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Sony Wins TRO, Impoundment - Updated
Thursday, January 27 2011 @ 08:30 PM EST

Sony's motion for a temporary restraining order, asking for an injunction and impoundment, has been granted [PDF]. The Hon. Susan Illston says she thinks Sony has demonstrated that it is likely to prevail on its DMCA claim. She has also ruled that Sony has met its burden to show that the Court has specific jurisdiction over George Hotz in California, because "he purposefully directed his activities at the forum state."

A TRO is designed to prevent injury until a full hearing can take place, and a date for that isn't set yet. So that will be the next step. Meanwhile, there's a list of things that Hotz and anyone working with him can't do and must do. Like clean up the Internet by taking back whatever he put up there about how to circumvent. Sigh. And hand over any computers or equipment that has any infringing stuff on it, and not erase anything. The judge says Hotz's lawyers are free to file a motion challenging jurisdiction "on a fuller factual record," if they want to, and they've said they want to. But I doubt it will influence anything, judging by this order.

For now, it is ordered that George Hotz, his lawyers, and "all other persons or entities in privity or acting in concert or participation with Defendant Hotz" are temporarily restrained from the following:

1. Offering to the public, creating, posting online, marketing, advertising, promoting, installing, distributing, providing, or otherwise trafficking in any circumvention technology, products, services, methods, codes, software tools, devices, component or part thereof, including but limited to the Elliptic Curve Digital Signature Algorithm ("ECDSA") Keys, encryption and/or decryption keys, dePKG firmware decrypter program, Signing Tools, 3.55 Firmware Jailbreak, root keys, and/or any other technologies that enable unauthorized access to and/or copying of PS3 Systems and other copyrighted works (hereinafter, "Circumvention Devices").

2. Providing links from any website to any other website selling, offering for sale, marketing, advertising, promoting, installing, importing, exporting, offering to the public, distributing, providing, posting, or otherwise trafficking in any Circumvention Devices.

3. Engaging in acts of circumvention of TPMs in the PS3 System to access, obtain, removed, or traffic in copyrighted works.

4. Engaging in unauthorized access to the PS3 System or the PlayStation Network ("PSN") in order to obtain, access, or transmit any program, code, information or command therein.

5. Publishing, posting, or distributing any information, code, program, instructions, video, or other material obtained by circumventing TPMs in the PS3 System or by engaging in unauthorized access to the PS3 System or the PSN.

6. Assisting, facilitating or encouraging others to engage in the conduct set forth above in Nos. 1-5.

I can't believe they think this will work. The court also orders Hotz to "retrieve any Circumvention Devices or any information relating thereto which Hotz has previously delivered or communicated to the Defendants or any third parties." Hotz may be a genius coder, but I doubt even he has the power to censor the Internet or make it bend to his will, let alone remove knowledge from other peoples' brains. But it's a court order! This poor soul. How does he get a judge to comprehend that the order makes no sense in real life? It's too late to wipe the Internet or anyone's brain.

Hotz is also ordered to hand over to Sony "any computers, hard drives, CD-roms, DVDs, USB stick, or any other storage devices on which any Circumvention Devices are stored" in his "possession, custody or control." I guess it's off with his head, too, then, because he surely knows how to do what he did. People who live in countries that don't have the DMCA also know. Just saying.

I would have thought Sony would be more technically clueful about the Internet, but what they do well is get the law to help them out. That's the purpose of the DMCA, if you think about it, to scare people so they won't do what they otherwise can do. So Hotz is in some hot water at the moment, I'd say, an object lesson, and it'll stay that way until the hearing, a date for which is not yet chosen. And from my reading, I'd say after that too, at least with this judge.

There were some further filings leading up to the orders, and here they all are:

01/23/2011 - 44 - AFFIDAVIT of George Hotz in Opposition to 2 Plaintiffs Ex Parte Motion For Temporary Restraining Order filed by George Hotz. (Kellar, Stewart) (Filed on 1/23/2011) Modified on 1/24/2011 (ys, COURT STAFF). (Entered: 01/23/2011)

01/23/2011 - 45 - AFFIDAVIT of Yasha Heidari in Opposition to 2 Plaintiffs Ex Parte Motion For Temporary Restraining Order filed by George Hotz. (Attachments: # 1 Exhibit A)(Kellar, Stewart) (Filed on 1/23/2011) Modified on 1/24/2011 (ys, COURT STAFF). (Entered: 01/23/2011)

01/23/2011 - 46 - Supplemental Brief in Opposition to 2 Plaintiffs Ex Parte Motion For Temporary Restraining Order filed by George Hotz. (Kellar, Stewart) (Filed on 1/23/2011) Modified on 1/24/2011 (ys, COURT STAFF). (Entered: 01/23/2011)

01/24/2011 - 47 - Reply to Opposition to Defendant George Hotz's Supplemental Brief on Personal Jurisdiction filed by Sony Computer Entertainment America LLC. (Gaudreau, Holly) (Filed on 1/24/2011) (Entered: 01/24/2011)

01/24/2011 - 48 - ORDER granting 41 Motion to REMOVE INCORRECTLY FILED DOCUMENTS (tf, COURT STAFF) (Filed on 1/24/2011) (Entered: 01/24/2011)

01/24/2011 - 49 - ORDER granting 40 Administrative Motion to File Under Seal (tf, COURT STAFF) (Filed on 1/24/2011) (Entered: 01/24/2011)

01/27/2011 - 50 - ORDER granting 2 Motion for TRO (tf, COURT STAFF) (Filed on 1/27/2011) (Entered: 01/27/2011)

01/27/2011 - 51 - ORDER granting TRO (tf, COURT STAFF) (Filed on 1/27/2011) (Entered: 01/27/2011)

01/27/2011 - 52 - DOCUMENT E-FILED UNDER SEAL re 49 Order on Administrative Motion to File Under Seal by Sony Computer Entertainment America LLC. (Attachments: # 1 Exhibit J, # 2 Exhibit K, # 3 Exhibit L, # 4 Exhibit M, # 5 Exhibit N, # 6 Exhibit O)(Gaudreau, Holly) (Filed on 1/27/2011) (Entered: 01/27/2011)

Sony today announced a new "PlayStation Suite":

Sony Computer Entertainment Inc. (SCE) today unveiled “PlayStation®Suite” (PS Suite), delivering the PlayStation® experience to Android™ based portable devices*1. Through this entirely new initiative, users will be able to enjoy PlayStation content on an open operating system for the first time in PlayStation history.

In the dramatically evolving and diversifying mobile market, the number of users who enjoy games casually on a variety of devices including mobile phones, smart-phones and tablet PCs, has been increasing significantly. By offering “PlayStation quality” content to this rapidly growing market, SCE will not only deliver the PlayStation experience to a wider base of users around the globe, but will also be able to offer game developers and publishers the potential to further expand their business opportunities to these devices.

In providing the PlayStation experience on Android based portable devices, SCE will commence a “PlayStation®Certified” license program for hardware manufacturers. Through this program, SCE will offer necessary support, including development support as well as logo licensing, to ensure the delivery of PlayStation quality experience across various devices.

Unless they change their minds, I suppose, down the road. Because one thing we know for sure now. Sony intends to 0wn you, your hardware, their software, and your brain. You can buy whatever you wish, but they set the terms, and they'll sue you up the Kazoo if you stray off the reservation.

Here's the problem Sony faces, although not in this courtroom, as explained by Thomas Jefferson in a letter in 1813:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.
How will a judge possibly alter this? Sony doesn't care, probably what you know or figure out in the privacy of your home. What likely bothers them is Hotz telling others, and on the Internet, so the whole world could know. Sony would like to find a way to terrify kids away from tinkering, from knowledge or at least from sharing it, and I can't tell you that the court won't let them do it.

And then the US wonders why it's losing its edge in technology. It's as predictable as gravity. And to tell you the truth, it terrifies me, as an American, watching this play out. Because there are kids in other places, like Russia and China, who aren't being told not to tinker and share what they know.

Here's what the judge had to decide not to believe, two affidavits, first by George Hotz and then one by one of his lawyers. I'll leave off the headers and certificates of service, just for space. First, the Affidavit of George Hotz, #44:

AFFIDAVIT OF GEORGE HOTZ

Personally appeared before me, an officer duly authorized by law to administer oaths, George Hotz, who after first being duly sworn, states:

1. My name is George Hotz, and I am of required age and competent in all respects to testify regarding the matter set forth herein. I have personal knowledge of the facts stated herein and know them to be true.

2. I am a resident of the State of New Jersey. I have been a resident of the State of New Jersey since approximately 1995.

3. I was born in the year 1989.

4. I am not a resident of Rhode Island. I have never been a resident of Rhode Island.

5. I do not live at 111 NYB St., Providence, Rhode Island 02909. I have never lived at, visited, or appeared at 111 NYB St., Providence, Rhode Island 02909.

6. I have never created, used, or accessed the Playstation Network ("PSN") Online ID "Geo1Hotz".

7. I have never created, used, or accessed the PSN Online ID "koma1tose", "freedomapocalyse", "snapple18", "elijapi", "uKinfuriator", "gamecaveman", or "nyricansoldier".

8. I have never created, used, or accessed an e-mail address for "pbrdiablo@yahoo.com", "lacobra99e@aol.com", "mjt1704@yahoo.com", "babooski28@yahoo.com", "pookie87@yahoo.com", "Jonesjack33@rocketmail.com", or "nyricansoldier@yahoo.com"

9. A Playstation 3 Computer Entertainment System ("Playstation Computer") may be updated through a firmware update, which may be performed by placing a Playstation Computer firmware update on the Playstation Computer.

2

10. Updating a Playstation Computer via a firmware update does not require access to the PSN, nor does it require accepting the PSN's Terms of Service User Agreement or any other PSN agreement to install such firmware update.

11. I have never obtained a Playstation Computer firmware update through the PSN. I have only obtained Playstation Computer firmware updates via direct download links available on the internet.

12. I have never been prompted with an option or opportunity to accept or agree to the PSN's Terms of Service and User Agreement or any other PSN agreement when installing a Playstation Computer firmware update.

13. Accordingly, I have never accepted or agreed to, nor even been afforded the opportunity to accept or agree to, the PSN's Terms of Service and User Agreement or any other PSN agreement when updating my Playstation Computer via a Playstation Computer firmware update.

14. I have not worked with anyone using the internet handle "Bushing" and have no association or connection with any conduct allegedly performed by any individual using the internet handle "Bushing".

15. I have never attempted to obtain employment from Plaintiff, nor am I interested in obtaining employment from Plaintiff, nor would I accept employment from Plaintiff if offered such.

So he denies seeking a job from Sony. He says he isn't associated with or working with "Bushing", and most significantly he says he never agreed to any terms of use, in that he never "obtained a Playstation Computer firmware update through the PSN".

His lawyer, one of them, Yasha Heidari, confirms that you can upgrade without going through the Playstation Network in an affidavit:

Affidavit of Yasha Heidari

Personally appeared before me, an officer duly authorized by law to administer oaths, Yasha Heidari, who after first being duly sworn, states:

1. My name is Yasha Heidari, and I am of required age and competent in all respects to testify regarding the matter set forth herein. I have personal knowledge of the facts stated herein and know them to be true. I am an attorney duly licensed to practice law in the State of Georgia, and I am a member of the law firm Heidari Power Law Group LLC.

2. On the date of this affidavit, I successfully updated a Playstation 3 Computer Entertainment System ("Playstation Computer") I own via a Playstation Computer firmware update.

3. A firmware update file for the Playstation Computer may be obtained through numerous avenues, including by downloading such firmware update file from websites on the Internet.

4. Indeed, a firmware update file for the Playstation Computer may even be obtained from Plaintiff's website. As of the date of this affidavit, Playstation Computer firmware update file for version 3.55 of the firmware, which is the latest firmware update available, may be obtained via the following direct link:

http://dus01.ps3.update.playstation.net/ update/ps3/image/us/2010_1207_ ca595ad9f3af8f1491d9c9b6921a8c61/PS3UPDAT.PUP.
5. When downloading such Playstation Computer firmware update from Plaintiff's website

via the aforementioned link, no Playstation Network Agreement ("PSN Agreement") is presented, made available, or required to be accepted in order to download such firmware update. As used herein, the phrase "PSN Agreement" explicitly includes the "Playstation Network Terms of Service and User Agreement", which is extensively referenced by Plaintiff in this proceeding.

6. I was able to successfully download the aforementioned Playstation Computer firmware update from Plaintiff's website via the aforementioned link. After downloading the Playstation Computer firmware update, I was able to transfer such file to a USB device,

2

and thereafter, connected my USB device to my Playstation Computer. I was then able to perform a Playstation Computer system update.

7. Instructions for installing a Playstation Computer firmware update via a USB device are widely available on the internet, including on Plaintiff's website.

8. When installing the Playstation Computer firmware update, I was prompted to accept a "SYSTEM SOFTWARE LICENSE AGREEMENT (Version 1.4) FOR THE PlayStation®3 SYSTEM" (hereinafter the "Software License Agreement"). Such Software License Agreement is promulgated by Sony Computer Entertainment Inc., and does not reference Plaintiff, Sony Computer Entertainment America LLC. Such Software License Agreement is also dated December 10, 2009. A true and correct copy of such Software License Agreement is hereto attached as Exhibit "A".

9. The Software License Agreement does not include a choice of law provision, a choice of forum provision, or a choice of venue provision.

10. Accordingly, I was able to successfully update my Playstation Computer via a firmware update without connecting to the Playstation Network ("PSN"). Indeed, I have never accessed the PSN to date.

11. I was able to successfully update my Playstation Computer via a firmware update without accepting any PSN Agreement. Indeed, I was never presented with an opportunity to accept a PSN Agreement. To date, I have never accepted nor been presented with an option to accept a PSN Agreement.

12. Updating a Playstation Computer via a firmware update does not require access to the PSN, nor does it require accepting a PSN Agreement to install such firmware update.

13. I have never agreed to a PSN Agreement, yet I am able to fully utilize and use my Playstation Computer.

And in a Supplemental Brief in Opposition to Plaintiff's Ex Parte Motion for Temporary Restraining Order on behalf of Hotz, his lawyers say this in #46:
Sony acquiesces that Mr. Hotz is not subject to the general jurisdiction of California, but argues that Mr. Hotz is subject to the specific personal jurisdiction in California. While Sony presents various specious arguments pertaining to Mr. Hotz's use of Twitter and Paypal to justify its position, the crux and substance of Sony's argument is that Mr. Hotz is subject to the Playstation Network (“PSN”) Terms of Service and User Agreement (hereinafter the “PSN TOS”), which includes a forum selection clause. The PSN is an online service facilitated by Sony that allows, among other limited activities, certain users of the Playstation 3 Computer System (“Playstation Computer”) in conjunction with the PSN to participate in multiplayer gaming with one another. In support of its position that Mr. Hotz is subject to the PSN TOS, Sony puts forth unauthenticated and contradictory hearsay evidence that Mr. Hotz has an Online ID for the PSN, and further makes deceptive and blatantly false statements that Mr. Hotz's is subject to the PSN TOS by virtue of Mr. Hotz updating his Playstation Computer via a firmware update. Nonetheless, pretermitting whether the PSN TOS's limited scope would be sufficient to confer jurisdiction over Mr. Hotz, Mr. Hotz demonstrates that he is, in fact, not subject to the the PSN TOS. Moreover, Contrary to Sony's assertion, and as demonstrated herein, updating a Playstation Computer does not subject a user to the PSN TOS or any other agreement with Plaintiff.

If Sony's contention, which is contrary to well established 9th Circuit law, that Mr. Hotz is subject to the jurisdiction of this Court, is to be accepted, then the very concept of personal jurisdiction would be eviscerated. Sony is a multi-billion dollar that has sold billions of hardware products ranging from Playstation Computers to televisions to computers to personal music players. Sony's position is that anytime a user allegedly “exceeds authorization” when using such products, irrespective of whether such user and conduct is in New Jersey, Germany, or China, then such individual could be hailed into this Court in California.... Sony alleges that all users who have updated a Playstation Computer via Playstation Computer firmware update are bound by the PSN TOS. Plaintiff's Complaint, p.13, ¶ 53. Sony then alleges that Mr. Hotz must have updated his Playstation Computer, and uses this as justification for why Mr. Hotz must be subject to the PSN TOS, which includes a forum selection clause. Sony's assertion is blatantly false and misleading, and Mr. Hotz has explicitly averred that he is not subject to the PSN TOS. Affidavit of Hotz ¶ 6. Equally significant, updating a Playstation Computer does not subject an individual to the PSN TOS. Affidvait of Yasha Heidari in Support of Defendant‟s Opposition to Plaintiff‟s Motion for TRO (“Affidvait of Heidari”) ¶ 5. With regard to the PSN TOS, the agreement is not a required step to access the 3.55 firmware and is not required to be entered into by end users to install the 3.55 Firmware onto a Playstation computer. Affidvait of Heidari ¶¶ 5, 8-13. The 3.55 Firmware file may be accessed, without encountering any agreements, directly from the Sony website at
http://dus01.ps3.update.playstation.net/update/ps3/image/us/2010_1207_ca595ad9f3af8f1491d9c9b6921a8c61/ PS3UPDAT.PUP or many other third party websites. Id. ¶ 4. Upon installing the firmware, the only agreement encountered by an end user is an agreement with Sony Computer Entertainment, Inc. which is not a party in this lawsuit. Id. ¶ 8. The agreement does not contain a forum selection clause and raises serious questions of Sony Computer Entertainment America LLC's standing to bring this lawsuit. Id. ¶ 9

Moreover, in a final effort to assert Mr. Hotz is subject to the PSN TOS, Sony states in its supplemental brief that “users often connect to the PSN Network” to obtain updates of the Firmware. Sony Supplemental Brief p 3: 24 (emphasis added). Sony has not and cannot truthfully allege that Mr. Hotz has accepted the PSN Agreement or has connected to the PSN Network to obtain the 3.55 Firmware. Sony, without more, presumes Mr. Hotz acquired the 3.55 firmware from SCEA. Id. at p.3: 27. Notwithstanding the foregoing, Mr. Hotz has explicitly stated that he has not obtained the Playstation Computer firmware update from the PSN. Second Affidavit of Hotz ¶ 11.

The document explains in detail what specific jurisdiction means in the Ninth Circuit:
The Ninth Circuit has established a three-part test for determining when specific jurisdiction may be exercised. See Data Disc, Inc. v. Systems Tech Assocs, Inc., 557 F.2d 1280, 1287 (9th Cir. 1977). To properly exercise specific jurisdiction, (1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) The claim must be one which arises out of or results from the defendant's forum-related activities; and (3) Exercise of jurisdiction must be reasonable. Id. All three prongs must be met, and the inability to satisfy any of the aforementioned prongs will result in the failure to establish jurisdiction over the defendant. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). Moreover, the plaintiff bears the burden of satisfying the first two prongs of the test. Id.; Slepian v. Guerin, 172 F.3d 58 (9th Cir. 1999). If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to "present a compelling case" that the exercise of jurisdiction would not be reasonable. Schwarzenegger, 374 F.3d at 802.
But then Sony speaks, and Sony portrays Hotz in a very different light, which obviously the court accepted as true, or true enough, #47:
PLAINTIFF’S STATEMENT IN
RESPONSE TO DEFENDANT GEORGE
HOTZ’S SUPPLEMENTAL BRIEF
ON PERSONAL JURISDICTION

Plaintiff Sony Computer Entertainment America LLC (“SCEA”) respectfully submits this statement in response to the supplemental brief and declarations submitted by Defendant George Hotz (“Hotz”).

I. HOTZ HAS DONE “SOMETHING MORE” BY AFFIRMATIVELY DIRECTING HIS ILLEGAL ACTIVITIES AT SCEA BASED IN FOSTER CITY, CALIFORNIA

Hotz attempts to analogize his conduct to a mere operator of a passive web site that just so happens to be accessible in California. There is nothing, however, about Hotz’s activities aimed at SCEA’s California business that can be described as “passive.” Hotz did not merely make a few postings on a website, but rather he affirmatively induced and encouraged PlayStation®3 computer entertainment system (“PS3 System”) consumers to use his illegal circumvention devices with the knowledge that this activity would directly harm SCEA in this District. Hotz’s conduct was deliberately targeted and aimed at SCEA in California, and it had the predictable effect of causing extreme harm to SCEA at its headquarters in Foster City, California. Hotz is not permitted to avoid California jurisdiction by aiming his malicious conduct at a California business from a New Jersey address.

In his supplemental brief, Hotz tries to refute this fact by characterizing his website as “passive” and claiming that he “neither encourages nor facilitates illegal circumvention devices to be downloaded on his website.” Supplemental Brief, pp. 12, 13. This is false. Not only does Hotz publish the “Metldr Keys” on his website, he also provides links on his website to his other circumvention devices, including the 3.55 Firmware JailBreak and the Signing Tools, encouraging and enabling individuals to download these circumvention devices, and thus facilitating video game piracy. See Declaration of Ryan Bricker filed on January 11, 2011 (“Bricker Decl.”), ¶¶22, 21, Exhs. U, T. And contrary to his after-the fact denials, Hotz deliberately aimed his conduct at SCEA in this District when he published the “Metldr Keys” on his website and wrote to SCEA: “if you want your next


console to be secure, get in touch with me.” Bricker Decl., ¶22, Exh. U.1 In addition, Hotz has touted his illegal hacking exploits on his interactive “On the PlayStation 3” blog (Second Supplemental Declaration of Ryan Bricker filed on January 13, 2011,¶4, Exh. C (“Second Suppl. Bricker Decl.”)). On that blog, Hotz openly interacts with others regarding his hacking of the PS3 System.2 Additionally, Hotz has used other interactive tools based in this District, such as Twitter and YouTube, to report on his hacking of the PS3 System. Id. at ¶¶2-3, Exhs. A-B; Bricker Decl., ¶24, Exh. W.

As the above demonstrates, Hotz’s unlawful conduct – the unauthorized accessing of the PS3 System, circumvention of its technological protection measures, and trafficking in circumvention devices that enable the piracy of video games – is both intentionally aimed at and had the effect of injuring SCEA in the Northern District of California where it has its principal place of business.3 Hotz was well aware of the impact of his conduct on SCEA and game publishers. Bricker Decl., ¶27, Exh. Z. Consequently, there can be no doubt that Hotz’s unlawful conduct satisfies the Ninth Circuit’s test of “something more” indicating that Hotz “purposefully (albeit electronically) directed his activity in a substantial way to the forum state.” Cybersell, Inc. v. Cybersell, Inc., 130 F. 3d 414, 418 (9th Cir. 1997); Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). To find otherwise would allow a hacker to intentionally distribute circumvention devices in California with the knowledge that a California business is being harmed, while preventing a California court


from taking action to protect its residents who have been tortiously injured. See Panavision, 141 F. 3d at 1324.

II. HOTZ FAILS TO UNEQUIVOCALLY DENY HOLDING A PLAYSTATION NETWORK (“PSN”) ACCOUNT

Hotz again fails to unequivocally deny that he has, or has ever had, a PSN account. In his supplemental declaration, Hotz merely – and carefully – denies that he has ever accessed the PSN to install a firmware update. See Hotz Decl., ¶¶11-13.4 Hotz also claims to have accessed the PS3 System firmware not through the proper channels of the SCEA website, but instead “via direct download links available on the internet.” Hotz Decl., ¶11. Though he disavows association with various email addresses in SCEA’s database, he pointedly does not state that he has not now, nor has he ever, maintained a PSN account. His failure to unequivocally deny that he has held a PSN account is telling.

Hotz’s attorney further submits a declaration attempting to show that the PSN does not have to be accessed when updating firmware via the PlayStation website. See Declaration of Yasha Heidari. However, even if the firmware was downloaded pursuant to the PlayStation website as done by Hotz’s attorney, the user is still subject to the PlayStation website’s terms and conditions at http://us.playstation.com/support/termsofuse/index.htm. These terms prohibit, among other things, “using, making or distributing unauthorized software or hardware in conjunction with the Sites, or taking or using any data from the Sites to design, develop or update unauthorized software or hardware.” The terms also include a forum selection clause and consent to jurisdiction in San Mateo County, California. They also incorporate by reference the terms of the PSN User Agreement. Therefore, a user who downloads the firmware via the PlayStation website, instead of the PSN, nonetheless consents to jurisdiction in California.


III. CONCLUSION

Hotz’s unlawful conduct is intentionally directed at SCEA in the Northern District of California and is causing substantial harm to SCEA here, warranting this Court’s exercise of personal jurisdiction. Hotz has failed to show otherwise. Accordingly, SCEA respectfully requests that the Court grant its Ex Parte Motion for a Temporary Restraining Order.

___________
1 In his declaration, Hotz now summarily denies that he sought employment from SCEA. Declaration of George Hotz (“Hotz Decl.”), ¶15. It does not matter, however, how he now retroactively characterizes his conduct – the fact remains that his statement conclusively demonstrates that his conduct was expressly targeted at SCEA in California. Indeed, Hotz even states that “[i]t would be fun to be on the other side.” Bricker Decl., ¶22, Exh. U. 2 In attempting to avoid jurisdiction, Hotz disingenuously argues that since Google maintains the site, Google is responsible for its interactivity and not Hotz. Yet it is Hotz who chose to blog about his unlawful conduct and to have discussions with third parties regarding that same conduct over the Internet.

3 Hotz’s conduct also has had the effect of harming other publishers of games for the PlayStation 3, many of whom are based or located in this District, including, for example, Electronic Arts (Redwood City).

4The issue of whether Hotz has a PSN account does not need to be resolved at this time. As demonstrated in SCEA’s supplemental briefing, Hotz has had more than the minimum contacts necessary to establish jurisdiction by this Court.

Hotz's lawyers issued a press release [PDF] recently in which they explained why people should care about this case, even if they don't tinker and don't game. You can find pictures of the two attorneys here. The meat of the press release:
FOR IMMEDIATE RELEASE: January 14, 2011

Law Firms defend Sony’s Accusations against George Hotz

San Francisco, California – Today, attorneys Stewart Kellar and Yasha Heidari announced they intend to vigorously defend the baseless accusations asserted by Sony Computer Entertainment America LLC (“Sony”) against Mr. George Hotz.

“Make no mistake,” Stewart Kellar, intellectual property attorney and e-ttorney at law™ stated, “this case is not about Sony attempting to protect its intellectual property or otherwise seek bona fide relief from the court. Rather, it’s an attempt from Sony to send a message that any individual using Sony hardware in a way Sony does not deem appropriate will result in harsh legal consequences from a multi-billion dollar company, irrespective of any legal basis or authority for such action.”

Sony recently filed suit against a number of individuals, including Mr. Hotz, a 21-year-old computer prodigy who is well-known for his accomplishments and innovations in the field of phone and computer development, such as for creating the ability to provide for iPhone interoperability between various cellular network carriers. Citing unfounded concerns and a dubious legal basis for jurisdiction, Sony seeks relief from the Court due to Mr. Hotz re-enabling core functionality of the Playstation 3.

“I think it is quite telling that Sony, who is legally required to provide notice to Mr. Hotz before seeking any special relief with the Court, decided to e-mail Mr. Hotz a copy of their motion at 7 p.m. when a hearing was scheduled for the next morning at 9 a.m. in California, while Mr. Hotz does not even live in California. Sony is seeking various unreasonable relief, such as seizing Mr. Hotz’s personal property and computers. Luckily, the Court postponed the hearing,” said Yasha Heidari, Esq., managing partner at Heidari Power Law Group, LLC.

Mr. Kellar added, “This case not only has profound implications for the parties involved, but it also implicates core property rights for every consumer out there.” Recently in April of 2010, citing the fact that the Playstation 3′s terms and conditions reserve the right to modify the PS3′s settings and features, Sony inexplicably issued an “upgrade” that removes the end user’s ability to utilize the PS3′s OtherOS functionality. Consumer familiar with the PS3 know that OtherOS is a powerful tool that is critical in allowing its users to utilize the PS3 as a personal computer. Sony had previously touted the PS3′s OtherOS as a major selling point and feature that would receive Sony’s continued support. Yet, despite this, Sony took the position that consumers must either choose to upgrade the PS3 to play newer game titles and lose OtherOS support, or ignore the update to keep OtherOS but be prohibited from playing newer titles.

Mr. Heidari stated, “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. 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.” Mr. Kellar proclaimed, “This case rests on Sony’s misguided belief that it has the unfettered ability to control how consumers use the products they legitimately purchase.”

Both attorneys agree that Sony’s interpretation of the law is quite troubling. The attorneys state they hope the judge will deny Sony’s motion, but regardless of how the judge rules, they fully intend to defend Mr. Hotz in this action, which has wide-spread implications for consumers globally.

EFF highlights two cases that seem relevant to them in this context of terms of use, one the Lori Drew case, United States v. Drew and also Facebook v. Power Ventures:
For years, EFF has been warning that the anti-circumvention provisions of the Digital Millennium Copyright Act can be used to chill speech, particularly security research, because legitimate researchers will be afraid to publish their results lest they be accused of circumventing a technological protection measure. We've also been concerned that the Computer Fraud and Abuse Act could be abused to try to make alleged contract violations into crimes.

We've never been sorrier to be right. These two things are precisely what's happening in Sony v. Hotz. If you have missed this one, Sony has sued several security researchers for publishing information about security holes in Sony’s PlayStation 3. At first glance, it's hard to see why Sony is bothering — after all, the research was presented three weeks ago at the Chaos Communication Congress and promptly circulated around the world. The security flaws discovered by the researchers allow users to run Linux on their machines again — something Sony used to support but recently started trying to prevent. Paying lawyers to try to put the cat back in the bag is just throwing good money after bad. And even if they won — we'll save the legal analysis for another post — the defendants seem unlikely to be able to pay significant damages. So what's the point?

The real point, it appears, is to send a message to security researchers around the world: publish the details of our security flaws and we'll come after you with both barrels blazing. For example, Sony has asked the court to immediately impound all "circumvention devices" — which it defines to include not only the defendants' computers, but also all "instructions," i.e., their research and findings. Given that the research results Sony presumably cares about are available online, granting the order would mean that everyone except the researchers themselves would have access to their work....

Finally, even if the researchers had used Sony's network, Sony's claim that it's a crime to violate its terms of use has been firmly rejected by courts in cases like United States v. Drew and Facebook v. Power Ventures. As those courts have recognized, companies like Sony would have tremendous coercive power if they could enforce their private, unilateral and easy-to-change agreements with threats of criminal punishment.

So, this is a culture clash, and Sony is in denial to boot. Not only is there litigation now in the US about Sony removing OtherOS functionality, which is what Hotz says he was working to restore, ars technica is now reporting that customers in Norway are hopping mad too:
Norway's Consumer Council, an independent government agency, has received multiple complaints from PlayStation 3 owners over the removal of the "Other OS" functionality of the console. It has now taken the complaint to Norway's Consumer Ombudsman, with the Council claiming that Sony breached the Norwegian Marketing Control Act by removing a key feature after sale.

"Sony claims a universal right to change or remove functionality from the gaming console," Øyvind H. Kaldestad of the Consumer Council told Ars. "The Consumer Council strongly believes there needs to be a limit to what constitutes a reasonable change to products we buy—and that terms of service that grant the manufacturer full access to literally downgrade the product or limit the functionality are unreasonable and in clear violation of the Marketing Control Act."

There's also the issue of Sony's wording. "When a company use terms like 'updates' or 'upgrades,' it is reasonable to expect a significant improvement of the product and not the risk of being stuck with a lesser product," said the Council's Thomas Nortvedt in a statement.

Update: I've puzzled over why Sony was fighting so hard to stay in California courts, instead of just filing against Hotz in New Jersey. I think this article from 2004 might explain it:
After eight months of deliberation, a San Francisco federal judge has ruled that software company 321 Studios' popular DVD-copying products are illegal.

In a ruling released Friday, Judge Susan Illston granted Hollywood studios' request for an injunction against 321 Studios, saying the small software company has seven days to stop distributing its DVD-copying products....

"It is the technology itself at issue, not the uses to which the copyrighted material may be put," Illston wrote. "Legal downstream use of the copyrighted material by customers is not a defense to the software manufacturer's violation of the provisions (of copyright law)." ...

The ruling, which had been pending since arguments last May in Illston's court, goes a long way toward shoring up Hollywood's weakening digital copy protections for its profitable DVD business--even while potentially eliminating one key driver of sales in the DVD burner market.

She was talking about the DMCA, the law at issue in Sony's case against Hotz.

And here's what happened next:

"They've ceased operations," said Michael Page, an attorney with Keker & Van Nest, who represented 321 Studios. "They couldn't afford to do business and fight all the legal fights. They essentially got sued out of existence."
I don't think Sony could find a better judge to accept their story.

  


Sony Wins TRO, Impoundment - Updated | 508 comments | Create New Account
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Corrections Thread
Authored by: bugstomper on Thursday, January 27 2011 @ 08:39 PM EST
Please remember to change the title of your post from "Corrections
Thread" to a meaningful summary such as error->correction or
s/error/correction/ to make it easy to scan to see what corrections have been
reported already.

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Thursday, January 27 2011 @ 08:42 PM EST
Please put the title of the News you Pick in the Tile box of your comment.
Include a clicky link to the article in HTML mode in the body of your comment
for the convenience of readers after the article has scrolled off the sidebar.

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Thursday, January 27 2011 @ 08:45 PM EST
Please stay off topic in these threads, but otherwise play as much as Groklaw's
comments policy and the Geeklog software allows. Remember to use HTML mode to
make your links clickable.

[ Reply to This | # ]

Actually Sony Loses
Authored by: The Mad Hatter r on Thursday, January 27 2011 @ 08:55 PM EST

They've ruined their reputation. Now everyone knows that Sony can't be trusted.

Reputation is a finite good.


---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

COMES goes here, 1998 unclaimed exhibits to go.
Authored by: bugstomper on Thursday, January 27 2011 @ 09:03 PM EST
We've broken the 2000 left to go milestone, if you count the ones that are
finished, submitted but in backlog, and promised but not yet submitted.

Members, head over to the Comes tracking page, claim an exhibit, and submit a
transcription. Non-member volunteers, Find an exhibit on the Comes Exhibit by
Number pages that isn't done yet.

Please transcribe using simple HTML markup, such as using a <p> to mark a
paragraph break without putting a <br> on every line just because the
document has line breaks there, unless the formatting is essential to the
content such as with email headers.

Submit the transcription in Plain Old Text mode, but with the HTML markup.

[ Reply to This | # ]

Sony Wins TRO, Impoundment
Authored by: Anonymous on Thursday, January 27 2011 @ 09:04 PM EST
And hence why you will hear many people on the net saying "I will never
ever buy anything from Sony", as if their rootkit fiasco and steadily
declining product quality was not enough. The only way I would buy a PS3 is
second hand and for the sole purpose of putting whatever surfaces for fully
functional homebrew linux for it. I thoroughly despise Microsoft but at this
point I would buy a crappy CrashBox360 then any console ever from Sony.

[ Reply to This | # ]

Corporate clones
Authored by: pem on Thursday, January 27 2011 @ 09:15 PM EST
How does purposefully directing one's activities at understanding and
documenting a device that one purchased at the local shop, that was made by
Foxconn in China for a Japanese company, get transmogrified into purposely
directing one's activities at the state of California?

This seems to be the great thing about corporations. Not only are they people,
but you can clone them and put them where you want. Having a hard time suing
somebody in Japan? Make sure you do it in his country, but as far away from
where he lives as you can possibly get.

[ Reply to This | # ]

Sony Wins TRO, Impoundment
Authored by: tqft on Thursday, January 27 2011 @ 09:21 PM EST
"Hotz is also ordered to hand over to Sony "any computers, hard
drives, CD-roms, DVDs, USB stick, or any other storage devices on which any
Circumvention Devices are stored" in his "possession, custody or
control." I guess it's off with his head, too, then, because he surely
knows how to do what he did. People who live in countries that don't have the
DMCA also know. Just saying."

So Sony has custody of the hardware & software to be used in evidence in a
court case against them?

---
anyone got a job good in Brisbane Australia for a problem solver? Currently
under employed in one job.

[ Reply to This | # ]

This is outrageous!
Authored by: jbb on Thursday, January 27 2011 @ 09:35 PM EST
As PJ noted, confiscating geohots computer equipment won't do one whit to mitigate damage to Sony while at the same time it could be extremely damaging to geohot. I hope geohot has all his discs well encrypted so Sony can't go poking into his personal and business life while "protecting" the Internet from a key 95% of which Sony themselves published in the court documents used to keep the key secret.

This reminds me of a Kurt Vonnegut story where in order to make everyone equal, all the talented people were artificial handicapped. For example, talented ballet dancers had cinder blocks chained to their feet. The type of security Sony tried to implement, based on a private signing key is unlike DRM in that it is theoretically secure. In fact, all Internet commerce is based on the same principles.

For some crazy crazy reason (well, I guess it is not so crazy really -- the reason is that our government is now owned and operated by corporations) Sony is getting rewarded for technical ineptitude which allowed the private key to be derived from information they distributed in every PS3, while geohot is being punished for technical brilliance.

In other news, I've seen multiple reports that Microsoft's Bandon Watson, the Director for Windows Phone 7, has offered geohot a free WP7 saying:

geohot if you want to build cool stuff on #wp7, send me email and the team will give you a phone – let dev creativity flourish
Even I have to admit that I very much admire this move by Microsoft. I think it was utterly brilliant. I know geohot is still not accepting any donations, not even for his legal defense but I was wondering if it would be legal for him to have computer equipment as long as it doesn't have Sony's precious key. But then what happens if someone spams him with an email containing the precious key? Does he then have to give up that computer too?

I am afraid that this action by this judge will greatly decrease many people's respect for the law. What a terrible waste.

---
[ ] Obey DRM Restrictions
[X] Ignore DRM Restrictions

[ Reply to This | # ]

Sony Wins TRO, But What?
Authored by: rsteinmetz70112 on Thursday, January 27 2011 @ 09:42 PM EST
This is surely disappointing and should not have happened. I even thought the
judge was going to rule for Hotz on jusidiction.

On the other hand, it seems the TRO really gets Sony little of any real value.
Hotz is restrained from doing more work and talking about his past work, but his
lawyers surely have already told him to not do those things. Sony probably could
have gotten the computers in discovery. And as PJ points out this horse is
already out of the barn.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Sony Wins TRO, Impoundment- Using my play station.
Authored by: Anonymous on Thursday, January 27 2011 @ 10:23 PM EST
I can't use it, never could, never will!

You couldn't pay me to have a play station!!!!!

I feel like spitting!!

[ Reply to This | # ]

How is information a device?
Authored by: BitOBear on Thursday, January 27 2011 @ 11:30 PM EST
As a more serious question, how is pure information (such as a PS3 TPM key) a
"device" by any real meaning?

I would believe that the DMCA, which is full of terrible and incorrect
assertions, could claim that a string of letters and numbers is a device.

I know that programs, who's source is letters, numbers, and punctuation, is
somehow a device by similar logic.

I just don't get the legality of the designation.

===

As a side thought, a device doesn't lose its nature when applied to a particular
purpose. If I buy a bookshelf and put nothing on it, or only put a single copy
of Moby Dick, or I burden it down exclusively with copies of Moby Dick, it
doesn't become a "moby dick support device", it remains a bookshelf.

I have heard tell that the argument is that when I run a spreadsheet program on
a computer it becomes a spreadsheeting machine, so the patent people argue that
it _becomes_ a "particular machine".

But in truth, it remains a general machine, that has had spreadsheeting [sic]
added to its general nature, or perhaps actualized explicitly from its general
possibilities.

Indded, by the logic of the patent people, my general purpose computer is first
and foremost "a linux machine" (or windows machine, or macos machine)
when I run the patented software it becomes not a (whatever) machine, but a
linux + (whatever) machine, which is not the particular machine patented.

Am I wrong? Seriously, how does any of this device and machine stuff survive
reasonable discernment?

[ Reply to This | # ]

Commercially Incentivized Luddism
Authored by: dio gratia on Thursday, January 27 2011 @ 11:39 PM EST

The prohibition on circumvention of technological protective measures that removes all of a composite work's content from the creative commons has a fair use exemption, and also limits infringement under § 1201 to "a work protected under this title" (Title 17), which doesn't extend protection to non-original portions of a work. Likewise § 1201 (c) (1) preserves the limitations on a copyright holders exclusive rights such as under § 117, should a copy of the work be transferred instead of merely licensed. Issues of firmware updates aside, buying a game console might likely be seen as transferring a copy.

The defendants are being charged with § 1201 (a) (2) trafficking in circumvention technology which could be seen as a prior restraint on speech for computer code, which is basically language and numbers which should perhaps be protected by trade secret or enforceable contractual obligation as facts. The prohibition makes no measure of whether an infringing activity occurs or not, various District Courts giving mixed opinions of whether infringement has to occur or not. Without requiring infringement the additional rights conferred to the copyright owner of access under § 1201 are absolute. How can you exercise a fair use right or other exemption or right under a limitation if you can't be told how?

The reasoning a content provider uses to prefer this state of affairs is easy. As DVDs or the PS3 demonstrates the keys (information applied with the authority of the copyright owner) are essentially left in plain sight, otherwise key distribution might make onerous demands on an otherwise profitable business model intended to create perfect markets.

As it stands now, the balance between rights of the copyright owner and the copy owner is heavily in favor of the content provider. You are not allowed to read code and share the ideas and facts you find there in pursuit of fair use, exemptions or other limitations on the information being protected by technological measures. This is inherent in the preliminary injunction, prejudging the defendants under § 1201 (f) (3).

You might expect running Linux on a PS3 sits squarely with the § 1201 (f) Reverse Engineering exemption. Won't Sony have to prove each defendant's involvement was contrary to § 1201 (f) (3)? ("...provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement..."). Proof involves establishing facts where quoting things on the Internet suffers the axiom that no knows you are dog, i.e., a person making a claim may not actual be the person identified by the plaintiff and the assertions may not be true. Relying on identity on the Internet is innuendo at best. The defendants have their right of free speech abrogated collectively based on hearsay in the pursuit of the plaintiff's perfect markets.

Creating perfect markets, in this case by creating a walled garden market for games and other programs running on PS3s seems like an overreach on the Constitutional purpose of promoting the sciences and arts. More like Ferengi avarice. It certainly discourages those exposed to these wonderful devices, games and software the ability to build on what has gone before for an interval greater than a man's life time today.

The idea that a copyright protected work is licensed as a term of sale without an actual agreement being made is also a ploy to create perfect markets by denying limitations to the copyright owners exclusive rights. Who looks out for the consumer here? There's more to promoting the sciences and arts that giving the content provider the wherewithal to enforce their rights absolutely.

[ Reply to This | # ]

Any hope?
Authored by: Anonymous on Thursday, January 27 2011 @ 11:40 PM EST
Excuse me, but is this ruling final? I mean, can it be appealed? Just the
precedents EFF highlighted should give good reason why this is a very messed up
ruling.

I was saving for a PS3 for this year's xmas but I think I will go with a Wii
instead. Not like Sony cared about it. It seems that for them we are just little
numbers that must be enslaved or something but definitely not fans or costumers.
They probably see us as cattle.

[ Reply to This | # ]

Key Ownership, Plaintiff's Standing?
Authored by: BitOBear on Thursday, January 27 2011 @ 11:48 PM EST
If the key is part of the OS and Firmware installed by the update which,
according to the declarations above, comes from "Sony Computer
Entertainment Inc." (Heidari, #8), then the matter of the key and its
distribution by Mr Hotz is not...

Isn't Sony America a third party to the action between Mr. Hotz and Sony
Computer Entertainment Inc.?

What is plaintiff's standing here?

The key is _not_ specific to accessing Sony America properties, it controls the
booting of the Sony Computer Entertainment manufactured hardware. PlayStation
Network may rely on the key, but shouldn't they be suing Sony Computer for
failing to adequately protect the key on which they rely? The actual disclosure
of the key is a matter between the key "owner" and the device owner.

Further, any agreement involving the Sony America via PlayStation Network would
not be a governing document between Sony Computer Entertainment and Mr Hotz.

Shouldn't Mr. Hotz be able to move to dismiss based on Sony America being a
third party?

[ Reply to This | # ]

HOTZ HAS DONE “SOMETHING MORE”
Authored by: Anonymous on Thursday, January 27 2011 @ 11:55 PM EST
> BY AFFIRMATIVELY DIRECTING HIS ILLEGAL ACTIVITIES AT SCEA
> BASED IN FOSTER CITY, CALIFORNIA
...
>>Hotz did not merely make a few postings on a website, but rather he
affirmatively induced and encouraged PlayStation®3 computer entertainment
system (“PS3 System”) consumers to use his illegal circumvention devices with
the
knowledge that this activity would directly harm SCEA in this District. Hotz’s
conduct was deliberately targeted and aimed at SCEA in California, and it had
the
predictable effect of causing extreme harm to SCEA at its headquarters in
Foster
City, California. <<

If SCEA's headquarters were in Wisconsin or Wherever would it make any
difference where the Hotz' webserver was located? I've got a server in
New Zealand that could host the same materials. How would I fare?

>> Hotz also claims to have accessed the PS3 System firmware not through
the
proper channels of the SCEA website, but instead “via direct download links
available on the internet.”<<

Same place I'd go if I hadn't signed for a PSN acct. It's a desperate hope
that this judge gets some sound independent advice on how the 'net works.

[ Reply to This | # ]

Drive by user agreements???
Authored by: jacks4u on Friday, January 28 2011 @ 12:06 AM EST
... user is still subject to the PlayStation website’s terms and conditions... The terms also include a forum selection clause and consent to jurisdiction in San Mateo County, California. They also incorporate by reference the terms of the PSN User Agreement. Therefore, a user who downloads the firmware via the PlayStation website, instead of the PSN, nonetheless consents to jurisdiction in California.

Sooooo... Drive by user agreements??? Dirty, underhanded, and mean spirited, with a single point of bringing EVERYONE under it's user agreements. even if you visit their website to fact check, you're signed....

I'm just glad I have no Sony in my house. no Microsoft either... ;)

[ Reply to This | # ]

PS3 violates Norway's Marketing Control Act
Authored by: Anonymous on Friday, January 28 2011 @ 02:27 AM EST
The Norwegian Consumer Council has gone through the terms of service for Sony PlayStation 3 and Playstation Network and decided to file a complaint to the Consumer Ombudsman regarding a breach of the Norwegian Marketing Control Act.
link
Thanks to ars technica for the heads up

[ Reply to This | # ]

Further affiant sayeth not
Authored by: Tolerance on Friday, January 28 2011 @ 02:54 AM EST
Sony paint Hotz' refusal to speculate beyond denying Sony's accusations as tantamount to an admission that he has, indeed, held a PSN network account for example.

"Though he disavows association with various email addresses in SCEA’s database, he pointedly does not state that he has not now, nor has he ever, maintained a PSN account. His failure to unequivocally deny that he has held a PSN account is telling. ").


This flys in the face of procedure. At the end of the affidavit Hotz signed is a phrase, 'further affiant sayeth not', which is legal boilerplate. Not only is Hotz not required to incriminate himself, it is standard practice for a lawyer to advise his client to confine himself to denying the specific accusations made.

Sony accused Hotz of holding the Geo1hotz account, among others. Hotz' denial of all such averments was uncompromising, for example: "I have never created, used, or accessed the Playstation Network ("PSN") Online ID "Geo1Hotz"."

Of course he might well have created a PSN account. A couple of years ago I downloaded a game, "Flower", from PSN. I know it was my credit card which paid for it, and it turned out to be excellent so I don't regret it.

But while I vaguely recall the white-on-black PSN details, I don't recall setting up the account; that is, I can't recall whether I set up PSN or the family member who wanted the game set it up for me. Also, my PS3 died after a firmware update so I can't check its details, but does PSN membership for the purpose of buying a game inevitably mean agreeing never trying to restore Linux? If so I guarantee you that the parties were never at one.

In an era where the "Martha Stewart" law will see you in prison for the 'crime' of telling a federal official something which turns out not to be true, how on Earth can a court allow his refusal to speculate beyond Sony's specific accusations be held against him? Due process be damned, clearly.

---
Grumpy old man

[ Reply to This | # ]

PS3 Update and terms of use falsehood
Authored by: celtic_hackr on Friday, January 28 2011 @ 03:58 AM EST
I copied the link referenced in the court papers.

I am never presented with a screen which could lead me to a terms of use for the
website. All I get are a download prompt, and a totally blank page. How can I be
expected to accept terms if I am not given a chance to read them. I'm pretty
sure there was a court case about that. There has to be something to agree to or
disagree to, nothing plus nothing is still nothing.
Well, I've downloaded the PS3 update. I have nothing to do with it, I don't own
any PS3s or Sony equipment.
Given the url, I'm not sure I could find a valid address to find the terms. My
first several attempts all result in 404.
There are lots of places that link to direct downloads of the updates. Sony's
site wasn't in the top ten for my particular search, but if I tune it just right
it becomes number one.

I did find the front door way to get the updates, but they seem to have not told
the whole truth to their attorney on the terms of use. The PSN agreement
specifically, in bold capitals says you have to click agree or disagree to be
bound by it. It is not included by reference and it does not state you are bound
by it, unless you create a PSN account. When attempting to download from the
regular location, it also does not require clicking to agree to the terms of
use.

It does state that by using the site you are bound by the Terms of Use and any
other agreements they "say you are". Really, any they say? So all they
have to do is say you are, even if you can't read it? Now that is pure evil.

I've saved the page, and taken several screenshots of it. The most interesting
part is there is no button. You could not click agree or disagree anywhere on
that page. THat would probably only be on a page where you sign up for an
account. Now someone at Sony ought to be in trouble for telling lies to the
court through the lawyer. Someone should let the court know, that Sony told a
fib.

[ Reply to This | # ]

Jurisdiction
Authored by: Anonymous on Friday, January 28 2011 @ 04:48 AM EST
I thought earlier the judge wasn't sure she had jurisdiction. What happened to
that?

[ Reply to This | # ]

Sony Wins TRO, Impoundment
Authored by: Anonymous on Friday, January 28 2011 @ 06:13 AM EST
All the files are still available if you poke around.
There is a takedown note explaining on the author's different posting sites but
the files are around and forever will be.
Once released on the net , there's no stopping it.
So .. Question : once it's out there and totally out of any control, how do they
deal with this ?
How can anyone remove files he no longer has control over and are mirrored in so
many places it's unmanageable ? Does it count in the judge's eye or will he say
that he did not obey the directive/injunction ? What happens then ?

Ric

[ Reply to This | # ]

Sony Wins TRO, Impoundment
Authored by: Anonymous on Friday, January 28 2011 @ 06:59 AM EST
It is worth noting that although the SCEA web site with the (now version 3.56)
firmware presents the Terms and Conditions, nothing at all requires any
indication of acceptance.

[ Reply to This | # ]

Where do games come from?
Authored by: Ian Al on Friday, January 28 2011 @ 07:47 AM EST
When I was just old, there was a craze for personal computers. Around the world,
people bought Atari 400/800s, Amiga500s, BBC computers, Acorn Atoms, Sinclair
ZXs and a host more.

I bought my Atari 800 on the basis of some Basic programs demoed at the product
launch. They showed the power of the graphics chip and also flew hardware
sprites around the screen using a joystick.

I moved on to an Amiga500 and Commodore Amiga published all of the development
info needed to use the operating system and the hardware. It was a sort of
Atari+.

Here is a snippit from Wikipedia:

'Deluxe Paint (DPaint) is a bitmap graphics editor originally created by Dan
Silva for Electronic Arts (EA). The original version was created for the
Commodore Amiga and was released in November 1985. It was eventually ported to
other platforms, but only had industry standard status on the Amiga.'

'DPaint was the product of an in-house art development tool called Prism. As
Silva added additional features to Prism, it was turned into a showcase product
to coincide with the Amiga's debut in 1985.'

If you don't recognise the name 'Electronic Arts', you need to do a little
research into games.

DPaint was the Amiga graphics tool of choice for sprite development, scrolling
backgrounds and all aspects of game graphics development.

Inspired by the possibilities and the positive help from the manufacturers,
bedroom coders started to find out how their computers worked and went on to
code their own programs. The usual target was a game.

Most of the games were rubbish, but many coders demonstrated the skills
necessary for commercial games success. There were hardly any games
professionals as there were hardly any professional games at that point.

And, that's where today's games come from.

Where are tomorrow's games going to come from? Will the existing megalith games
publishers find a new inrush of young coders, music writers and artists with the
inspiration to brings fresh ideas to the industry and the knowledge of how the
games console software and hardware works?

---
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 doesn't care, probably what you know or figure out in the privacy of your home. '
Authored by: Anonymous on Friday, January 28 2011 @ 08:30 AM EST
Here, PJ, I beg to differ. Sony has shown time and again that they care very
much what you do in the privacy of your home. They showed their true colors
with the whole rootkit fiasco, contaminating the personal computer property of
anyone who dared insert one of their precious music disks into it. I am
convinced that to the extent possible Sony will embed within consumer products
various capabilities of reporting back to Sony HQ any misuse or modifications
that people make to their property in the privacy of their homes. And the DMCA
does, after all, prohibit even just the possesion of possible circumvention
devices, not just those you may happen to distribute.

Paranoid? Maybe, but remember the whole 'fool me once' lesson. There are no
Sony products in *my* house.

[ Reply to This | # ]

Implications
Authored by: Anonymous on Friday, January 28 2011 @ 09:25 AM EST
As I read this, and I am not a lawyer, I can't help but wonder. . .

Technology is everywhere. Computer control systems are everywhere. you
can find them in greeting cards (the ones that open up and play music), you
find them in toys - the $9 plastic robots for example, you find them in cars,
phones, TV's, etc.

Sony seems to be arguing that the existence of a PSN license agreement on
their Playstation network binds everyone who has purchased a Playstation to
what ever terms of the day that Sony has posted, and that Sony has the
RIGHT, via this agreement, to change the way a legally purchased device
operates at any arbitrary time post sale, with the owner of the device left with

out recourse or compensation for his loss.

So let us consider that this is the correct interpretation, as the court seems
to
be leaning in that direction. SO Sony succeeds. Now, Ford decides to ensure
that it's dealerships have a good steady stream of money, so it posts a
License Agreement on its website, and every time you drive by a wireless
network your Ford car or truck contacts Ford to check on firmware updates
and to report any modifications to your car (or they could use an on*Star like
system). You don't change your oil at 3000 miles and now your car refuses to
drive, so you change the oil by hand and the car reports this to Ford who sues
you for violating your contract with Ford to have your car exclusively serviced

by their dealers only. What if the digital radio stops playing certain stations

because they refuse to pay Ford for the privilege. Or Ford decides to disable
the connection between your ipod and the car stereo because it's having a
bad day with Apple Computer. All of these things are invasions and control of
legally purchased items post sale, by a manufacturer who has an
"Agreement"
that changes without negotiation, verifiable notice, or even actual human
consent. And how would these actions be different than what SONY is
arguing now?

Sony seems to argue that because your legally purchased device talks to its
network, that you are bound to the terms of its network license, which
changes at Sony's sole discretion. Who, by the way, told the playstation to
talk to the network? The user or Sony? Sony programmed the device and
prohibits the user from REPROGRAMMING it, so SONY is really responsible for
what the device does. What about a SONY phone that secretly records the
conversations and then uploads them to a site? Under this line of reasoning,
the phone could connect to the network, bind the user to the license
agreement, and allow Sony to do what ever Sony decides to do with the data,
all of this with the affirmative consent of the user's proxy - the phone,
without the actual user consenting. How would a computer consenting to
something over the internet on behalf of a person, look different than a
human consenting over the internet?

I know that much of this sounds far fetched, but we have already seen Sony's
version of espionage: the root kit on a CD that infested and damaged many
computers. Sony did not compensate society for that damage either. And I
might add, had a small band released such a recording, they would be UNDER
the jail in some third world country for special interrogation or accused of
espionage for root kitting government computers. SONY however, gets away
with it. Thus it appears that there are two legal systems: those for the
people and those for corporations.

IT seems to me that the entertainment industry is pushing the copyright law
to become the control mechanism of everyone's lives. Under the Berne
Agreement, everything is copyrighted instantly, and in an undocumented
fashion. Company control of books post sale (Amazon's removal of a book
from its electronic reader), control of software on other people's computer
because they want to listen to music (the Sony root kit), and now this: thou
shalt not violate our ever changing TOS on our web site with your legally
purchased device. Blizzard Entertainment's TOS requires that you let its
software snoop for programs that Blizzard doesn't want you to have - and
while that might be reasonable or not, at least they TELL you up front.
Copyright is not the easiest read, and is pretty dry. But it is becoming the
new whip for the tyrant.

There is a digital revolution coming, but it will be one in which the tyranny of

the computing device is abandoned for the less complicated life of Thoreau.


[ Reply to This | # ]

Protective Order
Authored by: MrCharon on Friday, January 28 2011 @ 10:53 AM EST
Does Sony get to go ahead and dig into his stuff once it turned over without a
protective order in place?

---
MrCharon
~~~~

[ Reply to This | # ]

Sony Wins TRO, Impoundment
Authored by: Anonymous on Friday, January 28 2011 @ 11:04 AM EST
More proof that the law only serves those with the biggest checkbooks.

[ Reply to This | # ]

Sony Wins TRO, Impoundment
Authored by: mvs_tomm on Friday, January 28 2011 @ 11:23 AM EST
What happens now with those who have built supercomputers from networks of PS3
computers?

[ Reply to This | # ]

Calling them "Curcumvention Devices" Doesn't make them such
Authored by: Marc Mengel on Friday, January 28 2011 @ 12:53 PM EST

Can one not dispute the claim that the software in question is a curcumvention
device? Basically, this suffers at its base from the same fundamental
misconception that most current such silliness does; to wit:

Having items (games, DVDs, etc.) digitally signed does *not* prevent copying.
An exact copy of a game will have exactly the same signature, and will also
play. Therefore it is *not* a copy prevention mechanism, and is not covered
under the DMCA.

These signing schemes are instead a restriction on who can create original
media, *not* on who can make copies of said media. And courts have held forever
that reverse engineering neccesary bits to make compatable equipment *is*
legal.

They need to strike at this root of the problem, and the rest of it just falls
apart.

[ Reply to This | # ]

This is daft!
Authored by: tiger99 on Friday, January 28 2011 @ 01:12 PM EST
The information is out on the Web, probably stored in a safe place by umpteen hackers, and not every country which has the ability to host web sites has a law like DMCA. It follows that the information is not going away, and will remain visible somewhere on the web. Sony's legal case can never put things back as they were, even if they win.

Not only that, but as we see in other posts above, Sony are losing customers, some who are rightly disgruntled by their removing of a much-used piece of functionality, probably itself in violation of computer misuse laws in some countries.

I don't see the point in fighting a legal battle where even if you win, you lose.

[ Reply to This | # ]

Sony Wins TRO, Impoundment
Authored by: Rubberman on Friday, January 28 2011 @ 02:47 PM EST
Well, I haven't read all the comments, but in case it hasn't been mentioned yet,
after the new PS3 firmware update that stops Hotz's hack a day or so ago, other
hackers broke the new one within a few hours and the keys to that are on the
web... Sony is just soooo fubar that only new management that has a clue about
giving customers what they (the customer) want, will pull Sony back from the
brink of extinction. People are getting pissed at them, and angry people vote
with their pocketbooks. I did. After the cd root-kit fiasco of a few years ago,
I have been completely boycotting ALL Sony products, including CD's, DVD's,
hardware, etc. So far, I figure they have lost about $10K USD in sales to my
household alone.

[ Reply to This | # ]

Sadly, no more Sony products for me for now
Authored by: Anonymous on Friday, January 28 2011 @ 02:53 PM EST
I own a Sony laptop, a Sony television, two Sony Ericsson mobile phones, some
Sony CD players. I think the DVD player upstairs is Sony.

I spend a few thousand dollars a year on equipment. Sadly I won't be buying any
more Sony products until Sony withdraw this wrongheaded lawsuit. If Sony
prevail, I will no longer be buying Sony products.

No customers, no corporation.

[ Reply to This | # ]

Sony Wins TRO, Impoundment
Authored by: Anonymous on Friday, January 28 2011 @ 03:17 PM EST
If the US AirForce was willing to file an amicus curiae brief,
how that would change the judge's view of things, since the
USAF uses the "OtherOS" feature at issue, that Sony removed,
for a cheap cluster.

http://arstechnica.com/gaming/news/2010/05/how-removing-ps3-
linux-hurts-the-air-force.ars
http://www.sfgate.com/cgi-bin/article.cgi?
f=/c/a/2009/12/05/BU731AV5TM.DTL

[ Reply to This | # ]

Sounds like time for a Boycott of Sony
Authored by: Anonymous on Friday, January 28 2011 @ 07:49 PM EST
Because of this and other recent issues, it sounds like we need to stop
consuming their products, and if possible, return them.

[ Reply to This | # ]

Interesting previous ruling by Judge Illston
Authored by: Anonymous on Friday, January 28 2011 @ 08:03 PM EST
Is it me, or did she not get the tech right in this case:

"321 Studios v. Metro Goldwyn Mayer Studios"

Wikipedia, Cnet

[ Reply to This | # ]

I hate Microsoft and the XBox 360
Authored by: Anonymous on Friday, January 28 2011 @ 09:41 PM EST
But it just moved up the list above PS3.

PS3 and any other crap SONY makes just dropped below the Microsoft Kin on my
list.

[ Reply to This | # ]

If we don't own it...
Authored by: Anonymous on Friday, January 28 2011 @ 10:04 PM EST

...why do we have to pay for it?

[ Reply to This | # ]

Baby needs new shoes?
Authored by: dio gratia on Friday, January 28 2011 @ 10:18 PM EST

The wording of the order was peculiar enough you could think of all sorts of a priori defenses without violating a court order.

..."any computers, hard drives, CD-roms, DVDs, USB stick, or any other storage devices on which any Circumvention Devices are stored" in his "possession, custody or control."
You'd think the defendants could have thought ahead a bit. Keep your work on your desktop which happens to be on Dropbox sort of thing.

[ Reply to This | # ]

What if ?? and Sony's possible disregard for the law
Authored by: Anonymous on Saturday, January 29 2011 @ 05:58 AM EST
"It is the technology itself at issue, not the uses to which the
copyrighted material may be put," Illston wrote. "Legal downstream use
of the copyrighted material by customers is not a defense to the software
manufacturer's violation of the provisions..."

Suppose someone writes a program, using Microsoft software development products,
that illegally copies data or keystrokes from others' computer and/or data
storage systems. Applying the above logic could put M$ in a very uncomfortable
position.

Clearly, the Sony family of businesses are run by people that are without any
sense of honor. Selling products promoted as having certain claimed features,
then doing their best to prevent those features from functioning is false
advertising and possibly a breach of contract.
It is like having your Corvette recalled and the dealership exchange the engine
for one designed for the Aveo, then tell you it is an improvement. It just no
longer performs as was advertised or as it did when you entered into the initial
agreement.

[ Reply to This | # ]

Sony Wins TRO, Impoundment
Authored by: Anonymous on Saturday, January 29 2011 @ 08:21 AM EST
I can't believe they think this will work. The court also orders Hotz to "retrieve any Circumvention Devices or any information relating thereto which Hotz has previously delivered or communicated to the Defendants or any third parties." Hotz may be a genius coder, but I doubt even he has the power to censor the Internet or make it bend to his will, let alone remove knowledge from other peoples' brains...

As long as the media corporations equate copyright infringement with theft (of an armed nature on board a ship), then the object (sic) stolen can be returned to them so that the person who had it no longer has it. And they will insist upon it.

...But it's a court order! This poor soul. How does he get a judge to comprehend that the order makes no sense in real life? It's too late to wipe the Internet or anyone's brain.
Or is this Hollywood effect (that can make films about historical events that don't make sense - eg The Americans capturing vital enigma IP (sic) in U-571 when the event depicted happened BEFORE America entered the war [on a different U boat]) by which the media corporations have become so deluded that they believe everything they create as truth and everyone else must be liars, thieves, etc?

[ Reply to This | # ]

More reasons to avoid many consumer products
Authored by: globularity on Saturday, January 29 2011 @ 08:46 AM EST
I would hardly call myself a sony customer, their behavior towards customer lock
in turned me off their products over a decade ago and I do my best to educate
people about this vile company.

Anybody who is silly enough to buy bluray or any other HDMI encumbered equipment
might have to worry with Judges like this around. What happens when a
manufacturers key gets compromised and holywood puts those keys on a revocation
list. There are going to be a lot of partially functional devices that people
paid good money for.

My latest music purchase is coming from China because that is the only place I
can buy it on plain CD not the sony disabled SACD format. Memory stick anybody?
Luckily that died.

---
Windows vista, a marriage between operating system and trojan horse.

[ Reply to This | # ]

how badly WP7 phones are actually selling
Authored by: SilverWave on Saturday, January 29 2011 @ 10:42 AM EST
http://www.appleinsider.com/articles/10/11/29/windows_phone_7_developers_fear_pl
atform_flop.html

Quote:
"Curiously, Microsoft had no problems reporting app sales data to its
developers in the Windows Marketplace for Mobile store last year, indicating
that the missing functionality related to sales data in the new WP7 App Hub is
an intentional effort to avoid any leaks of hard data that would show how badly
WP7 phones are actually selling."


---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Off topic - google-has-forked-android - Wrong
Authored by: SilverWave on Saturday, January 29 2011 @ 12:35 PM EST
Google has forked Android

Hmm no I don't think so...

http://www.engadget.com/2011/01/07/exclusive-interview- googles-matias-duarte-talks-honeycomb-tab/

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Giving the law a bad name
Authored by: cricketjeff on Saturday, January 29 2011 @ 01:20 PM EST
This is the sort of action by judges that completely undoes the good work you
(PJ) do on this site.
It shows that the legal system is much more interested in fancy trickery than in
justice. The JUST action would have been an order to Sony saying "You do
business in this person's home town, go there and sue. If you come back here I
will seriously consider citing you for contempt."
But no, the rich guy gets to use the law to do his bidding as usual.

---
There is nothing in life that doesn't look better after a good cup of tea.

[ Reply to This | # ]

Windows Phone 7 sales are really dragging - Down to 18K per day (Android 300K)
Authored by: SilverWave on Saturday, January 29 2011 @ 03:22 PM EST
Windows Phone 7 sales are really dragging

Quote:
It's apparent that the Windows Phone shipment rate also slowed. About 1.5 million devices were shipped in six weeks, for an average of 250,000 per week; then 500,000 were shipped in the next four weeks, or about 125,000 per week. And that was during the holiday shopping rush.

It's clear: Microsoft has a huge mountain to climb.


Note: the 18K figure is 125,000 per week converted to days.

125,000/7 = 17,857.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

California jurisdiction
Authored by: Anonymous on Saturday, January 29 2011 @ 05:16 PM EST
As I read the respective briefs:
* Plaintiff claims the PSN agreement has a venue selection clause for
California.
* Defendant claims not to own certain specific PSN accounts.
* Defendant claimed that specific to the update in question, defendant did not
need to agree to PSN terms.
* Plaintiff notes that defendant has not specifically denied ever having created
a PSN account or agreeing to PSN terms of use.

And, as I read it, Sony is correct on that last point. Defendant claims
"I've never agreed to PSN terms WHILE doing a firmware update,"
defendant never claims "I have never agreed to PSN terms and
conditions." Arguably, if the defendant ever agreed to PSN terms and
conditions, ever, Sony seems to have an argument that the venue selection
applies.

A claim of "I have never agreed to the PSN terms and conditions for any
reason" would have been a reasonable claim to make. If defendant could
have claimed that, but didn't, why not?

Personally, I hate clickthrough license and often unconsionable terms, and this
is illustrative of that greater problem. But given that the law seems inclined
to honor such agreements, I'm not sure why the judge's decision on venue is
unreasonable. It appears she conditionally accepted jurisdiction, pending a
more full hearing on whether defendant actually accepted the venue selection
clause.

[ Reply to This | # ]

Hollywood vs 321 Industries...
Authored by: wvhillbilly on Saturday, January 29 2011 @ 09:23 PM EST
>>"It is the technology itself at issue,
not the uses to which the copyrighted
material may be put," Illston wrote.
"Legal downstream use of the copyrighted
material by customers is not a defense
to the software manufacturer's violation
of the provisions (of copyright law)." ...
<<

Claw hammers can be used for murder weapons, so let's outlaw all claw hammers.
Same for chainsaws. Outlaw them too.
Telephones can be used for all sorts of illicit activities. Terrorism. Fraud.
Extortion. Setting off bombs. Hitting people over the head. And more. So let's
outlaw all telephones.

...

I could go on and on, but you get the idea. I think the judge's logic in this
case makes about as much sense as the above...

---
"It is written." always trumps, "Um, ah, well, I thought..."

[ Reply to This | # ]

Sony sends DMCA takedown notice to github
Authored by: NobodyYouKnow on Sunday, January 30 2011 @ 12:38 AM EST
Sony has sent github a takedown notice for some repositories that look like they're related to PS3 work:

http s://github.com/github/dmca/blob/master/2011-01-27-sony.markdown

(saw this on Slashdot, to give them fair credit)

[ Reply to This | # ]

Shouldn't the judge recuse herself?
Authored by: Anonymous on Sunday, January 30 2011 @ 03:11 AM EST
I mean her bias is obvious.

[ Reply to This | # ]

WP7 - satisfaction 44% NOT 93% as MS claim
Authored by: SilverWave on Sunday, January 30 2011 @ 03:13 AM EST

Quote:
"Of those that already owned a WP7 device by the December survey, there's good news on the satisfaction front (though it could be better). It is much improved for WP7 compared to Windows Mobile 6 and older, with 44% of phone owners calling themselves very satisfied with their new phones, compared to a horrid 18% who felt that way about older Windows Mobile platform."


Desire for Windows Phone 7 remains low despite Microsoft sales claims

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

What is a TPM?
Authored by: Anonymous on Sunday, January 30 2011 @ 10:27 AM EST

Really, from a legal point of view how does it stack up?
what does it need to be to qualify as a TPM?

Sony/The court clearly and explicitly sets out the admonition regarding ECDSA
keys.

So clearly that has something to do with the problem, but but but....

If your TPM (ECDSA) system requires a cryptographically secure random number to
encrypt/decrypt the various secure paths...

And your random number generator says,

return 4;

Then surely you can't claim it be a TPM/ECDSA!

If nothing else, you haven't met the standards required for it to be called in
any way protected.

And according to this it at least has a Federal standard..
http://en.wikipedia.org/wiki/Elliptic_curve_cryptography
gives this.. as a reference...

ECDSA; NIST FIPS 186-3

Which will mean more to an American than it does to me.

if not a TPM, then DMCA doesn't apply?

Would that mean then that Sony is now suing someone for revealing the secret
about something that Sony didn't do but desperately now wish they had?

The above message is encrypted, you should not decrypt and read said message
unless authorised to do so and the consequences of doing so or attempting to do
so may be dire (or not).

Failure of my encryption system is your fault because you've been told you
shouldn't read it.


[ Reply to This | # ]

Criminal Acts
Authored by: Anonymous on Sunday, January 30 2011 @ 07:56 PM EST
Lets step back from the trees, and look at the forest for a moment.

What did SONY do?
1. They advertised a product as having certain functions.
2. They sold that product with those functions.
3. They knowingly and intentionally destroyed that product.

They destroyed SOMEONE ELSE'S PROPERTY.

Keep in mind the distinction between ownership of the copyright to a work, and
ownership of a copy of that work.

If I buy an instance of a copyrighted book, I have legal ownership OF THAT
PHYSICAL COPY. The copyright owner has no legal title in that physical copy
after the sale. Its interest is only in the right to make other copies of the
content of the book; quite literally the copy-right.

If the owner of a copyright, or an agent thereof, entered my home and destroyed
the copyrighted book, or mutilated it, or altered it, that owner and/or agent
would have committed criminal acts.

When a person buys a PS3 they obtain legal title to specific physical objects,
including a chip containing a legal copy of some (presumably) copyrighted work
(the firmware) necessary to perform the advertised functions. After the sale
SONY has no legal title to that physical chip, or otherwise a right to destroy,
mutilate or alter that chip.

SONY in altering that physical chip (presumably without the legal owner's
consent) to destroy a function of the machine has destroyed someone else's
property, and that is a criminal act. In most jurisdictions, depending upon the
value of the property, that crime is a misdemeanor or a felony; both having jail
or prison time, as well as fines.

Here is where it gets interesting: Each unlawful mutilation of a PS3 was a
separate criminal act. But more importantly, each participant in the crime has
separate criminal liability. Thus SONY, the corporation has a criminal
liability, and the individual engineers who wrote the code are criminally
liable, and each involved supervisor, manager, or executive are also criminally
liable. If 100 people were involved in ordering, writing and distributing the
destructive code, then each single PS3 mutilation creates 100 criminal acts,
each with its own fine and jail sentence. Thus, if in a particular jurisdiction
the maximum fine for such a misdemeanor is $1,000., then each PS3 mutilation
could generate $100,000 in fines FOR THAT SPECIFIC JURISDICTION.

In the United States, each state is a separate legal entity, and in most states,
each county has separate prosecuting authority. Thus in New York State there
are 52 counties, each of which can bring separate criminal prosecutions against
both the corporation and each individual involved. Oh yes, did I mention that
fines are usually a revenue to the jurisdiction which prosecutes? And, county
DA's are elected by county taxpayers? Can you say financial incentive to pursue
such evil criminal acts?

BUT THERE IS MORE:
Clearly these PS3 mutilations were the consequence of an agreement between
individuals, which agreement was carried out. Such is a criminal conspiracy,
which is a separate criminal act, usually a felony, with correspondingly larger
fines and longer prison sentences, which can (especially the fines) be in
addition to the fines for the other criminal acts.

BUT NO, THERE IS EVEN MORE THAN MORE:
The United States has a charming concept called RICO (Racketeer Influenced
Criminal Organization) with both criminal and civil provisions. A key issue is
the commission of a specified number of criminal acts (4(?)). A consequence of
application of the RICO statutes is forfeiture / seizure of the RICO's assets /
proceeds. If, just thinkin now, a US Attorney in say, New Jersey, brought a
RICO prosecution involving several million counts of criminal vandalism in
pursuit of corporate profit, said US Attorney could end up seizing the SONY
Corporation (or at least as much of it as is in the United States).

BUT THERE IS EVEN MORE THAN MORE TO THE MORE:
Because of the decentralized legal system of the United State, once the ball
starts rolling, THERE IS NOBODY WITH THE ABILITY TO MAKE THIS GO AWAY. In each
county in which a PS3 was mutilated by SONY's criminal acts, the county DA has
independent authority to prosecute (and collect the fines for the county). At
best, a specific state's Attorney General may have some preemptive authority for
that state's counties, but no National Government official can prevent state
prosecutions for violation of state laws.

IN SUMMATION: (finally)
The issues here are not copyright law, nor are they contract law; rather they
are SONY's intentional destruction of property that did not belong to SONY, and
that, ladies and gentlemen of the jury is a crime, punishable by law.


I AM NOT A LAWYER
(but I watched Law & Order, once)
JG

[ Reply to This | # ]

Scary search
Authored by: pem on Sunday, January 30 2011 @ 11:32 PM EST
I got to thinking about personal jurisdiction. A lot of companies put verbiage about that in their dispute section, but I think most consumers think that means "if I need to sue the company, it's one more hoop I have to jump through."

Sony, like SCO, though, realizes that contracts and agreements are things to be used against their customers.

Since this sort of thing normally appears in terms of use, I googled:

"terms of use" "personal jurisdiction" warrant

Some of the results indicate that McBride and Sony aren't the only ones thinking this way. For example, Triumph Healthcare's Terms of Use states (emphasis added):

By using our website you expressly agree that exclusive jurisdiction for any dispute with us or in any way relating to your use, including misuse, of our website, resides in the federal and state courts located in Harris County, Texas. You also expressly consent to the exercise of personal jurisdiction in those courts in connection with any dispute relating to your use, including misuse, of our website.

So if there is a dispute where they sue you claiming you misused their site, you agree to go to Houston. According to their theory, which the esteemed Ms. Illston is presumably gullible enough to believe, I am now subject to Triumph Healthcare's wacky legal views, simply because I clicked on a link from within a google search, even though I didn't view any other pages on the website.

But, of course, it gets better, because like any other TOU, "You should review these terms and conditions regularly as they may change at any time at our sole discretion."

And, of course, I have already violated the copyright portion of their TOU, which doesn't make any explicit provision for fair use.

Of course, if I had a beef with them, it would probably be moot, because their limitations on liability absolve them of any possible wrongdoing.

So at the end of the day, Darl was apparently right. I can't possibly sue Triumph Healthcare and expect to win, because I have apparently agreed to simply take whatever they might do wrong in the future lying down. OTOH, they can sue me whenever the fancy strikes them, because, of course, there is nothing in there absolving me of any wrongdoing.

This was just one example of a site with this sort of wording. There are thousands of others. In fact, many of them look suspiciously similar. I wonder if Triumph Healthcare's TOU is original, or if they violated someone else's copyright.

[ Reply to This | # ]

just so you know
Authored by: Anonymous on Tuesday, February 01 2011 @ 03:48 AM EST
i am nto in usa and i have about as much as was ever offered.THUS its never
coming back and its now off into the wild.

PAYBACK for SONY ROOTKIT

[ Reply to This | # ]

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