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Judge Berates Prosecutors In Xbox Modding Trial

Soulskill posted more than 3 years ago | from the your-uppance-has-come dept.

The Courts 285

mrbongo writes with this excerpt from Wired: "Opening statements in the first-of-its-kind Xbox 360 criminal hacking trial were delayed here Wednesday after a federal judge unleashed a 30-minute tirade at prosecutors in open court, saying he had 'serious concerns about the government's case.' ... Gutierrez slammed the prosecution over everything from alleged unlawful behavior by government witnesses, to proposed jury instructions harmful to the defense. When the verbal assault finally subsided, federal prosecutors asked for a recess to determine whether they would offer the defendant a deal, dismiss or move forward with the case that was slated to become the first jury trial of its type. A jury was seated Tuesday."

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285 comments

Translation: Judge's son/nephew owns modded Xbox (-1, Flamebait)

syousef (465911) | more than 3 years ago | (#34415460)

Translation: Judge's son/nephew owns modded Xbox. Nothing else to say.

Re:Translation: Judge's son/nephew owns modded Xbo (4, Insightful)

Anonymous Coward | more than 3 years ago | (#34415502)

more likely he realizes the court has more valuable things to allocate time and taxpayer money on than going after some kid who hacked his xbox. Or maybe he saw that their argument was pushing beyond the confines of the allegedly broken laws, and he wasn't about to let his courtroom be a tool for them to advance their agenda.

Whatever his motivation was, good for him!

Lets get the facts straight :-) (5, Informative)

Anonymous Coward | more than 3 years ago | (#34415604)

Whoa ... lets get the facts straight here :-)

The judge initially dismissed fair use arguments by the defense, but now seems to be reevaluating that decision. Probably because he too the time needed to understand all the technical and legal details of the case. The DMCA is not a 1-pager you read overnight and its implication on other lega areas is huge.

And the kid absolutley did not just hack his X-box. He had a small business selling modded X-boxes to other people, and was recorded by an agent doing exactly that.

I absolutely think that modding should be allowed for several reasons - so I am not siding with the prosecution here. I am just trying to make the facts clear to everyone.

:-)

- Jesper

Re:Lets get the facts straight :-) (0)

Anonymous Coward | more than 3 years ago | (#34415798)

and was recorded by an agent doing exactly that

which is illegal under California law (without consent)

Re:Lets get the facts straight :-) (1)

tepples (727027) | more than 3 years ago | (#34416054)

and was recorded by an agent doing exactly that

which is illegal under California law (without consent)

Which consent is easy to obtain, as I understand it: "I record important support calls for quality purposes; is that OK?"

Re:Lets get the facts straight :-) (2)

poetmatt (793785) | more than 3 years ago | (#34416142)

that's pretty much every state, except that it was an undercover agent - it was not a support call.

the Judge stating it was a violation of cali law tells you that this consent was not obtained.

Re:Lets get the facts straight :-) (5, Insightful)

WCMI92 (592436) | more than 3 years ago | (#34415808)

What is the difference in buying, customizing, then reselling an XBox and in buying, customizing, and reselling a vehicle made by Ford?

None.

This is the insidiousness the IP monopolists are trying to get away with, the ability to sell something yet still OWN it.

Unless the XBox modder bought an XBox, then used it to make other XBoxes, they have no beef.

Re:Lets get the facts straight :-) (-1)

Anonymous Coward | more than 3 years ago | (#34416018)

The modded XBox will be used almost exclusively to run stolen software.
I don't believe you can say the same thing about vehicle customization.

Re:Lets get the facts straight :-) (1)

Anonymous Coward | more than 3 years ago | (#34416070)

During prohibition moded cars were used almost exclusively by the original bootleggers (the ones who transported alcohol illegaly).

Xbox 360 vs. Wii and original Xbox (3, Insightful)

tepples (727027) | more than 3 years ago | (#34416086)

The modded XBox will be used almost exclusively to run stolen software.

You may be right about the Xbox 360 platform. But if it were a modded Wii or a modded original Xbox, there might be more evidence of actual substantial noninfringing use. Unlike the Xbox 360, which has XNA, these older consoles have no official environment for running original software developed outside a traditional corporate environment, and for this reason they have picked a vibrant modding community for running such "homebrew".

Re:Xbox 360 vs. Wii and original Xbox (1)

iplayfast (166447) | more than 3 years ago | (#34416126)

But modding a wii or original xbox allows programmers to create their own original content doesn't it. I don't think your argument holds water. If I understand what you are saying, that because there is no non-infringing content, it is wrong to mod it.
The counter argument is that, by moding it, non-infringing content can be created.

Re:Xbox 360 vs. Wii and original Xbox (2, Informative)

Anonymous Coward | more than 3 years ago | (#34416790)

A modded X360 cannot run new, non-infringing content; content still needs to be signed by Microsoft's key. Modding just tricks the disc drive into thinking DVD-Rs are pressed DVDs.

Moonshine (5, Interesting)

srussia (884021) | more than 3 years ago | (#34416114)

The modded XBox will be used almost exclusively to run stolen software. I don't believe you can say the same thing about vehicle customization.

O RLY?

From A Brief History of Nascar From Moonshine Runners to Dale Earnhardt Jr. [cio.com]: "Its roots go back to Prohibition when runners—people who delivered moonshine, a home-brewed whiskey distilled from corn, potatoes or anything that would ferment—souped up their cars so they could give the slip to the federal tax agents determined to bust them.

Re:Lets get the facts straight :-) (5, Insightful)

espiesp (1251084) | more than 3 years ago | (#34416130)

Love the car analogies...

A (performance) modded car could be used almost exclusively to exceed the speed limit. Easy argument against the practice (lets ignore for a moment emission laws).

Where as an end user could argue that the modifications make their life more convenient by allowing them to reach the posted speed limit more expediently.

Just because something allows you to potentially break the law doesn't always make it illegal.

Re:Lets get the facts straight :-) (1)

Aqualung812 (959532) | more than 3 years ago | (#34416734)

Yes, but when you say "Let's ignore for a moment emission laws", then you're missing the point. There are many laws that limit not only how you drive on the road, but WHAT you drive. You must have turn signals, you must have a license plate, etc. When you mod an Xbox 360, you lose the right to take it online because it no longer conforms to the specs that the owners (Microsoft) of the road (Xbox LIVE) have set.

Re:Lets get the facts straight :-) (1)

GizmoToy (450886) | more than 3 years ago | (#34416998)

It sounds like he had the point just right to me. Neither he nor any of the other parent posts state that you should be able to take a modified XBox online. It's generally thought that the loss of online access is an acceptable, though annoying, side effect of modding.

This case is NOT about being able to put a modded XBox online. These guys are perfectly happy to use their XBoxes "Off-road." This case is about whether or not it's illegal to mod it in the first place (or more accurately, whether someone can mod your it for you). That is where, for once, a car analogy is actually pretty accurate.

Re:Lets get the facts straight :-) (2)

Phreakiture (547094) | more than 3 years ago | (#34416994)

Let me beef up the car-mod analogy a tad.

Example the first: a car modded to run over different terrain. Examples: someone local to me, with a love of VW Beetles, put a VW Beetle body on a Jeep CJ Chassis, and called it a "Veep". It's every bit a 4X4 as the Jeep was, and also every bit as street-legal, but now he has something that is truly unique.

Example the second: a car modded to run on a different fuel. Examples: Propane, natural gas, vegetable oil, wood, electricity. Some of these are available as factory-original, but I have seen all of these done as home-brew.

Example the third: a vehicle modded to make it more energy efficient and/or less polluting. Example: Late-80's VW Westfalia van fitted with a late-90's Subaru engine, making it more efficient, capable of passing emissions tests, and able to climb a hill without slowing down.

My point in all of this is that not all car modifications are for purposes of exceeding the speed limit, or for breaking any other law, and some are even altruistic.

Re:Lets get the facts straight :-) (0)

Anonymous Coward | more than 3 years ago | (#34416180)

The modded XBox will be used almost exclusively to run stolen software.

Exclusively? WTF! Seriously, what makes you think that? At most, it's likely (not a sure thing, but likely) to run some illegally copied software. How can you or anyone else predict that any of the software will be stolen, or how much of it will be? There is nothing in the facts that suggests any answers about this. There's no way anyone could know that, and no reason anyone should think or suspect that. Fucking paranoia. If "we're crazy" is the only argument the prosecution has, they deserve to lose.

Re:Lets get the facts straight :-) (0)

Anonymous Coward | more than 3 years ago | (#34416244)

"What is the difference in buying, customizing, then reselling an XBox and in buying, customizing, and reselling a vehicle made by Ford?"

That's assuming that modified Ford is what we call "street legal". That the vehicle still meets emissions and safety laws. Arguments by analogy are inherently weak because they don't deal with the topic at hand. In this case, a Xbox modification.

FTA: Crippen is charged with two counts of violating the anti-circumvention provisions of the Digital Millennium Copyright Act, and faces a maximum five years for each count if convicted. The government maintains Crippen, a hotel car-parking manager, ran a small business from his Anaheim home modifying the firmware on Xbox 360 optical drives to make them capable of running pirated copies of games."

Xbox's are sold at about $150 loss to MSFT. I think we can agree that the money is made on the subscriptions and games (agreed?). So this loss of potential revenue stream is what the "beef" here is.

P.S. - I agree with your sentiment that if you buy a game console, you should be able to do whatever you damn well want to it. The fact that this case game to trial shows how far the U.S. criminal justice system has fallen. A parking lot attendant is looking at the same amount of time in prison as a conspiracy to rob a bank. I'm fair enough to accept I'm voiding the warranty. It frustrates me so I choose not to buy Xbox and stick to PC gaming.

Re:Lets get the facts straight :-) (5, Insightful)

profplump (309017) | more than 3 years ago | (#34416570)

Refusing arguments by analogy is absurd. Analogy is the only way to compare what we know and have experience with to new situations. The vary basis of language is analogy and categorization -- we come to a common agreement on what constitutes "yellow" and treat all things of that class the same way even though it's unlikely that your yellow schoolbus is the the same color as my yellow lemon.

Argument by analogy is incomplete, in that there are differences between the actual point of contention and the analogous situation, and those differences might make a particular analog inapplicable to a particular situation, but dismissing analogy as an invalid tool for legal or other argument is just silly.

The category of "things protected by IP laws that you can modify aftermarket" seems like a pretty relevant place to start comparison. If you want to object to the analogy based on some specific difference between cars and game consoles feel free, but don't try to dismiss the comparison out of hand.

Also note that "street legal" is an irrelevant comparison for game consoles, as their operation is not regulated by the state, nor is the case at hand about the operation of the modified device -- which the defendant did not do -- only the modification itself and the sale thereof.

Re:Lets get the facts straight :-) (1)

Justtaint (301311) | more than 3 years ago | (#34416578)

MS hasn't sold the Xbox 360 at a loss for years. That $150 number was for launch consoles.
http://www.techspot.com/news/23612-microsoft-makes-tiny-profit-on-xbox-360-hardware.html [techspot.com]
http://www.videogamesblogger.com/2006/11/16/ps3-loses-up-to-306-per-unit-xbox-360-profits-76-per-sale.htm [videogamesblogger.com]

It took them less than a year to get costs low enough that they made a profit on each console.

Re:Lets get the facts straight :-) (0)

Anonymous Coward | more than 3 years ago | (#34416996)

"Xbox's are sold at about $150 loss to MSFT. I think we can agree that the money is made on the subscriptions and games (agreed?). So this loss of potential revenue stream is what the "beef" here is."

So because MS chose a piss poor business model the government should spend time prosecuting this guy. Once I buy hardware I should be able to mod it. There are other reasons that a some people may want modded xbox other than pirated games, such as being able to back up a physical copy of a game you purchased. I have more than one game that an xbox ruined, but I won't be getting another copy for free from MS . . .

If I bought a bunch of xboxes and ran them through a shredder should MS be able to come after me because they are going to loose money on those boxes because no games will be brought for them?

Re:Translation: Judge's son/nephew owns modded Xbo (3, Funny)

Anonymous Coward | more than 3 years ago | (#34415558)

Never attribute to malice that which is adequately explained by competence.

Re:Translation: Judge's son/nephew owns modded Xbo (0)

syousef (465911) | more than 3 years ago | (#34415674)

Never attribute to malice that which is adequately explained by competence.

You mean incompetence. That is a stupid quote by the way because sometimes people are both incompetent and malicious.

Re:Translation: Judge's son/nephew owns modded Xbo (1)

Anonymous Coward | more than 3 years ago | (#34415712)

In your case, I'm pretty sure it's just incompetence.

Re:Translation: Judge's son/nephew owns modded Xbo (1)

mwvdlee (775178) | more than 3 years ago | (#34415736)

If somebody fails at being evil, do they really look like an evil failure to the outside world?

Somebody may be both incompotent and malicious, but we'd never notice.

Re:Translation: Judge's son/nephew owns modded Xbo (5, Funny)

PopeRatzo (965947) | more than 3 years ago | (#34416064)

You mean incompetence.

Can I introduce you to the point? I don't think you two have met.

And tomorrow... (4, Insightful)

ShakaUVM (157947) | more than 3 years ago | (#34415468)

And tomorrow the feds drop the case since they don't want to set a precedent, and try again next month with a friendlier judge.

Re:And tomorrow... (2, Informative)

Anonymous Coward | more than 3 years ago | (#34415520)

you know... precedent is only set by cases they (judges) choose to publish. They can rule anyway they want and then not let the case be published in the proper way which then prevents it from ever being referenced in future trials.

Most people are also unaware that judges regularly edit the transcripts after the fact. (The reason they don't let you tape record proceedings without permission.)

Re:And tomorrow... (3, Informative)

Foobar of Borg (690622) | more than 3 years ago | (#34415720)

you know... precedent is only set by cases they (judges) choose to publish. They can rule anyway they want and then not let the case be published in the proper way which then prevents it from ever being referenced in future trials.

Most people are also unaware that judges regularly edit the transcripts after the fact. (The reason they don't let you tape record proceedings without permission.)

Actually, precedent is set at the appellate level. The trial court level does not set precedent. And, even then, the precedent is only binding on lower courts. Although, other appellate courts at the same level sometimes use those decisions as "persuasive authority" in their own decisions, even though they are not strictly bound by them.

Re:And tomorrow... (5, Informative)

cpt kangarooski (3773) | more than 3 years ago | (#34416220)

No.

First, thanks to the ease of putting and accessing cases on the computer, some federal courts now accept the citing of 'unpublished' opinions.

Second, all previously-decided cases establish precedents, but only some are binding precedents, which a court must follow, while most are merely persuasive, which a court may or may not follow as it sees fit. It's perfectly acceptable to cite the opinions of trial courts, if that's the best thing you've got.

Re:And tomorrow... (1)

multipartmixed (163409) | more than 3 years ago | (#34416248)

I don't think they can. If the trial has begun, jeopardy has attached. Dropping and re-filing would constitute double jeopardy.

Re:And tomorrow... (0)

hedwards (940851) | more than 3 years ago | (#34416462)

Citation necessary. Double jeopardy applies to trials that are completed where the jury decides to acquit. The defense is able to ask for another trial when found guilty. Additionally, it's been considered not to be a violation for trials to be retried at a different level of government or over different charges that cover the same actions for quite some time.

I don't personally care for it because it seems to be an end run around that particular protection, but it is established precedent and there's no reason to believe that it won't be upheld in the future.

My deal... (0)

Anonymous Coward | more than 3 years ago | (#34415506)

federal prosecutors asked for a recess to determine whether they would offer the defendant a deal, ...

“I apologize to the court,” Chiu said at the end.

You know the prosecution will offer that the defendant plead guilty to some bogus made up horseshit charge so that the prosecution can appear not to be morons.

I would counter,

"I would want all charges dismissed as well as my legal fees paid, one million dollars for time and suffering of which, $50,000 come out of your personal account, Mr. Chiu "

No Rage Allowed (-1)

b4upoo (166390) | more than 3 years ago | (#34415536)

As much as I want people to be able to jailbreak their own devices and despite my prejudice against the prosecutors' case any judge that lets lose with a tirade in a court room needs to be removed from the bench. Nobody should be subject to a verbal assault by a judge or other public employee.

Re: No Rage Allowed (4, Informative)

anomaly256 (1243020) | more than 3 years ago | (#34415566)

Unless of course they are committing unlawful behaviour and tampering with jurors. Oh wait.. RTFA.

Re: No Rage Allowed (1)

anomaly256 (1243020) | more than 3 years ago | (#34415572)

Also keep in mind the reporter could be exaggerating and sensationalizing a bit. Wouldn't be the first time.

Re: No Rage Allowed (4, Insightful)

jav1231 (539129) | more than 3 years ago | (#34415626)

The quotes seem pretty direct. He has some valid points. You're going to bring into open court two witnesses that had to break the law to get your evidence and then seek to have that fact kept from the jury? This is no different than getting warrants after the fact or say a vice cop not just propositioning a hooker but going ahead and sleeping with her, paying her, then arresting her and seeking to keep much of that out of court.

Re: No Rage Allowed (1)

SplatMan_DK (1035528) | more than 3 years ago | (#34415702)

This is no different than getting warrants after the fact or say a vice cop not just propositioning a hooker but going ahead and sleeping with her, paying her, then arresting her and seeking to keep much of that out of court.

... if that was possible I would seriously consider a change of career ...

- Jesper

Re: No Rage Allowed (1)

Xphile101361 (1017774) | more than 3 years ago | (#34416470)

Actually, the fact that they slept with her and paid her really doesn't having a bearing on the case where she is being convicted for prostitution. Nor would I consider the fact that a cop bought drugs from a drug dealer, tried them out, said that it was some "good shit" and then arrested the drug dealer. All of the above are arrests for people performing illegal acts. The cops in these cases also performed illegal acts, none of which have a bearing on the original legal act and should be prosecuted on their own. None of the actions in these examples seem to prove that the evidence was obtained illegally. The defense in the case you mentioned simply wants to paint the police in a bad light, saying that hookers wouldn't exist if johns like the cops wouldn't be there to pay them money.

Re: No Rage Allowed (0)

Anonymous Coward | more than 3 years ago | (#34416588)

All of the above are arrests for people performing illegal acts. The cops in these cases also performed illegal acts, none of which have a bearing on the original legal act and should be prosecuted on their own.

WOOOOOSH!

When was the last time^H^H^H^H^H^H^H^H^H first time an officer of the law was prosecuted for breaking the law in order to catch someone breaking the law? Your post is flawed. Haven't you ever been to the movies? Only Steven Segal is ABOVE THE LAW.

No disrespect for the court allowed? (4, Insightful)

SplatMan_DK (1035528) | more than 3 years ago | (#34415630)

As much as I want people to be able to jailbreak their own devices and despite my prejudice against the prosecutors' case any judge that lets lose with a tirade in a court room needs to be removed from the bench. Nobody should be subject to a verbal assault by a judge or other public employee.

There are rules to follow in the legal system. In this case the judge believe that the prosecution may have seriously failed to follow those rules - in spite of the fact that his job is to know those rules very well indeed. And if the judge suspects your failure to follow the rules are deliberate or due to laziness you may be found to be in contempt of the court - something which can have serious consequences for your case and perhaps even your job in the legal business.

If you show up in front of a judge with a blatant disrespect for the court, the court will give you a hard time for it.

What is the surprise here?

- Jesper

Re: No Rage Allowed (5, Funny)

The Mighty Buzzard (878441) | more than 3 years ago | (#34415632)

Nobody should be subject to a verbal assault by a judge or other public employee.

Conversely, I find it hard to believe that a lawyer has ever received more than 1/2^64 of what they had coming to them in the ass-chewing department.

Re: No Rage Allowed (2)

dragonhunter21 (1815102) | more than 3 years ago | (#34415682)

I don't think this is a case of rage. I think this is a case of a judge expressing his opinions of problems in the prosecution's case. And they are serious problems.

Re: No Rage Allowed (4, Insightful)

ledow (319597) | more than 3 years ago | (#34415768)

"Please place the weapon the floor, pretty please, and then we'll put you in these nice, shiny handcuffs"

"I would very much appreciate it if you didn't cross that safety barrier that you're now crossing, thank you very much."

Nobody should be subjected to anything *unnecessarily* but this is a judge dealing with witnesses who broke the law while collecting evidence, jury-tampering and a prosecution that doesn't see the harm in what they did and continually asserts that to the court and doesn't see the severity. He's probably also extremely annoyed at how a valid court case in quickly turning into a farce at tax-payers expense.

Shouting is not about aggression - it's about tone of voice, volume, and choice of words. If you're shouting in someone's face directly, or pushing forward towards them, that's just rude and confrontational. But it doesn't mean you can't *shout* at them without doing that, only making them realise your displeasure through their own obstinacy and yet not feel threatened.

Shouting at someone, especially someone who should know how irate people behave and be performing their *own* simple professional duty, won't kill them. Teachers shout at kids in school. I shouted at my letting agent last year (and without that, I wouldn't have working plumbing, or my landlord removing their contract, reporting them for breach of contract, extracting *my* deposit from them via a legal process, and dealing with me direct for even the most minor of problems and actually doing a better job). Parents shout at their children in supermarkets. I'm actually *glad* when some kids get told off because it means that the parent is paying attention to their actions and cares about the outcome for everyone - those parents who just say "Come on, now. I won't tell you again. No, really, come on. This is the last time I'll ask you. Please come on, Jack. Jack, if you come now, I'll give you sweeties" REALLY, REALLY need to have a room full of other parents shout at them until they understand why that doesn't work.

It's not a first resort, but it's the last (legal) resort of the ordinary man. We can't all be martyrs and speak perfectly calmly no matter how annoyed we are, and the *WORST* we can do without committing a crime is shout at someone. It's also, generally, incredibly effective. Try politely asking someone on a complaints desk to get their supervisor. In quite a lot of cases it won't happen, especially if they know they are in the wrong. Without shouting, you end in the the same position. Now try shouting only AFTER they refuse to do that. Now try being obstinate and refusing to leave the building until your problem is solved. Now try shouting some more. Nobody gets hurt, injured, threatened or abused, they just get talked to in a loud and certain tone. It has a surprisingly greater result at no significant psychological cost and it's the most you can *legally* do (I do not in any way condone actually threatening or hurting people - by that point, you've lost the argument and sight of what you're trying to achieve).

If you're really that devastated by someone shouting at you, it makes me wonder just how much of global life you're ready for, what your parents did when you ran into the road, and what attention your teachers were paying to you at school.

Shouting *is* the non-aggressive alternative here. The judge is showing that the lawyers are on their last chance and if they don't buck their ideas up, he'll be seeking sanctions against them. This is his way of warning them, and if it was done in a polite note about "The court disagrees with the prosecution", no-one would pay it any attention and if sanctions were then applied, the lawyers would claim there was no way they could see it coming. The judge has been definite, assertive, perfectly clear, aired all his concerns, indicated the seriousness of this to everyone and yet NOT ONE PERSON has been hurt in any way. I just wish a few more parents were like him, really.

Re: No Rage Allowed (0)

Anonymous Coward | more than 3 years ago | (#34416080)

*sniff* aahh ... your wittle fewings hurt ? someone "yelled" at me...and now i feel threatened.... GROW UP.

Re: No Rage Allowed (1)

poetmatt (793785) | more than 3 years ago | (#34416178)

I'm pretty sure if a judge has lost his cool, there's a damn good reason. In this case, all of the above anomaly stated - literally the government has broken the law on this.

You think a judge is going to be happy/calm about that?

that's like me saying hey, I broke into your house and raped your wife, and someone else saying it's wrong for *you* to be angry over that.

it's not exactly reasonable.

Re: No Rage Allowed (3, Interesting)

metalmaster (1005171) | more than 3 years ago | (#34416310)

May i introduce you to Judge Judith Sheindlin [wikipedia.org] ...

She's got no issues with berating people in her courtroom whether they be plaintiff, defendant or some random member of the audience. Granted, her show is dramatized for daytime tv ratings purposes. However, she was given the show because of her outspoken nature.

Whether you like it or not, when you step into a courtroom you're in the judge's domain. S/he has rule, and if you are wasting time I'd let you know about it too.

More rage, please. (1)

Lilith's Heart-shape (1224784) | more than 3 years ago | (#34416668)

As far as I'm concerned, anybody guilty of the criminal stupidity displayed the the prosecution in this case deserves not only to be chewed out by the judge, but to be thrown in jail for contempt. However, I myself am not a judge; I'm just Lilith's heart-shaped ass.

Danger Will Robinson (5, Interesting)

maroberts (15852) | more than 3 years ago | (#34415546)

Often the side that gets the most serious sledging is the one that the judge thinks is likely to win, because he wants to make sure that he has addressed any points that could be appealed.

Sounds like it should be a Boston Legal Episode (1)

EnderDom (1934586) | more than 3 years ago | (#34415582)

Denny Crane, Quickly!

the only way to judge (0)

Anonymous Coward | more than 3 years ago | (#34415642)

is full of beans

Re:Sounds like it should be a Boston Legal Episode (0)

Anonymous Coward | more than 3 years ago | (#34415646)

If it were a Boston Legal episode, the Alan Shore character would have given a long winded speech out of order - it's amazing how he always got to speak last regardless of whether he was the plaintiff's or the defendant's council.

Denny Crane.

Re:Sounds like it should be a Boston Legal Episode (1)

dr.newton (648217) | more than 3 years ago | (#34415842)

Who's Denny Crane, Quickly, and why has he got a comma in his name?

Jury Nullification Time! (2)

XxtraLarGe (551297) | more than 3 years ago | (#34415638)

I hope it does get heard, this would be a great time for jury nullification [wikipedia.org]. Hopefully, the Fully Informed Jury Association [fija.org] will be around to educate jurors.

Re:Jury Nullification Time! (1)

Restil (31903) | more than 3 years ago | (#34416022)

Actually, this would be the proper time for the defense to prove that he did not in fact break the law. The jury has one purpose. They are to be educated on the law that the prosecution says the defendant broke, and then decide if he actually broke that law. They're not supposed to decide if the law is "fair" or not. That's what legislatures and supreme courts do. Not juries. And while we all love to think that by some divine coincidence a jury will be selected that all agree the laws were broken, but decide to acquit anyway, remember that the same bogus legal concept also works, and has worked, in less desirable situations, or do you want a return to the pre-civil rights days where a black man couldn't get a fair trial with a white jury, no matter how well defended he was. If someday you are the victim of a crime, would you want the jury to acquit the suspect because for some reason they think you deserved it?

All jury nullification is really good for is as a concept you express during the panel selection process to hope that you get struck from the pool.

-Restil

Inadmissible evidence cannot be presented (0)

Anonymous Coward | more than 3 years ago | (#34416554)

Inadmissible evidence cannot be presented and if the prosecution cannot show a case (because, for example, their proof was inadmissible as evidence), then there's no defence to make.

I'm sorry you don't like it that way, but that's the law.

Re:Jury Nullification Time! (3)

Sloppy (14984) | more than 3 years ago | (#34416598)

Actually, this would be the proper time for the defense to prove that he did not in fact break the law

This is one time that I agree. If you actually read the DMCA, there isn't any part of it that applies to the situation. Modifying a player that is already capable, on its own, of accessing the work protected by the tech measure, simply isn't an act of making/selling a device that circumvents tech measures that control access to the work. There just doesn't seem to be any part of DMCA as written, that prohibits this sort of thing. All the jury has to do is apply the law that Congress wrote, rather than bad precedents, and it'll be an innocent verdict.

If the industry buys a new law to amend DMCA to prohibit this sort of thing, then I'll start to disagree with you, and say the people should uphold fairness. You say that thinking about fairness is what legislatures and supreme courts do, and that is a noble thing for us to strive to get our governments to do. Yes, it is our responsibility to some day elect legislatures that think about fairness, and if the law isn't fair, then it's our fault.. But if a person does not believe the public has successfully done that yet, then from their point of view, thinking about fairness has not yet happened at any point in the process, so when it's their turn to be on a jury, that is last chance for fairness to play any role in the system. If Congress didn't worry about fairness, then jurors are the only place fairness can be considered before an innocent person is harmed by government force for no good reason. If you're a juror and you don't think the lawmakers have tried to be fair, then you must nullify.

And let's remember, this is DMCA we're talking about here. Go ahead and just try to make a case that congress and the courts even paid lip service to fairness. It's one thing for a racist to disagree with a legislature that insists a black man be allowed to vote. He might wish the legislature hadn't done that and disagree that they should have. But deep down he knows that at least they did that due to public pressure and a shitload of people demanding to be treated like people. Fairness is the whole point of civil rights laws, and a desire to not let fairness go too far, is the "reason" someone would nullify such laws. You can't compare this type of situation to how DMCA got passed. The section 1201 prohibitions are pure bullshit.

Let me try another tack: if nullification has been used for injustice, does that mean it shouldn't be used for justice? A juror can't blow off his responsibility just because some people in the past have fucked it up.

Re:Jury Nullification Time! (2)

Hatta (162192) | more than 3 years ago | (#34416938)

The jury has one purpose.

This is a myth. The founding fathers were quite clear that the jury has the power to judge both the facts and the law.

Re:Jury Nullification Time! (0)

Anonymous Coward | more than 3 years ago | (#34416972)

Where is that in the constitution?

Re:Jury Nullification Time! (1)

Lilith's Heart-shape (1224784) | more than 3 years ago | (#34416760)

When I get called for jury duty, I pretend I've never heard of nullification. Then, if I get stuck with a drug possession case, I strike a blow against Prohibition by persuading the other jurors to acquit.

Ars has a few more details and links (0, Redundant)

SplatMan_DK (1035528) | more than 3 years ago | (#34415664)

The article on Ars Technica has a few extra details as well as links to further material.

http://arstechnica.com/tech-policy/news/2010/12/judge-in-xbox-modding-trial-berates-prosecution-halts-trial.ars [arstechnica.com]

- Jesper

Re:Ars has a few more details and links (2)

lxt (724570) | more than 3 years ago | (#34415686)

If you RTFA, you'd realise the link you just posted *is* TFA. It's the same Wired content reposted on Ars... :/

Re:Ars has a few more details and links (1)

SplatMan_DK (1035528) | more than 3 years ago | (#34415776)

Yes, you are correct. The origin of the article on Ars even states: "By David Kravets, wired.com".

Guess I was too busy following the links and reading up on the actual text in the DMCA ...

- Jesper

Logic (1)

Brafil (1933028) | more than 3 years ago | (#34415670)

You own what you buy. That's why you pay for it. If you don't want your customers to mod your stuff, don't sell it. Nobody can complain if I sell my boiler modded to fit British plugs on ebay. On the other hand, I would sue that Rosario guy for infringing my privacy by recording me on video at home.

Re:Logic (0)

Anonymous Coward | more than 3 years ago | (#34415794)

Copyright laws beg to differ, citizen. Now get back in line or we will sue you into indentured servitude!

Re:Logic (0)

Anonymous Coward | more than 3 years ago | (#34416380)

He's right. As an American citizen, I fully trust my government to make rational decisions and this means I can advocate modding and selling Xboxes without fear of ge

Laws exist to be broken. (1)

Lilith's Heart-shape (1224784) | more than 3 years ago | (#34416838)

After all, there's no way to rule innocent men. The only power any government actually has is the power to crack down on criminals. But if everybody is a criminal, what can the government do? If the government tries to cash in on guilt, what will it do if the "criminals" feel no guilt over bullshit crimes?

Re:Logic (1)

Mushdot (943219) | more than 3 years ago | (#34415854)

If you modded the boiler so that it fully or semi bypassed the gas meter in order to provide cheap/free heating then the boiler manufacturer and gas companies would complain.

The prosecution argument is that modding an Xbox allows you to bypass that thing known as 'purchasing' to enable you to play games.

Re:Logic (3, Interesting)

asicsolutions (1481269) | more than 3 years ago | (#34415942)

Actually, a better argument is modding a boiler so you don't have to buy a particular gas companies gas, but now can use 'homebrew' gas.

Re:Logic (1)

91degrees (207121) | more than 3 years ago | (#34416038)

Not really.

Most people who mod their XBoxes do so in order to play pirate games.

If this was the primary purpose of the mods then he's committed a crime. It's up to the goverent to prove this was the primary purpose but they have sufficient cause to prosecute.

Re:Logic (1)

rich_r (655226) | more than 3 years ago | (#34416272)

I, and many like me, modded their xboxes solely to run XBMC as well as using it as your normal, everyday console.

Re:Logic (1)

91degrees (207121) | more than 3 years ago | (#34416324)

That's nice.

I modded mine for pirated games. So did a lot of other people I know. You'd be surprised how many people will pirate games. I'd suggest that I'm not in the minority in this respect.

Re:Logic (0)

Anonymous Coward | more than 3 years ago | (#34416716)

No you're not the minority. But you and your pirate ilk are ruining the ability to use our devices the way we want for the rest of us. Thanks for that.

Re:Logic (1)

Brafil (1933028) | more than 3 years ago | (#34416138)

Then it's the problem of the gas companies, not the boiler manufacturers. I might have done that, but unless I actually played with the gas connections, nobody can blame me. Maybe I built in a gas metre from another company and used it after my contract with the original gas company ran out.

Similarly, I think that if you mod your Xbox and put homebrew on it, it can't be illegal. If you actually torrented the newest Halo and ran it on your modded Xbox, then that's a problem in regard to illegally obtaining a copy of a copyright-protected game and it's not about whether I fiddled with MY Xbox or not. Heck, people can buy guns in the USA, but nobody complains unless you use it to do something illegal. Stating that buying a gun is illegal because it can be used to break the law will surely be countered by loads of NRA supporters.

Re:Logic (0)

Anonymous Coward | more than 3 years ago | (#34416278)

This is the fundamental promblem with the DMCA. It illegalizes the production and sale of anything which _could_ be used to breach DRM. This is similar to outlawing vehicls with more than one seat because they _could_ be used to kidnap a child, or outlawing scissors because you can use them to get the CD out of it's sleeve without breaking the "by breaking this seal you agree to the EULA" seal.

In a sane legal system selling moded x-boxes or moding service for x-boxes would not be a crime. The crime would be infringing distributuin of copyrighted material, but that only applies to the person(s) who copy and/or distribute the pirated software, not those who modify legaly pruchased hardware.

Re:Logic (1)

91degrees (207121) | more than 3 years ago | (#34416398)

It's not so much that it could. A PC allows you to run pirated games and a DVD player allows you to play pirated DVDs, both without modification, and these are legal. The question is one of primary purpose. It's up to the prosecution to prove that he modded XBoxes with the intent to let them play pirated games rather than that he believed most would be used for XBMC or whatever but if they can prove this beyond reasonable doubt then he's guilty.

One witness did claim that the modder had shown that it would work with pirated games, although this wasdestroyed in cross examination. Had he actually had this evidence on video then it would show he performed the service knowingly in order to allow piracy.

Now, you may want to bring up DeCSS here. DeCSS was indeed a pretty abstract piece of software. It should not have been declared illegal but it seems that the defence didn't have a good understanding of what the software did and ended up defending the case pretty poorly.

Re:Logic (1)

tinkerghost (944862) | more than 3 years ago | (#34416292)

If you modded the boiler so that it fully or semi bypassed the gas meter in order to provide cheap/free heating then the boiler manufacturer and gas companies would complain.

It's highly unlikely that the boiler mfg would complain - you already bought the boiler & if you modify it, they no longer have to provide warranty coverage. On the other hand, the gas company would certainly complain in that you are stealing a physical product which has a real world cost to produce and distribute.

On the other hand, modding an X-box permits you to use the X-box as you want. While some people may choose to use it to run pirated games, others will choose it to run unofficial games and backups of games they have legally purchased.

This is the issue of 'substantial non-infringing uses'. Movie distributors tried to outlaw VCRs because you could copy tapes - the courts ruled that the fact that someone could break the law with something was not sufficient reason to prohibit it's manufacture or sale. Move forward 30 years and the industries rented politicians have made an end run around the courts reasoned decisions of the court.

The problem with the DMCA is they explicitly stated that the law would not interfere with your 'fair use' rights, then proceeded to make it illegal to make or sell the tools required to exercise those rights.

Car Analogy (Re:Logic) (1)

GrBear (63712) | more than 3 years ago | (#34416362)

No, it's more like buying a high performance car, then chipping it to remove factory imposed limitations like a speed limiter.

Sure, people will argue your just going to break the law and speed excessively now, but that doesn't negate your right to do it. That whole innocent until proven guilty thang.

Better yet, prosecute those who modded mortgages (1, Offtopic)

digitaldc (879047) | more than 3 years ago | (#34415678)

Prosecuting people for modding a video game console seems like a total waste of time, energy and resources.

Shouldn't we be focusing our attention on the Wall Street crooks who stole money through the home mortgage scandals?

Re:Better yet, prosecute those who modded mortgage (0)

Anonymous Coward | more than 3 years ago | (#34415742)

Shouldn't we be focusing our attention on the Wall Street crooks who stole money through the home mortgage scandals?

No, because they've got a powerful lobby. Plus they pay taxes on their ill-gotten profits. So fuck you John Doe! You are going down, you insignificant piece of shit! Come back when you've got a few millions to "donate" to relevant politicians!

Prosecution Moves Forward Despite Judge's Outburst (2, Informative)

Anonymous Coward | more than 3 years ago | (#34415680)

I didn't see it shared in the comments, but regardless of the tirade, the prosecution has decided to move forward with the case:
http://www.wired.com/threatlevel/2010/12/no-deal-in-xbox-modding-case-trial-begins/

Common - Judges often have issues with these cases (5, Interesting)

Anonymous Coward | more than 3 years ago | (#34415750)

Having been prosectued under the NET act and DMCA the judge in our cases expressed conserns as well. While the goverment had a better case, the judge felt this was closer to a civil case then a criminal a case, and went on to explain the futher education is required by the goverment of what this legislation means for the average person. In the end I plead guilty, as we were one of the first cases to go and had no money for a real attorney, plus probation is much better then 3-5 years in jail.

I think the goverment should prosecute in severe cases where monterary gain or where there is conterfit good involved. But for modders of an Xbox, that is like prosecuting a mechnanic for installing upgrades to your car. At best a Civil case, at worst a waste of federal tax payers dollars and judicial resources

More Story (0)

Anonymous Coward | more than 3 years ago | (#34415978)

More Story [wired.com]

Some additional story from Wired on the case. From this Article:

"He produced a pirated video game. He placed it into the ROM he had just worked on. He initiated the game and it played. He showed me that the actual game would play," Rosario testified.

But 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.

Tony Rosario is an investigator for the Entertainment Software Association. (Obtained from article posted in summary)

Its always been "assumed" mod chips are illegal (2, Interesting)

voss (52565) | more than 3 years ago | (#34416290)

Im surprised the defense hasnt considered a "substantial non-infringing uses" defense. For instance playing backup disks and homebrew. The well known issue of scratched disks, and the desire for interoperability with non-microsoft approved software. This is separate from "fair use" in that the illegality of the mod chip itself is challenged.

Fascism (3, Insightful)

mlwmohawk (801821) | more than 3 years ago | (#34416902)

Why are our tax dollars paying our lawyer to press criminal charges against one of our citizens on the behalf if a multi-billion dollar multi-national corporation for altering legally purchased private property?

I remember when AT&T was forced, gasp, to use non AT&T phones on their service because the government protected its citizens. It seems we've come reversed ourselves.

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