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Xbox modder can't claim fair use, says judge

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A California man facing criminal charges for modifying his Xbox 360 will not be allowed to use fair use grounds to defend himself at a trial scheduled for next week, the judge hearing the case said in a ruling that could have profound consequences for other hardware hackers.

Matthew Crippen of Anaheim, California, was arrested in August 2009 on charges related to modifications he made to the optical disc drives of two Xbox 360 game consoles. The related two-count indictment alleges he violated a provision of the Digital Millennium Copyright Act that bars the circumvention of technology designed to prevent access to copyrighted material.

Crippen's attorneys have argued that his tampering is protected by fair use exceptions, which permits certain uses of otherwise protected works when, for instance, the use is for nonprofit educational purposes or only a small portion of the overall work is used.

On Tuesday, US District Judge Philip S. Gutierrez of Los Angeles, effectively pulled the rug out from underneath that planned defense, arguing that fair use is “irrelevant” to violations of section 1201(a)(1)(A) of the DMCA, under which Crippen is charged.

“The DMCA only requires a showing that the technological measure was related to a valid copyright interest, not that any infringement actually occurred,” Gutierrez wrote in a ruling granting federal prosecutors' request that Crippen be barred from presenting fair-use evidence at trial. “Moreover, although the government will have to establish that the technological measure that Mr. Crippen allegedly circumvented was used to control access to copyrighted work, the government need not show that the modified Xbox's were actually used for infringing purposes.”

The saga of 28-year-old Crippen is a familiar one to many hackers, whose modifications to hardware including game consoles, and even calculators sometimes puts them on the receiving end of legal threats. One of their strongest defenses for tinkering with gear they legally own is fair use.

Crippen, who if convicted faces a maximum three years in prison for selling modded Xboxes, isn't the first hacker under prosecution to be barred from using the defense. Wired.com has much more here. ®

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