LOS ANGELES -- A Southern California man is set to go before a jury here Tuesday on criminal charges of violating copyright law by modifying Xbox 360 consoles to play pirated games.
In the first trial of its kind, defendant Matthew Crippen is charged with two counts of violating the anti-circumvention provisions of the Digital Millennium Copyright Act, or DMCA. He faces a maximum five years in prison on each count.
The 28-year-old Crippen suffered a devastating blow to his defense last week when a judge ruled that he can't raise a "fair use" defense at trial. Two other key evidentiary issues in the case are unresolved, and are expected to be ruled upon at any time.
One issue is the admissibility of a covert video recording of Crippen allegedly performing the modification. A second is whether the jury can hear the testimony of hardware-hacking guru Andrew "Bunnie" Huang, who is prepared to testify for the defense that the modification did not circumvent a copy-control mechanism within the meaning of the DMCA.
The government maintains that the testimony of Huang, who wrote a book on Xbox hacking, is irrelevant and barred by federal rules of criminal procedure.
Regarding the covert taping, Crippen's defense counsel is urging the judge presiding over the case to bar the jury from seeing a videotape of the defendant allegedly modding an Xbox for an undercover agent of the Entertainment Association of America. The defense maintains that the two-minute video, which has been edited, was unlawfully produced in Crippen's Anaheim house without his consent in violation of California privacy law.
Crippen's attorney has been unable to review the full recording made by the investigator, who claims to have lost it in a computer crash. As a result, only the edited version would go before the jury.
Regardless of the rulings on those issues, the defendant faces an uphill legal battle.
Crippen's key defense to both counts was "fair use." He hoped to to argue to jurors that it was legal to hack the consoles because the modification had non-infringing purposes, like allowing the machines to run homebrew software, or permitting limited fair use of copyright material. But the judge presiding over the case ruled last week that such a defense is not permitted by the DMCA.
"According to Mr. Crippen, if circumvention facilitates later fair use of a copyrighted work, then there is no protected copyright interest and no violation of the DMCA’s anti-circumvention provisions. This argument also must fail in light of the text of the DMCA and relevant case law," U.S. District Judge Philip Gutierrez ruled.
Crippen allegedly had a business modding Xbox 360s for between $60 and $80 apiece. He was indicted last year after allegedly performing the deed for the undercover corporate security investigator, then again for an undercover federal agent.
Crippen’s lawyer, Callie Glanton Steele, compared the modification to jailbreaking an iPhone, an activity explicitly permitted under a recent DMCA exception approved by the U.S. Copyright Office.
The iPhone exemption is irrelevant, Crippen's judge ruled, because the Copyright Office did not extend that exemption to game consoles.
Lawyers on both sides have declined comment.
Tune in to Threat Level for live coverage Tuesday.
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