Judge in Xbox modding trial berates prosecution, halts trial | Hacker News Reader

Judge in Xbox modding trial berates prosecution, halts trial

arstechnica.com

142 pointslotusleaf198725 comments

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.

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?

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).

what can happen is nothing. prosecutors can drop a case whenever they want and they can't be sued for having brought it in the first place. they wouldn't even need, nor would they probably want, to say "our bad."

As for the recordings, the judge only cares about what the prosecutor brings to him. if there was no finding of fact about it then it just flys on by as one of the myriad aspects of the case left unproven.

Is there an avenue for the prosecutor to claim the judge is hostile to the government's side, and request a different judge? Or is his only choice to slog through the "uphill battle", and perhaps appeal the decision at the end?

I don't think modifying hardware you've purchased should be illegal, but it does seem odd to me that a judge can show that much emotion and still be considered a fair judge of an open case.

The judge's emotion was regarding questionable conduct by the prosecution. Not only will that not raise a question of recusal, it's expected.

afaik, prosecution cannot appeal verdicts, only defendants can. (double jeopardy)

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...)

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.

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.

> 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.

as another small-l libertarian I fully agree with you

Don't buy a Kinect.

Even in such a case, breaking the contract would make you subject to tort, rather than criminal law. Meaning you'd have to pay some form of compensation (which would have to be expressly specified in the contract), but not go to prison.

Yeah but currently the XBox isn't licensed to you; You own it, unless I was ill informed.

The whole idea of licensing a physical product is comical. It always comes down to "who fixes it if it breaks"? If the answer is "me" then I own it and can do whatever the hell I feel like with it.

"It always comes down to 'who fixes it if it breaks'?"

While this might be an interesting personal test, I don't believe it a legal standard. It is the case that one may enter into a contract to possess a physical good with limitations on its use, right? Isn't the issue that, sans such a contract, the US legal systems applies a common set of rules surrounding ownership?

Like this?

http://news.ycombinator.com/item?id=1946151

Ya... exactly that really. After all, if I rent a car and it breaks I'm not the one fixing it:)

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.

Please read:

http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_...

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.

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).

Ah, so you are saying the judge is confused?

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.

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.

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