US Xbox Modder Trial Begins Today - 'Fair Use' Defense Denied After All

A Southern California man is set to go before a jury here Tuesday on criminal charges of violating copyright law by modifying Xbox 360 consoles to play pirated games.
In the first trial of its kind, defendant Matthew Crippen is charged with two counts of violating the anti-circumvention provisions of the Digital Millennium Copyright Act, or DMCA. He faces a maximum three years in prison if convicted.

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.

Two other key evidentiary issues in the case are unresolved, and are expected to be ruled upon at any time.
One issue is the admissibility of a covert video recording of Crippen allegedly performing the modification. A second is whether the jury can hear the testimony of hardware-hacking guru Andrew “Bunnie” Huang, who is prepared to testify for the defense that the modification did not circumvent a copy-control mechanism within the meaning of the DMCA.

http://www.gamesradar.com/xbox360/xb...21132945404017