Xbox-modder trial underway, no plea bargain offered [update: case dismissed!]

The landmark jury trial of Matthew Crippen, indicted on two federal counts last fall for running a side-business in which he modded Xbox 360s at his home, began yesterday with opening statements in a Los Angeles court. Wired's colorful report of U.S. District Judge Philip Gutierrez's colorful reaction to the prosecution's case suggested that the government could be headed toward a deal with Crippen during an early-afternoon recess.

"I really don't understand what we're doing here," Gutierrez apparently "roared," as he ripped into the prosecution. The judge questioned government prosecutors' use of two witnesses who may have broken the law themselves and prosecutors' instructions to the jury that it was unnecessary to prove Crippen had knowingly breached the Digital Millennium Copyright Act. The judge apparently backtracked on an earlier ruling that had prohibited a "fair use" defense (i.e., modding for back-up or homebrew purposes). "The only way to be able to play copied games is to circumvent the technology," Gutierrez said. "How about back-up games and the homebrewed?"

However, prosecutors returned from recess yesterday determined to convict Crippen, 28, on two counts of violating the DMCA (for a maximum sentence of ten years) by proving he knew he was breaking the law. ESA investigator Tony Rosario was called to the stand to recount how he had visited Crippen's Anaheim, Calif. home in 2008 and paid the defendant $60 to mod an Xbox 360. Rosario secretly videotaped the procedure -- which the defense argues is a violation of the state's privacy law -- though he did not capture video evidence of Crippen allegedly playing a pirated game on the modded console (nor did he include this supposed fact in his original report or sworn declarations). Still, the prosecution offered up a pile of a 150 pirated games, apparently seized by authorities from Crippen's home, which it hoped would show jurors that the defendant had a clear understanding that he was involved in illegal activity.

Rosario is expected to return to the stand today, followed by two additional prosecution witnesses: a federal agent, who also allegedly paid Crippen to mod a 360, and a Microsoft employee, a so-called expert on Xbox security (and self-admitted modder in his younger days). The defense is scheduled to begin its case tomorrow.

Follow the drama on Wired's Threat Level blog. Update: Prosecutors dismissed their case today, Wired reports, saying their decision was "based on fairness and justice" (read: they made errors). "It still has not hit me yet," Crippen said outside of the courtroom.

[Pictured: Matthew Crippen; photo credit: David Kravets/Wired.com]

This article was originally published on Joystiq.