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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