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The Courts XBox (Games) Games

Xbox Modding Trial Dismissed 179

Posted by Soulskill from the game-over dept.
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."
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Xbox Modding Trial Dismissed More

Xbox Modding Trial Dismissed

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  • 'Never forwarded that information' (Score:5, Insightful)

    by unity100 ( 970058 ) on Friday December 03, 2010 @01:36AM (#34427966) Homepage Journal
    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.

    • 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.

      • 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' (Score:4, Informative)

          by zach_the_lizard ( 1317619 ) on Friday December 03, 2010 @02:54AM (#34428254)
          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: (Score:2, Insightful)

            by LordKronos ( 470910 )

            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' (Score:4, Informative)

              by zeroshade ( 1801584 ) on Friday December 03, 2010 @10:54AM (#34430722)

              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"

              • 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.wikip [wikipedia.org]

                • 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 [thefreedictionary.com]

                  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 [openjurist.org]

                  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' (Score:5, Insightful)

          by demonlapin ( 527802 ) on Friday December 03, 2010 @07:34AM (#34429258) Homepage Journal
          "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' (Score:5, Interesting)

          by commodore64_love ( 1445365 ) on Friday December 03, 2010 @08:04AM (#34429388) Journal

          >>>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?"

          • 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: (Score:2)

        by icebike ( 68054 )

        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: (Score:2)

          by Dunbal ( 464142 ) *

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

          • 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.

          • 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.

      • Re: (Score:2, Funny)

        by 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' (Score:5, Informative)

          by zeroshade ( 1801584 ) on Friday December 03, 2010 @10:59AM (#34430780)

          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' (Score:5, Insightful)

      by justin12345 ( 846440 ) on Friday December 03, 2010 @01:54AM (#34428056)
      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.

      • 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

        • 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.

        • Citation needed.

        • Re:'Never forwarded that information' (Score:5, Informative)

          by Svartalf ( 2997 ) on Friday December 03, 2010 @09:40AM (#34429882) Homepage

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

          US Code 17, Chapter 1, 117a [cornell.edu] 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.

      • 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: (Score:2)

      by dmomo ( 256005 )

      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,

      • 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 th

        • Re:'Never forwarded that information' (Score:4, Insightful)

          by dadioflex ( 854298 ) on Friday December 03, 2010 @03:16AM (#34428348)
          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.
          • Comment removed based on user account deletion
            • 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.

          • >>>>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.

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

            Because that's what prosecutors do.

      • Re: (Score:2)

        by sjames ( 1099 )

        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: (Score:2)

        by Rakishi ( 759894 )

        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?

  • 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. (Score:5, Insightful)

      by RobertM1968 ( 951074 ) on Friday December 03, 2010 @01:57AM (#34428074) Homepage Journal

      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.

      • 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.

        • 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: (Score:3, Informative)

          by NNKK ( 218503 )

          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).

          • 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.

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

      • Things are often different in a criminal trial (Score:5, Informative)

        by Sycraft-fu ( 314770 ) on Friday December 03, 2010 @04:04AM (#34428552)

        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.

        • 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

  • 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 (Score:5, Interesting)

      by DreamMaster ( 175517 ) on Friday December 03, 2010 @01:56AM (#34428070) Homepage

      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: (Score:2)

      by Jupix ( 916634 )

      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

  • ... 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 ... (Score:5, Insightful)

      by atomicstrawberry ( 955148 ) on Friday December 03, 2010 @02:10AM (#34428118)

      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.

      • 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.

        • 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.

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

      • Re: (Score:2)

        by CODiNE ( 27417 )

        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?

      • 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.

  • ... 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 do

    • 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

      • Re: (Score:3)

        by cgenman ( 325138 )

        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 origina

        • 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... (Score:5, Insightful)

          by Todd Knarr ( 15451 ) on Friday December 03, 2010 @04:51AM (#34428710) Homepage

          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) [cornell.edu] 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.

          • 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 [example.com]." What does the UCC say that rules out notices on product packages that include the EULA by reference?

        • Re: (Score:2)

          by Svartalf ( 2997 )

          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

    • 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 learne

  • 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.

  • 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.

    • 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 dept

    • 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

    • 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 (Score:5, Insightful)

    by SashaMan ( 263632 ) on Friday December 03, 2010 @03:04AM (#34428288)

    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?

    • 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 multi

      • Re: (Score:2)

        by Tacvek ( 948259 )

        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

        • 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

  • 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 i
  • 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 (Score:4, Insightful)

      by Svartalf ( 2997 ) on Friday December 03, 2010 @10:17AM (#34430296) Homepage

      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.

  • 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

  • "Undercover agent"? Puh-leeeese. (Score:3)

    by mattdm ( 1931 ) on Friday December 03, 2010 @10:22AM (#34430352) Homepage

    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 [rosarioinv...ations.com] under the label of "private investigator".

  • 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.

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