The US government has dropped its case against a man who ran an Xbox modification service in what was supposed to be a test of using the anti-circumvention provisions of the 1998 Digital Millennium Copyright Act.
The case should have been a doddle. The judge had already ruled that Matthew Crippen could not defend himself on the basis of “fair use”.
But the prosecution case depended on the Entertainment Software Association whose method of gathering evidence turned out to be illegal.
The ESA thought that it was OK to video Crippen modifying an Xbox without telling him that they were doing it. This broke Californian privacy laws.
Tony Rosario, was an undercover agent who was the ESA’s star witness also claimed for the first time that Crippen had installed a pirated game onto the Xbox to prove that his hack worked.
This was to satisfy the judge that Crippen knew that his mod was being used for criminal activity. The only problem was that Rosario had not mentioned this crucial bit of evidence at any time during the extensive pre-trail review.
During the opening statements, defence attorney Koren Bell told jurors that there would be no evidence of that kind and not surprisingly the defence called a foul.
Sheepish prosecutors told the judge that they had first learned of Rosario’s newfound recollection days before trial. They admitted that they never forwarded that information to the defence.
Having realised that they moved to abandon the case and it was all over.
According to Ars Technica, he said that he was now going back to school as his life had been put on hold waiting for the case.