Modding may be Fair Use, rules Judge!

[garyopa]

A small victory that could lead to an even bigger one!

Personally, I reported on the "Big Mod-Chip Trial (The Big Mod-Chip Trial!)", and they were fighting to stop the famous pioneer XBOX hacker Bunnie from testifying for the defense in regard to modding of XBOX consoles.

However, today the judge overhearing the case has said he WILL accept a DEFENSE of "Fair Use" in the case!

Great news for anyone who likes tampering with their game consoles came out of a federal court today. The judge in a high-profile Xbox modding case has allowed use of the argument that altering the device in your own home fits into the long-defined Fair Use legal doctrine.

28-year-old Anaheim, California resident Matthew Crippen found himself in hot water when prosecutors brought charges against him for charging to mod Xbox 360s. They said that by violating the official software put in place on the system, Crippen could be charged with copyright infringement violations.

However, the judge overhearing the case has said he will accept a defense of "Fair Use" in the case. It's the same defense that eventually led to the ruling that iPhone jailbreaking isn't illegal. Following that legal precedent to the letter may allow Crippen to get off scot-free.

Lead prosecutor Allen Chiu argued that any sort of evidence or arguments citing Fair Use are t irrelevant to the case, will be used to wrongly achieve a "not guilty" sentence from the jury despite the evidence, and should not be admitted. The judge didn't agree, saying, "Because fair use is a mixed question of law and fact, it is a permissible question for the jury."

Of course, modding your Xbox 360 voids its warranty and could render it inoperable or unable to play future games. Sony has taken the proactive measure of continuously updating its firmware to brick PS3s that are modded without authorization. Microsoft hasn't been quite so strict with its console.

The decision today is merely a small victory for Crippen, who still needs to undergo an entire trial before his fate is decided. If convicted of violating the Digital Millenium Copyright Act, as prosecutors allege, he could face up to three years in prison. But if the Fair Use defense holds, it may set a new precedent.

This is big but small first step, it was an similar step that made Jailbreaking your iPhone legal, and if this follows thru, it will mean owning a Jailbroken PS3 console, or having a device to enable one to do so will be not a problem!

At least now the fate of all modders can be decided by a jury, and the defense will be able to bring in big guns like Bunnie to argue their point of Modding should be Fair Use!

News Source: Xbox modding may be Fair Use, rules judge (via) GamesRadar

Original Source: Citing iPhone Ruling, Xbox Defendant Says Mod Chips Are Fair Use (via) Wired

Thanks to XBOX-SCENE to inform me of this wonderful news tip!

[FranktheBunny]

This is HUGE, wonderful news, and could truly be the start of a turning point in the controversial hot topic of console modification. Let's hope this trend continues!

[RatAndDragon]

My god, with this, the iPhone ruling and some of the recent software-patent related developments (Bilsky, IIRC), the US court system might finally be injecting some sense back into this area of law.

And it's about time, it's been horribly skewed towards the big corps and 'you don't own what you buy' for too long now.

[Jay-Jay]

Good news! Keep us updated! I feel the same way people can freely "pimp up" their rides, we gamers can "pimp up" our consoles. Nobody is gonna get sent to jail if they feel like hammering down a PS3 to smithereens, well what if we decide to make the console better for our own private use? It's great that the law is finally placing common sense to all of this "greedy ass" corporations!

[talmagal]

lol 3 posts everyone is too busy with the psn online thread

but i digress this is great news as i am a huge supporter of modding your console to watever you want it to be

[RatAndDragon]

lol 3 posts everyone is too busy with the psn online thread

but i digress this is great news as i am a huge supporter of modding your console to watever you want it to be

Lol, I'm trying to work my way through that flamefest at the moment....

Yes, this is a move in the right direction for personal property rights.

[mihakase]

Xbox modding may be Fair Use, rules judge, Xbox 360 Xbox 360 News | GamesRadar

The judge didn't agree, saying, "Because fair use is a mixed question of law and fact, it is a permissible question for the jury."

Who is the judge, according to that article? The article doesn't say? Time to look at the original article:

Citing iPhone Ruling, Xbox Defendant Says Mod Chips Are Fair Use | Threat Level | Wired.com

“The Copyright Office cited the fact that the only way for consumers to exercise their fair-use rights by running non-Apple endorsed applications was through cirumvention of access controls” (.pdf) wrote Callie Glanton Steele, a Los Angeles deputy public defender, in a court filing.

Steele wrote that, “because fair use is a mixed question of law and fact, it is a permissible question for the jury.”

So who is the judge?

Prosecutor Allen Chiu, however, wrote U.S. District Judge Philip Gutierrez that “any evidence relating to a ‘fair use’ defense is irrelevant and should be excluded

... so what does the judge think?

Gutierrez has not ruled on the issue or on a host of other unresolved evidentiary issues.

Oh. :/

[Rufus]

Yeah....!! Thats what I'm talking about...Give it a little more time and SONY is gonna back down.

[garyopa]

The GameRader article says this:

However, the judge overhearing the case has said he will accept a defense of "Fair Use" in the case.

That is the part the judge decided on, a small step he is going to "allow the defense to argue "fair use" in this case.

Does not mean it will be ruled "fair use", just like the title says "MAY BE".

The outcome of the Jury will decide the fate of all of us modders, but at least now the Defense can call in guns like "Bunnie" and argue their points, originally it was going to be just slam-shut, it is illegal that is it, no case!

[Gxray]

Today, the Judge has ruled in this case, that Modding is Fair Use!

You should change that line in your first post gary, since its very misleading. The judge ruled that it can be used as an acceptable defense. That doesn't mean it is Fair Use, just that they can use that as a defense.