News Update: Dismissed case against Xbox modder Matthew Crippen

[Chiodo]

A man facing prison time for modifying Xbox game consoles is now free and clear of all charges after federal prosecutors dismissed the felony counts against him and ended a short-but-tumultuous trial that was the first of its kind.

According to reports from Wired, Thursday’s dismissal came after U.S. District Judge Philip Gutierrez berated prosecutors in court, bringing up several issues with their case and questioning their use of witnesses who may have, themselves, broken the law.

Last year, Homeland Security arrested Matthew Crippen, 28, of California, on accusations that he was running a business out of his home in which he charged people $60 to $80 to modify their Xbox 360 game machines so they could play pirated games and other content. He was charged with two felony counts of violating the anti-circumvention provisions of the Digital Millennium Copyright Act (provisions that make it a crime to alter hardware to get around copyright protection).

Crippen's case became the first of its kind to ever reach a trial on Tuesday when a jury was selected and opening arguments begun.

But things quickly went south for government prosecutors when Judge Gutierrez angrily raised questions about two of their witnesses — Tony Rosario, a private investigator for the Entertainment Software Association, who secretly video-recorded Crippen allegedly performing the Xbox mod (something the defense argued violated California’s privacy law) as well as Ken McGrail, a Microsoft security employee who analyzed the altered consoles but also admitted he had modded Xboxes in college.
After the chewing-out was over, prosecutors called for a recess to consider their options but decided to go forth with the trial, whereupon their first witness proceeded to kick the feet out from under their own case.

Wired reporter David Kravets was in the courtroom and reported that the judge on Wednesday ordered that prosecutors had to prove that Crippen actually knew that he was breaking the law. Prosecutors agreed to that requirement and then put investigator Rosario on the stand.

The investigator testified that he secretly video-taped Crippen in his home as he modified an Xbox in front of him. Rosario then introduced a brand new detail in the case — he testified that Crippen had not just modified the console but had pulled out a pirated game and put it into the Xbox to show that the modification worked.

Conveniently enough, that new detail seemed to show what the judge had just told prosecutors they had to show. That is, testimony that Crippen put a pirated game into the Xbox he had modified would seem to show that he knew he was doing something that broke the law.

But as Wired reports, nowhere in Rosario’s earlier reports had he said that Crippen put a pirated game into the Xbox:

…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. (Only two minutes of an edited video of the transaction was played to jurors, as Rosario said his computer ate the full version.)…

Before the jury, [defense attorney Callie] Steele grilled Rosario on the piracy angle.

“That is something you just happened not to capture on your videotape?” Steele asked.

“It was just not part of the element of the crime,” Rosario replied.

Steele objected to the new testimony. And although the prosecution introduced 150 pirated video games allegedly taken from Crippen’s home, on Thursday they suddenly dropped all charges against Crippen. Prosecutor Allen Chiu conceded he never forwarded the new information to the defense team and should have.

Due to that omission and “based on fairness and justice,” Chiu asked to dismiss the case and admitted the government had made errors in its prosecution, Wired reports.

Still, while Crippen and those who are opposed to the Digital Millennium Copyright Act are no doubt cheering this epic turn of events, it seems unlikely that the outcome heralds a new day for modders working in gray areas around the act and its anti-circumvention provisions.

That is, the prosecutor’s request for a dismissal hardly seems an admission that the DMCA is flawed (as many believe) but instead suggests they simply know they botched the case. One imagines they'll be highly motivated to make sure things are iron clad next time.


Source 1 : Technolog - Berated prosecutors dismiss case against Xbox modder

Source 2: Prosecutors Dismiss Xbox-Modding Case Mid-Trial | Threat Level | Wired.com

Orginal thread : http://psx-scene.com/forums/f6/big-m...p-trial-69260/ (The Big Mod-Chip Trial!)

[SaveU]

The modder lucked out. Good for him.

This still does not set any precedent. It is still to be seen if someone can be convicted for modifying the xbox360.

Its kind of like a drug dealer getting caught with little baggies of crack, but got set free because they did an illegal search.

[Mistawes]

Very true, would have been nice to see how it would pan out as they come toward a verdict.

[dvdxploitr]

I dont' see the big deal, a guy modded systems for money like ALOT of people do…there is nothing wrong with it…just don't sell bootleg games with it….i am sure there is more to this story than just modding systems….

[talmagal]

lotsa these cases are hard to pull through as no one that modifies consoles for money would ever. and i do mean ever , let someone tape them while working so any and all videos would be illegal.

and any videos of hacking shown on youtube or the lotnever have anybodies face in them just hands and hardware.

[Kamse]

Good for him, he didn't deserved all this drama and trouble.

[dvdxploitr]

lotsa these cases are hard to pull through as no one that modifies consoles for money would ever. and i do mean ever , let someone tape them while working so any and all videos would be illegal.

and any videos of hacking shown on youtube or the lotnever have anybodies face in them just hands and hardware.

I have seen video of people modding systems, soldering and all showing their face…modding is legal as long as you're not providing illegal materials (like retail games on DVD-R)

[releva]

Yea..so just mod and keep quiet. No questions asked lol. I wonder if scammers are going to do just the same

[jeremylance96]

he didn't even mod a copyrighted game?

[SaveU]

he didn't even mod a copyrighted game?

lol, they seized 150 "backup" games from his appartment.

The only real thing that saved him is the witness claimed he put in a backed up game to test the unit, when he didnt put it in the reports, and it wasnt on tape.
That and taping him without consent got the case thrown out on a technicality.

Bravo for the modder i guess. But doesnt close the doors on prosecution for modding systems.

If this went thru trial and then was dismissed, that would be a big thing. This is just a screwup by the prosecutors.