Prosecution drops charges against Xbox 360 modder

Matthew Crippen must be breathing a sigh of relief today as the court battle over his game console modding has come to a swift and surprising end. The Cal State Fullerton student was arrested in August and charged with violating the Digital Millennium Copyright Act,(DMCA). According to the charges levied against him, Crippen was illegally modding game consoles, including the Xbox, PlayStation, and Wii, to play pirated games. Much to his detriment, Crippen was advertising his modding online and accepting payment for these services. He was charged with two counts of violating the DMCA and faced up to ten years in prison, according to a report out of Wired.

Following his arrest, Crippen was released on $5,000 cash bail and anxiously awaited his trial which began earlier this week. In a major win for Crippen, the first day of the trial went badly for the prosecution. Two of the prosecution's star witnesses were blasted by U.S. District Judge Philip Gutierrez for their alleged unlawful behavior. Tony Rosario, an undercover investigator for the Entertainment Software Association, may have violated California privacy laws by secretly recording Crippen while he modded a Xbox. Ken Grail, a Microsoft security expert who analyzed Crippen's Xbox modifications, admitted he performed similar Xbox mods when he was in college.

The prosecution also stumbled when it failed to disclose the minor detail that Crippen inserted a pirated video game into a console to verify the mod was successful. The pre-trial evidence included information about Rosario's encounter with Crippen and the process the student used to mod the Xbox. The original testimony did not include this detail about the pirated disc. The inclusion of this detail during testimony is controversial as it was unexpected and appeared after the Judge imposed a rule that required the government to prove that Crippen knew he was breaking the DMCA by modding Xboxes. From the prosecution's point of view, the mere mention that Crippen used a pirated game would be a sure fire way to prove he knew he was doing something unlawful.

After this omission came to light, prosecutor Allen Chiu admitted the government made errors in its prosecution and decided to dismiss the case against Crippen “based on fairness and justice." This is big win for Crippen who can now return to Cal State Fullerton without the looming spectre of jail time hanging over his head. While a personal victory for Crippen, the outcome of the trial may have little influence on future prosecutions for game console modding. The trial ended as the result of the prosecution's incompetence and not by a judge's decision that modding is an acceptable practice.

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p2p networks, torrents, faster internet and a general idea that everything on the internet should be free......yep. I believe this generation ****ed everyone more than any other.

speedstr3789 said,
p2p networks, torrents, faster internet and a general idea that everything on the internet should be free......yep. I believe this generation ****ed everyone more than any other.

So there was no DRM before the internet? No code sheets, dongles or other draconian copyright measures? No one stole anything before "this generation"? Once again, that's complete rubbish.

Of course they didn't steal, they pirated While it's true that it's been going on since computers were made available to the public, it used to be that you had to be reasonably intelligent and technologically inclined or know somebody who was to do it. Now everybody can do it easily and many people do so without even realizing that they're breaking the law. "This generation" has grown up believing that it's acceptable and normal behavior and do not believe there are consequences until somebody takes them to court.

"Crippen was illegally modding game consoles, including the Xbox, PlayStation, and Wii, to play pirated games. Much to his detriment, Crippen was advertising his modding online and accepting payment for these services."
WHAT part of this do you people not get? If it wasn't for your generation of thinking everything should be free we wouldn't have half the DRM crap we have now. You have no one to blame but yourselves. Go get a job and pay for your content.

speedstr3789 said,
If it wasn't for your generation of thinking everything should be free we wouldn't have half the DRM crap we have now.

Are you REALLY that naive?

speedstr3789 said,
If it wasn't for your generation of thinking everything should be free we wouldn't have half the DRM crap we have now.

What is this "your generation" nonsense? People have stolen things since the beginning of time.

Edited by Thrackerzod, Dec 4 2010, 3:57pm :

"According to the charges levied against him, Crippen was illegally modding game consoles, including the Xbox, PlayStation, and Wii, to play pirated games. Much to his detriment, Crippen was advertising his modding online and accepting payment for these services"

"Crippen inserted a pirated video game into a console to verify the mod was successful"

fail @lawyers. they had a real simple case had they not botched the whole process. this guy was advertising that he was modding and accepting payments and tests his work using a pirated disc which means he was making sure his work facilitated illegal activities. it is important to note that modding an xbox is not illegal but doing it to circumvent drm is. it is also important to note that rarely do these companies go after someone that breaks drm laws unless they are doing it on a massive scale or doing it for self profit.

also the purpose of the prosecution going for 10 years apparently went over most of your heads. they start with the maximum possible sentence knowing that in most cases, the final amount gets pushed down with plea bargains and other factors.

"Crippen inserted a pirated video game into a console to verify the mod was successful"

ILikeTobacco said,
"According to the charges levied against him, Crippen was illegally modding game consoles, including the Xbox, PlayStation, and Wii, to play pirated games. Much to his detriment, Crippen was advertising his modding online and accepting payment for these services"

"Crippen inserted a pirated video game into a console to verify the mod was successful"

fail @lawyers. they had a real simple case had they not botched the whole process. this guy was advertising that he was modding and accepting payments and tests his work using a pirated disc which means he was making sure his work facilitated illegal activities. it is important to note that modding an xbox is not illegal but doing it to circumvent drm is. it is also important to note that rarely do these companies go after someone that breaks drm laws unless they are doing it on a massive scale or doing it for self profit.

also the purpose of the prosecution going for 10 years apparently went over most of your heads. they start with the maximum possible sentence knowing that in most cases, the final amount gets pushed down with plea bargains and other factors.

Are they sure the disc was pirated, was the disc labeled "pirated disc" or do they have a way to prove he pirated the game or disc and did not make a backup of a game he owned and had in his possession? Just inserting a DVD-R backup of a game does not imply he is a pirate or pirated the game, when he could have very well made a backup.

jd100 said,
I remember reading in the past few months, that judges ruled the modding IS legal. Which means this prosecutor had no case in the first place.

http://www.gamesradar.com/xbox...5053/g-20060321132945404017

This guy wasn't modifying it for his own personal use in his home. He was running a business modifying consoles for profit. Also in that link it just says the judge said he would allow fair use as a defense; there was no ruling yet and certainly nothing saying it was legal.

Whether he was in the right or in the wrong, 10 years is an unjust punishment especially for a first offender. Non-violent crimes that get over 5 years is ridiculous and insulting to violent crime victims.

About thime this got dropped, the DMCA can be twisted to best fit a situation.

All you need to mod a 360 is a computer, just like jail breaking an iPhone which is legal in the US.

I dont think computers are "primarily designed or produced for the purpose of circumventing protection" which is actually what is illegal under the DMCA from what i gather.

InsaneNutter said,
About thime this got dropped, the DMCA can be twisted to best fit a situation.

All you need to mod a 360 is a computer, just like jail breaking an iPhone which is legal in the US.

I dont think computers are "primarily designed or produced for the purpose of circumventing protection" which is actually what is illegal under the DMCA from what i gather.

The case being dropped had nothing to do with the DMCA or modding, but rather the prosecuters breaking the law by secretly video taping him and other shenanigans.

"The trial ended as the result of the prosecution's incompetence and not by a judge's decision that modding is an acceptable practice."
Important to remember.
I read the Judge had a 30min rant at the prosecution, would love to see the transcripts.

acnpt said,
"The trial ended as the result of the prosecution's incompetence and not by a judge's decision that modding is an acceptable practice."
Important to remember.
I read the Judge had a 30min rant at the prosecution, would love to see the transcripts.

For the lulz amirite?

My question here is how is modding a console different from Jailbreaking a phone or other device to run pirated programming. It was recently made legal to jailbreak say a phone, how is this any different from modding your console?

SfIsHeR1701 said,
My question here is how is modding a console different from Jailbreaking a phone or other device to run pirated programming. It was recently made legal to jailbreak say a phone, how is this any different from modding your console?

It was made legal for educational purposes and for another reason I can't remember which did not include piracy.
Also the modding of a console usually adds some physical component in to the machine or modifies the machine physically, jailbreaking doesn't

Teebor said,

Also the modding of a console usually adds some physical component in to the machine or modifies the machine physically, jailbreaking doesn't

Yeah, how dare they do whatever they want with a product they purchased!

imo the act of modding in itself should not be illegal. To me it's not different than modding a car or a PC.

This is what you make with the modded console that can potentially be illegal (same thing with a car some of the mod can make the car illegal for use on a road).

As long as you can't prove that someone illegally downloaded a game and used it on a modded console then this should not be illegal.

CyberDragon777 said,

Yeah, how dare they do whatever they want with a product they purchased!

Case in point, if they don't like the TOS printed on the manual/when you create a profile, don't buy it in the first place?

LaP said,
imo the act of modding in itself should not be illegal. To me it's not different than modding a car or a PC.

This is what you make with the modded console that can potentially be illegal (same thing with a car some of the mod can make the car illegal for use on a road).

As long as you can't prove that someone illegally downloaded a game and used it on a modded console then this should not be illegal.

I believe it's the circumventing the encryption that carries the high penalties in the DMCA. Also, he was accepting money for doing so. Nobody can prove that the consoles were being modded to play pirated games but just circumventing a DRM algorithm is enough to get the full blast of the penalty.

SfIsHeR1701 said,
My question here is how is modding a console different from Jailbreaking a phone or other device to run pirated programming. It was recently made legal to jailbreak say a phone, how is this any different from modding your console?

I don't think it really is illegal, they would never do anything agaisnt someone who put in a glass and some diods or a harddrive, but when you make mods to allow it to play burnt (pirated) discs that's another thing.
As for the jailbreaking, jailbreaking isnt a method to pirate something, though after you have jailbroken your device you can install certain things that make piracy possible... if jailbreaks were to be illegal due to piracy file navigation of PCs better be too

Teebor said,
Also the modding of a console usually adds some physical component in to the machine or modifies the machine physically, jailbreaking doesn't

on a XBox360 a typical mod does NOT require hardware in majority of cases as all it does is modify the firmware inside the DVD-ROM drive. (which is fairly easy to do in most cases especially if you got a PC with SATA ports in it)

the cases it does require some hardware... it still boils down to modifying the firmware on the DVD-ROM drive in order to play backup discs on DVD+R DL media.

the cases that people do modify the console for homebrew and emulators etc is quite limited as if your dashboard on the XBox360 console is to new it's not even a option. which nowadays i would suspect vast majority of consoles sold are probably running a dashboard that is to new which patches the exploited needed for the 'jtag' mod.

so basically almost all XBox360 moding boils down to modifying the firmware on the DVD-ROM drive which currently ALL XBox360's are modable lacking the new Slim XBox360's but those are currently being worked on and from what i read there is 2 versions of the Slim XBox360's... 1 of them (the older ones) can be moded without any hardware mod's and the more recent of the 2 i believe might need a hardware mod. but basically these are the next systems being worked on to import the LT+ firmware to them.

p.s. but i think a lot of 360's users, including me, have moded XBox360's. if you use XBox Live i would recommend not moding because of the chances that the console can get banned but lately it appears Microsoft is having trouble finding ways to ban consoles with the newest firmware on them (and your game ISO's ran through Abgx360 v1.0.4) which is why people suspect they finally are starting to implement that new AP25 copy protection in new games like Fable3/Assassins Creed Brotherhood/Need 4 Speed Hot Pursuit. but with recent firmware updates (i.e. LT+ firmware) these are now playable on consoles with BenQ/Liteon drives in them. i was not effected at all myself since i got a Samsung drive in my XBox360 which the AP25 copy protection does not even effect at all since apparently the Samsung DVD-ROM drive itself don't support it.

Edited by ThaCrip, Dec 3 2010, 6:23pm :

Leonick said,

I don't think it really is illegal, they would never do anything agaisnt someone who put in a glass and some diods or a harddrive, but when you make mods to allow it to play burnt (pirated) discs that's another thing.

what if they remove the "governor" aka speed limiter.

ManOfMystery said,

I believe it's the circumventing the encryption that carries the high penalties in the DMCA. Also, he was accepting money for doing so. Nobody can prove that the consoles were being modded to play pirated games but just circumventing a DRM algorithm is enough to get the full blast of the penalty.

They had what they need to prove that he was modding for the purpose of playing pirated games. Thats where the pirated disc came into play in his process. Thats why the judge got ****ed off at the lawyers for screwing up so bad. It was an easy case and the lawyers screwed it up.

Morisato said,

Case in point, if they don't like the TOS printed on the manual/when you create a profile, don't buy it in the first place?

So I should deprive myself of a piece of technology that I want just because "case in point", I don't agree with a piece of paper that is in no way legally binding?

Yep, EULA's are not legally binding contrary to what some of the folks here seem to believe. The only way you can be nabbed is if it can be proven that you committed or had the intention to commit an unlawful act (i.e. infringement) and usually in those cases the infringement would of already taken place. Seeing as how modding is more or less a gray area, that some modify the hardware to play backups of their legally owned media it's difficult to prove any infringement or intent to infringe occurred.

Fair use laws also entitle everyone to a backup of legally owned media for personal reasons. Based on the effectiveness of the drm implementation, bypassing is legally allowed in most places for personal uses so long as copies aren't being redistributed.

I see this no different than modding a PC, both are pieces of hardware that serve a similar although slightly different purpose.

Edited by Xtreme2damax, Dec 5 2010, 1:29am :

Teebor said,

It was made legal for educational purposes and for another reason I can't remember which did not include piracy.
Also the modding of a console usually adds some physical component in to the machine or modifies the machine physically, jailbreaking doesn't

The majority of the Xbox mods I seen to play games that ahve been burned to disk, is all software based. Unless you have a newer Xbox, the only physical change is using an older CD drive which is an orginal Xbox part. So I don't understand your point at all.

Caleo said,
10 years in prison for violating DMCA? US justice system is utterly ****ed up.

I, for one, agree with the government. If you steal something, you should be put right up with the rapists and killers. Filthy pirates..

Caleo said,
10 years in prison for violating DMCA? US justice system is utterly ****ed up.

The high penalties are a direct result of the fact that "pirates" don't care about fines and low jail times.

Recon415 said,

I, for one, agree with the government. If you steal something, you should be put right up with the rapists and killers. Filthy pirates..

LOLWUT?

Recon415 said,

I, for one, agree with the government. If you steal something, you should be put right up with the rapists and killers. Filthy pirates..

Sarcasm?

Recon415 said,

I, for one, agree with the government. If you steal something, you should be put right up with the rapists and killers. Filthy pirates..

So now the act of modding a console = stealing something ? I always thought you actually had to illegally download and rip a game to steal something.

Wicked.

Recon415 said,

I, for one, agree with the government. If you steal something, you should be put right up with the rapists and killers. Filthy pirates..

You do realize that sarcasm doesn't convey very well online - you should have added /s there.

LaP said,

So now the act of modding a console = stealing something ? I always thought you actually had to illegally download and rip a game to steal something.

Wicked.

Nope - if you illegally downloaded something you could be done for theft of intelectual property and copyright infrigement. You can't steal something that doesn't exist and isn't unique.

LaP said,

So now the act of modding a console = stealing something ? I always thought you actually had to illegally download and rip a game to steal something.

Wicked.

General modding is fine. Anyone can mod there xbox to an extent. Anything beyond that is considered illegal aka modding the dvd player to read pirated games. Duh.

Recon415 said,

I, for one, agree with the government. If you steal something, you should be put right up with the rapists and killers. Filthy pirates..

So an alledged property crime to you deserves punishment on par with committing physical violence against people? Seems kind of irrational to me.

Also, while copying computer data at your own expense is illegal, it's also not stealing. If I, at my own expense, made an exact copy of your car, then drove the replica away, you could hardly say I stole your car.

While I'm sure that there is some amount of harm caused by such activities, the real costs to producers are rarely assessed as punishment. Instead, massive stints in jail and punitive damages are awarded to corporations against individuals.

One common argument from the industry is that every game/song/movie that is copied is one that they would have sold. This is absurd and ignores the fundamental laws of economics. Namely, that most people could never afford the amount of media they've copied illegally at market prices. So damages of say $1 a song are completely overblown.

Whose job is it to assess damages? Juries, on a case-by-case basis. The problem is that judges often illegally manipulate juries, and jurors are not fully informed of their rights to stand for sensible, fair, and just sentences.

HawkMan said,

The high penalties are a direct result of the fact that "pirates" don't care about fines and low jail times.

Considering I couldn't throw an empty pop-can without hitting someone who has illegally copied some kind of media I think it's safe to say that most people don't care about high jail times either - or at least they've assessed their chances of getting caught to be very small.

stevehoot said,

You can't steal something that doesn't exist and isn't unique.

And I'd also argue that making an exact replica of something at your own expense isn't stealing either because it doesn't deprive the owner of the use of the original.

If you have a candle and I light my candle from yours, I haven't "stolen" your flame.

stevehoot said,

Nope - if you illegally downloaded something you could be done for theft of intelectual property and copyright infrigement. You can't steal something that doesn't exist and isn't unique.

I agree with your definition.

Recon415 said,

I, for one, agree with the government. If you steal something, you should be put right up with the rapists and killers. Filthy pirates..

he wasn't stealing anything, how the modded console will be used by the "customer" well thats up to the customer. Gun Store owner should he/she also be arrested, because the guns that they sell can be used for crimes?

nekrosoft13 said,

he wasn't stealing anything, how the modded console will be used by the "customer" well thats up to the customer. Gun Store owner should he/she also be arrested, because the guns that they sell can be used for crimes?

If the gun store owner is selling them with the knowledge that the person they are selling to is buying it for use in a crime, yes. There are laws that say gun store clerks cannot sell a gun if they suspect someone is buying it for the use in a crime and must report it to the authorities immediately. This guy was modding xbox's with the knowledge that they would be used for the purpose of using illegal copies. Otherwise, he would have not had a reason to test it on a pirated disc.

HawkMan said,

The high penalties are a direct result of the fact that "pirates" don't care about fines and low jail times.

Who said anything about pirates? What if I wanted to play a backup of one of my legally owned physical discs, so I could preserve the original media and not induce wear and tear by inserting it into the disc drive every time I wanted to play?

Not everyone is illegally downloading games for free, burning them to play. Some do have legitimate reasons for playing backups. I usually make backups of my legally owned PC games for two reasons:

- I can't be arsed to insert the disc every time I want to play a games, using a DVD emulation tool allows me to quickly switch between my different backups and load the games I want to play.

- I don't want to wear out the original media, and would like to preserve the original media as long as I can.

Recon415 said,

I, for one, agree with the government. If you steal something, you should be put right up with the rapists and killers. Filthy pirates..

Pirating wouldn't be so rampant if software companies didn't charge $60 a pop for half-baked games that don't even go through a decent beta test half the time any more.