First criminal case about console modding in the US

Today, for the first time in the US, someone has to appear for a jury for modding consoles so that unlawful copies of games can be played on them. This dubious honour befalls the 28 year old Matthew Crippen from Anaheim in southern California. Crippen has been charged with infringing the DRM circumvention clause in the DCMA, that states that anti-copying technology may not be circumvented. If Crippen is found guilty, he faces a prison sentence of up to three years.

Crippen is being charged with making a business out of modding Xbox consoles for between 60 and 80 dollar per console. He was indicted when he did so last year for an undercover investigator sent by the entertainment industry and later again for a federal detective.

Recently, the judge disqualified his main argument, that modding is subject to the fair use principle. “According to Mr. Crippen, if circumvention facilitates later fair use of a copyrighted work, then there is no protected copyright interest and no violation of the DMCA’s anti-circumvention provisions. This argument also must fail in light of the text of the DMCA and relevant case law.”

The judge will shortly also advice on the admissibility of a contested piece of evidence for the defence, an elucidation by modding expert Andrew Huang that technically, no anti copying technology as described in the DCMA, is circumvented.