Dec. 1, 2010 at 2:23 PM ET
Things aren't looking good for a university student accused of modifying video game consoles.
Opening statements were scheduled to begin Wednesday in the federal criminal trial of 28-year-old Matthew Crippen, a student at California State University Fullerton.
Homeland Security authorities arrested Crippen last year on accusations that he violated the Digital Millennium Copyright Act (DMCA). He is accused of modifying Xbox 360 game consoles for money so the machines could play pirated games and other content.
This is the first time a federal prosecution for console-modding has reached a jury trial. A conviction could land Crippen in prison for up to three years.
A six-woman, six-man jury was selected Tuesday to decide the case. According to Wired, only a few of those panelists said they owned an Xbox or played video games.
The prosecution is expected to bring in witnesses including a Microsoft security expert and the undercover agents Crippen allegedly modded consoles for. He apparently charged between $60 and $80 for his services. (By the way, msnbc.com is a joint venture of Microsoft and NBC Universal.)
In an interview with Wired, Crippen said he tweaked the consoles not for illegal piracy purposes but to let gamers use decrypted copies of their own gaming software, suggesting that because the Xbox 360 has been known to scratch discs players might need to use a backup copy.
Needless to say, authorities weren't buying that argument.
Things got even more bleak for Crippen and his defense team last week when the judge ruled they could not use the "fair use" defense. Crippen's attorneys had hoped to argue that installing a mod chip in a gaming console was no different than jailbreaking an iPhone to allow owners to use software not approved by Apple. iPhone jailbreaking was OKed under a DMCA exception approved by the U.S. Copyright Office.
Microsoft and other game companies certainly get prickly when users start tinkering with their products. After all, piracy is an enormous issue for the video game industry. In fact, Microsoft had initially issued warnings against tinkerers planning to alter their new Kinect sensor device.
The company, however, backed off those threats as it became clear most modders were altering the new game device to create some pretty cool (read: non piracy-related) innovations.
The take-away message here: Totally cool if you want to tweak our equipment so you can dance around in women's bras. Totally not cool if you want to tweak our equipment to play pirated games.
UPDATE as of 2:20 p.m. PT:
A Wired reporter, who has been in the courtroom, is reporting that opening statements in the case have been delayed and the case put on hold after the federal judge unleashed a 30-minute tirade at prosecutors. He reports:
"I really don’t understand what we’re doing here,” U.S. District Judge Philip Gutierrez roared from the bench.
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...
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.