Judge in Xbox hacker trial unloads both barrels on the prosecution

U.S. District Judge Philip Gutierrez opened the trial of alleged Xbox hacker Matthew Crippen with a bang yesterday, berating the prosecution for calling government witnesses who admitted to committing crimes but asking these crimes to be kept secret from the jury; for their theories relating to fair use, and for a "laundry list" of other complaints. The public dressing down went on so long that it actually drew a crowd, and it ended with prosecutor Allen Chiu saying, "I apologize to the court," whereupon the trial was suspended.
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.

Xbox-Modding Judge Berates Prosecution, Puts Trial on Hold (via /.)

(Image: FP GoW, a Creative Commons Attribution (2.0) image from novasonicmods's photostream)


  1. Early morning Editor suggests that you mod out that extra paragraph… also, I wonder how many times this could happen in other cases, and wish all judges had this one’s good sense?

  2. The above blockquote is a doubled “cut and paste” ~ the first and second paragraphs are repeated in paragraphs 3 and four.

  3. Wow! A judge who bucks the trend of caving to corporate pressure?!

    Too bad he’s going to be looking for a new job after the next election….

    1. Too bad he’s going to be looking for a new job after the next election

      If by that you mean he will lose his next election, no, because federal judges are appointed, not elected. If by that you mean Obama will be a one-term president and the next president will be a Republican corporate stooge who will fire him, also no. U.S. District Court judges can only be impeached by the House and Senate, a rare occurrence. He was also nominated by George W. Bush so it would harder to cast him as a liberal activist judge.

      1. I believe urbanhick was making reference to the 3 Iowa court justices who were booted out by public vote (the 3 who had voted for same-sex marriage). Perhaps I’m in error, but I don’t believe they were elected either.

        1. The judges who were recalled were state supreme court justices, not federal judges. In California, these judges are appointed for 12-year terms, but then given an up/down approval by voters in the next general election. These judges don’t campaign and voters don’t do their homework (examining previous court cases and/law review writings, previous job experiences, political affiliations and/or governor who made actual appointment, and CBA ratings [extremely qualified, qualified, unqualified, etc.]), thus generally casting a “yes” vote. In my voting lifetime, I only can remember one time in which several justices failed to achieve a “yes” referendum by a majority of California voters, which would have resulted in another 12-year term for several justices from the Rose Bird Court. In this case, the controversial issue at play was the death penalty. My assumption is that Iowa has a similar system, although the length of term each judge serves could be different. Furthermore, I must confess that I wasn’t paying particular attention to Iowa’s state elections so I’m unsure if the justices in question were actually recalled or just unaffirmed. [I suspect the former.]

  4. Wait I’m confused, If I buy something it’s mine. would I get in trouble for modding my XBOX with say a sledge hammer? how is it different? How can I own something and then have charges pressed against me for changing something I don’t like about it.

    1. “How can I own something and then have charges pressed against me for changing something I don’t like about it.”

      Because in American the legal system exists to fuck you, not help you.

      1. Ok let me preface: modding Xboxes should not be a crime.

        “How can I own something and then have charges pressed against me for changing something I don’t like about it.”

        For all sorts of reasons. You can’t take a gun you own and mod it to be fully automatic. You can’t “mod” your household chemicals into drugs.

        1. Both of the examples you cite are illegal because the result of the modification is an illegal object (fully automatic weapon, drugs) or more broadly, they are a danger to the public (drugs debatable).

          A modded Xbox poses no more a threat to bodily harm than does a regular one. I am not clear on the laws, is possession of a modded Xbox a crime?

          1. I expect the prosecution would try to argue that a modded Xbox poses a greater threat of copyright infringement and serves no legal purpose. (IE: fair use)

            I wonder if it would even be logical to call someone an expert on Xbox modding if they had never modded an Xbox. The fact that Microsoft hired Mr. McGrail instead of prosecuting him is telling that they don’t think it’s exactly the crime of the century.

          2. >>I am not clear on the laws, is possession of a modded Xbox a crime?

            That’s what this case is deciding. Circumventing copyright-protection devices is a crime according to the DMCA, passed in 1998. The prosecution is arguing that the defendant committed a crime by modifying XBoxes so they can play pirated games. The defense argues that it’s fair use, since the modification allows you to play backed-up games and you’re own software and not just pirated games.

        2. So, to follow your logic, that means:

          1. no cutting-off of pants or shirtsleeves to make cutoffs,

          2. no pimping your ride,

          3. no tweaking your hard drive,

          4. no underlining passages in a book

          Hmm…this could get complicated!

          1. Not really, it’s as uncomplicated as it gets. When you buy something, you just register it with the Bureau of Rentals and they periodically stop by your house, pick up items at random and determine if you have changed them in any way.

            There’s really no work for you to do, unless you count the workcamp you go to because you sharpened that pencil before defacing the sheet of paper.

          2. No, to follow the logic, you would have to mod something legal into something that is already illegal. Modding an XBox should not be illegal because it does not turn the XBox into something illegal such as crystal meth.

            The problem is that there is a whole raft of laws designed to interfere with modding on the supposition that such mods could be used to perform illegal actions. That logic is like forbidding someone from tying a rope to two sticks because it could be used to garotte someone.

    2. Because you’re living in a corporatocracy where an individual’s rights mean fuck-all against those of corporations.

    3. No, MS doesn’t care if you modify it with a sledgehammer, because that doesn’t deprive them of all factors that control their income. It’s only when you modify “your” property in such a way that makes it so they can’t get more of your money that they become concerned.

  5. Kryten: A superlative suggestion, sir, with just two minor flaws. One: we don’t have any defensive shields. And two: we don’t have any defensive shields. Now I realize that, technically speaking, that’s only one flaw; but I thought it was such a big one, it was worth mentioning twice.

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

    Awesome news!

  7. Cory,

    Looks like you double pasted your quote. Have a look.

    Glad to see the system has power and will to knock down ridiculous suits.


  8. Cool Cory…with regard to the Judge Guitterez’ rage about the prosecution’s cherry picking precedence (and man, that is one huge cherry) and not pushing mens rea, I can gleefully and appropriately use the cliche that the US Federal Government was hoisted on their own petard!

  9. I think the issue was that he was modding xboxs for profit using a mod chip which is meant to bypass the DRM used in the xbox. Therefore he was making money by breaking a digital lock.
    Modding an Xbox is not much of a big deal, but profiting off of piracy isn’t really cool. And yes, I know of the wonderful homebrew xbox community out there, but microsoft isn’t really concerned about them.
    Its great that the judge got all hot and bothered by the prosecution, but this case is less innocent than most people think.

    *owns modded consoles.

    1. And yes, I know of the wonderful homebrew xbox community out there, but microsoft isn’t really concerned about them.

      I would imagine that they are, as software made without Microsoft’s approval is software made without paying Microsoft to publish it on their console.

      But yeah, the issue really is that the defendant was doing this as a business. That’s distinctly different than buying a console and doing it yourself for your own use, though if one is legal both should be, or else it’s only legal for people with the knowledge to do it themselves, and discriminating between doing it yourself and doing it for someone else would seem to have no benefit.

      The thing is that doing it as a business you are benefiting from piracy but also benefiting from people who just want their console unlocked for other reasons. He’s aware some of his customers were hiring him for the purpose of piracy but he’s not in a position to accurately know for certain who is and isn’t breaking the law with his mods, any more than a hydroponics shop is aware with certainty who is growing marijuana with their products. When they do know for certain, such as when someone states their intent, the law requires them not to sell. Otherwise, the seller has discretion.

      Providing a service that is used for illicit purposes for the customer should usually be considered legal if the service has legal uses, because if you ban the service, you create a de facto ban on the legal uses for everyone who can’t do it themself, and it goes without saying that if you can’t justify making something illegal, you can’t justify making it illegal to help someone else to do it.

  10. Even as someone working in an industry that is directly affected in an adverse way by the actions of people like the defendant, I don’t think onerous laws and show trials are the best way to combat them. Technology created this problem, technology should be able to solve it (and indeed it is, albeit slowly).

    And kudos to the judge for thinking the government should actually be governed by its laws. I wish more people working in the system felt that way.

  11. “Crippen is charged with two counts of violating the anti-circumvention provisions of the Digital Millennium Copyright Act, and faces a maximum five years for each count if convicted. The government maintains Crippen, a hotel car-parking manager, ran a small business from his Anaheim home modifying the firmware on Xbox 360 optical drives to make them capable of running pirated copies of games.”

    This is scary shit.

  12. I concur (agree), when the corporate drones are talking about modding they are referring to the act of altering the X-Box to work around the DRM so you can use pirated games on it.
    Thus you are altering the item for illegal purposes.

  13. should he be found guilty, I am going to use the money that I have in my pocket right now to buy and mod an xbox so that I can use it to make phone calls as a dedicated machine for that purpose I will also put some games on it and use it to run a suitable os in order to achieve these goals.

    I urge you to do something similar.

    I think that met the requirements for prosecution under the statutes as I understand them.

    but maybe I’m confused and need to keep trying until I get it right.

    the only way to make this crap stop happening is a denial of service attack on the courts by having everyone go to trial on every offense.

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