Only a few of the potential panelists said they had an Xbox at their residence or even played video games. All chosen jurors said they could fairly judge defendant Matthew Crippen, who is accused of running an Xbox jailbreak business.

The defendant is charged with two counts of breaching anti-circumvention provisions of the Digital Millennium Copyright Act, carrying maximum five-year penalties for each count.

After opening statements Wednesday morning, prosecutors are expected to put on witnesses that range from a Microsoft security expert to undercover agents — one federal and one private — for whom the 28-year-old defendant is accused of modding consoles for between $60 and $80 a pop.

Crippen was wearing a dark suit and red tie during jury selection. He sat slouched over, rarely making eye contact with prospective panelists in U.S. District Judge Philip Gutierrez’s courtroom.

During brief breaks, the defendant appeared to be texting on a mobile phone. The gallery was largely composed of prospective jurors awaiting questioning. Also in attendance was Christian Troncoso, the policy counsel of the Entertainment Software Association, whose private investigator uncovered Crippen’s alleged misdeeds.

Attorneys from both sides went through as many as three dozen prospective jurors before settling on the six-woman, six-man panel, which included an additional two alternates.

From the outset, the judge admonished panelists to refrain from using the internet to learn about the case or to speak of it.

“You don’t blog about this case or do ay investigation on this case on the blogs or the internet,” Gutierrez said. “Twitter and blogs and everything else comes under the same order that you are not to discuss this case with anyone.”

Among the prospective jurors dismissed included a Universal Studios finance manager who said he could not be partial. An intellectual property attorney was also let go for the same reason.

One man, a Los Angeles International Airport gardener, said he liked to tinker with computers and was excused, as was another woman who complained that her ailing knees could not endure what is shaping up to become a weeklong trial.

Meanwhile, Crippen suffered a devastating blow to his defense last week when the judge prohibited the defendant from raising a “fair use” defense. He had hoped 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.

The judge ruled that such a defense is not permitted by the DMCA.

Tune in to Threat Level for live coverage Wednesday.

Photo: Cryostasis/Flickr

See Also:

• iPhone Jailbreak Videos: A Legal Primer and a How-To
• U.S. Declares iPhone Jailbreaking Legal, Over Apple’s Objections …
• iPhone Jailbreaking Could Crash Cellphone Towers, Apple Claims
• Student Arrested for Jailbreaking Game Consoles — Update

Authors: David Kravets

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