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Judge in Sony v. Hotz Expresses Concerns at Today's Hearing About Jurisdiction
Friday, January 14 2011 @ 07:52 PM EST

The hearing on Sony's motion for a temporary restraining order in Sony v. Hotz was today, and while there was no ruling yet, the judge, US District Judge Susan Illston, reportedly expressed doubts that her court has jurisdiction. She didn't order George Hotz to turn over all his computers and CDs and such today. Sony was asking her to impound all his computer gear. Here's the latest on this increasingly interesting litigation.

The Register reports:
The move by US District Judge Susan Illston on Friday was a blow to Sony, which argued that the 21-year-old hacker, whose real name is George Hotz, should be forced to surrender his computer gear and the code he used to circumvent digital rights management features in the gaming console. Illston rejected arguments that Hotz's use of Twitter, PayPal, and YouTube, all located in the Northern District of California, were sufficient contacts with the region to establish personal jurisdiction.

“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.”...Illston said she may still decide that she has jurisdiction over Hotz if presented with evidence of more substantial contacts to Northern California.

Particulary when Hotz says in his affidavit [PDF] and Opposition [PDF] to Sony's TRO Motion he never solicited any funds in connection with his work on Playstation and even asked people not to donate, and the only evidence Sony presented was money Sony donated, hinting that it was done to try to establish jurisdiction. David Kravetz at Wired has further details:
But if using Twitter or Facebook is enough to bring a case to San Francisco, “the entire universe would be subject to my jurisdiction,” the judge told the Sony attorney about his argument.

Gilliland countered, arguing that the PlayStation’s terms-of-service agreement demands that legal disputes be settled in federal court here, near where Sony Computer Entertainment America is based.

In the end, Judge Illston said she would rule at an undisclosed time.

“Serious questions have been raised here,” she said.

Like Hotz saying he doesn't have a Playstation account and so isn't bound by the terms of service anyway. Hopefully she noticed that detail in his affidavit. PCMag has some background on the alleged hack, what caused it, and the latest on the class action regarding Sony's behavior, namely Sony turning off functionality people had bought their Playstations to use:
The Hotz case could hinge on several class-action suits that were filed last year after Sony removed the "OtherOS" functionality. Those suits, which have been consolidated in a collective class action, are currently involved in resolving disputes in the discovery phase, where evidence is collected. A hearing in a Northern California district court overseen by Judge Edward M. Chen is set for February.

The OtherOS functionality originally shipped as one of the core features of PlayStation 3, as well as the ability to run older PlayStation 1 and PlayStation 2 games. Over time, however, Sony began stripping out some of the functionality from its consoles; the latest "Slim" versions of the PS3 can neither run the PS2 games or enable OtherOS. Sony also disabled the OtherOS functionality from older consoles via the version 3.21 update in April 2010.... Still, Hotz's lawyers said that consumers had a right to the OtherOS functionality.

"While most companies issue firmware upgrades to increase a product's abilities over its life cycle, Sony has taken the unacceptable and draconian approach of decreasing the PS3's capabilities by actually destroying a core feature of the PS3," Yasha Heidari, managing partner with Heidari Power Law Group in Atlanta, said in a statement. "Imagine taking in your car for an oil change and having the manufacturer remove your car's air conditioner, radio, and half its horsepower because of fears that other hypothetical individuals might abuse their vehicles. It just doesn't make any sense, and it's a slap in the face to the consumers that put their support behind the product."

She's referring to Sony in March insisting on a firmware patch that wiped out OtherOS, a feature that inspired many folks, like the US Air Force Research Laboratory, to specifically buy Playstations to get that functionality. What Hotz is accused of by Sony has to do with trying to retain the functionality that people paid for, or get it back, not for piracy purposes. CNET reports Hotz is speaking out:
"Actually, no," Hotz said in response to a question asking if his jailbreak allows users to run pirated games on the console. "The way piracy was previously done doesn't work in my jailbreak. And I made a specific effort while I was working on this to try and enable home-brewing without enabling things I don't support, like piracy."

Hotz then turned his attention to Sony's claim that his jailbreak violates the Digital Millennium Copyright Act. The far-reaching act currently allows mobile phone owners to jailbreak their devices without fear of recourse. However, it doesn't specifically mention other devices.

"I think the same precedent should apply," Hotz said. "If you can jailbreak one closed system, why can't you jailbreak another?"

Do you remember the lame things Sony folks said when they were caught with their notorious rootkit, speaking of irony? My favorite was Sony's president of Global Digital Business, Thomas Hesse's immortal words, which I have put on our permanent Sony/DRM page that "most people, I think, don't even know what a rootkit is, so why should they care about it?"

But if I put a rootkit on your computer, would it not presumably be a violation of the Computer Fraud and Abuse Act, assuming the necessary scale?

I don't recall Sony calling itself a felon under the Computer Fraud and Abuse Act for all that it did, by the way, despite it accessing other people's computers without their authorization and doing damage to other people's computers if they tried to remove the rootkit. When first caught, they defended it as an important tool to prevent piracy.

Heh heh. Sony has issues.

And it all kind of makes one wonder if the executive level at Sony, where decisions about such things as who to sue and when, understand the tech here or how they look to customers when they do things like this. Piracy! A felony! Where is Sony's sense of proportion? Even just fair play? I mean, at least get the right guy in the right jurisdiction. To be fair myself, here's a rundown of Sony's point of view and here's why it's worried.

Orin Kerr nominates Sony's lawyers for "Today’s Award for the Silliest Theory of the Computer Fraud and Abuse Act". Silly? Yes. Unless you are the kid being accused and threatened by a huge international corporation with that very big and dangerous stick. Then it's not so humorous any more, is it?


  


Judge in Sony v. Hotz Expresses Concerns at Today's Hearing About Jurisdiction | 316 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topic thread
Authored by: bbaston on Friday, January 14 2011 @ 08:06 PM EST
Keep it off the topic please!

---
IMBW, IANAL2, ICRN, IAVO
imaybewrong, iamnotalawyertoo, icantremembernow, iamveryold

[ Reply to This | # ]

News Picks thread
Authored by: bbaston on Friday, January 14 2011 @ 08:08 PM EST
Mention the News Picks title in your title and earn extra points!

---
IMBW, IANAL2, ICRN, IAVO
imaybewrong, iamnotalawyertoo, icantremembernow, iamveryold

[ Reply to This | # ]

Corrections thread
Authored by: bbaston on Friday, January 14 2011 @ 08:10 PM EST
Ooops! Sorry I didn't put this first, PJ!

---
IMBW, IANAL2, ICRN, IAVO
imaybewrong, iamnotalawyertoo, icantremembernow, iamveryold

[ Reply to This | # ]

I love the Automotive Analogy
Authored by: Anonymous on Friday, January 14 2011 @ 08:35 PM EST
Or taking your car in for recall update of the onboard
computer and you get it back sans radio, one of the windows,
and with a gauge missing because using people could use
copyrighted music, break through the window to steal the car,
or use the gauge to knowingly speed on the road, respectively.

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

[ Reply to This | # ]

Sony calling itself a felon
Authored by: bbaston on Friday, January 14 2011 @ 08:47 PM EST
Actually I heard Sony called a felon for its root-kit DRM package many times -- and I felt rather silly at the prospect of taking money from Windows users who were Sony victims.

And now this. Amazing company, Sony.

---
IMBW, IANAL2, ICRN, IAVO
imaybewrong, iamnotalawyertoo, icantremembernow, iamveryold

[ Reply to This | # ]

Why doesn't Sony want the Playstation to run another operating system?
Authored by: webster on Friday, January 14 2011 @ 10:24 PM EST

It would be good to know what is really behind this suit. It might not come out in public even if it is disclosed under seal in the litigation. Therefore, speculation, reasonable and otherwise is in order.

1. Sony doesn't want people running the Playstation (PS) as a computer with another OS because it means less time for PS games. The less time users spend on PS games, the fewer PS games they play. The fewer PS games they play, the fewer PS games they buy. They hate seeing non-Playstation games running on an alien OS on the Playstation. They hate to see the PS working and not playing. The Air Force probably isn't procuring games for their cluster computers --just flight emulators. There have been comments indicating that Sony subsidizes the Playstation and makes money on the games. They have agreements with the people that produce the games. The Producers might not like the PS versatility to run other OS's games and programs where they nor Sony get a cut.

2. Sony sells computers, laptops, desktops and servers. They, of course, have an arrangement with the Monopoly to sell Monopoly OS's like windoze vii. They usually promise them a discount in advertising or something if they only sell windoze on their systems. The Monopoly somehow bear influence over part-makers and retailers too. This is possible thanks to the Antitrust Division of the Department of Justice of the United States of America. Consumer PAC's just don't have the same clout. The Monopoly saw that they were selling Playstations without windoze, but capable of other OS's. Apparently people weren't loading up any windoze. The Monopoly had their lawyers chain some twits to Sony lawyers:

"No fair. That PS is not a game console. It's not like the xBox. It is a computer not running windoze. You are violating the agreement. Stop allowing any other OS to run, or you will lose the advertising discount or be denied selling any windoze."
Sony wouild go out of business. For this reason, Sony is desperate to succeed in court to stop widespread Playstation computing. They need the courts and government to intimidate the tech world. Talk about a red cape to a bull. They should try a patent on underclocking. This is the reason suggested in some flippant comment recently wherein some ardent geeks found a palinesque "drool libel" of ubuntu or yellow dog..

3. Sony has found that the Playstation is cutting into sales of their own higher end computers. Why buy a fancy workstation for $1,500 when you can get a Playstation with better graphics for under $500 without games or windoze!

4. ...

How about some more informed, --or leaked, explanations?

~webster~

[ Reply to This | # ]

COMES Transcripts here please
Authored by: complex_number on Saturday, January 15 2011 @ 04:10 AM EST
Keep those COMES transcripts and summaries coming. Please post the transcript in
Plain Old Text mode but with the HTML code embedded in it to make it easy for PJ
to copy and paste.

---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

"the executive level at Sony"
Authored by: Yossarian on Saturday, January 15 2011 @ 04:18 AM EST
>understand the tech here or how they look to customers
>when they do things like this.

Sony does not want to understand the tech. In other words, we
have here a Nixon's style plausible deniability. To quote
http://en.wikipedia.org/wiki/Plausible_deniability
"Plausible deniability refers to the denial of blame in loose and informal
chains of command where upper rungs quarantine the blame to the lower rungs, and
the lower rungs are often inaccessible, meaning confirming responsibility for
the action is nearly impossible. In the case that illegal or otherwise
disreputable and unpopular activities become public, high-ranking officials may
deny any awareness of such act or any connection to the agents used to carry out
such acts."

IMO Sony executives decided to play as dirty as it takes,
e.g. rootkit, to increase their profit. Nothing else
matters, just Sony's profit. In case of illegal actions
they can always collect the profit if they succeed and
blame the low level guys if they fail.

IMO there should be two responses:
1) A simple boycott. Just don't buy anything from a company
that installs rootkits.
2) Open source, Linux like response.
Find what makes their $$$$ and have GPLed hw/sw that does
similar things. Learn from Google and the cell phones.

[ Reply to This | # ]

Judge in Sony v. Hotz Expresses Concerns at Today's Hearing About Jurisdiction
Authored by: mpellatt on Saturday, January 15 2011 @ 05:38 AM EST
Heh heh. Sony has issues.

In other news, grass is green :-)

Sony "having issues" was widely suspected before the rootkit illegality. That just provided the incontrovertible evidence.

I remain angry, to this very day (tm), that they were never prosecuted anywhere for breaking every computer misuse act in the Known Universe.

Games console choice for "serious" gamers. Let me see.

Xbox: No blu-ray. Kicked off the gaming system for activities that may not even break the Tx & Cs. And, of course, it's M$.

PS/3: A company that will happily Own your system. Removes capabilities that were advertised and that formed part of the purchasing decision.

Hobson, your move.

[ Reply to This | # ]

Prior course of action or unclean hands?
Authored by: Anonymous on Saturday, January 15 2011 @ 08:08 AM EST
Hasn't Sony, by donating (or at least attempting to donate) money to Holtz to
help forward his efforts in developing this hack, basically shown that they
approved of his doing it? Can't Holtz now claim that he relied on Sony's prior
course of action in understanding that Sony approved of his actions, or possibly
claim unclean hands?

[ Reply to This | # ]

Sony recycling Project? :O) (destroying hardware)
Authored by: Anonymous on Sunday, January 16 2011 @ 02:47 AM EST
In the previous article you mentioned that Sony wants any hardware that may
possibly 'contained' with code destroyed?
How exactly will they seperate the code from the other (personal) data? Are they
responsible of leaking any of that data?


But more importandly; does this meen that if we sae that code on old
hardware, we can mail iot to SOny and they will destroy it and will have to
recycle it in an environmental acceptable way? :O)

MBB


Quote[i]...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]

[ Reply to This | # ]

The DMCA and Ex Post Facto law...
Authored by: BitOBear on Monday, January 17 2011 @ 07:57 PM EST
So I was reading the U.S. Constitution (for free on google books 8-) and I got
to the part prohibiting Ex Post Facto laws being, well, illegal.

So since the DMCA prohibits possession of "circumvention tools" isn't
it an ex post facto law printing law? I mean, I can go out and buy a Sharpie(tm)
and then someone can come along and use a Sharpie(tm) to circumvent some copy
protection measure (this actually happened), making the Sharpie(tm) I currently
own suddenly illegal.

I mean if they cannot pass a law to make illegal something that you have already
done, how can there be a law that _automatically_ classifies something illegal
as soon as someone else performs an action with a sufficiently similar object.

To whit: if someone passed a law that made it illegal to possess the tools of
murder, and then someone murdered someone using water, or clothing, or a Lego
brick; that law would make position of water, clothing, or Lego suddenly
illegal. Said law would then be vacated as overly broad, kinda dumb, and for
retroactively criminalizing things right?

What am I missing that allows the DMCA to sweep up half an ocean of existing
materials and techniques in its gill nets?

[ Reply to This | # ]

So if i were him
Authored by: Anonymous on Tuesday, January 18 2011 @ 01:53 AM EST
I'd get xampp and give everything i have out and a video tutorial how to do
everything.
ITS not like if he loses he'll afford the judgment anyhow.

[ Reply to This | # ]

Sony is all about lock-in
Authored by: Anonymous on Tuesday, January 18 2011 @ 10:57 AM EST
They are just not very good at it. Yet. They have been trying to get consumers
to buy their proprietary hardware since the days of Betamax. Remember
Memory-stick? For a long time their focus has been to provide a very good
product that is it's own standard. Someday they might even get people to adopt
their technology as a defacto standard and corner a market. Until then they
will use whatever tricks to hold their current market that they can find
including DRM and lawsuits. :(

[ Reply to This | # ]

John Does listing
Authored by: vidstudent on Tuesday, January 18 2011 @ 11:11 AM EST
Doe 1 would be bushing, whose Wii hacking blog can be found here. Doe 2, segher, is likely Segher Boessenkool, who also has wii code available at http://www.wiibrew.org. In particular, I note code here where he offers a version of Linux for the Wii, and here, where his full name is offered in source code alongside bushing.

---
Nicholas Eckert
vidstudent

[ Reply to This | # ]

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