Opening statements in a first-of-its-kind federal trial over the installation of console mod chips were put on hold today as the judge berated the prosecution for myriad legal and technical issues. The case revolves around Matthew Crippen, a 28-year-old parking attendant arrested last year after being taped selling and installing Xbox 360 mod chips to federal investigators. Law enforcement was first alerted to Crippen thanks to a tip from the ESA. The government argues Crippen's modifications are illegal under the Digital Millenium Copyright Act because they circumvent built-in copy protection in the hardware and facilitate the play of illegally copied game software. But today, Wired reports U.S. District Judge Philip Gutierrez seemed to backtrack on a previous ruling that Crippen could not argue the modifications were "fair use" alterations to facilitate the playing of backup and homebrew software. “The only way to be able to play copied games is to circumvent the technology,” Gutierrez said. “How about backup games and the homebrewed?” Gutierrez also took the prosecution to task for instructing the jury that Crippen did not need to be aware his actions were illegal to be found guilty, in direct contradiction to a DMCA IP crimes manual the government published in 1998. Problems with prosecution witnesses, one of whom admitted he himself had previously modded Xbox consoles, were also a feature in the judge's half-hour tirade against the federal prosecutors. Crippen faces up to ten years in prison, if convicted. Earlier this year, the U.S. Copyright Office loosened DMCA restrictions on acts such as jailbreaking an iPhone or cracking a game purely for technical testing purposes.