XBOX Modder Case Dismissed

**Viral Death** · 04-12-2010, 06:08 AM

Berated prosecutors dismiss case against Xbox modder

Microsoft

By Winda Benedetti

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.