Federal prosecutors’ first attempt to press criminal charges for circumventing copy protections has ended badly for the government, which could make it less likely to bring some types of criminal copyright cases in the future. Wired News reported that government prosecutors dismissed their case against Matthew Crippen, who was accused of modifying Microsoft (NSDQ: MSFT) Xbox consoles for $60 to $80. They case was dropped just before the jury was to be seated for the third day of trial. Lead prosecutor Allen Chiu said he was dismissing the case based on “fairness and justice.”
The dismissal came the day after U.S. District Judge Philip Gutierrez gave Chiu and his team a very public dressing-down. “I really don’t understand what we’re doing here,” said Gutierrez. Two of the government’s four witnesses had committed crimes, and the jury was going to hear about that, Gutierrez ordered. They included Tony Rosario, an investigator from the Entertainment Software Association, a video-game trade group, who secretly videotaped Crippen in his home; and Ken McGrail, a Microsoft security expert who admitted that back in college he was an Xbox modifier himself.
It isn’t just the videogame industry that’s relevant here. The government was trying to prosecute under the so-called anti-circumvention provision of the country’s primary copyright law in the digital era, the Digital Millennium Copyright Act. The anti-circumvention portion of that law that prevents users from breaking “digital locks” and getting around copy protection on iPhones, DVDs, and other digital media. Certain exceptions have been made to that law, most recently when the Library of Congress legalized the “jailbreaking” of iPhones to allow them to run unauthorized apps. Plenty of civil cases have been brought under anti-circumvention, but this was the first criminal case that went to trial.
To press criminal, rather than civil, charges in a copyright case is highly unusual, though some in the copyright industries argue that it should happen more often. The results of U.S.A. v. Crippen could well make prosecutors approached by copyright owners even more wary about bringing criminal copyright charges.

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