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Subscribe to RSSThe criminal trial against a man accused of modifying, or "modding," Xbox game machines was put on hold Wednesday after the federal judge overseeing the case berated the prosecution and questioned their use of witnesses who may have, themselves, broken the law.
U.S. District Judge Philip Gutierrez told the prosecuting attorneys that he had “serious concerns about the government’s case,” according to a report from Wired.
As we reported earlier, opening statements were scheduled to begin Wednesday morning in the criminal trial of 28-year-old Matthew Crippen of Los Angeles. Crippen — who is accused of modifying Microsoft-made Xbox 360 game consoles for money so the machines could play pirated games and other content — faces time in prison if convicted. (msnbc.com is a joint venture of Microsoft and NBC Universal.)
Authorities arrested Crippen last year on accusations that he violated the Digital Millennium Copyright Act. He was ultimately charged with two counts of trying to circumvent anti-piracy measures. This trial marks the first time a federal prosecution for console-modding has reached a jury trial.
Wired writer David Kravets has been in the courtroom and reports:
Among the judge’s host of complaints against the government was his alarm that prosecutors would put on two witnesses who may have broken the law.
One is Entertainment Software Association investigator Tony Rosario, who secretly video-recorded defendant Matthew Crippen allegedly performing the Xbox mod in Crippen’s Los Angeles suburban house. The defense argues that making the recording violates California privacy law. The other witness is Microsoft security employee Ken McGrail, who analyzed the two consoles Crippen allegedly altered. McGrail admitted that he himself had modded Xboxes in college.
“Maybe two of the four government witnesses committed crimes,” the judge said from the bench. “I think it is relevant and the jury is going to hear about it — both crimes.”
Wired reports that opening arguments were put on hold and, after the berating was over, federal prosecutors asked for a recess to determine whether they would offer the defendant a deal, seek dismissal of the case or move forward with it.
For related stories, check out:
Kinect sex – what's the holdup?
With Kinect controller, hackers take liberties
Kinect vs. Move vs. Wii: Fight!
Winda Benedetti writes the Citizen Gamer column for msnbc.com. You can follow her tweets about games and other things right here on Twitter.
Leave a Comment:
Whatever happened to the idea that if you purchased a product, it was yours to do with whatever you wanted?
despite what the manufacturers think, you should be able to do whatever you want to your machine (that is your property, not the companies).
the problem was that the guy was selling modifications to others, which is rather iffy.
That's all fine and dandy but this guy is allegedly modding 360s and then reselling them making a profit out of it. That right there is where he breaks the law. He's illegally modding the console which is stated in the license agreement and warranty that you aren't allowed to do (which 360 users all must agree to in order to use the service). He then makes a profit from it which is making money off of someone else's idea (even though the mods are his own work he's modifying an already copyrighted and patented console). Now if here to sell it or trade it in there's nothing wrong with that (it's his property to do so) but modding the console itself is illegal and against not only the law, but the license agreement as well.
You are half right on both counts, Locke. He wasn't reselling the consoles, he was offering mod services for people who had already purchased the consoles, and the TOS states that you will void the warrenty on the console, and forfeit any rights to xbox services, such as Xbox live, unless of course you are doing this to circumvent copyright protections on software, in which you are violating the law. He was providing a service to exsisting xbox owners, under the premise that it would allowed them to play backed-up copies of software titles they had already purchased, which, contrary to what Nintendo, Sony, and Microsoft state, is perfectly legal, provided that, in creating the back up copy, you do no circumvent said copyright protections. Same holds true for copying DVDs you have purchased. We have hit a bit of a grey area though, because the provision under DMCA they seem to be charging him under seems to have to do with circumventing copyright proctections, such as Macromedia, to prevent illegal copying of source material, to a secondary backup, for products you do not already, however that was primarily written to, again, prevent illegal video piracy of DVDs, and allow the installation of Macromedia chips into DVDs. This case is going to set the precedence for modifying consoles beyond their original specifications, and could open the doors to a crap load of additional litigation.
I don't see where modding the console is against the law. It voids your warranty, sure, and can get you blocked from accessing XBox Live, but to call it illegal is a stretch.
It would be the same as prosecuting someone who was charging a small fee to repair consoles without being a Microsoft employee.
At the most it voids your warranty.
This is just more of the same over-bloated corporate muscle trying to throw it's money around to intimidate regular people.
I wonder if the maker of my web cam is going to be upset if I converted it from it's normal use into an infrared camera. Further, will any of those digital disposable camera makers be upset if I modify equipment so that I can keep using that camera over and over again without having to turn it in to get the pictures I took with it printed? So many things you purchase can be modified to be so much more than they are out of the box. I say go forth and improve the junk your sold.
As a geek who modded both my ps1 and 2 years back and as a developer, I can see both sides to this.
(Devils advocate) The problem with modding is you can then burn games and distribute them, which takes revenue away from the next release. We all look forward to the new engine and better graphics. It costs a lot of money to make a good game, it's not just one person sitting in his room eating pizza and drinking mountain-dew. You have modeling and simulation departments, knowledge management, graphics, animation, etc, etc.
My point is, as a geek, I paid for it I should be able to do what I want with it (Linux clustering on original xbox's was cool). But as a developer, if you find a game you really like, please show your support and buy it.
The problem Microsoft has here is that judges absolutely hate a) using any evidence obtained while breaking the law, and b) using witnesses who committed the same crime as the accused but will not be tried. In all probability, when the judge charges the jury, he will bring up these two issues and emphasize what the jury is to do with the testimony (he can direct them to disregard it.) The judge's charge is the LAST thing the jury hears before deliberations. This alone could well sink Microsoft's case and make future prosecutions extremely difficult. This is why it is so important that law enforcement agencies and prosecutors not "taint" witnesses.
Its not that he modded his xbox that is illegal its that he modded it with the intent to break the law. In this case to break copywrite laws. The criminals file and pound out the serial numbers on handguns before they commit murder with it. I'm not 100% sure if it is nesicarily illegal to moddify one's own property. But it is illegal to conspire to break the law in which case why else would he moddify it unless he just wanted to mod it and then use it as a paperweight.
Brock,
Is it illegal to have someone modify your car so that it's faster? The only reason to go faster is to break the speed limit, right?
You may want your car to go faster to legally race it. There are also legal reasons for wanting to modify a console.
I'm not sure how it is worded but if this trial is strictly about modding the Xbox, it can't be won. Even if the machine can play pirated games he still did nothing but void the warranty.
On the other hand if he was also supplying the software, that's another story. He is then breaking copyright laws and can be prosecuted fined and thrown in jail.
The main argument is, innovation and upgrading has been going on since the first invention. Everything starts with an idea and is improved as the years pass. Basically you can't lock up some kid for tinkering with his toys. His argument for charging others would be that he didn't charge for the mod he charged for his time which is where tax evasion is the best route to a conviction. The problem here is proving how many he has done which would be impossible because people would have to admit they have modded boxes. Tax evasion was the method used to take down Al Capone because they couldn't directly link him to a crime. Modding an Xbox does not link directly to a crime.
You can do anything you want to a product you own. My Xbox that RROD'd out of warranty is not going to be sent back to Microsoft to pay them more money to temporarily fix it again. I did the fix myself so did I break the law? No, I just voided the already expired warranty. If someone asked me to mod their box but doesn't tell me why they want it modded is it a crime? It's their property and they are asking me to supply a service.
As I write this I see how easy it is to run this in circles. This is the problem with technology. In the last decade technology has grown by leaps and bounds but the law hasn't kept up and it appears hasn't made much of an effort to keep up.
If this guy has a decent defense attorney they should blow all sorts of holes through this and the modder should walk out without even paying a fine.
The electronic copyright act was written by the really big makers of these boxes; it sailed Thur congress without much opposition; when questioned Congress persons admitted that they did not understand what they were voting on, however they were lobby ed heavily by the makers; if you read the act you will find even if you own the devise and you make modifications you are subject to fines, big ones, and also imprisonment, with a five year minimum sentence; Corporations own our Government !
When I was in Korea I had my first xbox modded, when I was in iraq I had my 360 modded. I know of no other reason to have had it modded other than to play the pirated games for a fraction of the cost.
So lets say you legally own every game made for the 360, what is the point of modding your xbox? The answer is none. The only reason to mod you xobx is to play illegall copies of those games.
And as far as modding your car to make it go faster or make it look cooler (tinited windows, tinted license plates, ground effect lighting) is all meant for use on private property not on public roads. So if you have enough land to drive 200mph on by all means do, invite me it sounds fun. But the second you onto a public road you're breaking the law. Modding your xbox to play a pirated game is the same as driving around with a modded car on public roads, its illegal not because of the moddifications but because of the intent to break the law with such modifications. US cars have govenors in the engines to meet EPA fuel conservation stands. Tinted windows are illegal because a cop needs to be able to see inside a car to better assess the risks with such a traffic stop. Tinted plate covers are illegal because it makes it harder to see the plate which makes it harder to see whos car it is. Pirated copies of games, movies, music is illegal because someone else made that media in order to make money.
Buy an xbox game for $60. Make 20 copies. Sell each copy for $3 and you break even. But now thats 20 people who have no reason to buy the real copy so xbox loses out on $1200. Do the math thats why people are out of work. That $1200 goes to pay the truck driver that driver the games to best buy, the employees at Walmart, the wholesalers, and so on.
$1200 is a little more than a weeks pay for me. So think about for every 20 bootleg games you buy someone isnt getting paid that week. Someone isnt able to pay their rent for a month. Someone isnt able to pay for a weeks worth of college or two months worth of groceries. $1200 is a good down payment on a car. They're not having fun barely making ends meat becuase you want to cheap out on your entertainment budget.
I'll be the first to admit $60 is way too much for a game but I'm not going to steal. Its just bad karma.
I completely agree with your statement. And to expand on it more, he was getting paid to mod the xbox's. Its like selling your services to copy movies onto a hard drive. A lawsuit last year was filed against RealMedia for that same thing and they lost big time for SELLING software that breaks encryption and copies dvds. The main thing the proescution is pushing for is he sold his services to break copyright laws. AS for the people who were buying the mods, they were buying pirated data. I am not sure our current law has caught up to technology on that one. They are prolly gunna get a fine or something but that is it.
And about buying the game, what if you rented it for 10 bucks at Blockbuster and copied it. You make 6 times more profit according to your numbers. Instead of $1200 make it $7200...I know I would like that money...lol. I also agree that $60 for a game is alot, but Halo Reach was by far worth it.
Brock-Chicago, thank you for your well written, easily understood comment. I agree that the practice of pirating games has put people out of work.
People don't seem to realize that ALL crimes have victims, some of which are indirect. Even drug use has victims in addition to the person using the drugs. And now that cartels are involved to a huge extent, I believe drug users are a part of the problem of violence, and, therefore, a threat to our national security. But, that's another subject for another board. Sorry.
Going back to the pirating issue: Kaoroke DJ's are buying pirated hard drives to use in their business, and are getting caught in some jurisdictions. It's another area that subject to scrutiny.
The more intelligent case to bring against him would be tax evasion.
Exactly! Isn't that why we pay through the nose for these gaming systems?
Remember when we used to buy a tape and make copies for all of our friends? It was no big deal!! We paid for it, it was ours to do as we wished!
It was illegal to do that back then. It was just a lot harder for the copyright holders to enforce the law. It was a big deal to the record labels - you can tell it by how hard they've fought things like Napster. Just because they have better tools to enforce the law now doesn't mean they didn't care about it before.
The reason this is a big deal is because he's modding the things then marking them up and reselling them. That's copyright infringement to the nth. If he wants to make his own system that does these things, he should make one and patent it, not remake someone else's machine for his own profit.
If I started building Xbox's and giving them away to my friends it would be against so many laws. The same goes for making a copy of a tape, you purchased one tape, that does not give you the right to manufacture more tapes which is essentially what you are doing. Giving them away doesn't make you any less at fault. You just took away the ability for the company to make money.
Also, the reason why you pay through the nose for gaming systems is because it takes money to design, patent, build, test, tweak, test some more, manufacture, market, distribute and so on. The corporation is going to sell it to the store for a profit and then the store is going to sell it to you for a profit, it is how businesses make money.
The great thing about being a human being is that you have choices. If you feel you are paying through the nose, don't buy it. It's not like you need this product to sustain life. It is a luxury and after five years on the market they will price it at what it will sell for.
i gotta agree with u digitalnoise, u should be able to do what u want to with hardware u've purchased, and besides, these games today are high as the sky, music prices has came down, movie prices have came down, but i haven't seen any game prices drop yet, and i myself dont plan on buying any more games at those prices sorry LOL
In the past five years I have paid the full 60 bucks for about six games. All the rest I purchase after the price drops, which it does in time, or I will purchase used.
Why is it that so many people act as if there is no effort put into making a game? So many people equate it with the price of making the disk and the packaging and that's it. Programmers, Artists, Writers make pretty good money. Have you ever finished a major release, say a Call of Duty or Bioshock and watched the end credits? Most of the people named are getting paid. Also, they don't create these games in a week, some are two to three years, unless we talk about Duke Nukem which is more like 100 years.
If more people start thinking like you then the price of games might come down but as long as they are selling 10 million copies of CoD on the first day of release at 60 bucks a pop they are going to do it.
I want to see someone use the defense, I stole it because it was too expensive. At least it would give everyone a good laugh.
I watched the credits for Assassin's Creed Brotherhood. It took like freaking 15 minutes for it go through the entire thing. Thats where the 60 dollars go to. And the cost of raw materials/transportation have increased which also affects price.
yeah, you can do whatever you want, but you can't sell a patented/copyrighted console and make a profit off it. that's illegal.
idk if this is the same, but just for codmw2 alone, the amount of modders/hackers is insane. i could not go through a day without coming across a sniper or pistol that fired like a machine gun, or a sniper that just could not miss. that said, if this guy goes to prison, let's see if any codmw2 modders will follow ;)
btw how's black ops? anyone who has it, feedback would be awesome, thanks!
Sucks, no prone
Damn campers ;)
Black Ops is not so good. A step backwards in my opinion.
I'm going to have to disagree...I think Black Ops is a step in the right direction. Kills are much harder now and I have yet to see any one player that has a distinct advantage. The FAMAL and AK74U are the best to use, but no one weapon has an advantage.
They'll probably find out the judges' kid has one.
There are numerous legit reasons to mod your xbox, and its perfectly legal. Its also something that gamers have been doing to consoles since day one, this is nothing new. There is only one illegit use, pirated games.
Modding your box does also allow you to play pirated games, but thats on the person doing it. This guy was being paid to mod xboxes which there are numerous legit reasons for doing so, he was not selling pirated software.
This is like them busting your mechanic for hot rodding your car, because you MIGHT speed later.
Freedom,
I didn't read down far enough. Good point! I just made the exact same argument in another comment.
Freedom4Everyone, what is a legitimate reason for modding a box? Maybe I'm brain dead today but I honestly can't think of one!
here you are, this is what a "big deal" all of this is:
http://www.xbox360-hacks.com/
Prison time? We can't keep sex offenders behind bars because of this kind of @!$%#? Capitalism at its finest.
i agree with all of the above...lol
My personal opinion of this matter is that once an individual purchases ANYTHING from ANYONE he should have the right to make 55 copies if he or she so desires. IT'S HIS PROPERTY. Now I'm retired law enforcement and I AM NOT advocating that people should be allowed to make copies of say, movies for instance, and sell them, but if they want a copy for every room of their home it's their business, period. If they sell or otherwise transfer the property to another then, they cross the line and should be charged under the appropriate law. This guy, is "modding" xbox's for money to assist others in running PIRATED software, "backups" my ass. We all know better. On the other hand I agree with the presiding Judge in as much as the prosecution is using one crook to convict another. I NEVER agreed with that and, in our state, the law says "no person shall be convicted solely upon the testimony of a co-conspirator unsupported by other evidence". Now I know that doesn't apply in this case I'm only pointing out that the law takes a dim view of using one liar to convict another and that is as it should be. At the federal level they can get very ............. creative, is the nice word, with the spirit and meaning of the law and the rules of evidence. I don't trust them now, I never did, and the Judge is right to be skeptical. Now, if the feds do the right thing, and they won't, they will drop the charges, do a PROPER investigation, gather clean evidence, and refile. If they withdraw the charges now, jeopardy doesn't attach, if they proceed to a mis-trial they're pretty much screwed and, if they get a not guilty verdict, they're done.
Just plain stupid. 1st off, you'd have to jail half the world starting with 13 year old kids who do it, doing this will do nothing except slap idiotic jailtime (nowhere near proportional), use up valuable resources (you're going to lock up someone for soldering and typing in a few lines of code.) and actually create an additional awareness of the fact that you can mod these boxes among people who didn't previously know, so now they're going to start looking for modders. So let's see.... make the problem main-stream or limit it to a couple geeks who do little if any damage to corporations looking to make a buck.... hmmm. Something tells me the geniuses pushing this couldn't program something as simple as a timer.
Island Cabby, you contradicted yourself. First you refer to "half the world starting with 13 year old kids who do it ...", and then "limit it to a couple geeks who do little if any damage to corporations ...". Which is it: 1/2 the world, or a couple geeks?
@AudiBMW, actually, you can and it's very legal, just ask Best Buy or Amazon.com or Circuit City etc etc etc if they aren't selling it for more than they paid for it. You can sell anything you want as long as it wasn't stolen in the first place and that's if you don't know the right people or aren't the law yourself. In short, waste of time and money to try and scare modders, which is not going to happen, ever. If you don't want your product modded, don't put it out. Or..... make like Rockstar and encourage modding, makes more people buy your product (technically you can't mod an Xbox if you don't have one and far as I can tell they're not faking them yet.)
This is bull@!$%#. Youve got tons of other bigger problems that you should deal with and youre wasting time on this. Modding shouldnt be illegal , hell, the microsoft guy even did it. If people arent capable enough or dont have the time to mod their console and theyre paying someone else to it for them , whats the big problem? The economy is @!$%# and if the guy is making a few extra bucks with his skill then good for him . Who r u gonna arrest next? The hundreds of people who have made tutorials of modding on youtube? Totally absurd
@IslandCabby ... I agree i would be amongst the jailed too if using a modded console is a crime
My problem is this, if this guy mods the console and then the owner does some illegal copying...how is he responsible criminally for the owner's activity?
My analogy is this. If I buy Honda Civic and then pay a mechanic to put in turbos and nitrous and all those 'go fast' goodies, should the mechanic be held liable because I can now go twice the speed limit therefore breaking traffic laws?
In my opinion, if a box gets a mod chip and the owner then breaks the law (not simply the licensing agreement), then hold the console owner responsible, not the person who put the chip in.
I replaced the engine in a Toyota MR2 that I bought from a dealer. I stripped out the exhause system, used a Japanese import engine for the replacement, bypassed the heater on the O2 sensor, and deleted the EGR system. The car had much lower emissions than the standard setup, and better performance. Some of what I did was "illegal" in light of the federal emissions regs, but beat their own standards and gave me a better car. That's how we advance technology, individuals often beat out the manufacturers. Being sued for it?!?!
Was Henry Ford sued for eliminating the buggy whip industry? Give me a break!
There's a difference between modding your personal vehicle for your own use and assembly-line doing it to resell to consumers at a profitable markup over the cost of the vehicle.
You removed parts that were in there for a reason. Mostly for diagnostics that you can spot a problem at the dealership and have it properly maintenanced and repaired. How do you know if had lower emmisions?...I bet you have higher emmissions since every car in the US is constantly tested to reduced emmissions since the whole global warming thing came around.
This should be good news since it is a jury trial. We are ALL tired of the way the music, film, and gaming industries are raping us of our money. The jury should have NO problem throwing this one out of court.
How are you being raped? I thought rape was when something happened against your will. Who is forcing you to purchase music, movies and games? Owning anything is not a right granted to any of us. Wah, that BMW is too expensive, how could you charge that much for a car? You want to complain, complain about the prices for essentials like food, electricity, gasoline. I can't stop purchasing gas because I wouldn't be able to get to work. Everyone has to eat. Lights are very helpful at night.
You think the jury will throw this out of court based on the fact that games are too expensive? Has to be the dumbest comment I read so far.
If I make a product I am going to sell it for what the majority is willing to spend. If you can't afford it, oh well. This is a great example of how screwed up this country is because of all the hand outs.
It is insane to believe that Microsoft should be able to control a product that they sell. If I buy a computer, I put anyone's software on it. If I buy a car, I can switch engines, replace tires and wheels, make it what I want (within safety limits). So why should Microsoft be able to lock up their XBox computer? And if I want to modify and sell it, what's the difference between that and a car shop that modifies and sells cars? NONE! Another case of the government supporting a monopoly!
Microsoft Windows allows PC users to play pirated games, Microsoft should be held accountable for what Windows Users decide to do with their software.
So, if i go buy a brand new Honda Civic and add engine components, a body kit, new interior, new wheels, and sell it within the warranty am i breaking the law? As far as i know that is very common. Businesses have television shows for this all over tv. How is that perfectly legal, but modding a $300 console isnt? I hate microsoft and everything they do.
Why is it not illegal to modify a car (which is a copywrited and patented item) if all this is true. Anyone can bring a vehicle to a shop and have a mechanic perform work to it that may cause the manufacturer warranty to expire, but that doesn't make it illegal. Just because the car came with 150 horsepower doesn't mean it has to remain that way for the life of the vehicle. Mods can be done to make it faster, or louder, or safer, or customized to fit any of your needs. How is a company that makes aftermarker fenders for a Toyota Prius not infringing on some sort of copywrite? They use the same shape, sizes, and bolt holes, and if they didn't copy EXACTLY what Toyota did, the fender would NOT FIT. How is that any different that this mod kid?