If so, you should plan to attend what likely will be the nation’s first
federal jury trial of a defendant accused of jailbreaking Xbox 360s —
installing mod chips that allow the console to run pirated or home-brew
games and applications.
Celebrity geek Andrew “Bunnie” Huang, the designer of the Chumby and
author of the 2003 title Hacking the Xbox: An Introduction to Reverse
Engineering, has agreed to testify for a southern California man
charged under the anti-circumvention provisions of the Digital
Millennium Copyright Act.
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.
main story
http://www.wired.com/threatlevel/2010/10/xbox-modder-tria/#ixzz135AXYHWI
2nd story
http://www.maxconsole.net/content.php?42673-MS-trying-to-block-original-Xbox-hacker-from-mod-chip-trial
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