The defendant in the case, 28-year-old Matthew Crippen of Anaheim, allegedly ran a business modding Xbox 360s for between $60 and $80 a pop. He was charged after he performed the silicon surgery for an undercover corporate security investigator with the Entertainment Software Association, then again for an undercover ICE agent. He faces up to three years in prison if convicted of both counts.

The 35-year-old Huang argues that mod-chipping is not a violation of the Digital Millennium Copyright Act, which makes it unlawful to circumvent technology designed to prevent copyright infringement. He said he hopes to prove that point to jurors via a step-by-step tutorial.

“Basically, what he did was insufficient on his own to violate anything,” Huang said in a recent telephone interview from Singapore, where he serves as vice president of hardware and general manager for Chumby’s operations in Asia.

Additionally, Huang said, the DMCA should be interpreted to allow for “fair use” exemptions, so chipping a console for legitimate purposes would be permitted, even if it is found to be a circumvention.

The U.S. Copyright Office, he noted, just granted an exception to the DMCA to allow the jailbreaking of cellphones, and the iPhone in particular, allowing the iPhone to run third-party apps not approved by Apple. Modding a game console should be treated the same way, he said.

“The bottom line, I would like to see the scope of the DMCA limited to an appropriate statute that respects fair use, one that respects traditional rights,” he said.

But if federal prosecutors have their way, the scheduled Nov. 30 trial in Los Angeles won’t include Huang’s testimony. Prosecutors earlier this month asked the judge presiding over the case to preclude Huang from testifying on the grounds that his testimony would be legally irrelevant. The government says fair use is not a defense (.pdf) to a DMCA charge, and argues that Huang’s legal opinions are inadmissible. A ruling is pending.

Huang is no stranger to the DMCA himself. In 2003, publisher Wiley & Sons canceled publication of his Xbox hacking book amid concerns it painted a roadmap for DMCA violations. The book, which included chapters on “Soldering Techniques” and “Installing a Blue LED,” was ultimately released by No Starch Press.

Cindy Cohn, legal director of the Electronic Frontier Foundation, said Crippen’s prosecution underscores a flaw in the DMCA. Every three years, the Library of Congress takes requests to grant exemptions to the law. Months ago, the librarian sided with the EFF’s bid to exempt iPhone jailbreaking from being considered illegal conduct.

“We didn’t ask for game consoles,” Cohn said. “This is why the DMCA process, it’s a pretty inefficient way to think of how the law should be.”

Whether he’s allowed to testify or not, Huang hopes Crippen is acquitted.

“I would hate,” he said, “to have the wrong precedent set.”

Neither Crippen, his attorneys nor prosecutors would comment for this story.

Photo: Courtesy Andrew Huang

See Also:

• Judge Rules DVD-Copying Software Is Illegal
• BSA Softens Anti-Piracy Message
• Dropping PS3 Linux Support Lands Sony in Court
• Exclusive Sneak Peek: DefCon Ninja Party Badge
• Botnets Beat Spartan Laser on Halo 3
• 10 Years Later, Misunderstood DMCA is the Law That Saved the Web

Authors: David Kravets

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