Well the first Criminal Trial

[Heretic]

is set to start tomorrow for modifying the Xbox 360 to play pirated games. The circumvention of the copy protection of the DMCA is the whole case against the CA man.

http://www.wired.com/threatlevel/2010/1 ... ding-trial

[Avder]

Its not gonna be a trial, its going to be a drumhead. Thej udge has already tossed out fair use. The guys gonna get crucified for the sake of MAFIAA profits.

[woodchip]

The fair use issue was probably thrown out because the guy was charging a fee to \"fix\" other peoples xboxes. I suspect if he just told them how to do it he would not be in this pickle.

[Krom]

Fair Use doesn't exist anymore, it has been dead and buried for years.

[Lothar]

Thej udge has already tossed out fair use.

"Fair use" is not applicable. "Fair use" is a legal term referring to the reproduction of small parts of copyrighted works; this trial has nothing to do with that. He has not thrown out the defense's ability to use "this was hardware I owned" as an argument, merely required them not to attempt to misname it as "fair use".

If anything, the trial is going to be short the other direction. The judge already chewed out the prosecution for, roughly speaking, not having a case:

http://arstechnica.com/tech-policy/news ... -trial.ars

Having litigated before such judges in quite a few settings (though not criminal), and having clerked for one back in the day, I can say with great assurance that, if the judge starts the trial by saying to you as a prosecutor, in effect, "what the hell are we doing here," you know your case is in pretty serious trouble. When the judge goes on for a half hour straight berating you, it is doubly so. This does not mean that a determined prosecutor can't push a case forward but it will be a real uphill fight.

The items that offended the judge in particular: both the prosecution's witnesses had dirty hands relating to the central issue in the case (both having themselves committed crimes); the government's own manual had stipulated for the past decade that a crime of this type could only be a crime if the defendant acted with a willful intent to violate the law (mens rea) and the prosecutor waltzes in with proposed jury instructions (i.e., jury instructions that he is asking the judge to adopt as the court's own and use in instructing the jury in this case) that say that such an intent is not needed for the jury to find the defendant guilty.

Therefore, a case that reeks and a total lack of integrity in the government's position. And the judge says, in effect, "what are you trying to pull in my court, Mr. Prosecutor." Not a happy position for the prosecutor here, though I think this one deserves to squirm a little for doing what he did.