The government decided to forge ahead in the landmark trial after U.S. District Judge Philip Gutierrez gave the government a little breathing room on the standard of proof required to convict defendant Matthew Crippen on two counts of breaching the Digital Millennium Copyright Act.

The 28-year-old Southern California man is accused of modding Xboxes — a hack circumventing technological measures designed to block pirated or unauthorized games from being played. It is the first such jury trial of its kind. Each of the two charges carries a maximum five years.

“After consulting with the front office as well as the Department of Justice, the office has decided to move forward,” prosecutor Allen Chiu told Judge Gutierrez after a three-hour recess.

“The government,” Chiu added, “believes it has the evidence to prove each and every element beyond a reasonable doubt.”

The recess earlier in the day, as opening statements were to begin, came as the judge berated the prosecution on a number of fronts — from alleged unlawful behavior by government witnesses to proposed jury instructions that would almost certainly have resulted in a conviction.

In the end, the judge said the government must show that Crippen knew he was breaking the law — an acceptable position to the government that earlier had argued it did not have to prove that.

The defense maintained that, if the government proved Crippen circumvented copyright controls, the government must show that Crippen knew he was violating the DMCA.

The government said it would have dropped the case if that more onerous standard was required.

Toward the government’s end of proving that Crippen knew what he was doing was illegal, prosecutors put on the stand an Entertainment Software Association private investigator who told jurors that he paid Crippen $60 to modify a console at Crippen’s residence in Southern California in 2008.

“Hey, I’m hoping you can get this thing modded for me,” Rosario described the verbal encounter ahead of the transaction. “He reassured me that it would be OK. He said, ‘Not a problem.’”

The hiccup with Rosario’s testimony centered on whether Crippen was modding with the express knowledge that the undercover ESA agent wanted it done so he could play pirated games. After Crippen spent about 90 minutes re-flashing the console, Rosario said Crippen inserted a pirated game into the machine to test his hack.

“He produced a pirated video game. He placed it into the ROM he had just worked on. He initiated the game and it played. He showed me that the actual game would play,” Rosario testified.

But on cross examination, Rosario conceded he did not write that fact on any of his notes or reports. Nor did it appear on a secret video he took of the encounter. (Only two minutes of an edited video of the transaction was played to jurors, as Rosario said his computer ate the full version.)

Jurors, meanwhile, watched the video on large monitors on each side of the jury box, with about half of the panelists looking one way and the remainder the other way.

Defense attorney Callie Steele told the judge after the jury was excused for the day that whether Crippen knew he was modding for illicit purposes “is a very important fact.”

Before the jury, Steele grilled Rosario on the piracy angle.

“That is something you just happened not to capture on your videotape?” Steele asked.

“It was just not part of the element of the crime,” Rosario replied.

Still, the prosecution introduced 150 pirated video games the authorities said they seized from Crippen’s residence in Anaheim. Their titles were not immediately made public.

Prosecutor Chiu, in his opening statement before Rosario took the stand, urged the jury to convict.

“Ladies and gentleman, this case is about using technology to steal,” he said. “He did it so that other people could exploit copyrighted works.”

The defense told jurors in opening remarks that they would show that Crippen didn’t even breach the DMCA to begin with.

“That work on those two consoles did not willfully circumvent a technology measure that effectively controls access to a copyrighted work,” defense co-counsel Koren Bell told jurors.

Crippen’s lawyers intend to call Andrew “Bunnie” Huang in a bid to make that point. Huang, the developer of the Chumby, has written a book on Xbox hacking.

“Basically, what he did was insufficient on his own to violate anything,” Huang said in a recent telephone interview.

Rosario is expected to continue on the stand Thursday morning and be followed by a federal agent who allegedly paid Crippen $80 to mod an Xbox. A Microsoft employee who is an expert on Xbox security is also expected to testify.

The defense is likely to begin its case here Friday.

Threat Level is delivering on-the-spot coverage.

See Also:

• Judge Bars ‘Fair Use’ Defense in Xbox Modding Trial
• Citing iPhone Ruling, Xbox Defendant Says Console Hack Is Fair Use
• 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

Authors: David Kravets

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