Judge Bars ‘Fair Use’ Defense in Xbox Modding Trial

A California man charged with violating the DMCA by installing mod chips in Xbox 360 consoles won’t be allowed to claim “fair use” at his scheduled jury trial next week, a federal judge ruled Tuesday — a decision potentially devastating to the defense, and not particularly favorable to anyone who thinks they have the right to tinker with hardware that they’ve bought and paid for.

Crippen’s lawyer hoped to convince that jury that Crippen’s alleged modifications weren’t intended to enable piracy, but to allow Xbox owners to make lawful “fair use” of copyrighted material, or for other non-infringing purposes. The lawyer compared installing a mod chip to jail breaking an iPhone, an activity explicitly permitted under a recent DMCA exception approved by the U.S. Copyright Office.

But U.S. District Judge Philip shot down that argument Tuesday, noting that the DMCA makes it a crime to “circumvent a technological measure that effectively controls access” to copyrighted material, even if there’s no proof that the circumvention was intended to facilitate piracy. The iPhone exemption is irrelevant, he wrote, because the Copyright Office did not extend that exemption to game consoles — just phones.

via wired.com (emphasis mine)

Here’s my million dollar idea: some clever hacker needs to figure out a way to hijack the Xbox’s wifi signal to allow for some over-the-web VoIP calling solution, at which point the “phone vs. gaming system” becomes significantly more complicated.

Given that he’s getting around the recent DMCA ruling allowing for iPhone jailbreaking by claiming the Xbox isn’t subject to that ruling, and referring to the original 1980′s law, my (admittedly shoddy) understanding of legal precedent would force the judge to recognize the newer ruling – given that the Xbox would have become effectively a phone – and could force his hand into applying the recent ruling’s logic to the Xbox.

In either case, Xbox is making a truly bad business decision; stifling your customers’ freedom isn’t the smartest way to go these days. I loved their recent decision to embrace all the Kinect hacking; why not here?

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