Wow. I don't think anyone expected the trial of Matthew Crippen for modding Xboxes
to kick off the way it did: with a half an hour rant from the judge complaining about nearly everything having to do with the government's case
. The judge, Philip Gutierrez, even stepped back from his ruling last week that fair use couldn't be used as a defense
. The judge slammed prosecutors for putting two witnesses on the stand who had apparently broken the law -- including one, a security employee from Microsoft, who had admitted to modding Xboxes himself in college -- while trying to hide that fact from the jury. But the most important point may be Gutierrez highlighting how the government seemed to be going against its own claims about the DMCA concerning the willfulness of breaking the anti-circumvention clauses:
The fair-use issue came up as the judge berated prosecutor Allen Chiu's proposed jury instructions, which included the assertion that the government need not prove that Crippen "willfully" breached the law, in what is known as "mens rea" in legal parlance. The judge noted that the government's own intellectual property crimes manual concerning the 1998 DMCA says the defendant has to have some knowledge that he was breaking the law.
"The first prosecution 12 years later, and you're suggesting a mens rea that is akin to exactly contrary to the IP manual: that ignorance of the law is no excuse?" the judge barked.
"You didn't even propose a middle ground," Gutierrez continued. "What's getting me more riled, it seems to me I cannot communicate the severity to you of what's going on here."
After the verbal drubbing was over, apparently stunned federal prosecutors asked the judge if they could recess to think about possibly dropping the case, or maybe offering Crippen a plea deal of some sort. All too often we see judges simply fall over themselves to agree with the government's position on intellectual property cases. It's nice to see some judges pushing back on some rather important points. Update
: Apparently, despite all of this, the government is moving forward
with its case, believing it will still prevail.