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Xbox modding may be Fair Use, rules judge

Great news for anyone who likes tampering with their game consoles came out of a federal court today. The judge in a high-profile Xbox modding case has allowed use of the argument that altering the device in your own home fits into the long-defined Fair Use legal doctrine.


Above: Xbox 360 innards. Don't mess with them, say prosecutors!

28-year-old Anaheim, California resident Matthew Crippen found himself in hot water when prosecutors brought charges against him for charging to mod Xbox 360s. They said that by violating the official software put in place on the system, Crippen could be charged with copyright infringement violations.

However, the judge overhearing the case has said he will accept a defense of "Fair Use" in the case. It's the same defense that eventually led to the ruling that iPhone jailbreaking isn't illegal. Following that legal precedent to the letter may allow Crippen to get off scot-free.

Lead prosecutor Allen Chiu argued that any sort of evidence or arguments citing Fair Use are t irrelevant to the case, will be used to wrongly achieve a "not guilty" sentence from the jury despite the evidence, and should not be admitted. The judge didn't agree, saying, "Because fair use is a mixed question of law and fact, it is a permissible question for the jury."

Of course, modding your Xbox 360 voids its warranty and could render it inoperable or unable to play future games. Sony has taken the proactive measure of continuously updating its firmware to brick PS3s that are modded without authorization. Microsoft hasn't been quite so strict with its console.

The decision today is merely a small victory for Crippen, who still needs to undergo an entire trial before his fate is decided. If convicted of violating the Digital Millenium Copyright Act, as prosecutors allege, he could face up to three years in prison. But if the Fair Use defense holds, it may set a new precedent.

[Source: Wired]

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Microsoft

18 comments

  • THETRUECAMEL - April 17, 2011 2:19 p.m.

    Modding your case-harmless! Fixng heat syc issues(RROD)-harmless ALL OTHER FORMS OF MODDING,PLAYING COPIED GAMES,CHANGING GAME CODING ETC.-HARMFUL TO ALL INVOLVED. XBOX360 may charge you to play,but rarly will you never find a game online;unlike the ps3 set-up sit and wait for a game(and ps3 out of all the consoles IS the easiest to hack into. xbox requires a USB flash drive and you must buy a program (J-TAG) TARGET GAME IS ALWAYS EVERY COD TITLE. And to you PS3 players enjoy your FREE to play while you can;Sony is going pay to play.
  • therawski - November 11, 2010 10:58 p.m.

    Given that the 360 is bad hardware and you have to pay to play online, pirates are just covering the cost of the gold subscriptions by not paying for the actual games, in my experience, modding was usually done for emulation purposes, plus I'm done paying for tetris every time I get a new device.
  • FoxdenRacing - November 11, 2010 3:50 p.m.

    Sad as I am to say it, I really think gamers can have their cake and console manufacturers can eat it too if they weren't zealously protective. MS got part of it right with the Indie Games thing, and Sony [amazingly; their business model seems to be 'p*** off the customer'] got part of it with Other OS. To know how to stop piracy, you have to know who enables it; if embraced, the enablers themselves are harmless. What are the groups that mod their consoles? 1) Tinkerers: The people that take it apart to find out how it works. Tinkerers could care less about what they could do with that information, the whole reason they took it apart is to sate their curiosity. Without someone pushing them to publish their findings, they're harmless. 2) Case Modders: Having one that looks like everybody else's is lame in the eyes of a Casemodder. These are the people that'll willingly void their warranty to stand out from the crowd, but ultimately could care less about making it do things it wasn't originally supposed to. Harmless. 3) Linux Junkies: If it's got a processor, they want to install Linux on it...and this group is determined enough to make it happen. They're also the most knowledgeable of the bunch when it comes to software engineering, including decompiling and reverse-engineering techniques. They're the most likely to also be a tinker, or have a friend that is. These guys hold the keys to one of the floodgates; if embraced, harmless. (See: PS3 Other OS) 4) Homebrewers: They don't care about running illicit copies of games; they're too busy making their own software to care about somebody else's. Unfortunately, the process of loading a homemade game and an illicit game are nearly identical. These guys hold the key to the other floodgate, but if they don't have to make a bootloader, they won't. If embraced, harmless. (See: XNA) 5) Pirates: Duh. This generation makes a really interesting case study in this regard. MS and Sony both embraced one of the archetypes, and to limited success. Nintendo has fought hard since day one, and is broken almost immediately after an update. PS3's copy protection went unbroken for the longest time. Why? They embraced #3. Linux Guys got what they wanted right out of the box. Tinkers took it apart, sated their curiosity, and with no Linux guys asking them how to get around [hardware lock], it ended there. Case modders did their own thing as they've done since the beginning of case modding. Pirates were SOL; without the Linux guys deconstructing software, without the Tinkers helping the Linux guys, and the homebrewers writing their games for OtherOS, modified bootloaders were unavailable. Some pirates are good enough to do that of their own accord, but typically piracy rides on the back of the guys running innocuous stuff first; once you've got a bootloader for one, it's easy to do a bootloader for the other. MS took a different approach, embracing the homebrewers. XNA flourished, but the Linux guys eventually got what they wanted, and the information on how to read Xbox hard drives, how to get bootloaders, and the like on there hit the wild. Due to Live banhammers it hasn't become as bad as it could be, but it's out there...and not as rare as anyone would like. Unfortunately, stuffy guys in stuffy suits that ultimately make the call at [console maker of choice here] refuse to even think about which guys are harmless enthusiasts and which are scum. The 8th generation console with no piracy problems won't be the one with the most intense hardware or software locks. It'll be the one that offers 'Other OS' and Homebrew right out of the box. It'll be the one that offers up tech specs on the off-the-shelf components [Tinkers will still want to see it for themselves, but will be less prone to documenting it that way]. Case in point: within days of 'Other OS' being taken away, the floodgates were thrown wide open. Until then, PS3 was 'unbroken'. Fact of the matter is, 99% of pirates are lazy, little more than script kiddies; if it's more complicated than 'Put program X on USB drive Y, start console, put in disc. I iz teh hakkar, ph33|2 m3!', they'll pay somebody else to make it 'start console, put in disc'. Without the ultimately harmless people to do the hard work, Piracy would be nearly stamped out. Not completely...there will always be the people so slimy they'll do it even if it's free (See: Humble Indie Bundle)...but the people that enable the casual pirates won't be there to do all the hard work. Captcha: ITnerd fact. Oddly appropriate.
  • Chaoscoolperson - November 11, 2010 3:34 p.m.

    Please don't tell me modding is becoming legal and o.k. Hackers, modders, and glitchers ruin games.
  • alphaman - November 11, 2010 10:57 a.m.

    While I agree that modding an xbox's hardware for personal use (to make improvements, fix RROD problems, etc...) should fall under fair use and be legally and morally ok, there's one point to this case (if it's true) that is being overlooked: the guy charged to mod xboxes. He's making money off of improvements to their product. I doubt that this guy has a business licence and permission to do this (well, he wouldn't given the lawsuit), which not only puts him at odds with copyright violations but wouldn't it imply possible tax evasion as well (depending on how much he's made)?
  • Scoob - November 11, 2010 9:47 a.m.

    @batman5273: I think that's a bad analogy, although well intended. People modify cars knowing what they are getting into, and what is right is in the eye of the beholder. Manufacturing drugs is just outright illegal too. Although it is likely the person that is modding a system has ill intention, it isn't reason enough to deem the practice illegal. It ends up being one of those slippery slope ideas. As in, what kind of products are we allowed and not allowed to modify? I think both Microsoft and Sony understand that modding can never be illegal. What it is, is that they are just doing this in order to cause people who do it to go broke and decide to give up the practice.
  • tailsjacks - November 11, 2010 8:05 a.m.

    i only mod to fix things and my xbox from being in ring off death jeez know off to reprogram (hack?) my robots wait ......nah it~s still legal mua haha (dang it set this thing to 2010!!)
  • dphoenix192 - November 11, 2010 7:41 a.m.

    To my knowledge fair use refers to hardware, not software for the most part. So for tampering with the inner workings of the Xbox360, it should be fine, but once you start adding code files to bypass copyright protection then it becomes illegal.
  • darnell7979 - November 11, 2010 6:09 a.m.

    What about BenHeck? Is he evil for modding his xbox?(and PS3 as well) Modifying a console can mean a lot of things, so just what is too much?
  • batman5273 - November 11, 2010 5 a.m.

    here is a great way to look at this. You can buy a Mustang that is street legal. but if you start modifying it to make it into a race car, then that vehicle is now Not street legal. True you can modify anything you own, but it doesn't make it right or legal. There is absolutely nothing wrong with buying Drano, Matches, Iodine, Brake Fluid, Ephedrine, Hydrochloric Acid and other products to use them for their intended purposes. But if you modify them to create crystal meth, then that's a whole different. Let's face it, if you are modifying a console, you do not have the best intentions. You are modding a console to do one of two main things, played burned games or cheat online. Now does that really constitute 3 years in jail? well that is for a jury of peers to decide. And whether he is found guilty or innocent, is it really worth the price of modding an Xbox when you rack up the legal fees?
  • Eliath - November 11, 2010 4:21 a.m.

    @shadowreaper (and in agreement with ventanger) To continue in my way of apples to oranges comparisons: if I buy a gun, then could I do whatever I wanted with it? No, we'd probably add the caveat that I can't use it to hurt people. If you generalize, which is usually a bad thing to do, that people should be able to do whatever they want with stuff they purchase unless it directly affects someone else such as your example of cheating online, then ventanger is right on saying that Microsoft has a responsibility to provide a safe environment in which game developers can release their products.
  • Longnuts - November 11, 2010 4:17 a.m.

    Interesting. My buddy has a modded xbox. I will admit I'm jealous of him, but he can no longer connect to live with it after microsoft's MW2 ban wave. What exactly is the fair use doctrine? Here I come google.
  • ventanger - November 11, 2010 3:44 a.m.

    @shadowreaper - There's more to just "cheating online", there's circumventing the copy-protection in the console so you can run burned games. It's not piracy per-say, but piracy cannot be done without it. If Microsoft makes a promise so the companies that develop games for it that it will do everything in its power to ensure the games that run on its console are actually being PAYED FOR, then it's well within it's right to include in it's user-license agreement that, you, yes you, agreed to, that it can't be modified under penalty of law. Or, it would be, depending on how this case turns out.
  • bonerachieved - November 11, 2010 3:38 a.m.

    Now this could be a big deal...
  • shadowreaper72 - November 11, 2010 3:10 a.m.

    Wow Microsoft take that stick out of your ass! He brought the system so he should do whatever the hell he wants with it as long as he dosent mod it to where people can cheat online. And even if he did do that thats no reason to send him to prison. Fuck you Microsft u dirty good for nothing bastards
  • Pyrovizard - November 11, 2010 2:53 a.m.

    why can't people just leave the damn consoles alone, i sure as hell wouldn't want m.... its a 360? never mind JK, but seriously leave the damn consoles as is if you dont like the way it runs dont buy it jeez
  • Eliath - November 11, 2010 2:52 a.m.

    I'll be interested in seeing how this trial turns out. Now that I'm out of school I don't have a need to mod anything, but sometimes it's still fun.
  • ventanger - November 11, 2010 2:51 a.m.

    Hey, if he's found not guilty, I should start making money off modding 360's. Then again... the market would then be saturated. Bleh.

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