“I really don’t understand what we’re doing here,” U.S. District Judge Philip Gutierrez roared from the bench.

Gutierrez slammed the prosecution over everything from alleged unlawful behavior by government witnesses, to proposed jury instructions harmful to the defense. When the verbal assault finally subsided, federal prosecutors asked for a recess to determine whether they would offer the defendant a deal, dismiss or move forward with the case that was slated to become the first jury trial of its type. A jury was seated Tuesday.

Among the judge’s host of complaints against the government was his alarm that prosecutors would put on two witnesses who may have broken the law.

One is Entertainment Software Association investigator Tony Rosario, who secretly video-recorded defendant Matthew Crippen allegedly performing the Xbox mod in Crippen’s Los Angeles suburban house. The defense argues that making the recording violates California privacy law. The other witness is Microsoft security employee Ken McGrail, who analyzed the two consoles Crippen allegedly altered. McGrail admitted that he himself had modded Xboxes in college.

“Maybe two of the four government witnesses committed crimes,” the judge said from the bench. “I think it is relevant and the jury is going to hear about it –- both crimes.”

The government had fought to keep the witness conduct a secret from the jury.

Crippen is charged with two counts of violating the anti-circumvention provisions of the Digital Millennium Copyright Act, and faces a maximum five years for each count if convicted. The government maintains Crippen, a hotel car-parking manager, ran a small business from his Anaheim home modifying the firmware on Xbox 360 optical drives to make them capable of running pirated copies of games.

The judge on Wednesday even backtracked on an earlier ruling that had prohibited Crippen, 28, from raising a “fair use” defense at trial.

Crippen was hoping 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 such as backup copies of video games.

While the judge ruled last week that such a defense was not permitted by the DMCA, he seemingly changed course during his speech.

“The only way to be able to play copied games is to circumvent the technology,” Gutierrez said. “How about backup games and the homebrewed?”

The fair-use issue came up as the judge berated prosecutor Allen Chiu’s proposed jury instructions, which included the assertion that the government need not prove that Crippen “willfully” breached the law, in what is known as “mens rea” in legal parlance. The judge noted that the government’s own intellectual property crimes manual concerning the 1998 DMCA says the defendant has to have some knowledge that he was breaking the law.

“The first prosecution 12 years later, and you’re suggesting a mens rea that is akin to exactly contrary to the IP manual: that ignorance of the law is no excuse?” the judge barked.

“You didn’t even propose a middle ground,” Gutierrez continued. “What’s getting me more riled, it seems to me I cannot communicate the severity to you of what’s going on here.”

As the judge worked through his laundry list of complaints over the prosecution, word of the unusual judicial rebuke spread through the courthouse, drawing a trickle of about a dozen prosecutors and defense attorneys into the courtroom to watch from the gallery.

“I apologize to the court,” Chiu said at the end.

Court is recessed until 1:30 p.m.

See Also:

• Judge Bars ‘Fair Use’ Defense in Xbox Modding Trial
• Prosecutors Seek to Block Xbox Hacking Pioneer From Mod-Chip Trial
• Student Arrested for Jailbreaking Game Consoles — Update
• First Criminal Trial Over Game-Console Modding Begins Tuesday
• Corporate Cop’s Covert Video at Issue in Xbox Modding Case …
• Jury Seated in Landmark Xbox Modding Trial

Authors: David Kravets

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