Government Botches Case Against Xbox 360 Hacker, Drops Charges

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A 28-year-old Southern California man facing up to 10 years in prison for allegedly modifying Xbox 360s to play illegal versions of games is free and clear after federal authorities abruptly dropped their case against him.

Opening statements in the trial were delayed yesterday after the judge hearing the case verbally flayed the prosecution, admitting he had "serious concerns about the government's case," and at one point stating "I really don't understand what we're doing here."

Dropped on a Technicality

The case against Matthew Crippen, a hotel valet service manager alleged to have run a side business modifying Xbox 360s to play pirated games, was the first of its kind to come to trial.

Make that the first of its kind to also get pushed off a cliff. According to Wired, the government bailed yesterday, telling the judge its decision to withdraw was "based on fairness and justice."

Things fell apart on Wednesday as the government opted to proceed with opening testimony. Tony Rosario, its first witness and an undercover agent with the Entertainment Software Association, added a testimonial wrinkle it failed to disclose to the defense--that Crippen had placed a copy of a pirated video game into an Xbox 360 to verify his modification was working.

The prosecution then moved to dismiss the case, admitting its error, though the reversal wasn't a tacit admission of defeat. The case was dropped on a technicality, not on its merits in relation to the Digital Millennium Copyright Act, which among other things attempts to criminalize the modification of technology to circumvent copyright protection measures. This case, had it gone forward, would have been the first to test the DMCA's application to modified game consoles.

In other words, not the first or last we've heard of it.

Pirates Not Products

While it's routinely assumed modifications to game consoles exist to circumvent piracy measures, some have lobbied against the DMCA because of its potential to stifle creativity. For instance, modified game consoles can also be used to engage legitimate software crafted by a community of enthusiasts. Removing that ability, some say, would be like outlawing aftermarket modifications to just about anything.

What's the difference between modifying an Xbox 360 to enable supplemental functionality and jail-breaking an iPhone, something already considered legal "fair use" in the United States?

Downloading and playing pirated games is illegal, there's no ambiguity on that point. But modifying technology to unlock additional functionality falls in a different column, whether you're arguing on legal or philosophical grounds.

No one likes to be told what they can and can't do with something they've purchased. Applying the DMCA to console modification would open the door for protectionists (private or governmental) to start locking down the games industry. That's the wrong approach, as far as I'm concerned, especially as piracy-proof distribution mediums increase in popularity, from "games-on-demand" digital downloads through Steam or Xbox Live Marketplace, to playing "in the cloud" with distributed computing services like OnLive.

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