Defense for Xbox Modder Urges Fair Use

David Kravets at Wired has details of the first DMCA case dealing specifically with the practice of modding game consoles. Attorneys for David Crippen, who faces up to three years in jail, are urging the judge to allow a fair use defense. The basis of their argument is that installing a mod chip into a console to allow the playing of home brew games is no different than jail breaking a smart phone to allow installation of software other than what a vendor or carrier authorizes.  As part of the DMCA’s rather weak exceptions, jail breaking of smart phones was recently deemed a permissible circumvention, though with some heavy qualification.

I am really concerned over the prosecution’s objections.

Prosecutor Allen Chiu, however, wrote U.S. District Judge Philip Gutierrez that “any evidence relating to a ‘fair use’ defense is irrelevant and should be excluded.” Chiu said the defense’s reason for broaching fair use “would be to encourage jury nullification.”

How is fair use irrelevant when this is at its heart a copyright case? Sure, the DMCA doesn’t respect fair use the same way the pre-existing body of law does but courts are increasingly starting to separate consideration of anti-circumvention, which the DMCA criminalizes, from whether an actual infringement took place.

The case is being heard in a southern California court.  The defense may have a tougher time in Hollywood’s shadow making the fair use argument work but I hope that they are successful in doing so.

Citing iPhone Ruling, Xbox Defendant Says Mod Chips Are Fair Use, Wired

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