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by Mike Masnick

Filed Under:
anti-circumvention, copyright, dmca, xbox


Government Drops Xbox Modding Trial

from the bye-bye dept

Following yesterday's berating at the hands of Judge Philip Gutierrez, the government has decided to drop the charges completely against Matthew Crippen for modding Xboxes. Last night, they had indicated they were going to push forward with a trial, but today they obviously thought better of it. The government is trying to cover up the fact that this case looked bad for them all around by claiming the reason for the dismissal was a more specific screw-up: having the first witness introduce new evidence (a claim that Crippen had put a "pirated" game onto a modded Xbox -- something he hadn't mentioned before, and claims he just recalled it days before the trial started (uh huh...)). Of course, this still leaves some big issues left unsettled -- and the idea that you can get jail time for modifying a product you legally purchased remains tremendously problematic.

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  1. icon
    average_joe (profile), 2 Dec 2010 @ 2:20pm

    What a big coincidence that this witness's sudden recollection just so happened to help the government prove the higher level of mens rea that the judge just ruled they had to meet. Funny that.

    reply to this | link to this | view in thread ]

  2. icon
    :Lobo Santo (profile), 2 Dec 2010 @ 2:26pm


    They're waiting for easier prey, er, I mean victim, er, no, umm... somebody who will fold instantly due to ignorance and self incrimination allowing them to get some asinine foothold on the whole 'precedence' angle.

    If they proceed and lose, a pattern of 'user rights'--concerning electronics--is established.

    Just look at what happened with cars and telephones!

    Cars, to begin with, came with a locked hood and only the dealer could service the engine. I;m pretty sure they beat you up or something if you bypassed this lock.

    It used to be in the contract from AT&T that you could not OWN a phone, only lease it from AT&T. I'm pretty sure they were allowed to lobotomize you (under contract, of course) if you understood too much about how your leased phone worked...

    Such a pattern would be a terrible thing "patrons" of the various legislators, law makers, attorneys general, etc. Or like Kenny Rogers said "you've got to know when to hold 'em, know when to fold 'em, know when to to walk away..."

    ; P

    reply to this | link to this | view in thread ]

  3. icon
    Louis Smith (profile), 2 Dec 2010 @ 2:29pm


    This is way beyond insane. Let's see how us "old farts" do on the modding things you bought category. It ain't a brand new "this young generation and their computers" thing. And for anyone who has a grandfather from the 50's or 60's.. ask them about any of these: Hurst, Holley, Cragar, Crane, Edelbrock, Cherry Bomb, Thrush, Manley. All companies based upon modding that which you legally bought.... many times into an illegal form! (guilty!!!! but damn that Chevelle would MOVE)

    An entire sports empire is based upon modding that which you legally purchased.

    How much of the PC industry is based upon "modding"???? Isn't upgrading to the newest NVIDIA card Modding? How about putting in a bigger hard drive? How about buying a PC/laptop with a sticker on it and marketing drivel about "ready for the next O/S that MS puts out!". Isn't that modding? Oh wait - that would be "contributory" modding - trying to convince us to make the change so we are guilty.

    Every day, with every one of these lawsuits - Shakespear's quote is more relevant.

    reply to this | link to this | view in thread ]

  4. identicon
    Transbot9, 2 Dec 2010 @ 2:52pm

    Re: Modding

    Well, percentage-wise, there's less PC modding today than their used to be, but it's still pretty common. If it wasn't for the "potential" (fear) of people tinkering with xBox live, Microsoft probably wouldn't care - but they don't want people screwing with their lucrative gaming profits.

    Doesn't make it right, but I do see where they are coming from.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 2 Dec 2010 @ 2:57pm

    That dude seems super-lucky to me. I'll bet he stop modding xboxes anyway.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 2 Dec 2010 @ 3:39pm

    Still I'm waiting for the recording or video of that session.

    reply to this | link to this | view in thread ]

  7. icon
    Steve R. (profile), 2 Dec 2010 @ 4:34pm

    Its Your Property

    When you buy a product you own it. It's time to quash the corporate gobbledygook that you are only leasing the product at their sufferance and that you don't own it. You do.

    reply to this | link to this | view in thread ]

  8. icon
    Dan (profile), 2 Dec 2010 @ 5:32pm

    It's a win

    If the [entertainment] industry can call it a win before the trial when someone pleads guilty, we can consider this a win since they dropped the case.

    reply to this | link to this | view in thread ]

  9. icon
    Dan (profile), 2 Dec 2010 @ 5:35pm

    Re: Modding

    The problem isn't modding, it's that damn anti-circumvention clause.

    reply to this | link to this | view in thread ]

  10. identicon
    Pixelation, 2 Dec 2010 @ 5:58pm

    Perhaps they need to start allowing dropped cases as precedent.

    reply to this | link to this | view in thread ]

  11. icon
    Skeptical Cynic (profile), 2 Dec 2010 @ 6:48pm


    Amen Brother!!!

    reply to this | link to this | view in thread ]

  12. icon
    misterdoug (profile), 2 Dec 2010 @ 11:53pm

    Here's how dumb IP can become

    I'm a woodworker. Some time ago I bought a jig for making dovetail joints with a router. The jig is essentially a thick piece of plastic with a zigzag edge similar to the top of a classic castle wall. One immediately obvious use for it would be for making a copy of itself out of better material, such as thin plywood or sheet aluminum. But no! A piece of paper enclosed with the jig stated that in buying the product I was not "licensed" to use it to make another dovetail jig, nor could I use it for commercial purposes.

    So apparently I'm a pirate woodworker. Somebody better taser me and put the cuffs on me before I do any more damage to the economy.

    The more the legal system legitimizes control over the end use of products, the more ridiculous and ugly the can of worms will become. For example, why couldn't a steel company dictate what can and can't be made with the metal it sells? What really hits me is the hypocrisy of the businesses world, on one hand being against Big Government while on the other hand wanting it to impose contrived restrictions on the public.

    reply to this | link to this | view in thread ]

  13. icon
    Karl (profile), 3 Dec 2010 @ 7:11am


    Finally, we agree on something.

    reply to this | link to this | view in thread ]

  14. icon
    btr1701 (profile), 3 Dec 2010 @ 12:16pm

    Re: Obviously

    > somebody who will fold instantly due to ignorance
    > and self incrimination allowing them to get some
    > asinine foothold on the whole 'precedence' angle.

    A dsitrict court conviction holds almost no precedential value whatsoever. Precedent is set only when a conviction is appealed and an opinion is issued by the appellate court.

    Since your example is someone who has "folded instantly", they're not likely to appeal their case and no precedent will be set.

    reply to this | link to this | view in thread ]

  15. icon
    duck_soup (profile), 3 Dec 2010 @ 6:33pm

    Re: Re: Modding

    If Microsoft is so worried about tinkering with their Xbox, then they should make it more secure. I'm 61 years old and as far as I'm concerned, if you buy something you own it and you can do anything you want with it.

    reply to this | link to this | view in thread ]

  16. identicon
    Sentinelace, 3 Dec 2010 @ 9:12pm


    Microsoft can't make it more secure because the hacker known at "C4EVA" is a brain and smarter than probably any guy who works for mircosoft. Now a tool will be released in the next few weeks that will let any one with no experience what so ever mod a console via usb. It's the never ending battle that has been going on for years and M$ hasn't won one yet.

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous, 5 Dec 2010 @ 5:40pm

    Civil vs Criminal

    I spent my early career protecting IP for corporate interests. And this idea of criminalising IP infringment, while it is addressed at certain activities that indeed need to be curtailed, and perhaps which can best be accomplished by law enforcement personnel, is looking more and more like a very slippery and dangerous slope.

    In general, as I see it, protections for IP do not belong in the criminal code. As anyone in business should know, corporations and other institutions hold the vast majority of enforceable IP rights, not individuals. This is to be expected as corporations are in the best position to generate revenue from the IP. Indivduals routinely assign their own interests in IP to corporations in furtherance of this system.

    Corporations and other institutions have the resources to enforce IP rights, through civil judicial action. Few individuals who create IP have such resources. And even fewer actively pursue IP enforcement as individuals.

    By crimalising IP infringment, I think we are essentially giving corporations the addtional power of criminal prosecution. Corporations are likely to have much more influence over federal prosecutors than individuals do, and as such, it is questionalble whether criminalising IP infringment stands to benefit individuals to any appreciable degree. It goes without saying that most criminal law is directly aimed at protecting persons and their property. However IP infringment as criminal law is effectively aimed at protecting the interests of legally created entities, not persons.

    The 12-year old DMCA and its criminal anti-circumvention provisions, still yet to be the subject of a single judicial opinion, is probably not the law you all should be focussing on. We already have the US LOC listing exceptions to allow tinkering for items such as the iPhone. In time, the list of exceptions may envelope the already narrow rule.

    As I see it, the real issue to pay attention to is the movement to make IP infringment a criminal offence in very general terms, e.g. ACTA. This is an effort, perhaps lacking enough forethought, to define IP infringment as criminal activity.

    Maybe I'm just set in my ways but the notion of IP infringment as "crime", to be handled by prosecutors, and to be sold to the public as something to fear with the threat of imprisonment, just does not sit well with me. Federal prosecutors are not IP lawyers. (I am not suggesting IP lawyers are angels, but there is a significant difference between the two.) I think this botched trial is evidence of that difference.

    Most people, including most lawyers, don't understand that much about the inner workings of IP law. And for good reason. It can be quite complex. Making IP infringment a "crime" oversimplifies IP law to the legal standards of the criminal code. And it puts IP law into the hands of law enforcement, prosecutors, who, in their reckless desire for conviction, as this Crippen affair has shown, may fail to meet even the lowest of standards of professional conduct.

    Microsoft's own lawyers and their outside counsel could no doubt have done a better job than this prosecutor did.

    reply to this | link to this | view in thread ]

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