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Judge Illston Alters Some of Her Order; Issues Referred to Magistrate - Updated 2Xs
Thursday, February 10 2011 @ 07:01 PM EST

The hearing in Sony Computer Entertainment America v. Hotz was held today, and Wired's David Kravetz reports the judge, the Hon. Susan Illston, acknowledged that some details of the case got away from her a bit, and she apologized. She's made some changes to her earlier orders.

Specifically, she realizes that there's no way to cleanse the Internet, so that part of her order is changed. He does still have to let Sony hunt through his computers, but she will put some limitations in place to make sure that's all they do.

The minutes from today's hearing are now posted, and the rest of the news is that it's been referred to the magistrate judge for further discovery and "to define the terms of the injunction". Hotz evidently crossed over that bar successfully too, enough to persuade the judge that there was a need to consider if her original order was too broad and too vague, his contention regarding the injunction.

Here's the minute entry:

02/10/2011 - 75 - Minute Entry: Motion Hearing held on 2/10/2011 before Illston (Date Filed: 2/10/2011). This case shall be referred to Magistrate-Judge Spero for purposes of discovery and to define terms of the injunction.(Court Reporter Belle Ball.) (tf, COURT STAFF) (Date Filed: 2/10/2011) (Entered: 02/10/2011)

Here's what Wired reports the judge said about searching the computers:
“Here, I find probable cause that your client has got these things on his computer,” she said. “It’s a problem when more than one thing is kept on the computer. I’ll make sure the order is and will be that Sony is only entitled to isolate … the information on the computer that relates to the hacking of the PlayStation.”
You know how I always tell you that judges aren't a bit worried about admitting to be wrong, if they find out they were? I present today's events as Exhibit A.

Further, according to International Business Times, Sony can't subpoena YouTube and Twitter:

A Federal court in California has denied Sony's motion to pull the personal information of Twitter and YouTube users who might have downloaded code that allows PlayStations to run with alternative operating systems.
And Gamasutra reports they can't subpoena Google or Paypal either. PSX-Scene clarifies that it means no expedited discovery, which is what SCEA was asking for. They can certainly try again later. There is a hearing next scheduled for March 11. SCEA was asking for the expedited discovery in order to prepare for that hearing, which is on the question of whether or not the California court will retain jurisdiction over Hotz or not. That is what was denied today, presumably, and SCEA will have to present its arguments based on what it has in hand or can get without the subpoenas it wanted.

Update: And here's the rest of the story:

02/09/2011 - 72 - Memorandum in Opposition TO 66 DEFENDANT'S MOTION RE: TRO filed bySony Computer Entertainment America LLC. (Gaudreau, Holly) (Filed on 2/9/2011) Modified on 2/10/2011 (ys, COURT STAFF). (Entered: 02/09/2011)

02/09/2011 - 73 - Declaration of HOLLY GAUDREAU in Support of 72 Memorandum in Opposition TO DEFENDANT'S MOTION RE: TRO filed bySony Computer Entertainment America LLC. (Attachments: # 1 Exhibit A to Declaration of Holly Gaudreau in Support of Plaintiff's Opposition to Defendant's Motion Re TRO, # 2 Exhibit B to Declaration of Holly Gaudreau in Support of Plaintiff's Opposition to Defendant's Motion Re TRO, # 3 Exhibit C to Declaration of Holly Gaudreau in Support of Plaintiff's Opposition to Defendant's Motion Re TRO)(Related document(s) 72 ) (Gaudreau, Holly) (Filed on 2/9/2011) (Entered: 02/09/2011)

02/09/2011 - 74 - Administrative Motion to File Under Seal EXHIBIT B TO DECLARATION OF HOLLY GAUDREAU IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION RE: TRO filed by Sony Computer Entertainment America LLC. Motion Hearing set for 2/10/2011 10:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. (Attachments: # 1 Affidavit Declaration of Holly Gaudreau in Support of Administrative Motion to File Under Seal Exhibit B to Declaration of Holly Gaudreau in Support of Plaintiff's Opposition to Defendant's Motion Re: TRO, # 2 Proposed Order [Proposed] Order Granting Administrative Motion to File Under Seal Exhibit B to Declaration of Holly Gaudreau in Support of Plaintiff's Opposition to Defendant's Motion Re TRO)(Gaudreau, Holly) (Filed on 2/9/2011) (Entered: 02/09/2011)

These are the arguments that SCEA filed with the court in opposition to Hotz's claims that the impoundment order was vague and overbroad. We know the outcome, but since we won't be able to read the transcript until May 11, when it's released at last, this is as close as we can get to what SCEA's position at the hearing was. It's not so very pretty. For example, #72 describes Hotz's position in part like this:
Hotz contends that the Order is overbroad because it prohibits him from hacking other companies’ secure systems and because it requires him to do the “impossible”: retrieve information distributed through the Internet. The Order does neither. He further argues that he should remain free to continue his campaign of “unauthorized access” to the PlayStation®3 computer entertainment system (“PS3 System”) and to publish information gained thereby, despite his having unlawfully circumvented the Technological Protection Mechanisms (“TPM”) in the PS3 System and having trafficked in circumvention technologies – charges he does not, and cannot, refute.
Is that what you thought Hotz said? Me neither. If you didn't read his motion, you'll find it here, so you can compare for yourself.

Update 2: And now we know the name of the magistrate judge, Magistrate Judge Joseph C. Spero, as well as the exact date the hearing transcript will be available, the 12th of May:

02/11/2011 - CASE REFERRED to Magistrate Judge Joseph C. Spero for Discovery (sis, COURT STAFF) (Filed on 2/11/2011) (Entered: 02/11/2011)

02/11/2011 - 76 - ORDER granting 74 Administrative Motion to File Under Seal (tf, COURT STAFF) (Filed on 2/11/2011) (Entered: 02/11/2011)

02/11/2011 - 77 - Transcript of Proceedings held on February 10, 2011, before Judge Susan Illston. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373-2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/12/2011. (Ball, Belle) (Filed on 2/11/2011) (Entered: 02/11/2011)

02/11/2011 - 78 - DOCUMENT E-FILED UNDER SEAL re 76 Order on Motion for Hearing, Order on Administrative Motion to File Under Seal Exhibit B to Declaration of Holly Gaudreau in Support of Plaintiff's Opposition to Defendant's Motion Re: TRO by Sony Computer Entertainment America LLC. (Gaudreau, Holly) (Filed on 2/11/2011) (Entered: 02/11/2011)


  


Judge Illston Alters Some of Her Order; Issues Referred to Magistrate - Updated 2Xs | 220 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please, if needed
Authored by: tiger99 on Thursday, February 10 2011 @ 07:04 PM EST
To assist PJ, please indicate the nature of the correction in the title of your
post.

[ Reply to This | # ]

Off topic here please
Authored by: tiger99 on Thursday, February 10 2011 @ 07:06 PM EST
Nothing on topic with respect to the main article here please, or you may be embarassed by what we have to say about it.

Please remember to make clickable links where possible.

[ Reply to This | # ]

Newspick discussions here please
Authored by: tiger99 on Thursday, February 10 2011 @ 07:09 PM EST
Please indicate which Groklaw Newspick item you are referring to in the title of
your post, and try to make a clickable link to the relevant article in the body
of your post. As someone recently pointed out, this means that the article can
still be easily located long after the newspick has scrolled off the bottom of
the page.

[ Reply to This | # ]

Go and put Comes here!
Authored by: tiger99 on Thursday, February 10 2011 @ 07:10 PM EST
If you are working on transcribing the Comes depositions you know what to do.

[ Reply to This | # ]

Judge Illston Alters Some of Her Order; Issues Referred to Magistrate
Authored by: rocky on Thursday, February 10 2011 @ 07:22 PM EST
Wow. I am pleasantly surprised.

[ Reply to This | # ]

Judge Illston Alters Some of Her Order; Issues Referred to Magistrate
Authored by: bryhawks on Thursday, February 10 2011 @ 07:35 PM EST
I have a question that may sound dumb but doesn't the ability to jailbreak the
iphone legally create a huge hurdle for SCOny? While one is not a phone and the
other is, the larger picture in my mind is that they are both essentially
computers that run some form of OS so both really are more similar than not.
Also if you look at them that way then you really have no case because I/you can
put what ever OS, patch, application, etc. Even change the OS if we so desired
and there is not law that makes that illegal.

[ Reply to This | # ]

Does this mean Geohot gets to keep his 'puters,
Authored by: Anonymous on Thursday, February 10 2011 @ 08:23 PM EST
At least until Magistrate-Judge Spero gives a ruling on discovery and the injunction?
Spero's calendar looks fairly busy, unless somebody dares try and eat into those five days after Feb. 21. A Google search for Spero reveals the colorful panoply of Northern California life has passed thru his court. And there's this gem
Northern District Magistrate Judge Joseph Spero requires that the conferences prerequisite to the filing of discovery motions occur in person, “except where good cause is shown why a telephone meeting is adequate." Standing Order for Magistrate Judge Spero, Northem District of California. “Good cause" may be difficult to show. In a patent case, Magistrate Judge Spero recently ordered counsel to fly across the country to hold the conferences in person.
California Litigation Vol.17 :1 2004

[ Reply to This | # ]

Slightly worrying she says "...hacking of the PlayStation"
Authored by: Anonymous on Thursday, February 10 2011 @ 08:47 PM EST
Hopefully someone can explain to her the difference between hacking and
cracking/jailbreaking. And how the latter has been found by another court to be
perfectly legal with respect to iPhones.

Her use of the word hacking suggests she's buying into the idea that Hotz broke
into another person/company's property - rather than his own bought and paid-for
kit.

[ Reply to This | # ]

Return of information
Authored by: Anonymous on Thursday, February 10 2011 @ 11:24 PM EST
He should have asked wikileaks to create an anonymous wiki page where everyone
who had encountered the encryption key could repost the key and
"return" it.

He could then "return" the information to Sony by sending them the URL
to wiki page.


[ Reply to This | # ]

SCEA's Irreparable Harm Is Ongoing
Authored by: Anonymous on Friday, February 11 2011 @ 12:43 AM EST
But their rhetoric gun is in fine order with a nice quote from Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294, 344 (S.D.N.Y. 2000),
[where the court] found that modern technology’s ability to swiftly disperse information has not “withered the strong right arm of equity,”
GL readers will be aware the date of Reimerdes was 2000, when the swift dispersal occurred after the defendants had beseeched supporters to disseminate the information. The technology eventually devolved to t-shirts. Fast forward to 2011 when Google returns 100,000 hits for mirrors of Hotz's hack, and he barely lifted a finger.
B. The Injunction Is Not Impossible To Perform
Hotz claims that the injunction is impossible to perform because it requires him to “retrieve the Internet.” Not so. [...] He is required only to retrieve the circumvention devices and illicit information from those he knows have it.
Now Sony cannot be so dumb that they do not know their "irreparable harm is ongoing" because of the thousands of copies of the "circumvention device" in the hands of persons unknown to Hotz. No, this is the strong right arm of equity, having started the legal steamroller they dare not stop it, even when they see only a gnat in front of them.

If I were Hotz I'd be asking my attorney what is the purpose of these assertions that his activities are illegal? I wonder if Hotz' can claim that his hack was a lawful circumvention for interoperability with OtherOS which had been working on his machine when Sony sold it to him. Assuming the truth of his assertion that his hack does not permit playing of pirated games, he could still be hauled in by the Sony juggernaut for contributory infringement if they are clever enough to link any pirate game hack to Hotz' work.
The impoundment order is necessary to (1) prevent Hotz’s further access to these circumvention technologies during the pendency of this action; and (2) prevent further harm to SCEA. The risk of harm to SCEA is clear. For example, Hotz has already admitted to playing unauthorized video games after circumventing the PS3 System, stating that “playing super mario world [i.e.,a game not even licensed to be played for the PS3] made all my time investments worth it.” [emphasis added]
There we have it. It's about the money. Good children use their PS3 only to play games they bought from Sony. Good children must not be allowed to build their own games, or heaven forfend, play games they bought from some other vendor.

Quotes from [SonyHotz-72] Memorandum in Opposition TO DEFENDANT'S MOTION RE: TRO, 9pp pdf

[ Reply to This | # ]

Sony attacking Strawmen
Authored by: SpaceLifeForm on Friday, February 11 2011 @ 01:36 AM EST
That is all they have.

They have completely exposed their own legal attack
as nothing more than that, an attack.

The key that Hotz found does nothing more that allow
the Other OS function to work.

The key that Sony themselves re-tweeted is the more
damaging key in terms of Sony revenue because it allows
pirated copies of games to function.

Hotz did not reveal that key.

In fact, Hotz is probably in a position to document
how he discovered the METLDR key and to demonstrate
that it will cause *NO REAL DAMAGES TO SONY*.

And Sony does not need his computers for him to do that.

This case is showing how the lawyers don't get the tech.

Their mindset is attack, attack, attack because somehow
the actions of a technically minded person do not conform
to the management views of profit through secrecy.



---

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

[ Reply to This | # ]

Does this mean she's aware that Sony is being less than forthright?
Authored by: Anonymous on Friday, February 11 2011 @ 02:32 AM EST
From the Wired article:

Illston said she changed her mind because she was not clearly aware of the details in her earlier order. “This kind of got away from me and I apologize for that,” she said from the bench.

Does this mean she's now on to Sony's alarmist rhetoric?

bkd

[ Reply to This | # ]

Can Sony modify the data on the computers
Authored by: Anonymous on Friday, February 11 2011 @ 03:22 AM EST
Can SONY copy all the data onto their own machines and reformat all his hard
drives for example?

It would seem an awfully mean spiteful and nasty thing to do given that the
man's lifetime's work is on these machines. That is why I expect SONY to do it.

[ Reply to This | # ]

Sony tweets key
Authored by: Anonymous on Friday, February 11 2011 @ 05:42 AM EST
A Sony employee tweeted the key http://twitpic.com/3xwe6h.
Now what ? Sony itself leaked the one peice of information they wanted to be
kept out of view. How can they ever win anything about a crack that they now
have published themselves ? Is that detrimental to their lawsuit ?

Ric

[ Reply to This | # ]

Judge Illston Alters Some of Her Order; Issues Referred to Magistrate - Updated
Authored by: Anonymous on Friday, February 11 2011 @ 07:39 AM EST
in exhibit A it shows geohot posting a link to the official US
Sony Playstation 3 blog

To my knowledge an individual was posting the metldr keys
(obviously as a joke) in the blogs comments.

Surely geohot linking to the official playstation 3 blog can
not be a violation of the TRO right? (he can't control the
internet...how is he able to stop people from posting the
keys)

[ Reply to This | # ]

PJ, Did You Know That You Are A Source Article for the Wall Street Journal
Authored by: The Mad Hatter r on Friday, February 11 2011 @ 09:07 AM EST

Was doing a search on the name of the judge in this case, and one of the articles that popped up was on the Wall Street Journal. Was in the middle of something else, came back to it a couple of hours later and started to read it. One paragraph, which seemed awfully familiar, which ended with a link that said 'Visit Source Article', which when I clicked on it, brought me here.

The Wall Street Journal page is here.

Congratulations PJ! Being recognized by the Wall Street Journal is a coup, even if it isn't the force it once was.

Have to admit when I realized what I was seeing, my first thought was that if someone showed this to Darl McBride he'd probably suffer a coronary on the spot.

---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

Trade Secrets
Authored by: Anonymous on Friday, February 11 2011 @ 10:25 AM EST

If Mr. Hotz does work for another company - like, for example, Apple. And he does that work on one of the devices that is scheduled for being impounded.

Couldn't the associating company file for appropriate protective orders?

This is a complete hypothetical as I do not know what work Mr. Hotz is involved in.

RAS

[ Reply to This | # ]

  • Trade Secrets - Authored by: Anonymous on Friday, February 11 2011 @ 02:07 PM EST
Judge Illston Alters Some of Her Order; Issues Referred to Magistrate - Updated
Authored by: Anonymous on Friday, February 11 2011 @ 11:52 AM EST
"This case shall be referred to Magistrate-Judge Spero for purposes of
discovery and to define terms of the injunction."

So for those of us outside the US, what is a Magistrate-Judge? Why is one being
used now in this case? Why can't Judge Illston clear up her own mess?

Bob

[ Reply to This | # ]

Nokia and MS Oh dear! FAIL This needs 2 Fail! icons.
Authored by: SilverWave on Friday, February 11 2011 @ 01:51 PM EST
The reg says it best via a comment:

Oh dear! #

FAIL

This needs 2 Fail! icons.

---
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 | # ]

Why is the DMCA at all relevant?
Authored by: jbb on Friday, February 11 2011 @ 02:44 PM EST
You can use the signing key to let your own hardware (the PS3 that you bought) run your own software (Linux). The firmware is not touched.

This is different from, and more innocuous than, the iPhone jailbreak where the firmware was touched to allow the owner to use a different carrier. It was this modification of the copyrighted firmware that made the DMCA even possibly applicable to the iPhone jailbreak. Since there is no firmware hack with geohot's PS3 jailbreak, I don't see how the DMCA even comes close to applying unless by virtue of the Golden Rule:

Them that's got the gold makes the rules.

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

[ Reply to This | # ]

Defenses Hotz lawyers have not yet presented, but should
Authored by: Anonymous on Sunday, February 13 2011 @ 12:08 AM EST
If any of the following defenses are technically valid, they
need to be presented to the courts, and soon, to get them on
the record. There are probably many ways to do this, e.g.
by including them in the text of a related motion (so as not
to file too many motions, which this judge apparently
dislikes):

1. SCEA is technically incorporated in a state other than
California, if any of Hotz actions were directed at SCEA
(which he denies), they were directed at that other state,
not California. This goes to jurisdiction.

2. Preserving the chain of evidence. To the extent that the
contents of Hotz' computers might be evidence in this case,
it is a gross violation of due process to allow SCEA council
or any other entity loyal to SCEA to take early possession
of said computers, as it would be near impossible to prove
that the evidence is unaltered after they touch it.

3. National Security. The United States is presently at
war. Hotz' work is needed to protect an actual US Air Force
facility in New York State from actual ongoing harm at the
hands of foreign entity SCEI Japan. Therefore it would be
against US national security interest to allow a foreign
controlled entity to prosecute a loyal US citizen for
helping the US military at a time of war. Preferably this
should come as an amicus brief or other direct message from
the USAF to the court.

4. The playstation.net site quoted in a previous defense
filing and the rights to the PlayStation at the heart of the
plaintiffs allegations are both owned by Sony Computer
Entertainment Inc., 2-6-21, Minami-Aoyama, Minato-ku, Tokyo
107-0062, Japan (henceforth SCEI), therefore that site
cannot really be claimed by the plaintiff to be an
illegitimate 3rd party site, even if SCEI is not a formal
party to this case.

5. SCEA has openly admitted in this court to acting as a
proxy for SCEI of Japan (insert formal reference here),
because SCEA is only acting as a proxy in this litigation,
its location in California should have no bearing on the
issue of jurisdiction and venue, only the locations of the
principals SCEI (Tokyo) and Hotz (New Jersey) should matter.

6. Failure to state a case. Plaintiff has not specified a
single copyrighted work protected by the measure Hotz is
alleged of circumventing, therefore the DMCA allegations
should be thrown out, leaving only the other, secondary
allegations.

7. As the owner in possession of the computer(s) in
question, Hotz has the authority to authorize access to
those computers and has so authorized himself to accessing
them. Therefore his actions were authorized under the terms
of the computer fraud and misuse act and hence obviously
legal (cite applicable black letter law and/or precedents
clarifying the authority of Hotz to so authorize access and
use).

8. Unreasonable search. Allowing SCEA or any other entity
not chosen by Hotz to gain control of the entirety of his
computers would constitute an unreasonable search of his
papers and effects banned by the 4th amendment, especially
in light of its historical precedent of Entick v. Carrington
regarding the scope of seizure in such a situation (all his
papers/files versus just the (allegedly) criminal ones).

9. Privilege. Hotz' computers contain privileged
communications between Hotz and his lawyers. Plaintiff
shall not be allowed to see or access those computers, even
if they are impounded by the court. If impoundment is to
take place, the impounded computers shall be deposited at a
secure government facility such as a federal courthouse or a
US military facility (Such as the USAF Rome laboratory in NY
State), not handed over to plaintiff.

[ Reply to This | # ]

What's the situation now about the hard drives ?
Authored by: Anonymous on Sunday, February 13 2011 @ 06:38 PM EST
Sorry, I am not a US citizen and not a native english speaker, and I do not
fully understand the situation now :
- must geohot give (access to) his hard disks to Sony now or must that be
decided later by magistrate Spero ? If that's already decided, does that mean
that judge Illston declared geohot guilty ? And if she has'nt declared him
guilty, why can Sony get access to his hard drives ? His hard drives are his
personal properties and contains his intellectual property that he may decide to
divulge or not. Only the justice or an independent expert should get access to
this drives, if necessary, but certainly not the plaintiff. If that's really
granted to Sony, does that mean that any company A could go ask a judge to give
it access to hard drives of company B for any alleged reason ?

[ Reply to This | # ]

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