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Hearing on TRO in SCEA (Sony) v. Hotz Tomorrow at 10 AM - At Hotz's Request
Wednesday, February 09 2011 @ 08:42 PM EST

This is last-minute-y, but there's going to be oral argument tomorrow morning at 10 AM in Sony Computer Entertainment America v. Hotz regarding the temporary restraining order. It's at Hotz's request, by the way, because tomorrow is the day he's supposed to turn over his computers to Sony, and he'd like to have a chance to speak, to present to the judge his concerns. It seems there never was a hearing on the merits of the TRO, so tomorrow is his opportunity to explain why he feels it's too broad, at a minimum.

If you are having trouble keeping track of all the motions in this litigation, frankly so am I and so are the court clerks, and the judge is getting annoyed. She's told the parties motions to shorten time must be "properly noticed" and if they want to shorten the time they must get an order first, and "stop immediately" confusing the clerks.

Here are the filings:

02/08/2011 - 66 - MOTION for Hearing re 50 Order on Motion for TRO MOTION FOR HEARING ON TEMPORARY RESTRAINING ORDER filed by George Hotz. Motion Hearing set for 2/10/2011 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. (Kellar, Stewart) (Filed on 2/8/2011) (Entered: 02/08/2011)

02/08/2011 - 67 - MOTION to Shorten Time FOR HEARING MOTION FOR HEARING ON TEMPORARY RESTRAINING ORDER filed by George Hotz. Motion Hearing set for 2/10/2011 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. (Attachments: # 1 Affidavit of Stewart Kellar, # 2 Proposed Order Granting Motion for Order Shortening Time)(Kellar, Stewart) (Filed on 2/8/2011) (Entered: 02/08/2011)

02/09/2011 - 68 - CLERKS NOTICE YOU ARE HEREBY NOTIFIED THAT counsel must not notice any motion prior to the what the Civil Local Rules require. All motions must be properly noticed. If counsel wish to have the hearing date heard on shorten time they must obtain an order allowing shorten notice. Counsel have continued to notice the motions improperly as if the motion for shorten time was granted already. This is improper and Counsel is instructed to stop immediately. This practice is causing matters to appear on the calendar improperly and causes confusion to the Courts staff and counsel.Any order filed granting the request will automatically adjust the properly noticed hearing date. (tf, COURT STAFF) (Filed on 2/9/2011) (Entered: 02/09/2011)

02/09/2011 - 69 - ORDER granting 67 Motion to Shorten Time (tf, COURT STAFF) (Filed on 2/9/2011) (Entered: 02/09/2011)

70 - Filed & Entered: 02/09/2011 Clerks Notice Docket Text: CLERKS NOTICE, Set/Reset Deadlines as to [66] MOTION for Hearing re [50] Order on Motion for TRO MOTION FOR HEARING ON TEMPORARY RESTRAINING ORDER MOTION for Hearing re [50] Order on Motion for TRO MOTION FOR HEARING ON TEMPORARY RESTRAINING ORDER. Motion Hearing set for 2/11/2011 10:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. (tf, COURT STAFF) (Filed on 2/9/2011)

71 - Filed & Entered: 02/09/2011
Clerks Notice Continuing Motion Hearing
Docket Text: CORRECTED ENTRY: CLERKS NOTICE Continuing Motion Hearing, Set/Reset Deadlines as to [66] MOTION for Hearing re [50] Order on Motion for TRO MOTION FOR HEARING ON TEMPORARY RESTRAINING ORDER MOTION for Hearing re [50] Order on Motion for TRO MOTION FOR HEARING ON TEMPORARY RESTRAINING ORDER. Motion Hearing set for 2/10/2011 10:00 AM before Hon. Susan Illston. (tf, COURT STAFF) (Filed on 2/9/2011)

#70 says the motion was set for February 11, but that's the clerk's confusion. The PDF says February 10th.

And here's what Hotz says made him file the motion:

On January 14, 2011, this court held a hearing that limited questions to the issue of personal jurisdiction over Mr. Hotz. The parties were instructed to submit additional materials bearing on the issue of personal jurisdiction. The merits of the TRO were not discussed. On January 27, 2011, without a hearing on the merits of the TRO itself, this Court granted the TRO, which was written by SCEA. Accordingly, Mr. Hotz was denied a hearing to raise issues regarding the overbreadth, vagueness and other objectionable requirements of the TRO. Mr. Hotz filed a Motion for Leave to file a Motion for Reconsideration of the TRO but has received no response from the Court. SCEA did not agree to allow Mr. Hotz a hearing to dispute the merits of the TRO, thus Mr. Hotz was forced to file his Motion for Hearing on Temporary Restraining Order. Kellar Decl. ¶3....

Due to the fact that Mr. Hotz’s hard drives and storage devices are scheduled to be impounded on February 10, 2011, Mr. Hotz’s motion is only effective if it is heard prior to the impoundment order taking effect.

If this is an accurate recounting of events, it looks like the court dropped a stitch. She granted the TRO without hearing from Hotz on the merits, although his lawyers were before her, and then didn't respond to his request for reconsideration prior to the date he was supposed to comply to the order. Hmm.

  


Hearing on TRO in SCEA (Sony) v. Hotz Tomorrow at 10 AM - At Hotz's Request | 229 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Offtopic Posts
Authored by: Guil Rarey on Wednesday, February 09 2011 @ 08:49 PM EST
don't forget the link

---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so

[ Reply to This | # ]

News Picks discussion
Authored by: Guil Rarey on Wednesday, February 09 2011 @ 08:50 PM EST
Have your say

---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so

[ Reply to This | # ]

Corrections
Authored by: Guil Rarey on Wednesday, February 09 2011 @ 08:52 PM EST
Please be sure to be specific

---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so

[ Reply to This | # ]

Comes material
Authored by: Guil Rarey on Wednesday, February 09 2011 @ 08:52 PM EST
...goes here

---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so

[ Reply to This | # ]

Hearing on TRO in SCEA (Sony) v. Hotz Tomorrow at 10 AM - At Hotz's Request
Authored by: Grog6 on Wednesday, February 09 2011 @ 08:59 PM EST
They HAVE to have a hearing, right?

I've never heard of anything like this.

Is the American Justice system really for sale?

I mean, we have the Feds new push over Copyright infringement from the $20k
purse type to p2p tracker sites.

Paid for by political contributions from the XXAA.

This TRO situation is like asking "Do you want a trial before we hang
you?"




---
I am not a Number, I am a Free Man. - Number 6

[ Reply to This | # ]

Reversible error standard for TRO?
Authored by: Guil Rarey on Wednesday, February 09 2011 @ 08:59 PM EST
In general, if I understand correctly, the principle of TROs is to allow courts
to move quickly to prevent harm, so I would expect judges to have a *lot* of
latitude.

And yet, failing to address the opposing party's filings or let them speak on
the merits is umm.....questionable? I can think of several less polite terms.

Does anyone know the legal standards?

---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so

[ Reply to This | # ]

What happens if ...
Authored by: Anonymous on Wednesday, February 09 2011 @ 09:59 PM EST
If they impound his equipment, are they allowed to search it?

If they do search, and find something incriminating, then are they allowed to
use it?

Are they still allowed to use it if it's later shown that this was a breach of
rules in allowing the order without hearing from the defendant?

[ Reply to This | # ]

Page 5 of TRO (Document 50)
Authored by: Anonymous on Thursday, February 10 2011 @ 01:19 AM EST
ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

IT IS ORDERED that Defendants shall show cause, unless Defendants waive the
right to do so, before the Honorable SUSAN ILLSTON of the United States District
Court for the Northern District of California located at 450 Golden Gate Avenue,
San Francisco, California at 10:00 a.m. on January __, 2011, why a preliminary
injunction should not issue restraining and enjoining Defendant Hotz, his
agents, employees, representatives and any other persons or entities in privity
or acting in concert or participation with him, from offering to the public,
distributing, marketing, advertising, promoting, installing, or otherwise
trafficking in Circumvention Devices. THE PARTIES SHALL MEET AND CONFER
REGARDING A HEARING DATE.

[ Reply to This | # ]

Perhaps he can mention that Sony's independently published the secret key
Authored by: Anonymous on Thursday, February 10 2011 @ 04:14 AM EST
... so no use in confiscating his equipment to keep it safe.

Sony tweets 'secret' key at heart of PS3 jailbreak case

Will the Sony VP also be instructed to retrieve the key from anyone who viewed his twitter message?

[ Reply to This | # ]

Workload
Authored by: maroberts on Thursday, February 10 2011 @ 04:33 AM EST
If the judge has a workload that precludes her from dealing effectively with the
case, can't it be passed on to some other less loaded judge?

[ Reply to This | # ]

Dropped a stitch is putting it mildly
Authored by: Anonymous on Thursday, February 10 2011 @ 07:25 AM EST

it looks like the court dropped a stitch.

Pardon my bluntness, but this judge's decisions have been unreasonable from the start. It's not just that she is completely clueless about the nature of the Internet, there also seems to be some bias against the little guy here. It's outrageous that a multinational corporation is allowed to specify a jurisdiction that is on the opposite side of the country from the defendant, an individual.

Maybe she plans to run for public office at some point in the future, and figures that Sony would be good for bigger campaign contributions than some young guy not yet out of college.

[ Reply to This | # ]

I think the Judge is catching up
Authored by: rsteinmetz70112 on Thursday, February 10 2011 @ 09:13 AM EST
I think this and the previous order denying SCEA's fishing expedition means the
Judge is catching on. This is not your ordinary kiddie hacker case and a lot of
people are watching.

I also wonder what additional harm Hotz can do at this point. His original stuff
is out there, directions to use it are out there pointing Sony engineers to how
it was done.

---
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 | # ]

Encrypt hard drives? Compensation?
Authored by: Anonymous on Thursday, February 10 2011 @ 09:52 AM EST
The purpose of the injunction is to prevent further harm.
So, if his hard drives are encrypted is there any requirement for him to provide
the passwords?
If they aren't encrypted is there any prohibition from doing so before turning
them over?

His computers are (I presume) required for his livelihood.
What compensation is he entitled to? Lost income while without the computers or
setting up replacements? Cost of leasing or buying replacement hardware and
software? If the case drags on too long, it'll be cheaper to buy than lease, who
decides?

Even once he's replaced the computers and software, he is without whatever
information was on them, what compensation does he get for lost income or
non-performance penalties he may suffer due to that?

Perhaps compensation depends on if he is found guilty/not-guilty and whether the
order is overturned as too broad after being enforced?

[ Reply to This | # ]

Impoundment, not discovery
Authored by: Anonymous on Thursday, February 10 2011 @ 11:37 AM EST
There have been a lot of posts here from people who assume that when Hotz turns
over his computers that Sony and their lawyers will have access to the data on
them. From my reading of the TRO, he is to turn them over "for
impoundment", which sounds like they will put under lock and key and no one
will be allowed access to them until such a time that the judge orders that any
information on them is discoverable.

[ Reply to This | # ]

Do we know if anyone from Groklaw is going to be able to make it to the hearing today? (n/t)
Authored by: Anonymous on Thursday, February 10 2011 @ 12:39 PM EST

[ Reply to This | # ]

Updates?
Authored by: Anonymous on Thursday, February 10 2011 @ 04:12 PM EST
The hearing should have been 3 hours ago, and the suspense is killing me :-)

[ Reply to This | # ]

Hotz loses and wins in TRO hearing
Authored by: SpaceLifeForm on Thursday, February 10 2011 @ 05:11 PM EST
Link

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Sony whines about Hotz linking to Sony's own blog
Authored by: Anonymous on Thursday, February 10 2011 @ 05:36 PM EST

Someone posted the metldr key's in a comment in Sony's own blog, and geohot linked to that comment; Sony is now submitting that into evidence as naughty behavior on geohot's part.

Indeed, SCEA only seeks to preclude Hotz from posting, linking to, or discussing the proprietary material and information that Hotz illegally gathered during his circumvention activities; the restriction is reasonable because Hotz has repeatedly distributed portions of that materials and information in an effort to aid others' circumvention efforts, and ultimately to facilitate copyright infringement. In fact, the restriction is particularly critical because Hotz has continued linking to the Metldr Keys even after this Court issued a Temporary Restraining Order against that very activity. Gaudreau Decl., ¶2-3, Exhs. A and B.
(source)

Holly Gaudreau's declaration then states:

Attached hereto as Exhibit A is a true and correct copy of a comment and hyperlink published by user “geohot” on the forum. The hyperlink directs users to the website referenced below as Exhibit B. Attached hereto as Exhibit B is a true and correct copy of a blog, including a comment published by user “mens rea 717” at page 5.

If you look at Exhibit A, it's a link to Sony's own blog. Sadly, Exhibit B is under seal.

[ Reply to This | # ]

Is it really a DMCA violation?
Authored by: Kilz on Thursday, February 10 2011 @ 05:55 PM EST
Please someone correct me if I am wrong. But what Hotz has
found is not a way to run games on the P3, but to load
another operating system on it. If I am correct, how is this
a violation of the DMCA?

[ Reply to This | # ]

Hearing on TRO in SCEA (Sony) v. Hotz Tomorrow at 10 AM - At Hotz's Request
Authored by: Anonymous on Monday, February 14 2011 @ 05:49 PM EST
Find out where the judge eats lunch and pay one of the
employees to put a TOS on here sandwich that says you may eat
all parts of this sandwich except the meat and no returns or
exchanges. When she ignores the TOS sue her for all she has.

[ Reply to This | # ]

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