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Xbox Modding Trial Dismissed 179

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

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  • 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.
  • 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.
  • 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.

  • 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.

  • 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?

  • 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.
  • 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) [] 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.

  • 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.
  • by LordKronos ( 470910 ) on Friday December 03, 2010 @07:43AM (#34429298)

    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.

  • by Moryath ( 553296 ) on Friday December 03, 2010 @08:42AM (#34429530)

    Calling it "Piracy" is the wrong word. We should call it "Jesusing."

    Think about it. Jesus took fish and bread, copied them, and gave the copies out to the hungry poor for free. I bet the fishermen and bakers weren't too happy about it either.

  • by Moryath ( 553296 ) on Friday December 03, 2010 @08:47AM (#34429552)

    One of the ones getting me is DLC expiration.

    How am I supposed to get the Halo 2 map packs from the old Xbox DLC service if I have to buy a new Xbox due to hard drive failure or other death, if not for "pirates" who preserved them? How about all the other DLC for original Xbox titles?

    What happens a few years down the road when the DLC for the Fable series, or Halo 3, or for that matter just all the Xbox Live Arcade titles I've bought is unavailable because Microsoft shuts down the servers in favor of the Xbox 3rd-generation console Live service?

    The "DMCA" says that it's illegal to "circumvent" the "anti-piracy" measures. But without that circumvention, I am unable to safeguard my investment into MY PURCHASED PROPERTY that came in a download form.

    Sure, I still have the "original game disc" - minus any patches needed to fix the game-breaking bugs. Minus any map packs and DLC items that make up what most people would consider the complete game.

    What to do? Seems like "Piracy" is the only answer, because the answer from the game companies is "fuck you, we already got your money, go away you little peon."

  • 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.

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