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Xbox Modding Trial – Fair use not allowed

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Bummer – we wanted to see/hear Bunnie do a live Xbox hack before a jury

…Crippen suffered a devastating blow to his defense last week when the judge prohibited the defendant from raising a “fair use” defense. He had hoped to argue to jurors that it was legal to hack the consoles because the modification had non-infringing purposes, like allowing the machines to run homebrew software, or permitting limited fair use of copyright material. The judge ruled that such a defense is not permitted by the DMCA.


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5 Comments

  1. Call me naive, but isn’t the judicial system *supposed* to hear the arguments and make adjustments to the law as needed? This ruling effectively says, “you can’t defend yourself because the law says so”. Our checks and balances are seriously broken, if you ask me.

  2. A hack a day keeps the DMCA at bay. :-/

  3. @K Scharf

    Interesting point:- "DMCA prohibits the sale of any device or mod to enable fair use"

    That makes it fine if someone gives me there old xbox or I pick one up from a junk yard because I did not buy it.

    PS: Love the "prove you are human by reading this resistor"

  4. @signal7: strictly speaking, no. The judicial system, specifically the judicial branch of the government, is supposed to hear arguments and decide if what is being described is inside or outside the limits of the law. This branch cannot (and should not) actually make or change any laws.

    That’s what the legislative branch is for.

    That said, they’re all a bunch of clowns.

  5. @signal7: No, in the United States, the judicial system is not supposed to make adjustments to the law. It can only interpret the law. From my (admittedly limited) understanding of both the DMCA and the iPhone copyright exception, the judge’s interpretation is correct.

    It sounds to me like the judge understands DMCA better than the defense. I think he was saying that defense is invalid because it’s basically admitting to the crime, which is not a defense at all. Since circumvention to enable fair use is illegal, then a defense claiming you were circumventing for fair use is nonsensical.

    The DMCA is a terrible contrivance, evidence of either the incredible ignorance of the legislature when it comes to technical matters, or possibly just their willingness to be bought by monied interests. However, it’s law, and the judicial system can’t change it except by ruling it unconstitutional. It’s up to Congress to free us of this draconian mess. I’m not holding my breath.

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