One, Entertainment Software Association investigator Tony Rosario, apparently violated California privacy laws when he surreptitiously recorded Crippen's alleged actions. Ken McGrail, the Microsoft security employee who analyzed and identified Crippen's Xbox modifications, reportedly admitted that he had actually performed similar Xbox mods when he was a college student.

The assorted issues compelled Gutierrez to issue his 30-minute scolding. The prosecution subsequently requested a recess in order to determine a course of action (either broker a deal with the defense, dismiss the case or continue with the prosecution). They settled on moving forward, and must now -- after a decision from Gutierrez -- prove that Crippen knowingly performed criminal actions. Crippen maintains that his modifications, which enable the use of "homebrew" software and backup copies of games, are completely legal.

The trial will certainly be intriguing to follow, particularly the government's case. Unfortunately for those prosecuting attorneys, there won't be any cheat codes or walkthroughs to guide them through this unique proceeding.

Well, the prosecution's attempts to continue the trial didn't last very long. According to Wired, the government called only one witness, Rosario, who apparently compromised the government's case when he intimated previously undisclosed information. The disclosure, that Crippen allegedly inserted a pirated game in a modified Xbox, prompted an objection from the defense. Today -- before the jury even entered the courtroom -- the prosecution made a decision, "based on fairness and justice," to "dismiss the indictment." Asked about his future, a stunned Crippen stated he's "going back to school." But, if he wants to avoid the wrath of the Justice Department, he probably shouldn't go back to his old ways while he's there.

Tags: Digital Millennium Copyright Act, DigitalMillenniumCopyrightAct, DMCA, gaming, matthew crippen, MatthewCrippen, modding, mods, piracy, privacy, top, Xbox mod, Xbox-360, XboxMod

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