Judge Bars ‘Fair Use’ Defense in Xbox Modding Trial

by Stephan Kinsella on November 24, 2010

Good story in Wired by Kevin Poulsen about an innocent man who is facing up to three years in prison, thanks to the criminal DMCA, for doing nothing more than helping people “tinker with hardware that they’ve bought and paid for”–that is, for modifying their own property.

Judge Bars ‘Fair Use’ Defense in Xbox Modding Trial

A California man charged with violating the DMCA by installing mod chip in Xbox 360 consoles won’t be allowed to claim “fair use” at his scheduled jury trial next week, a federal judge ruled Tuesday — a decision potentially devastating to the defense, and not particularly favorable to anyone who thinks they have the right to tinker with hardware that they’ve bought and paid for.

Matthew Crippen, 28, faces three years in prison on two allegations of violating the anti-circumvention provisions of the Digital Millennium Copyright Act for financial gain. Crippen, of Anaheim, allegedly ran a business modding Xbox 360s for between $60 and $80 a pop, allowing the consoles to run pirated games or unapproved home-brew software. He was indicted after allegedly performing the silicon surgery for an undercover corporate security investigator with the Entertainment Software Association, then again for an undercover federal agent.

His trial is set to begin on November 30 in Los Angeles, and would be the first federal criminal prosecution for console modding to reach a jury.

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Update: see First Criminal Trial Over Game-Console Mod Chips Begins Tuesday

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