Xbox 360 modchip judge rips into prosecution, charges dropped

Prosecutors in the case against a 28-year old accused of violating anti-circumvention rules related to the Digital Millennium Copyright Act (DMCA) have dropped the case against defendant Matthew Crippen.

The decision came hours after US District Judge Philip Gutierrez went on a verbal tirade against the prosecution that even drew curious prosecutors and defense attorneys into the courtroom. Prosecutors asked for a recess so they could evaluate the case and decide whether or not to move forward.

Crippen, first arrested in August 2009, stood accused of illegally modifying two Microsoft Xbox 360 game consoles.

“I really don’t understand what we’re doing here,” Judge Gutierrez said this morning prior to the recess. “The only way to be able to play copied games is to circumvent the technology. How about backup games and the homebrewed?”

Hours later, prosecutor Allen Chiu walked back into court and made the announcement:

“The government has decided to dismiss the indictment,” he said, ending the legal drama for Crippen

If convicted of the charges, he would have faced a five-year maximum sentence for each count.

Last week, Judge Gutierrez blocked a “Fair Use” defense, but reversed his decision and would have allowed it.

The judge also had issues with the prosecution’s handling of government witnesses — since two of them may have committed crimes — in reference to jury instructions.

One witness for the prosecution, a private investigator hired by the Entertainment Software Association (ESA), filmed Crippen modifying the consoles inside his home. Since California privacy law may have been broken, the judge plans to allow the jury to hear it.

After the judge ruled the jury would hear witness activity, including a Microsoft security employee who also admitted to jailbreaking consoles years ago, the prosecution may have realized their case was dead in the water.

The ability to use a fair use defense along with jury activity would have made it very difficult for the prosecution to prove Crippen willfully broke the law. It’s good to see that these charges were dropped.