Fair use defense disallowed in Xbox mod chip trial

If jailbreaking an iPhone is legal then it would be a logical deduction that modifying a game console to play homebrew game would be legal as well, right? Not so, according to a US District judge.

The legal team for Matthew Crippin was hoping to be able to use that logic to defend their client against charges that he ran an illegal business installing mod chips in Xbox 360 consoles. The argument would’ve attempted to convince the jury that the modified consoles would allow the owners to make “fair use” of copyrighted content. The parallel to jailbreaking an iPhone would cite the recent DMCA exception which legalized the process.

Fair use defense disallowed in Xbox mod chip trial

“The Copyright Office cited the fact that the only way for consumers to exercise their fair-use rights by running non-Apple endorsed applications was through circumvention of access controls,” Los Angeles federal deputy public defender Callie Glanton Steele stated in the court filing.

Unfortunately for Crippen, U.S. District Judge Philip Gutierrez has barred the “Fair Use” defense from being used at all during the trial which is scheduled to begin November 30th.

“[A]lthough the government will have to establish that the technological measure that Mr. Crippen allegedly circumvented was used to control access to copyrighted work, the Government need not show that the modified Xbox’s were actually used for infringing purposes,” ruled Gutierrez. “Mr. Crippen’s alleged conduct of modifying Xbox gaming systems is neither approved by the Librarian of Congress nor provided for in the DMCA’s list of exceptions.”

Still undecided is whether or not the jury will be allowed to hear the “expert” testimony of Andrew Huang, a world renowned hardware hacker who plans to present a step-by-step tutorial for the court about the modification process and why it shouldn’t be considered a violation of the Digital Millennium Copyright Act (DMCA). The prosecution has petitioned to court to block Huang’s testimony on the grounds that it is “legally irrelevant”.

The “fair use” ruling is disturbing to say the least. Unfortunately, the judge seems to be basing it on the Copyright Office’s narrow definition of their DMCA exception which specifically states that it only applies to phones. While that is technically true, it still boggles my mind that the mere act of installing a mod chip in a piece of hardware that someone owns, regardless of the subsequent intentions, can be considered a crime in the United States. The problem, as they see it, is that they can’t go after the end-user for illegal activity once a mod chip is installed because there is no way to track what it is used. Of course this decision is going to be used as a precedent for cases going forward. This does not bode well for citizens’ freedoms.