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The Courts XBox (Games) Games

Judge Berates Prosecutors In Xbox Modding Trial 285

mrbongo writes with this excerpt from Wired: "Opening statements in the first-of-its-kind Xbox 360 criminal hacking trial were delayed here Wednesday after a federal judge unleashed a 30-minute tirade at prosecutors in open court, saying he had 'serious concerns about the government's case.' ... Gutierrez slammed the prosecution over everything from alleged unlawful behavior by government witnesses, to proposed jury instructions harmful to the defense. When the verbal assault finally subsided, federal prosecutors asked for a recess to determine whether they would offer the defendant a deal, dismiss or move forward with the case that was slated to become the first jury trial of its type. A jury was seated Tuesday."
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Judge Berates Prosecutors In Xbox Modding Trial

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  • And tomorrow... (Score:5, Insightful)

    by ShakaUVM ( 157947 ) on Thursday December 02, 2010 @07:40AM (#34415468) Homepage Journal

    And tomorrow the feds drop the case since they don't want to set a precedent, and try again next month with a friendlier judge.

    • Re: (Score:2, Informative)

      by Anonymous Coward

      you know... precedent is only set by cases they (judges) choose to publish. They can rule anyway they want and then not let the case be published in the proper way which then prevents it from ever being referenced in future trials.

      Most people are also unaware that judges regularly edit the transcripts after the fact. (The reason they don't let you tape record proceedings without permission.)

      • Re:And tomorrow... (Score:4, Informative)

        by Foobar of Borg ( 690622 ) on Thursday December 02, 2010 @08:35AM (#34415720)

        you know... precedent is only set by cases they (judges) choose to publish. They can rule anyway they want and then not let the case be published in the proper way which then prevents it from ever being referenced in future trials.

        Most people are also unaware that judges regularly edit the transcripts after the fact. (The reason they don't let you tape record proceedings without permission.)

        Actually, precedent is set at the appellate level. The trial court level does not set precedent. And, even then, the precedent is only binding on lower courts. Although, other appellate courts at the same level sometimes use those decisions as "persuasive authority" in their own decisions, even though they are not strictly bound by them.

        • Re:And tomorrow... (Score:5, Informative)

          by cpt kangarooski ( 3773 ) on Thursday December 02, 2010 @09:45AM (#34416220) Homepage


          First, thanks to the ease of putting and accessing cases on the computer, some federal courts now accept the citing of 'unpublished' opinions.

          Second, all previously-decided cases establish precedents, but only some are binding precedents, which a court must follow, while most are merely persuasive, which a court may or may not follow as it sees fit. It's perfectly acceptable to cite the opinions of trial courts, if that's the best thing you've got.

    • I don't think they can. If the trial has begun, jeopardy has attached. Dropping and re-filing would constitute double jeopardy.

    • Basically that's absolutely how it will go down. At some point during the trial the feds will drop the case since the judge is extremely hostile.

      The only change is that they can't pull this guy into court again, but that's not to say tomorrow they arrest some other guy and try again with a friendlier judge.

    • What's interesting to me, aside from the actual case itself, is that a judge is deciding not to let prosecutors get their own way which is somewhat rare.
  • Danger Will Robinson (Score:5, Interesting)

    by maroberts ( 15852 ) on Thursday December 02, 2010 @08:01AM (#34415546) Homepage Journal

    Often the side that gets the most serious sledging is the one that the judge thinks is likely to win, because he wants to make sure that he has addressed any points that could be appealed.

  • by XxtraLarGe ( 551297 ) on Thursday December 02, 2010 @08:20AM (#34415638) Journal
    I hope it does get heard, this would be a great time for jury nullification [wikipedia.org]. Hopefully, the Fully Informed Jury Association [fija.org] will be around to educate jurors.
    • by Restil ( 31903 )

      Actually, this would be the proper time for the defense to prove that he did not in fact break the law. The jury has one purpose. They are to be educated on the law that the prosecution says the defendant broke, and then decide if he actually broke that law. They're not supposed to decide if the law is "fair" or not. That's what legislatures and supreme courts do. Not juries. And while we all love to think that by some divine coincidence a jury will be selected that all agree the laws were broken, but

      • by Sloppy ( 14984 ) on Thursday December 02, 2010 @10:20AM (#34416598) Homepage Journal

        Actually, this would be the proper time for the defense to prove that he did not in fact break the law

        This is one time that I agree. If you actually read the DMCA, there isn't any part of it that applies to the situation. Modifying a player that is already capable, on its own, of accessing the work protected by the tech measure, simply isn't an act of making/selling a device that circumvents tech measures that control access to the work. There just doesn't seem to be any part of DMCA as written, that prohibits this sort of thing. All the jury has to do is apply the law that Congress wrote, rather than bad precedents, and it'll be an innocent verdict.

        If the industry buys a new law to amend DMCA to prohibit this sort of thing, then I'll start to disagree with you, and say the people should uphold fairness. You say that thinking about fairness is what legislatures and supreme courts do, and that is a noble thing for us to strive to get our governments to do. Yes, it is our responsibility to some day elect legislatures that think about fairness, and if the law isn't fair, then it's our fault.. But if a person does not believe the public has successfully done that yet, then from their point of view, thinking about fairness has not yet happened at any point in the process, so when it's their turn to be on a jury, that is last chance for fairness to play any role in the system. If Congress didn't worry about fairness, then jurors are the only place fairness can be considered before an innocent person is harmed by government force for no good reason. If you're a juror and you don't think the lawmakers have tried to be fair, then you must nullify.

        And let's remember, this is DMCA we're talking about here. Go ahead and just try to make a case that congress and the courts even paid lip service to fairness. It's one thing for a racist to disagree with a legislature that insists a black man be allowed to vote. He might wish the legislature hadn't done that and disagree that they should have. But deep down he knows that at least they did that due to public pressure and a shitload of people demanding to be treated like people. Fairness is the whole point of civil rights laws, and a desire to not let fairness go too far, is the "reason" someone would nullify such laws. You can't compare this type of situation to how DMCA got passed. The section 1201 prohibitions are pure bullshit.

        Let me try another tack: if nullification has been used for injustice, does that mean it shouldn't be used for justice? A juror can't blow off his responsibility just because some people in the past have fucked it up.

      • by Hatta ( 162192 )

        The jury has one purpose.

        This is a myth. The founding fathers were quite clear that the jury has the power to judge both the facts and the law.

    • When I get called for jury duty, I pretend I've never heard of nullification. Then, if I get stuck with a drug possession case, I strike a blow against Prohibition by persuading the other jurors to acquit.
  • Prosecuting people for modding a video game console seems like a total waste of time, energy and resources.

    Shouldn't we be focusing our attention on the Wall Street crooks who stole money through the home mortgage scandals?
  • by Anonymous Coward

    I didn't see it shared in the comments, but regardless of the tirade, the prosecution has decided to move forward with the case:

  • by Anonymous Coward on Thursday December 02, 2010 @08:42AM (#34415750)

    Having been prosectued under the NET act and DMCA the judge in our cases expressed conserns as well. While the goverment had a better case, the judge felt this was closer to a civil case then a criminal a case, and went on to explain the futher education is required by the goverment of what this legislation means for the average person. In the end I plead guilty, as we were one of the first cases to go and had no money for a real attorney, plus probation is much better then 3-5 years in jail.

    I think the goverment should prosecute in severe cases where monterary gain or where there is conterfit good involved. But for modders of an Xbox, that is like prosecuting a mechnanic for installing upgrades to your car. At best a Civil case, at worst a waste of federal tax payers dollars and judicial resources

  • by voss ( 52565 ) on Thursday December 02, 2010 @09:51AM (#34416290)

    Im surprised the defense hasnt considered a "substantial non-infringing uses" defense. For instance playing backup disks and homebrew. The well known issue of scratched disks, and the desire for interoperability with non-microsoft approved software. This is separate from "fair use" in that the illegality of the mod chip itself is challenged.

  • Fascism (Score:4, Insightful)

    by mlwmohawk ( 801821 ) on Thursday December 02, 2010 @10:43AM (#34416902)

    Why are our tax dollars paying our lawyer to press criminal charges against one of our citizens on the behalf if a multi-billion dollar multi-national corporation for altering legally purchased private property?

    I remember when AT&T was forced, gasp, to use non AT&T phones on their service because the government protected its citizens. It seems we've come reversed ourselves.

    • Hey, those multi-billion dollar multi-national corporations bought their laws fair and square. And look, the State is honest enough to stay bought. It's all very honorable.
  • Does the new fcc phone hacking law have any bearing on this case?

    As you are breaking the part of the DMCA to use the DMCA Exemption to have your phone to run any network / run software out side of the locked down app store?

    Also what the xbox mods let you do this run software out side of the game / MS store and also let you use your own network and not be locked into live.

The bogosity meter just pegged.