Prosecutors Bail on Xbox Modding Case

Federal Prosecutors in the nation’s first jury trial to test the anti-circumvention provisions of the 1998 Digital Millennium Copyright Act abruptly asked that the case be dismissed today. Today's news comes on the heels of a tumultuous day in Federal Court yesterday. The presiding judge berated prosecutors for a litany of holes and contradictions in the government's case. The judge's strong words caused the prosecution to take a recess to decide whether to even bother to continue. They decided to forge ahead, and watched as their first witness ruined the case.

That first witness was Tony Rosario, an undercover agent with the Entertainment Software Association, who secretly recorded the defendant Matthew Crippen modding an Xbox. Rosario paid Crippen $60 bucks for the modification. Rosario had responded to an ad Crippen put on the internet, and met him at his Anaheim house. The government was trying to prove that Crippen was violating a provision in the 1998 Digital Millennium Copyright Act by modding consoles. They also alleged that the hotel car-parking manager ran a small business from his Anaheim home.

So far so good for the prosecution, but here is where the case really unraveled, according to Wired (thanks E. Zachary Knight):

All of that had been laid out in pre-trial motions. But during his testimony, Rosario also said Crippen inserted a pirated video game into the console to verify that the hack worked. That was a new detail that helped the government meet an obligation imposed by the judge that very morning, when Gutierrez ruled that the government had to prove Crippen knew he was breaking the law by modding Xboxes.

But nowhere in Rosario’s reports or sworn declarations was it mentioned that Crippen put a pirated game into the console. Shortly before Rosario’s testimony during opening statements, defense attorney Koren Bell told jurors that there would be no evidence of that kind.

Defense attorney Callie Steele objected to the new testimony. And as court was to get underway here early Thursday, prosecutor Chiu told the judge that he first learned of Rosario’s newfound recollection days before trial. Chiu conceded he never forwarded that information to the defense.

Defense attorney Callie Steele objected to the new testimony because the information was never disclosed to the defense. The prosecution said that it had learned of these new facts on Sunday, but conceded that the information was never forwarded to the defense.

Prosecutor Allen Chiu asked that the case be dismissed because of the omission, and in the interest of "fairness and justice."

After the case was dismissed Crippen said: "It still has not hit me yet." When asked what he planned to do now that the case was behind him, Crippen added "I’m going back to school."

Crippen has a year left to earn a liberal arts degree from Cal State Fullerton. He wants to be a high school special-education and math teacher.