
Judge in Xbox modding trial berates prosecution, halts trial - lotusleaf1987
http://arstechnica.com/tech-policy/news/2010/12/judge-in-xbox-modding-trial-berates-prosecution-halts-trial.ars
======
grellas
Federal judges have _enormous_ power in a courtroom. Usually, they are very
bright, very decisive, and pretty domineering. They also have lifetime tenure,
subject to removal only on grounds of impeachment. Federal courts also use the
single-assignment system (as opposed to what is known as a master calendar
system) by which they will have a given case assigned to them from pre-trial
all the way through to trial, meaning that a judge typically has lived with a
given case through the process and knows it well.

Having litigated before such judges in quite a few settings (though not
criminal), and having clerked for one back in the day, I can say with great
assurance that, if the judge starts the trial by saying to you as a
prosecutor, in effect, "what the hell are we doing here," you know your case
is in pretty serious trouble. When the judge goes on for a half hour straight
berating you, it is doubly so. This does not mean that a determined prosecutor
can't push a case forward but it will be a real uphill fight.

The items that offended the judge in particular: both the prosecution's
witnesses had dirty hands relating to the central issue in the case (both
having themselves committed crimes); the government's own manual had
stipulated for the past decade that a crime of this type could only be a crime
if the defendant acted with a willful intent to violate the law ( _mens rea_ )
and the prosecutor waltzes in with proposed jury instructions (i.e., jury
instructions that he is asking the judge to adopt as the court's own and use
in instructing the jury in this case) that say that such an intent is _not_
needed for the jury to find the defendant guilty.

Therefore, a case that reeks and a total lack of integrity in the government's
position. And the judge says, in effect, "what are you trying to pull in _my_
court, Mr. Prosecutor." Not a happy position for the prosecutor here, though I
think this one deserves to squirm a little for doing what he did.

~~~
viraptor
I don't know much about the US law system, so I hope someone can clarify: what
can happen if the prosecutors effectively say "our bad, we'd like to drop the
case"? Can the process be stopped immediately and if so, are the prosecutors
going to be affected in any way? Also, since the possibly unlawful recordings
took place and the judge already knows about them, will it be raised a
separate issue?

~~~
grellas
Prosecutors have great discretion on whether to bring a case in the first
place and normally on whether to dismiss it at any point in the proceedings,
including at trial. Under the U.S. legal system, prosecutors are _supposed_ to
(in theory, at least) be concerned with the idea of upholding justice first
and foremost and only secondarily with gaining convictions. I think what
probably offended the judge here most was that this prosecutor seemed bent on
gaining a conviction at any cost, even if it was based on twisting the
evidence and law solely to that end and regardless of whether it was right or
not. In any case, at this point in this case, the prosecutor _can_ simply
dismiss the case and that would end it. If he does so, I doubt that any
further repercussions would follow, since I don't think what he did here was
so extreme as to warrant formal sanctions against him.

In extreme cases, prosecutors can be hit with charges of ethical misconduct
and sometimes disbarred for abuse of their position. A recent case (where the
prosecutor wound up resigning before being actually forced out) involved the
prosecutor of the Duke lacrosse players who wound up admitting that he had
conducted the prosecution for political reasons even in the absence of
evidence for maintaining it (see the write-up here for details:
<http://www.nytimes.com/2007/06/15/us/15cnd-duke.html>).

------
jrockway
Wow, a judge that understands that new technology shouldn't destroy 200+ years
of freedom.

Here's how I determine whether or not I should be able to mod something. Would
it be OK for me to smash to device to bits with a big fucking hammer? If so, I
feel it's also OK to use a soldering iron to make it read non-special discs,
too. Can you play pirated games with that mod? Yup. But consider this: it's
legal to own a handgun, and even in unmodified form, you can use that gun to
kill as many people as you want. Kill. Take away their life. Forever. And
society is fine with people owning those, because they know that if someone
kills as many people as they want to (and that number is more than 0), they
will be brought to justice. It's worth letting that one psycho have a gun if
it means everyone else can hunt animals or protect their families; that's what
society has decided. Similarly, people should always be free to tinker with
their devices (and even other people's devices, with those people's
permission) because the potential positive value to society (a cheap
workstation for elementary school computer labs) outweighs the potential
negative value to society (someone playing Kill Zombies XXXIV without paying
MegaGameCorp $85). Mod chips don't kill game companies, people do.

(Don't get me started on why the government thinks it's OK to put people in
prison for growing certain plants in their own homes. I think it must be
because some politician had a long talk with God, and God says he hates it
when people enjoy themselves. Since God _does_ exist and _does_ talk to people
on a regular basis, this sort of makes sense. But I digress...)

~~~
ShabbyDoo
As a small-L libertarian, I have no issue with Microsoft offering to me
voluntary entry into a licensing agreement for use of an xBox with the
restriction that I not modify it. And, any supposed violation of this
agreement would, as with most (all?) contractual issues, be civil rather than
criminal matter.

~~~
jrockway
As a person-that-likes-to-walk-around-his-house-naked, I do not want a company
to be able to come in to my house at any time to make sure I'm not violating
any rules.

Also, that contract would not apply in this case. Sure, the _owner_ is
violating the contract, but the person adding the mod chip isn't. He never
signed anything.

~~~
elblanco
> As a _person-that-likes-to-walk-around-his-house-naked_ , I do not want a
> company to be able to come in to my house at any time to make sure I'm not
> violating any rules.

I wonder if the TSA is going to be handed enforcement of anti-mod-chip laws at
some point.

------
A1kmm
I think it is important to distinguish between the copyright doctrine of fair
use, which means using copyrighted materials in a way which is fair, and the
consumer's right to use their own hardware for things they want (which does
not involve any copyright infringement, fair or otherwise). The latter may
sound like 'fair use' of hardware, but I don't think they mean the same thing
to the judge who is talking about the doctrine of Fair Use.

~~~
chopsueyar
Please read:

[http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_...](http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_States_law)

and read this:

<http://en.wikipedia.org/wiki/Dmca>

It is the position of the EFF(eff.org) that the DMCA jeopordizes 'fair use'.

Blame Bill Clinton.

~~~
A1kmm
Yes - and the judge agreed that with the jurisprudence that the Doctrine of
Fair Use wasn't a defence under the DMCA. The EFF were absolutely right that
the DMCA anti-circumvention provisions could be interpreted by courts to make
it illegal for people to exercise rights under the doctrine of Fair Use under
some circumstances.

But that is missing the point of what I was trying to say. The Doctrine of
Fair Use is about allowing certain types of copying of copyrighted works for
certain purposes.

The Arstechnica article talked about the judge backing down from blocking the
'fair use' defence because he mentioned that the modifications were required
for homebrew.

My point is that homebrew does not (generally) rely on the Doctrine of Fair
Use - people making and running homebrew games are generally not copying
copyrighted material without the permission of the owner. It may be 'fair use'
in plain English, but that would be borrowing a legal term with a specific
meaning and applying it to a different meaning (this is similar, for example,
to how people often use the technical term 'virus' incorrectly to talk about
malware in general).

~~~
chopsueyar
Ah, so you are saying the judge is confused?

------
cdthsnk
I have to admit that at first I thought this was completely satirical. This
is, I'm sure, at least partially due to the fact that I clicked this link
directly after the "Haskell Researchers Announce Discovery of Industry
Programmer Who Gives a Shit" link. The other part due to how unbelievable I
find this actual tial to be.

------
mukyu
Why does it go on about running homebrew when that is something you cannot do
on a 360 by just changing the optical drive's firmware (which is what they
state he was doing)?

Well, technically you could flash the optical and then use King Kong's
unverified shaders along with some old exploits to get to running homebrew,
but it is not really realistic.

