The “first of its kind” trial of bloke for modifying Xbox 360 consoles to play pirated games has opened in Southern California.

Matthew Crippen is charged with two counts of violating the anti-circumvention provisions of the Digital Millennium Copyright Act, or DMCA. He faces a maximum three years in prison if convicted. His case had been based on “fair use” but the 28-year-old Crippen was told by the Judge that he could not raise that as a defense.

Other evidence, such as the admissibility of a covert video recording of Crippen allegedly performing the modification is yet to be ruled on. The defense claims that the two-minute video has been edited and was unlawfully produced in Crippen’s Anaheim house without his consent in violation of California privacy law.

Crippen’s attorney has been unable to review the full recording made by the investigator, who claims to have lost it in a computer crash. As a result, only the edited version would go before the jury.

It is not clear if hardware-hacking guru Andrew “Bunnie” Huang, who is prepared to testify for the defense that installing a mod chip does not circumvent a copy-control mechanism within the meaning of the DMCA will be allowed to testify either.

The government maintains that the testimony of Huang, who wrote a book on Xbox hacking, is irrelevant.