Matthew Crippen, a 28 year old hotel car-parking manager, was (unknowingly) video-recorded modding Xbox optical drives to allow them to be able to circumvent the normal security to play copies of games, pirated games, or homebrew software. The judge in this court case, U.S. District Judge Philip Gutierezz, gave prosecutors a 30-minute rant on his problems with them in the courtroom. He said that the prosecution had done things from alleged unlawful behavior by government witnesses to proposed jury instruction harmful to the defense.
One witness is a Microsoft security employee, Mike McGrail, who modded Xboxs himself in college. He was the one who looked over the Xboxs that Crippen modified to see exactly what he did. Another was Tony Rosario, who is an Entertainment Software Association investigator. Rosario is the one who secretly recorded defendant Crippen modifying the Xboxs. “Maybe two of the four government witnesses committed crimes. I think it is relevant and the jury is going to hear about it –- both crimes," the judge said.
Crippen, who would have to serve 5 years for each count, is charged with two counts of violating the anti-circumvention provisions of the Digital Millennium Copyright Act. Crippen's defense, which he was previously not allowed to give but is now allowed to give thanks to the Judge, is that the modification doesn't only allow the Xbox to play pirated games, but also to allow the machines to use fair-use copies of games and homebrew software. After the judge's rant, the prosecution asked for a recess so that can decide whether to offer the defendant a deal, drop the case, or move forward. If only we had more judges like Gutierezz.