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. That case is now officially underway. Specifically, Crippen is accused of violating the Digital Millennium Copyright Act, which carries with it the possibility of a three-year jail sentence and fines. Among the evidence prosecutors have is a covert video of Crippen physically modding a 360, and installing a new chip that allows unauthorized games to be played on it.
On the defense side, Crippen's team wants to let a technology expert testify that the mod chip in question does not actually modify the 360's digital rights management (DRM) restrictions, which is what the DMCA covers.
In pre-trial hearings, Crippen hoped to be able to introduce a defense of "Fair Use," the same defense used for iPhone jailbreaking. The judge at one point said he would allow that defense, saying, "Because fair use is a mixed question of law and fact, it is a permissible question for the jury."
But last week, District Judge Philip Gutierrez backtracked on that, saying Fair Use is not a valid defense on the specific DMCA charge in the case.
Of course, modding your Xbox 360 voids its warranty and could render it inoperable or unable to play future games. But should it be illegal? What do you think?