Score one for the modders! Judge blasts prosecution in xbox mod trial

[This article is also published at]

Anyone who does any kind of gaming mods should be keeping up with this trial.Matthew Crippen had two jobs. His first was managing a hotel parking lot. The other was modding Xbox 360s to play burned discs. He was arrested for the latter job and charged with two counts of violating the ever powerful Digital Millennium Copyright Act. Each count can land him up to 5 years in prison. It seemed like the prosecution had an airtight case. They had Crippen on tape modding an xbox, as well as testimony from Microsoft Security employee Ken McGrail who analyzed two of the mods Crippen performed.

But as opening statements were being delivered Judge Philip Gutierrez lambasted the prosecution in a 30 minute tirade about the quality and stability of their argument.

“I really don’t understand what we’re doing here” – Judge Gutierrez

He pointed out several glaring holes in the prosecutions argument including that two of the largest points of evidence, the video and Mr. McGrail’s testimony were inherently flawed and in the case of the video illegal. Judge Gutierrez seemed to agree with the defenses’ argument that the video taping violated California privacy law, as well as voicing concern that Mr. McGrail admitted he committed the same crime (modding xboxes) in college.

“Maybe two of the four government witnesses committed crimes,” the judge said from the bench. “I think it is relevant and the jury is going to hear about it –- both crimes.”

The judge even indicated he was backtracking on a previous ruling made. Crippen was originally denied the chance to argue a “fair use” defense where he would argue that the modifications were legal since they allowed people to play backup copies of legal games as well as “homebrew” software.

“The only way to be able to play copied games is to circumvent the technology,” Gutierrez said. “How about backup games and the homebrewed?”

The most agitated part of the tirade came about because the federal prosecutor instructed the jury that the prosecution did not have to prove the Crippen violated the law on purpose (mens rea in legalese). This flies in the face of the governments own manual regarding Digital Millennium Copyright violations (it states that the violator has to have some knowledge that they are breaking the law).

“The first prosecution 12 years later, and you’re suggesting a mens rea that is akin to exactly contrary to the IP manual: that ignorance of the law is no excuse?”

“You didn’t even propose a middle ground,” the judge continued. “What’s getting me more riled, it seems to me I cannot communicate the severity to you of what’s going on here.”

The end of the tirade, which drew a significant crowd, ended with an apology from the prosecutor and a recess of the trial.

Personally if the modification does not harm anyone else physically emotionally or mentally, and does not alter the gaming experience of others (illegal or false online scores) I don’t see what the problem is. Crippen does not force people to use illegal copied games, any more than the car salesman does when he sells a car that’s used in a bank robbery. If the purchaser uses it in an illegal way, they should be held accountable not the person who made it a possibility (and yes I’m talking about games, drugs and guns are a different story). What do you think?




All charges have been dismissed


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