Prosecutors Drop Charges in Xbox 360 Modding Trial


Defendant Matthew Crippen, facing prison for modding Xbox 360 consoles, is walking free after the government abandoned its case.

This has been an interesting week for Matthew Crippen, a 28-year-old resident of Southern California. Yesterday, we reported that Crippen could face ten years in prison for running a side business that modded Xbox 360 units to play pirated (and homebrewed) games. Earlier today, we reported that the judge in the case had torn the prosecution a new one regarding some aspects of their case – but the government had elected to proceed with its case nonetheless.

That decision to proceed was abruptly reversed today, and Matthew Crippen is a free man. According to Wired, prosecutor Allen Chiu told the judge that the government had “decided to dismiss the indictment … based on fairness and justice” shortly before the jury was to be seated on the third day of trial.

The Crippen trial was the first jury trial testing how the anti-circumvention provisions of the Digital Millennium Copyright Act – which make it a crime to physically alter hardware to circumvent copyright protection – apply to videogame consoles.

Unfortunately for pirates, modders, and anti-DMCA activists, it’s unclear if the dismissal of the case will actually set any legal precedent against the DMCA. From what I understand, the prosecution’s abrupt abandonment based on “fairness and justice” had nothing to do with any change of heart regarding the DMCA provisions, but because the case was shoddily built on questionable legal grounds.

The prosecution’s first witness, Tony Rosario, was an Entertainment Software Association agent who purchased Crippen’s modding services, and videotaped him in the act. This was already a dubious matter – and one that the judge had previously chewed the prosecution out over – but in his testimony, Rosario said that Crippen tested that the modification worked by inserting a pirated game into the system. However, the pre-trial reports and sworn declarations earlier filed by Rosario included no mention of this at all.

Presumably, Rosario’s statement was an attempt to convince jurors that Crippen knew that what he was doing was against the law – a key question in order to establish guilt. It’s certainly possible that Crippen did know that he was breaking the law and that he did in fact insert a pirated game, and that Rosario’s pre-trial briefs simply neglected to mention this (whether it is likely, however, is another matter entirely). Either way, defense attorney Callie Steele objected to the matter, sending the whole case crashing to the ground.

Chiu claimed that Rosario had only just recalled the matter on Sunday – too late for it to be included in pre-trial filings – and admitted that the prosecution should have forwarded it to the defense right away. However, given that the prosecution had made grievous errors in the handling of the case, the damage had been done, and the government dropped all charges.

But how would the jury have ruled, anyway? Paul Dietz, a 27-year-old actor admits that – based on the single day of testimony that the jury had heard – he “probably would have acquitted.” On the other hand Jerry Griffin, a 63-year-old trial attorney, said that Microsoft had the right to protect its proprietary information.

This may not be a victory for DMCA activists – rest assured that the government will try to build a more legally sound case the next time this sort of thing goes to court. That said, it’s certainly a victory for Matthew Crippen. “It still has not hit me yet,” Crippen told press outside the court shortly after the dismissal. He plans on returning to Cal State Fullerton to get his liberal arts degree.


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