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Sony v. Hotz Begins - Updated 2Xs: Hotz Responds
Wednesday, January 12 2011 @ 09:34 PM EST

PCWorld is reporting that Sony is going after what it describes as "iOS jailbreaker Geohot". The article expresses some confusion about whether or not it's a real lawsuit:
Hotz, better known as iOS jailbreaker Geohot, revealed on his site last night that he'd been "served" by Sony, prompting speculation about the legal ramifications and causing confusion over whether the paperwork was preliminary or actual notification of a lawsuit.

A quick read of the documents suggests the former. The "proposed order" is just as it sounds: A proposal that the Northern District Court of California find that Sony Computer Entertainment America "has shown a likelihood of success on the merits of its claims for violation of the DMCA [Digital Millennium Copyright Act] and CFA [Computer Fraud & Abuse Act]...that it will suffer irreparable harm" unless the court issues a restraining order shutting down sites that offer the hack, and impounds any computing technology involved in its creation.

I can try to help clear up any confusion. This is indeed litigation, and not just against Mr. Hotz, with the kind of papers that you find typically, meaning the Complaint [PDF], but it's also asking for immediate relief in addition, and that's the Motion for Temporary Restraining Order [PDF], with a written up proposed order [PDF] that the judge can just sign if the motion is granted. I'll show you how you can tell if papers filed mean real litigation, and I have the pertinent documents for you and the docket listing.

I note that Sony has chosen James G. Gilliland, Jr. of Kilpatrick Townsend & Stockton to represent the company. He represented Apple against Psystar, if you recall. I would not underestimate him, if I were a defendant.

Update: Hotz has provided an affidavit that says Sony has its facts all wrong. See end of the article for the details.

First, here's the docket, and I've provided links to the most relevant filings, because the links on PCWorld don't resolve properly, and afterward I'll explain some things:

3:11-cv-00167-SI
Sony Computer Entertainment America LLC v. Hotz et al
Susan Illston, presiding
Date filed: 01/11/2011
Date of last filing: 01/12/2011


History

- Filed & Entered:   01/11/2011
Case Referred to ECF
Docket Text: CASE DESIGNATED for Electronic Filing. (gba, COURT STAFF) (Filed on 1/11/2011)


- Filed: 01/11/2011 - Entered: 01/12/2011
Terminate Deadlines
Docket Text: ***Deadlines terminated. (cmc statement due date and cmc date) (ys, COURT STAFF) (Filed on 1/11/2011)


1 Filed & Entered:  01/11/2011
Complaint
Docket Text: COMPLAINT for Injunctive Relief and Damages against Hector Martin Cantero, George Hotz, Sven Peter (Filing fee $ 350.00, receipt number 34611054944). Filed by Sony Computer Entertainment America LLC. (Attachments: # (1) Civil Cover Sheet) (gba, COURT STAFF) (Filed on 1/11/2011)


2 - Filed & Entered:   01/11/2011 - Motion for TRO
Docket Text: Ex Parte MOTION for Temporary Restraining Order, Order to Show Cause Re: Preliminary Injunction, and Order of Impoundment; Memorandum and Authorities in Support filed by Sony Computer Entertainment America LLC. (Attachments: # (1) Proposed Order) (gba, COURT STAFF) (Filed on 1/11/2011)


3 - Filed & Entered:   01/11/2011
Declaration in Support
Docket Text: Declaration of Riley R. Russell in Support of [2] MOTION for Temporary Restraining Order filed by Sony Computer Entertainment America LLC. (Related document(s)[2]) (gba, COURT STAFF) (Filed on 1/11/2011)


4 - Filed & Entered:   01/11/2011
Declaration in Support
Docket Text: Declaration of Ryan Bricker in Support of [2] MOTION for Temporary Restraining Order filed by Sony Computer Entertainment America LLC. (Related document(s)[2]) (gba, COURT STAFF) (Filed on 1/11/2011)


5 - Filed & Entered: 01/11/2011
Administrative Motion to File Under Seal
Docket Text: Administrative Motion to File Under Seal Exhibits D, G, U, V, W, Y, and CC to Declaration of Ryan Bricker in support of [2] Ex Parte Motion for Temporary Restraining Order filed by Sony Computer Entertainment America LLC. (Attachments: # (1) Proposed Order) (gba, COURT STAFF) (Filed on 1/11/2011)


6 - Filed & Entered:   01/11/2011
Declaration in Support
Docket Text: Declaration of Holly Gaudreau in Support of [5] Administrative Motion to File Under Seal filed by Sony Computer Entertainment America LLC. (Related document(s)[5]) (gba, COURT STAFF) (Filed on 1/11/2011)


7 - Filed & Entered:  01/11/2011
Docket Text: NOTICE of Manual Filing Notification by Sony Computer Entertainment America LLC (gba, COURT STAFF) (Filed on 1/11/2011)


8 - Filed & Entered:   01/11/2011
Notice (Other)
Docket Text: NOTICE of Related Case by Sony Computer Entertainment America LLC (gba, COURT STAFF) (Filed on 1/11/2011)


9 - Filed & Entered:   01/11/2011
Summons Issued
Docket Text: Summons Issued as to Hector Martin Cantero, George Hotz, Sven Peter. (gba, COURT STAFF) (Filed on 1/11/2011)


10 - Filed & Entered:   01/11/2011
ADR Scheduling Order
Docket Text: ADR SCHEDULING ORDER: Case Management Statement due by 4/15/2011. Case Management Conference set for 4/22/2011 01:30 PM in Courtroom A, 15th Floor, San Francisco. (gba, COURT STAFF) (Filed on 1/11/2011)


11 - Filed & Entered:  01/11/2011
Declination to Proceed Before a U.S. Magistrate Judge
Docket Text: Declination to Proceed Before a U.S. Magistrate Judge by Sony Computer Entertainment America LLC. (gba, COURT STAFF) (Filed on 1/11/2011)


12 - Filed & Entered:   01/11/2011
Clerk's Notice of Impending Reassignment
Docket Text: CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (gba, COURT STAFF) (Filed on 1/11/2011)


13 - - Filed & Entered:   01/11/2011
Order
Docket Text: ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Susan Illston for all further proceedings. Magistrate Judge Joseph C. Spero no longer assigned to the case. Signed by Executive Committee on 1/11/11. (gba, COURT STAFF) (Filed on 1/11/2011)


14 - Filed & Entered:  01/11/2011
Patent/Trademark Copy
Docket Text: REPORT on the filing or determination of an action regarding Copyright Infringement (cc: form mailed to register). (gba, COURT STAFF) (Filed on 1/11/2011)


15 - Filed & Entered: 01/11/2011
Affidavit
Docket Text: AFFIDAVIT [DECLARATION OF RYAN BRICKER OF PROVIDING ACTUAL NOTICE OF FILING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION; ORDER OF IMPOUNDMENT TO DEFENDANT GEORGE HOTZ] by Sony Computer Entertainment America LLC. (Attachments: # (1) Exhibit A to Bricker Declaration)(Cahn, Timothy) (Filed on 1/11/2011)


16 - Filed & Entered: 01/11/2011
Certificate of Interested Entities
Docket Text: Certificate of Interested Entities by Sony Computer Entertainment America LLC (Gaudreau, Holly) (Filed on 1/11/2011)


17 - Filed & Entered: 01/12/2011
Clerks Notice
Docket Text: CLERKS NOTICE re Motion to Relate Cases: The Court has reviewed the motion and has determined that no cases are related and no reassignments shall occur. (cl, COURT STAFF) (Filed on 1/12/2011)

How do we know it's litigation and not just some preliminary steps? If you want to know for sure, check PACER. Anyone can get an account, and that way you'll know if it's assigned to a judge and moving forward, because if it's listed on PACER with a judge assigned, it's litigation.

But let's say you don't want to pay for documents. You can still know. If you look at the complaint, notice the title of the document, which tells you what it thinks the offense is:

Complaint for Injunctive Relief and Damages Based on Violations of Digital Millennium Copyright Act; Violations of the Computer Fraud and Abuse Act; Contributory Copyright Infringement; Violations of the California Comprehensive Computer Data Access and Fraud Act; Breach of Contract; Tortious Interference with Contractual Relations; Common Law Misappropriation; and Trespass.
What does that mean? Every complaint has two sections that can tell you.

Right at the beginning, there's a section title "Nature of the Case". That's where you find out what the plaintiff says the case is about.

First, it says it's a complaint for injunctive relief and damages. That means it wants some activity stopped and it wants money paid by the defendants. It goes on to say that it's about "unlawful circumvention and distribution of circumvention devices in violation of the Digital Millennium Copyright Act" so it's a DMCA case. It's also claiming violations of the Computer Fraud and Abuse Act. Uh oh. Sony also claims it's about "contributory copyright infringement" under Copyright Law. That means Sony thinks others are guilty of infringement, and they were encouraged or enabled by the defendants. By defendants, plural, I mean that the defendants are listed as George Hotz, Hector Martin Cantero, Sven Peter, and Does 1 through 100. That last tells you that Sony expects it will find others involved that it will be adding to the litigation as defendants once it finds out their names, presumably in discovery.

Then it adds to the complaint violation of local California computer laws, then breach of contract, meaning I assume terms of use, which is attached to the complaint at the end, then tortious interference with contractual relations -- meaning others broke the terms too, thanks to the defendants' activity. Finally Sony alleges trespass and common law misappropriation.

If you read paragraph 2, it goes into more detail about the defendants' actions that Sony objects to, circumvention of "protection measures" Sony uses "to protect against unauthorized access to and copying of SCEA's proprietary PlayStation 3" and trafficking in circumvention devices "and components thereof". In addition, Sony claims they "intentionally accessed" without authorization "and/or trafficked in passwords or similar information used to gain access to the system." So that's what the complaint is about.

The next section lists the parties, and Sony lists the nyms of some of the Does, and in some cases it lists where the individual is believed to reside. But Sony believes there are more who it believes are "legally liable and responsible directly or indirectly for the matters alleged herein."

What does indirectly mean? Paragraph 10 lays it out:

By working together, cooperating with one another, expressing a common interest, publishing instructions and demonstrations that induce and encourage fellow Defendants to engage in the unlawful conduct alleged herein, and by ratifying fellow Defendants' unlawful conduct by announcing such conduct with approval and encouraging the furtherance of such conduct, Defendants joined and participated in tortious scheme to commit the acts alleged herein in furtherance of a conspiracy.
In other words, if you did any of the things Sony lists in the complaint, Sony would like to add you to this litigation as a defendant to those already listed if it can find you.

Finally go to the last section of the document, where the plaintiff asks the court for the relief it wants. The first thing Sony asks for is that the court enter judgment against the defendants. That's litigation language, not preliminary. Then Sony asks for two kinds of injunction -- a preliminary injunction, which is what the motion is about, and also a permanent one at the end of litigation, "enjoining and restraining Defendants and their agents, servants, employees, successors and assigns, and all other persons acting in concert with or in conspiracy with or affiliated with Defendants" from doing any of the things Sony is complaining about. And it asks the court to force the defendants to hand over at the end of the litigation "any and all computer hardware and peripherals containing circumvention devices, technologies, programs, parts thereof, or any unlawful material, including but not limited to code and software, hard disc drives, computer software, inventory of CD-ROMs, computer diskettes or other materials containing circumvention devices, technologies, programs, parts thereof, or other unlawful material" so Sony can destroy it all. I don't know what it can do about knowledge inside peoples' heads. I guess that's where the threats come in.

Next Sony asks for money, called "damages", and any profits the defendants might have made, as well as statutory damages, trebled, under copyright law, plus interest, plus attorneys' fees and costs.

What does it mean? It means Sony wants you to stop messing with its stuff, and it's pulling out all the stops.

Update Details:

Hotz has responded [PDF] to the motion for the TRO with an interesting affidavit [PDF] attached. In the affidavit, he claims Sony has its facts wrong in the following respects: first, he says he doesn't live in California or have sufficient contacts with California to give Sony jurisdiction over him. And he wasn't served. He just got an email saying there would be a hearing the following day. To explain that, an ex parte hearing is for the benefit of just one party, who must claim it's an emergency requiring urgent action, and any order by the court is followed up with a regular hearing afterward, with both parties there and prepared.

Hotz doesn't have a Playstation Network account, Hotz says, so he's not bound by the Terms of Service and User Agreement. Wait. There's more:

5. I have not engaged in any unlawful conduct.

6. To the best of my knowledge and belief, I do not have a Playstation Network ("PSN") account. As such, I am not bound by the "Playstation Network Terms of Service and User Agreement."

7. I have never utilized an account with PayPal in connection with any activity relating to the Playstation 3 computer entertainment system.

8. I have never distributed a circumvention device or component through YouTube.

9. I do not currently have an account with Twitter, nor have I had an account with Twitter since on or about June 13, 2010.

10. I have not worked in concert with Defendants "Bushing," Hector Cantero, Sven Peter and "Segher". I have no association or connection with "FAILOVERFLOW," the purported group or organization that is allegedly composed of Defendants "Bushing," Hector Cantero, Sven Peter and "Segher".

11. I do not support piracy or counterfeiting.

Now the case is getting really interesting. You can't sue someone unless you can get personal jurisdiction over the person, and if the above is true, Mr. Hotz may slip right out of Sony's grasp. Moreover, if it's true, he should. We haven't heard from the others, but Sony doesn't seem to know how to serve them, or provide evidence, the opposition points out, that Sony has any jurisdiction over them either, and without Mr. Hotz, now what will they do?

The Hotz opposition to the TRO says his lawyer, Stewart R. Kellar, will be filing a Motion to Dismiss for Lack of Personal Jurisdiction, and it asks the court to put the TRO hearing on hold until after it rules on the motion. To tip the scales, it tells the court this:

This case is not about Sony Computer Entertainment America LLP ("Sony") attempting to protect its intellectual property or otherwise seek bona fide relief from the court. Rather, it's an attempt for Sony to send a message to any would-be individual that attempting to use any hardware it manufactures in a way it does not deem appropriate will result in harsh legal consequences irrespective of any legal basis or authority for such action. It is for this reason that Sony filed a motion for ex parte protective relief, complete with numerous misstatements of fact and law, and providing Mr. Hotz, who is a resident of New Jersey, with a copy of the documents mere hours before a preliminary hearing for this matter was set in this Court in California, denying Mr. Hotz's counsel the opportunity to file a properly-drafted response.

Contrary to Plaintiff's depiction, Mr. Hotz is a computer prodigy, a little over 21 years of age, that is well-known for his accomplishments in the field of iPhone development, such as for creating the ability to unlock the phone to provide for interoperability between various cellular network carriers. Mr. Hotz has also gained fame through his numerous accomplishments in the Intel International Science and Engineering Fair, and provided numerous interviews on major television networks including the Today Show, Fox, CNN, NBC, CBS, and ABC. More recently, Mr. Hotz discovered the ability to install programs on the Playstation 3 Computer Entertainment System ("Playstation Computer"), which has angered Sony. Accordingly, Sony has filed this ex parte motion for relief, which is devoid of jurisdiction over Mr. Hotz, and which grossly mis-categorizes the underlying facts and fails to meet the minimum burden required to obtain the extraordinary relief it seeks.

As a cursory matter, Defendant Hotz vehemently objects to Plaintiff's attempt to classify him as a hacker and to assert, without authority or a good faith basis, that Defendant Hotz has any association or connection with Defendants "Bushing," Hector Cantero, Sven Peter and "Segher". It is also noteworthy that Plaintiff has asserted no basis for personal jurisdiction over Defendants "Bushing," Hector Cantero, Sven Peter and "Segher," leaving Plaintiff's basis for personal jurisdiction over Mr. Hotz based on a few incorrect and conclusory assertions regarding Mr. Hotz. Moreover, Defendant Hotz has not produced, manufactured, sold, nor does he have any intent whatsoever to produce, manufacture, or sell, any devices that facilitate piracy or counterfeiting.

Wow. If this is so, Sony has done real damage to a man's reputation. And if you read Sony's filing, you saw it claims jurisdiction because Hotz allegedly has a Paypal account, and Paypal is in California, but Hotz's opposition denies ever using the account in connection with any activity related to the Playstation:
In fact, Mr. Hotz expressly tells people on his website not to give him donations for his efforts. Even more harmful to Sony's personal jurisdiction argument, the only evidence put forward of Mr. Hotz' Paypal account appears to be a transaction initiated by the plaintiff.
Yuck. This is what I'd call a lawyer's nightmare -- you rely on what your client told you, and it turns out not to be exactly so. It's more common than you'd imagine. Well. More than I'd imagine, if I hadn't seen it with my own eyes. One lawyer I worked for told me that the stress from being a lawyer is that you have two fronts to the war -- the other party, plus you have to watch your back so your client doesn't sink your ship. It looks bad for Sony. But let's wait for Sony's response before we reach any final conclusions. I have a lot of respect for Mr. Gilliland, Sony's lawyer, and I'm sure he wouldn't take a case he didn't think had merit.

Update 2: Orin Kerr writes at The Volokh Conspiracy that he has nominated Sony's lawyers for "Today’s Award for the Silliest Theory of the Computer Fraud and Abuse Act":

The argument: You’re guilty of felony computer hacking crimes if you access your own computer in a way that violates a contractual restriction found in the fine print of the licensing restriction of the product imposed by the manufacturer.

I realize the complaint characterizes the defendants as hackers, and the CFAA is supposed to be about hacking. But think for a moment about the nature of this claim. You bought the computer. You own it. You can sell it. You can light it on fire. You can bring it to the ocean, put it on a life raft, and push it out to sea. But if you dare do anything that violates the fine print of the license that the manufacturer is trying to impose, then you’re guilty of trespassing onto your own property. And it’s not just a civil wrong, it’s a crime. And according to the motion for a TRO, it’s not just a crime, it’s a serious felony crime.

I’ve seen a lot of civil cases trying to use the vague language of the Computer Fraud and Abuse Act in creative ways. But this is the first case I know of claiming that you can commit an unauthorized access of your own computer. And that claim justifies today’s award for the Silliest Theory of the Computer Fraud and Abuse Act.

Given that Hotz says he doesn't have a Playstation Network account anyhow, and thus isn't under any Sony Terms of Use which is the foundational premise of Sony's theory, it's not just a *silly* theory. I'd have to guess it's a failed theory, since it doesn't match reality. Sony gets to amend the complaint, of course, so stay tuned.

And speaking of failure, has Sony given thought to the fact that the information it wishes to destroy on Hotz's computers and CDs and thumb drives is all over the internet, which means it's on potentially millions of computers and CDs and thumb drives all over the world?

And for those who might not realize it, Sony, the creator of an infamous rootkit that accessed and damaged people's computers, but without facing any felony charges under the Computer Fraud and Abuse Act (details), sold Playstations as being able to run Linux, or "OtherOS". A lot of people bought them precisely for that purpose. The US Air Force did, for example, ars technica points out. Later, in April, Sony insisted that you install a firmware patch that made that no longer possible. The Air Force and other research work was impacted, as the ars technica article explains:

We checked in with the Air Force Research Laboratory, which noted its disappointment with the Sony decision. "We will have to continue to use the systems we already have in hand," the lab told Ars, but "this will make it difficult to replace systems that break or fail. The refurbished PS3s also have the problem that when they come back from Sony, they have the firmware (gameOS) and it will not allow Other OS, which seems wrong. We are aware of class-action lawsuits against Sony for taking away this option on systems that use to have it."

A similar issue will confront academic PS3 clusters, which have sprung up in labs across the country. In 2007, a North Carolina State professor built himself a small cluster that he cobbled together after "he spent a few hours one day in early January driving from store to store to purchase the eight machines."

The University of Massachusetts has 16 machines networked into a cluster called the "Gravity Grid," used to look at gravitational waves and black holes. According to the physicists at UMass, the PS3's "incredibly low cost make[s] it very attractive as a scientific computing node, i.e., part of a compute cluster. In fact, it's highly plausible that the raw computing power-per-dollar that the PS3 offers is significantly higher than anything else on the market today."

The so-called felony Hotz is accused of by Sony in such over the top language has to do with trying to retain functionality that people paid for and that Sony later reneged on, not for piracy purposes. Not saying whether or not Hotz or anyone went over any legal line, because I'm not familiar enough with the facts to know yet. But it doesn't seem right to people for Sony to allow something and then take it away after it takes your money. In fact, there's at least one class action lawsuit that was filed right after Sony did the deed:
This decision, in the words of the lawsuit, was an "intentional disablement of the valuable functionalities originally advertised as available with the Sony PlayStation 3 video game console. This disablement is not only a breach of the sales contract between Sony and its customers and a breach of the covenant of good faith and fair dealing, but it is also an unfair and deceptive business practice perpetrated on millions of unsuspecting consumers."
Just for context.

  


Sony v. Hotz Begins - Updated 2Xs: Hotz Responds | 131 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: darksepulcher on Wednesday, January 12 2011 @ 09:40 PM EST
Please cite the error and the correction so PJ knows where to look (and how to
fix it).

---
Had I but time--As this fell Sergeant, Death
Is strict in his arrest--O, I could tell you--
But let it be.
(Hamlet, Act V Scene 2)

[ Reply to This | # ]

News Picks Thread
Authored by: darksepulcher on Wednesday, January 12 2011 @ 09:41 PM EST
Please cite the news pick header you wish to discuss so everyone can follow
along without undue confusion.

---
Had I but time--As this fell Sergeant, Death
Is strict in his arrest--O, I could tell you--
But let it be.
(Hamlet, Act V Scene 2)

[ Reply to This | # ]

Off-Topic Thread
Authored by: darksepulcher on Wednesday, January 12 2011 @ 09:43 PM EST
Please keep all off-topic discussion threads confined here. Post anything
on-topic in here and you will be tossed into the nearest pile of snow.

---
Had I but time--As this fell Sergeant, Death
Is strict in his arrest--O, I could tell you--
But let it be.
(Hamlet, Act V Scene 2)

[ Reply to This | # ]

Sony needs to get past the Dark Side
Authored by: Anonymous on Wednesday, January 12 2011 @ 09:50 PM EST
I wonder when they will realize that there is a segment of
the market they can make money off of if they choose to
enable certain things.

Like you could probably defuse 90% of this cracking if you
added linux support as a paid feature through PSN or something similar to that.

Its going to happen and history tells us that suing people
one instance at a time is like whack a mole. What is this,
round 10 on the PS3 alone?

Enable your customers, sell your products, even if it is
distasteful - make money off of features for people to use
the hardware the way they want. We can all be happy.

---
Clocks
"Ita erat quando hic adveni."

[ Reply to This | # ]

Sony v. Hotz Begins
Authored by: Anonymous on Wednesday, January 12 2011 @ 11:51 PM EST
I'm curious to where this stands in relation to the recent jail breaking case
with Apple, especially as another California case.

[ Reply to This | # ]

Sony: too hazardous to buy
Authored by: Anonymous on Wednesday, January 12 2011 @ 11:56 PM EST
Do Sony products come with a warning label?

WARNING: Purchase of this product may lead to surrepti tious damage to your computer or vigorous and expensive litigation!

Contact may contaminate!

[ Reply to This | # ]

Sony v. Hotz Begins
Authored by: Anonymous on Thursday, January 13 2011 @ 12:03 AM EST
It will be interesting to watch. To my real quick read, it looks much like
Lexmark International, Inc. v. Static Control Components, Inc. 6th Cir. 2004 in
that the hacks allow people who own the device to do things that Sony didn't
want/intend them to do. The twist seems to be the accusation copyright
infringement. Ironically, due to Sony Corp. of America v. Universal City
Studios, Inc., 1984, Sony may have to prove that the sole purpose of the hack is
to allow playing of pirated material.

[ Reply to This | # ]

Sony v. Hotz Begins
Authored by: Anonymous on Thursday, January 13 2011 @ 12:03 AM EST
I've downloaded the keys to the PS3 kingdom. I think I'll make a haiku out of
them. Or maybe write a software program to encrypt them in poems and another
software program to decrypt them into hex codes. I couldn't give a hoot about
Sony. I do absolutely no business with them, neither should you. But it's still
a partly free country. Do as you like for tomorrow it certainly will be illegal.

[ Reply to This | # ]

Justia Docket
Authored by: Anonymous on Thursday, January 13 2011 @ 12:07 AM EST

With regards the Class Action against Sony, that can be found at Justia.

RAS

[ Reply to This | # ]

  • Justia Caution - Authored by: Anonymous on Thursday, January 13 2011 @ 03:13 PM EST
T-Shirt
Authored by: MrCharon on Thursday, January 13 2011 @ 12:50 AM EST
I can't wait to buy the T-Shirt. It will go nice with my
DeCSS and 09 F9 shirts.

Sony is following a plan that has already been tried twice and
failed.

---
MrCharon
~~~~

[ Reply to This | # ]

Broke Teenager
Authored by: argee on Thursday, January 13 2011 @ 12:51 AM EST
Geohot is a teenager, I doubt he has any money. This is
clearly a case of Sony counting on this complaint not
being contested in any meaningful way.

I also don't think Geohot is in the USA, but foreign. Maybe
in France. I think it would be more instructional to look
at who the *other* defendants are.

---
--
argee

[ Reply to This | # ]

Response from geohot's lawyer
Authored by: Anonymous on Thursday, January 13 2011 @ 03:22 AM EST

PSX-Scene has posted the documents and a response from geohot's lawyer.

SCEA vs. George Hotz - Day #2

[ Reply to This | # ]

I, hereby, give notification.
Authored by: Ian Al on Thursday, January 13 2011 @ 03:34 AM EST
I am not expressing a common interest with PJ, anyone on Groklaw, any group of
IBM lawyers, any other group of lawyers or anyone else by posting comments on
Groklaw and am not attempting to influence anyone's thoughts or behavior.

If you agree with me, that's just your bad luck.

---
Regards
Ian Al
SCOG: Yes, they hit the ground. The lawyers are now taking them to the centre of
the Earth. The 'centre of the Earth' is irony.

[ Reply to This | # ]

Sony v. Hotz Begins
Authored by: Anonymous on Thursday, January 13 2011 @ 04:54 AM EST
Correct me if I'm wrong, but isn't Sony more or less free to withdraw their suit
at any time? They have little or nothing to gain, save barring the defendants
from future (credited) contributions to the jailbreak, and even that's
pointless, since there's nothing left to crack. At the same time, they're
risking a precedent decision which could defang the DMCA itself. With nothing
to gain and plenty to lose, they'd be insane to see this through. This is
probably why we've seen minimal legal wrangling from either MS or Nintendo
regarding their platforms. Better for them to let the law stand as is and go
after clear-cut cases of infringement or induced infringement.

That said, a part of me hopes they actually take this to trial, and the full
force of the EFF, the ACLU, and other advocacy groups and legal scholars are
brought to bear on this case. It's about time this abomination of a law was
struck down.

[ Reply to This | # ]

SCOny vs. the world (and her dog)
Authored by: jbb on Thursday, January 13 2011 @ 05:53 AM EST
I read the 10-page response from geohot's lawyer (zipped pdf) regarding SCOny's request for a temporary restraining order (TRO) to impound all of geohot's computers. The response starts with:
This case is not about Sony Computer Entertainment America LLP (“Sony”) attempting to protect its intellectual property or otherwise seek bona fide relief from the court. Rather, it's an attempt for Sony to send a message to any would-be individual that attempting to use any hardware it manufacturers in a way it does not deem appropriate will result in harsh legal consequences, irrespective of any legal basis or authority for such action. It is for this reason that Sony filed a motion for ex parte protective relief, complete with numerous misstatements of fact and law, and providing Mr. Hotz, who is a resident of New Jersey, with a copy of the documents mere hours before a preliminary hearing for this matter was set in this Court in California, denying Mr. Hotz’s counsel the opportunity to file a properly-drafted response.
Too bad SCO didn't get patents on their sleazeball tactics. Or their foot-gun. It really seems like Sony "rootkit" Computer Entertainment America was trying to pull a fast one and punish geohot by rushing a court to judgement on this TRO (to grab all his computer equipment) without giving him a chance to defend himself.

Geohot's lawyer makes many other excellent points, in particular that the PS3 was sold as a general purpose computer as well as a media player. He also calls SCOny on their trick of trying to confuse the information one needs to jailbreak a PS3 with a physical "circumvention device". SCOny told the court they needed to impound geohot's computer(s) because they contained a "circumvention device". This is a crucial distinction because physical hardware circumvention devices (like dongles or modchips) have been ruled to be illegal by the courts while the information needed to jailbreak a device (such as an iPhone) is perfectly legal as long as it's the owner of the device who does the jailbreaking. ISTM, restoring the functionality of the PS3 that was advertised and that it originally came with is an even more fair use than switching carriers on an iPhone.

It's bad enough that SCOny decided to retroactively disable the general purpose computing feature of the PS3 but it is completely insane for them to broadcast that stupidity to the world via these lawsuits. ISTM SCOny could save themselves both time and money if they drop the suits and instead launch an ad campaign that says:

We are a bunch of lying sleazeballs. Purchase our products at your peril. If our rootkits don't get you then our feature deactivations and lawsuits will.
Like SCO before them, SCOny has hired a great legal team. And just like SCO's team, SCOny's team has the severe handicap of having been hired by a bunch of fools. Sure, the whole rootkit fiasco proved they weren't the brightest bunch of doorknobs in the bag but there was at least some hope they would learn from their mistake. Alas, they repeated the exact same mistake. They think they own the computers that we bought and paid for. If their media even touches a computer, they think they own it. Just like SCO's wacky theory that they owned the copyright to any code that touched code they Novell owned.

BTW, I think this web site belongs to geohot's lawyer.

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[ ] Obey DRM Restrictions
[X] Ignore DRM Restrictions

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Seems like trying to close the barn door after the horses have left
Authored by: Bystander on Thursday, January 13 2011 @ 07:17 AM EST

The problem for Sony is that the damage has already been done, and their requested relief won't really change that. The encryption keys that have been disclosed include the system root key that allows software to be signed and identified as genuine and approved by Sony. This root key cannot be changed via software, so every Playstation 3 box currently in the wild is vulnerable, and will remain so unless Sony introduces a hardware replacement.

Since the exploit information has already been widely disseminated on the Web, even if the injunction is granted it will not provide the relief Sony really wants, which is for people to stop using the exploit to sign unauthorized applications and operating systems to run on unmodded Playstation 3 hardware. Sony argues says in their motion:

Unless this Court enjoins Defendants' unlawful conduct, hackers will succeed in running and distributing Circumvention Devices that run pirated software on the PS3 System.

Even if the Court enjoins Defendants' unlawful conduct, it will not stop the hackers now. The information they need has already been revealed, and no action by the court can bring it back.

There's also possibly the issue that an injunction would prevent some lawful behavior by owners of Playstation 3s. Owners should be able to run software that is lawfully licensed for use, such as a Linux OS, on hardware that they have legally purchased. In signing the software with a certificate that was recognized as valid, they are not infringing on copyrighted material owned by Sony (assuming digital keys cannot be copyrighted). The system software would not have to be modified, so claims of that form of copyright infringement would not seem to come into play either.

--bystander1313

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Careful or you may become a Doe
Authored by: Anonymous on Thursday, January 13 2011 @ 07:44 AM EST
By posting those links and telling others about these hacks you may become a
defendant in this lawsuit as you have now performed some of the same acts that
were descibed in the complaint.

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One Possibly Important Problem, was: Re: Sony v. Hotz Begins
Authored by: tanner andrews on Thursday, January 13 2011 @ 09:34 AM EST
It means Sony wants you to stop messing with its stuff, and it's pulling out all the stops.

Not at all. This is Sony's problem: they want you to stop messing with your own stuff.

Notice how they bring unauthorized access claims. Normally, that means that someone has gained access to someone else's computer beyond what the computer owner had intended. Here, it is your own computer that you are breaking into. I cannot imagine a scenario in which you break into your own computer beyond what you allowed yourself to do.

I will say that the complaint looks like it would, if brought ex parte, fool a judge who was unfamiliar with computers. Get a smart judge, and the Sony lawyer might have some serious explaining to do due to his lack of candor with the tribunal at a time, ex parte TRO, when candor is most important.

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I am not your lawyer; please ignore above message.

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Related case?
Authored by: SLi on Thursday, January 13 2011 @ 01:49 PM EST
Anyone know what the Related Case is that Sony proposed in
docket 8 (and apparently deemed non-related in 17)? I suppose
not the antitrust case where they are a defendant?

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Sony v. Hotz Begins - Updated: Hotz Responds
Authored by: Anonymous on Thursday, January 13 2011 @ 02:00 PM EST
From Kakaroto twitter :
http://twitter.com/#!/KaKaRoToKS/status/25614053346902016

Sony did put its secret keys in the court documents.
Are court papers really public domain ?

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PS3 Supercomputer
Authored by: jbb on Thursday, January 13 2011 @ 06:36 PM EST
The US Air Force recently (December 2010) announced they created a supercomputer using 1,770 PS3's. If the USAF had applied Sony's firmware upgrade, it would have destroyed this supercomputer. This is exactly the type of use Sony tried to sabotage by disabling OtherOS via a firmware upgrade. Now it is suing people who are tried to keep such uses of the PS3 viable.

In addition, as recently as August 2009, Sony assured its customers that it would not disable the OtherOS feature:

Please be assured that SCE [Sony Computer Entertainment] is committed to continue the support for previously sold models that have the "Install Other OS" feature and that this feature will not be disabled in future firmware releases.
Then Sony turned right around and intentionally disabled the "Install Other OS" feature in a firmware release. They are now suing the people who figured out how to keep OtherOS alive.

Why would any person every buy a Sony product ever again?

It's like buying a 4-wheel drive car and then having the 4-wheel drive feature disabled when you take the car in for scheduled maintenance at the dealership. Then they sue the owners who figured out how to get the 4-wheel drive working again because they don't want other people fixing their own cars. They want to ensure that all the cars they sold as 4-wheel drive vehicles stay broken.

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[ ] Obey DRM Restrictions
[X] Ignore DRM Restrictions

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Other articles with technical details
Authored by: Anonymous on Friday, January 14 2011 @ 12:21 AM EST

The gist of these other articles is that the original group, Fail0ver, divulged the technique and software to obtain the keys necessary to run Linux on the PS3 -- including the master key. They deliberately did not use their technique to reveal the particular key used to determine whether a game dvd has been pirated (among other uses). Holtz then utilized this information and revealed the sensitive key.

(Please read the articles to confirm this summary. I read them a while ago and may not have accurately summarized the situation.)

myce.com: Sony finally responds to Fail0verflow PS3 “root key” hack

iPhone hacker publishes secret Sony PlayStation 3 key

Karl O. Pinc
<kop@meme.com>

P.S. I am happy to see Groklaw covering this case.

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TTJ: Time To Jailbreak comparison chart
Authored by: Anonymous on Friday, January 14 2011 @ 07:12 AM EST
Thanks to Penny Arcade ( http://www.penny-arcade.com/2011/1/7/ ) for pointing me
to Digital Foundry's (A PS3 game dev) take on the Jailbreaking of the Monolith:
http://www.eurogamer.net/articles/digitalfoundry-ps3-security-in-tatters

The main point is their inclusion of Fail0verflow's Time To Jailbreak chart. Out
of 12 locked down devices, three were jailbroken in a year, but the PS3 remained
locked for four years, in spite of being protected by the digital equivalent of
chewing gum.

bkd

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Where's the line between court filings and libel?
Authored by: Anonymous on Friday, January 14 2011 @ 01:50 PM EST
PJ says "Wow. If this is so, Sony has done real damage to a man's
reputation."

So in the USA can you make just any old scurrilous and unsupported claims about
someone, and have it all protected because it's part of a court filing?

What about repeating the same out of court?

Presumably there's not a simple answer to this, but maybe a pointer for the
non-lawyers...?

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Time to print some more T-Shirts ?
Authored by: Anonymous on Friday, January 14 2011 @ 05:10 PM EST
That was a fairly effective was of pointing out that the CSS keys came down to
freedom of speech.

The same thing here - with all the dross stripped away - he's published a number
- gosh, what are they going to do - prevent people chanting it, or putting it on
shirts ?.

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    Sony v. Hotz Begins - Thrown out
    Authored by: Anonymous on Friday, January 14 2011 @ 05:18 PM EST
    According to The Register the case has been thrown out for lack of personal jurisdiction. Quote from the judge:

    “If having a PayPal account were enough, then there would be personal jurisdiction in this court over everybody, and that just can't be right,” Illston told James G. Gilliland Jr., an attorney representing Sony. “That would mean the entire universe is subject to my jurisdiction, and that's a really hard concept for me to accept.”

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