37. xbox hacks and the feds

has anyone ever approached you in disgust after you had an xbox 360 modded?  did they look down on you from their moral high ground?  was your response “well make a federal case out of it why don’t ya?”  for your sake i hope it wasn’t, because you’re about to read some pretty groundbreaking stuff here.  this is about the first federal case in the united states about modding an xbox 360 that will see a jury.  the defendant: matthew crippen, 28, of anaheim, california.  he is accused of running an video game console chop shop – a home business where he would mod customer’s xbox 360 consoles for no less than a hefty profit to be sure.  he was arrested by homeland security (after some undercover work) for breach of the digital millennium copyright act of 1998.  and why would one be so bold as to do this?  and customers willing to pay?  because modded consoles allow play of downloaded and burned games, be it backups of your own (technically legal in my opinion) or to fly the pirate colors and download/burn the games of your choosing.  the indictment (thanks, wired magazine!) shows that he is charged with 2 counts, and as a result can see up to 10 years, the max sentence, in prison.

seems pretty open and shut, right?  why would someone mod an xbox to not pirate games?  read on, that’s just part 1 of the story.

crippen’s claim is that he didn’t provide mod services for piracy.  he offered the service for people who wanted to play backups of games they already own.  this is meant to circumvent what ALL of us xbox 360 owners have experienced, which is ridiculous scratching on the discs after a lot of use that makes them jumpy and sometimes rough to play.  enter andrew huang (he goes by “bunnie”) – the man who literally wrote the book on xbox hacking.  huang wants to testify on crippen’s behalf and provide argument as a system expert.  why is this going to be helpful to the defense?  huang would show the jury a process on how modding a console does not circumvent the technology “designed to prevent copyright infringement” as crippen is accused for.  in an interview with wired, huang said that what the defendant “was insufficient on his own to violate anything,” and further suggested that the DMCA should be interpreted with the spirit for fair use as exemptions.  his reasoning, which is sound, is the iphone.  many users used jailbreak software on thier apple iphones to install unapproved 3rd party software and apps on their devices with legal immunity, thanks to a US copyright office exemption tothe DMCA.  using this as a prime example, it’s a short stone’s throw to see how that precedent can be applied to video game consoles.

but the prosecutors aren’t having it.  huang’s had his own brushes with the law, and specifically the DMCA  for his xbox modding expertise.  with that in conjunction with their claim that “fair use” isn’t a valid defense, the prosecution is trying to block huang from testifying on crippen’s behalf.  whether or not huang is able to testify, the outcome of this case is going could prove to be interesting.