First Console Modding Trial Dismissed

In the first case of its kind brought to trial, Matthew Crippen, a parking attendant by day, Xbox mod-chip installer by night, was arrested selling illegally modified Xbox 360s to federal prosecutors. The case was brought before U.S. District Judge Philip Gutierrez on December 1st, and Judge Gutierrez immediately began expressing outrage with the prosecution over concerns about the government’s case, stating, “I really don’t understand what we’re doing here.”

According to Wired, Judge Gutierrez “slammed the prosecution over everything from alleged unlawful behavior by government witnesses, to proposed jury instructions harmful to the defense.” After the judge expressed his concerns, prosecutors requested a recess, to determine their next course of action, whether it be to offer Crippen a deal, continue the case, or to dismiss it entirely. Gutierrez’s main concern was with the two government witnesses. One witness, Ken McGrail, a security employee at Microsoft, admitted that he, too, had modified Xboxes. The other witness, Entertainment Software Association investigator Tony Rosario, secretly video-recorded Crippen modifying an Xbox 360 in his home. The judge decided that the jury will learn of the witnesses’ illegal actions.

The judge’s final issue was with prosecutor Allen Chiu who instructed the jury that Crippen did not need to know what he was doing was illegal for it to still be a crime. However, as Judge Gutierrez pointed out, according to the 1998 DMCA, the defendant must have at least some prior knowledge that what his actions were illegal. Judge Gutierrez also backtracked from a previous ruling on the case as well, now allowing Crippen’s defense to argue for “fair use.” At the end of the judge’s tirade, Chiu apologized to the court and then it went into recess.

The following day, the prosecution decided to dismiss the trial, partially due to the fact that one of their witnesses, Tony Rosario, basically pergered himself, claiming that Crippen had not only modded his console, but had inserted a pirated video game. This new testimony, which had not been disclosed in any previous documents or depositions, conveniently met the judge’s qualification instituted only that morning that the government prove Crippen was willfully breaking the law.

Crippen was charged with two counts of violating the anti-circumvention provisions of the the Digital Millennium Copyright Act and faced up to 10 years in jail. The felony conviction would have prevented him from achieving his dream of being a teacher, and the grateful Crippen plans to go back to school and finish his degree.

[Source: Wired]