Xbox Modder Trial: Judge Berates Prosecution, Allows 'Fair Use' Defense Again *Update: No Deal, Trial Begins*

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From wired.com:

Opening statements in the first-of-its kind Xbox 360 criminal hacking trial were delayed here Wednesday after U.S. District Judge Philip Gutierrez unleashed a 30-minute tirade at prosecutors in open court, saying he had �serious concerns about the government�s case.�

 

Among the judge�s host of complaints against the government was his alarm that prosecutors would put on two witnesses who may have broken the law.

 

One is Entertainment Software Association investigator Tony Rosario, who secretly video-recorded defendant Matthew Crippen allegedly performing the Xbox mod in Crippen�s Los Angeles suburban house. The defense argues that making the recording violates California privacy law. The other witness is Microsoft security employee Ken McGrail, who analyzed the two consoles Crippen allegedly altered. McGrail admitted that he himself had modded 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 government had fought to keep the witness conduct a secret from the jury.

 

The judge on Wednesday even backtracked on an earlier ruling that had prohibited Crippen, 28, from raising a �fair use� defense at trial.

While the judge ruled last week that such a defense was not permitted by the DMCA, he seemingly changed course during his speech.

 

Court is recessed until 1:30 p.m.

 

*Update* From wired.com

The government decided to forge ahead in the landmark trial after U.S. District Judge Philip Gutierrez gave the government a little breathing room on the standard of proof required to convict defendant Matthew Crippen on two counts of breaching the Digital Millennium Copyright Act.

 

Toward the government�s end of proving that Crippen knew what he was doing was illegal, prosecutors put on the stand an Entertainment Software Association private investigator who told jurors that he paid Crippen $60 to modify a console at Crippen�s residence in Southern California in 2008.

�He produced a pirated video game. He placed it into the ROM he had just worked on. He initiated the game and it played. He showed me that the actual game would play,� Rosario testified.

But on cross examination, Rosario conceded he did not write that fact on any of his notes or reports. Nor did it appear on a secret video he took of the encounter.

 

The defense told jurors in opening remarks that they would show that Crippen didn�t even breach the DMCA to begin with.

�That work on those two consoles did not willfully circumvent a technology measure that effectively controls access to a copyrighted work,� defense co-counsel Koren Bell told jurors.

Crippen�s lawyers intend to call Andrew �Bunnie� Huang in a bid to make that point.

�Basically, what he did was insufficient on his own to violate anything,� Huang said in a recent telephone interview.

 

Full Story: wired.com[1] | wired.com[2]

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