Terrified feds try to bar Bunnie Huang from testifying at Xbox jailbreaking trial

Bunnie "Chumby" Huang, whose Hacking the Xbox is a reverse-engineer's bible, has been asked to testify at the trial of Anaheim's Matthew Crippen, who faces three years in prison for jailbreaking Xbox 360s (that is, modding them so that they could run software that Microsoft hadn't authorized). But federal prosecutors have asked the judge to prevent Bunnie from testifying.

The 35-year-old Huang argues that mod-chipping is not a violation of the Digital Millennium Copyright Act, which makes it unlawful to circumvent technology designed to prevent copyright infringement. He said he hopes to prove that point to jurors via a step-by-step tutorial.

"Basically, what he did was insufficient on his own to violate anything," Huang said in a recent telephone interview from Singapore, where he serves as vice president of hardware and general manager for Chumby's operations in Asia.

Additionally, Huang said, the DMCA should be interpreted to allow for "fair use" exemptions, so chipping a console for legitimate purposes would be permitted, even if it is found to be a circumvention.

The U.S. Copyright Office, he noted, just granted an exception to the DMCA to allow the jailbreaking of cellphones, and the iPhone in particular, allowing the iPhone to run third-party apps not approved by Apple. Modding a game console should be treated the same way, he said.

Prosecutors Seek to Block Xbox Hacking Pioneer From Mod-Chip Trial

• [KeithIrwin]

  Having read the text of 17 USC 1201 and knowing how copy protection on the X-Box works, I have to agree completely with Huang. The most relevant section is this:

  (B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

  Here’s what the X-Box does: when you insert a disc, it verifies that it’s a DVD-ROM rather than DVD-R,-RW,+R, or +RW and then it checks that the game has been signed by Microsoft. Then it runs the game. What’s happening in this process is that the console is checking to make sure that the game should be allowed access to the console, not verifying that the console can access the game. The game itself is completely unencrypted and if you were to write an emulator to play X-Box games, you would not need any keys or any descrambling process because the games are not encrypted or scrambled in any way. As such, the verification process that the games go through does not qualify as “effectively controlling access to a work” since it does not require the application of information or any process or treatment to gain access to the work. The work is already accessible. The process only controls whether or not the console will let you play that work on it. As such, it’s protecting the console from unauthorized games, not the games from copying. Hunag undoubtedly understands this and will certainly testify to that extent.

  If you look at newer consoles such as the 360 or PS3, they do encrypt their games and you could legitimately make an argument that some forms of modding (although not most) are DMCA violations. Thus far, though, they’ve been treating all console modding/hacking as if it’s a DMCA violation without bothering to see whether or not the law actually applies. When you read it, it’s obvious that it’s completely irrelevant to most console modding and definitely to modding consoles such as the PS, PS2, X-Box, DS, and Wii.

  • [dragonfrog]

    Here’s my take on the wording you supplied, Keith:

    The process you describe does “effectively control access to a work”, in that it controls the user’s access to the game they’ve bought – they can only get access to it (i.e. play it – they can look at hex dumps of the game all day long) if the verification step is passed.

    You’re right, you could build an XBox emulator, assuming you have powerful enough hardware to run the emulation code and still keep up with enough performance to run the game, that didn’t do the verification. But that wouldn’t be bypassing the controls, simply building a device that doesn’t bother to implement them. Modding the XBox, on the other hand, it bypassing the controls, by changing a device that does to apply them, into a device that doesn’t.

    As an analogy – Adobe Acrobat Reader comes with a bunch of silly DRM features whereby a PDF file can be flagged with restrictions like “do not print me”. Acrobat will respect those, and not let you print an otherwise perfectly printable PDF file.

    You could get around that in two ways
    - disassemble Adobe’s code and alter the DRM functions so that they ignore the “do not print” flag.
    - use a different PDF reader that isn’t derived from Adobe’s code, and that doesn’t bother to implement the DRM nonsense (e.g. XPDF)

    The first method could be seen as bypassing the crippling of Adobe’s product, whereas the second would be simply choosing to use a product that isn’t crippled in the first place.

    • [KeithIrwin]

      I should amend my comments above to note that I had assumed that the trial was about the original X-Box, not the 360 because the post here only said X-Box. It’s actually about modding the X-Box 360. The 360 does two things differently. The first is that it signs each block of code rather than just the disc as a whole. This makes it a lot harder to run unauthorized code. The second thing it does is that it decrypts the disc, as all X-Box 360 discs are encrypted. But if the article is correct, the modder isn’t being accused of bypassing the encryption part, just the code-signing parts. And it sounds like this is what Huang is planning to argue: that the code signing parts are insufficient to qualify for the legal definition of a effective protection mechanism (which I agree with).

      To respond to dragonfrog:
      It’s possible that the court will read the language that way, but it seems like a stretch to me. You’re not necessarily limited to looking at hex dumps without an emulator. Much of the contents of the modern video game disc are images and movies, which are viewable with appropriate tools. Many of the movies are mpeg4 or other similar standards, so it’s not all the difficult to watch them. Also the point of the emulator isn’t that it’s possible to avoid the mechanism, it’s that the mechanism is not something which is needed to access the game. And, well, it isn’t. X-Box emulators don’t implement the mechanism, and yet they have no problem accessing the disc. As such, the application of information or process or treatment isn’t necessary to access the copyrighted work. So, it doesn’t seem that the mechanism effectively controls access to the work in either a normal reading of the phrase or a legalistic one. What it does control access to is the gaming console.

      The pdf analogy is a good analogy, but it’s likewise not clear that the DRM-bits in a pdf would constitute a mechanism which effectively protects a copyrighted work for precisely the reason that you mention: the use of the mechanism is not necessary to access the work. Now, modifying Adobe’s program, since the program itself is a copyrighted work, could potentially be ruled a copyright violation, but I see no reason to believe that it would be a DMCA violation.

      The issue gets a touch more complex once you introduce encryption, but if the mod-chip does not break the encryption, then the mechanisms it is defeating (media check or signature check) is still not sufficient to be a mechanism which effectively controls access to a copyrighted work. It is, however, possible that they could try to argue that the decryption and signature check parts are really one mechanism. This would be disingenuous, but the court might buy it since there’s no legal test for whether something is one mechanism or two that I’m aware of.

• [Anonymous]

  When are we gonna see the feds go after government corruption?

  When are we gonna see the feds go after bank corruption?

  When are we gonna see the feds go after big tax cheats?

  If all they’re going to do is arrest teens for copying music & games then they are totally worthless and should be disbanded.

  Big media should pay for their own civil investigations and prosecutions. Making copies is not a crime against the state which means it does not merit state resources for investigation or prosecution. Let Microsoft hire their own investigators and pay for their own lawyers and by the way – how come their SEC filing and their IRS filing doesn’t match? Hmmm? I’m serious, they’re public record, go look them up!

• [netsharc]

  Hmm, I think you’re missing the punchline in your summary? I assume if he demonstrates/describes how to do it, that demonstration becomes court records and will be available to the public… pwnage!

  I wonder what a justice system would do if it found itself violating the DMCA…

  Of course since when do the people with power respect the rule of the law anyway, c.f. Bush/Obama’s invocation of “state secrets”/”national security threat” in the courts.

• [Anonymous]

  I hope someone remembers to talk about homebrew/hacking as a seed for innovation and entrepreneurship. Where would Apple be if it hadnt been for The Waz hanging out in his garage tinkering.

  On the flip side. As a small business owner and software engineer, companies NEED to have a right to protect their products otherwise there is no incentive to make anything. If evidence indicates that this guys aim was primarily at piracy, then there should be ramifications. Maybe not three years in jail, but seriously…business ethics should be considered here.

• [Anonymous]

  Stop me if I am confused.

  But didn’t the SCOTUS rule earlier this year that this was legal?

  I seem to recall there being a huge hoopla that modification of software and hardware for personal use was 100% legal.

  Why is this even being tried if it’s not even illegal?

• [Anonymous]

  Where does the ‘terrified’ come from? I read the piece over at Threat Level, and your excerpt here, and nothing indicated that this was anything more than routine legal maneuvering.

• [chris]

  We don’t own things we buy. We are all corporate serfs.

  However, within reason laws should be there to protect the general welfare of the population, and make violating the rights of others illegal. But, when you can buy something and can’t do whatever it is you want with it legally without violating others rights then that law is overstepping its bounds.

  One would argue by circumventing various checks then one could use that for duplicating copyrighted works, and pirating them. Thus infringing on the rights of the copyright holders.
  I would say, then prosecute for that, and not meta-crime, which essentially they are doing.

  –chris

  • [Anonymous]

    We don’t own things we buy. We are all corporate serfs.

    You may have chosen that life, but you are sadly mistaken if you think everyone has.

    Visit the Farmer’s Market some time. Or a pawn shop.

  • [Gregory Bloom]

    We own some of the things we buy, but others – not entirely.

    Game consoles are sold at a loss by the manufacturers, who make up this loss through licencing revenues from allowing game publishers access to their captive console market.

    Since the cost of the game console is split between the consumer and the manufacturer, both may be said to “own” that hardware. Is it reasonable for one participant in this partnership to prevent the other from recouping his investment?

• [ADavies]

  WTF?! Three years in prison? That’s insane.

  I’m visiting China at the moment, and was telling some of my local colleagues here about what’s been happening in the USA. They were dumbfounded. They had a hard time believing that this kind of stuff goes on the the “land of the free”.

  • [Anonymous]

    I live here myself and I have no problem at all believing this kind of thing happens. It just so sad that it does in a so called democracy.

  • [oasisob1]

    Of course they were dumbfounded. In China, it’s illegal NOT to circumvent technologies, and it is REQUIRED to copy both hardware and software, for rebranding and sale.

• [Jesse Weinstein]

  Even though the case has been going on for more than a year now, till now, no-one has added any of the case documents to RECAP, the public-accessible PACER archive. I’ve started doing so, but it’d be nice to have some help. Go to: http://www.archive.org/details/gov.uscourts.cacd.449778 to see what’s been downloaded so far, and help get the rest.

• [sic transit gloria C.F.A.]

  Gee, I missed the part in the story about the prosecutors being terrified. I guess it’s just implied by the fact that their livelihoods depend on the outcome of this one case. Or that their corporate masters will throw them into their dungeons if they fail.

• [Zac]

  Welcome to the new corporate oligarchy folks. Just play nice and use your shiny new toys exactly as intended and your new overlords might let you keep both hands.

• [Gregory Goldmacher]

  I remember when distributing the code for DeCSS was supposedly a crime. All my friends had the code (just a paragraph long) printed on t-shirts.

• [VanillaWalker]

  IIRC, he didn’t mod the Xboxes to run unauthorized code. He would flash custom firmware to the DVD-ROM allowing only MS signed code to be run, but that code to be run from DVD-R copies. So realistically the modification was solely used for running copied games. Although three years in prison for copyright violation, or aiding someone in it, is absurd. FIne him the profits that he made off of the mods and move on.

• [Anonymous]

  Sooo the US Airforce bought a few hundred PS3′s and modded them to run Linux…. Is that illegal? Are we just going to ignore that? Or is it okay for a government to mod something, and wrong for an individual? This is still America right?

  • [Anonymous]

    Actually the PS3 was designed to run Linux, having an option right in the menu for “other OS.” It was a fairly recent “voluntary update” that took out Linux compatibility. Of course not downloading the update meant no online play, no further updating, and the inability to play newer games/bluray movies. But yeah, totally voluntary. There was a court case against Sony for that since it removed an advertised feature of the system but I’m not sure what happened in with that.

    Regardless, the government having “rights” that are denied the public are nothing new so it wouldn’t come as a surprise. People have no true rights, which the US has proven whenever it suits the government’s needs. An oldie but stunning example being internment camps for Japanese American citizens during WW2. The US government has also shown repeatedly that it caters towards siding with big business and turning a blind eye whenever it can, especially when our government leaders take bribes *ahem* contributions from said businesses. No surprise, copyright organizations like the RIAA and MPAA give sizeable “contributions” to numerous government officials, hence otherwise private, and often wrongful, lawsuits such as this being investigated and fought with government resources.