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The Modified Preliminary Injunction Order in SCEA v. Hotz
Monday, February 14 2011 @ 11:24 PM EST

We have the details of the modifications that the judge in SCEA v. Hotz ordered [PDF] to her original preliminary injunction order. Here's how it will work:
(2) the Order of Impoundment is MODIFIED such that defendant Hotz will only be required to deliver his computers, hard drives, CD-roms, DVDs, USB stick, and any other storage devices on which any Circumvention Devices are stored (but not his Sony PS3 consoles) to Sony for the purpose of Sony isolating, segregating and/or removing the information on those devices related to defendantís circumvention of the technology protection measures in the PS3 system. Sony shall promptly return defendantís devices to Hotz after the information has been segregated and removed from defendantís devices.
Then the parties are to get together and decide what to do about the gleaned materials, as well as what an preliminary injunction should entail otherwise, and report back to the judge. So full details are still to be decided.

No. I don't know why the PS3 consoles are excepted. Something must have been said at the hearing that led to the decision. I can't imagine what, as it makes no sense to me, but there you are. As you can see, though, this judge is trying to be fair to both sides. And no, that doesn't mean the tech is understood thoroughly, if I may put it that way. But the law part is right.

The idea of a preliminary injunction is to keep further harm from happening, while the trial goes forward for a final decision one way or the other. Sony claims it will be irreparably harmed if this impounding doesn't happen, and the judge credits their claims enough that she wants to make sure that doesn't happen. It doesn't indicate a final decision, but it does mean the judge has weighed the likelihood of harm to each party, and decided it's important to establish some guidelines to prevent irreparable harm to SCEA, while making sure Hotz isn't damaged badly either.

Here are the filings:

02/14/2011 - 79 - ORDER GRANTING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION; REFERRING PARTIES TO MAGISTRATE JUDGE SPERO FOR DISCOVERY AND ISSUES RELATED TO PRELIMINARY INJUNCTION (SI, COURT STAFF) (Filed on 2/14/2011) (Entered: 02/14/2011)

02/14/2011 - 80 - NOTICE OF REFERENCE AND ORDER RE: DISCOVERY PROCEDURES. Signed by Judge Joseph C. Spero on 2/14/11. (klhS, COURT STAFF) (Filed on 2/14/2011) (Entered: 02/14/2011)

02/14/2011 - 81 - Notice of Settlement Conference and Order Setting Settlement Conference before Magistrate Judge Joseph C. Spero. Parties shall m eet and confer regarding the language of the injunction. If the parties are unable to agree on the language, a Joint Letter stating each side's position shall be submitted no later than 2/16/2011. Signed by Judge Joseph C. Spero on 2/14/11. (klhS, COURT STAFF) (Filed on 2/14/2011) (Entered: 02/14/2011)

That last item is the one that states that the parties should get together and figure out, if possible, what to do with the materials taken from Hotz:
The above matter was referred to Magistrate Judge Joseph C. Spero to assist the parties in their efforts to define the terms of the injunction. IT IS HEREBY ORDERED that the parties shall meet and confer regarding the language of the injunction. If the parties are unable to agree on the language, a Joint Letter stating each sideís position shall be submitted no later than February 16, 2011. The parties have agreed that Magistrate Judge Spero will choose one of the competing versions, and the parties will propose that version jointly to the District Judge.

IT IS HEREBY FURTHER ORDERED that the parties shall meet and confer regarding the mechanism for impoundment of the relevant files.

You can find both links explaining preliminary injunctions on our Legal Research page, so if you are ever curious about some news event, do visit and see if you can find the answers to your questions there.

And here's the order on SCEA getting to search Hotz's computers, as text, in full:

*****************

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

______________

SONY COMPUTER ENTERTAINMENT
AMERICA LLC,

Plaintiff,

v.

GEORGE HOTZ, et al.,

Defendants.

_______________

No. C 11-167 SI

ORDER GRANTING PLAINTIFFíS
MOTION FOR A PRELIMINARY
INJUNCTION; REFERRING PARTIES
TO MAGISTRATE JUDGE SPERO FOR
DISCOVERY AND ISSUES RELATED
TO PRELIMINARY INJUNCTION

________________

On February 10, 2011, the Court held a further hearing on plaintiffís motion for a temporary restraining order. As discussed at the hearing, the Court ENTERS the temporary restraining order found at Docket No. 50 as a preliminary injunction, subject to the following modifications:

(1) defendant Hotz will not be required to ďretrieveĒ any Circumvention Devices or any information related thereto, and thus the language at Docket No. 50 at 3:23-27 is STRICKEN; and

(2) the Order of Impoundment is MODIFIED such that defendant Hotz will only be required to deliver his computers, hard drives, CD-roms, DVDs, USB stick, and any other storage devices on which any Circumvention Devices are stored (but not his Sony PS3 consoles) to Sony for the purpose of Sony isolating, segregating and/or removing the information on those devices related to defendantís circumvention of the technology protection measures in the PS3 system. Sony shall promptly return defendantís devices to Hotz after the information has been segregated and removed from defendantís devices.

The parties shall meet and confer and work with Magistrate Judge Spero regarding logistics and timing of the temporary impoundment. If there are any disputes between the parties regarding the scope

of the information to be segregated and removed from defendantís devices, or any other disputes related to the temporary impoundment of defendantís devices, those matters shall be presented to Magistrate Judge Spero in the first instance.

The Court also REFERS to Magistrate Judge Spero the question of what targeted jurisdictional discovery Sony should be permitted to take in conjunction with defendantís motion to dismiss for lack of personal jurisdiction. Unless and until Magistrate Judge Spero orders otherwise, neither defendant nor any third party is required to respond to any of the discovery propounded thus far by Sony. As discussed at the hearing, if the parties wish to reschedule the March 11, 2011 hearing on defendantís motion to dismiss in order to allow sufficient time for such discovery, the parties shall so inform the Court and the hearing will be rescheduled.

This order resolves Docket Nos. 55 and 66; Docket No. 62 is referred to Magistrate Judge Spero.

IT IS SO ORDERED.

Dated: February 14, 2011

[signature]
SUSAN ILLSTON
United States District Judge

2


  


The Modified Preliminary Injunction Order in SCEA v. Hotz | 228 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here:
Authored by: kh on Monday, February 14 2011 @ 11:30 PM EST
Put the correction in the subject of your post if possible.

[ Reply to This | # ]

Off Topic Discussions here
Authored by: kh on Monday, February 14 2011 @ 11:32 PM EST
Discuss subjects not related to the article.

[ Reply to This | # ]

News Pick Thread:
Authored by: kh on Monday, February 14 2011 @ 11:34 PM EST
Discussions of News Pick Articles here.

[ Reply to This | # ]

Work on Comes here:
Authored by: kh on Monday, February 14 2011 @ 11:36 PM EST
Discussion of work on the Comes Documents here.

[ Reply to This | # ]

So will Hotz have to pay freight?
Authored by: kh on Monday, February 14 2011 @ 11:40 PM EST
Or will Sony SCEA have to pick them up from New Jersey?

[ Reply to This | # ]

Linux on a PS3
Authored by: Anonymous on Monday, February 14 2011 @ 11:52 PM EST
So if he has managed to get Linux running on the PS3 and he moved all his
development and files over there they won't get them.

Kind of stupid on the Sony side.

For fun. Here are a few rack fulls of PS3's running Linux courtesy of the US air
force.
http://www.tomshardware.co.uk/USAF-air-force-playstation-ps3-other-os,news-33473
.html

[ Reply to This | # ]

  • Linux on a PS3 - Authored by: Anonymous on Tuesday, February 15 2011 @ 05:11 PM EST
Questions about details
Authored by: Anonymous on Monday, February 14 2011 @ 11:58 PM EST
A few questions:

1. What safeguards are there to prevent sony from removing non-objectionable
material? With all hard drives and back ups, it doesn't seem there would be any
way to prove that Sony removed anything.

2. Can Sony use what it finds on the computer as evidence, or does it have to
ignore anything it finds? What if they find evidence of infringing activity
unrelated to the lawsuit. Can they sue over that?

3. What happens if it is ruled that there was nothing wrong to begin with? Will
Sony have to give back the data they deleted? If so, what happens if they
refuse? What happens if Sony tampers with it? With all backups in their hands,
would there be any way to prove they do so?

4. How do they delete data from CDs or DVDs? Will they make a copy of the CD or
DVD with the offending pieces removed? If so, who pays for that?

5. Does sony have sole authority to decide what material should be removed? Is
there any recourse if they flagrantly remove unrelated material?

[ Reply to This | # ]

Sony already has plenty of PS3's
Authored by: Anonymous on Tuesday, February 15 2011 @ 12:02 AM EST
I don't mean to be glib, but generally speaking, any one PS3 should be very much
like any other PS3, and for this case in particular, where George has uncovered
the key to the whole caboodle, Sony doesn't really need his PS3.

Contrast this with a hypothetical case where "the PS3 burned my house
down!!!!", which may have been caused an isolated manufacturing flaw.

[ Reply to This | # ]

Does it really prevent harm?
Authored by: MrCharon on Tuesday, February 15 2011 @ 12:31 AM EST
The restraining order makes since to me, but not the
impoundment as it doesn't prevent future harm to Sony. Even
if Sony got his PCs and his PS3, he knows how he get at and
calculate the keys. He can go into any store, get a new PC
and PS3 and have a new copy of the key. That knowledge is in
his head and isn't going anywhere. So taking his equipment
isn't preventing anything.

Side Note: Geohot's rap is on YouTubes most viewed list today.

---
MrCharon
~~~~

[ Reply to This | # ]

The impoundment order is just plain kooky
Authored by: jbb on Tuesday, February 15 2011 @ 01:30 AM EST
I guess it is because the judge believes the outright lies Sony keeps feeding her even though Sony was already found guilty of rooting half a million machines via their audio CD rootkit.

In their haste to misjustice, Sony let slip that the key was already in the wild and couldn't be gotten back. Therefore Sony spun some big whooping, irrelevant lies about geohot causing further harm totally unrelated to the current case. The whole excuse for the impoundment TRO was to prevent the key from spreading across the Net. Sony's shotgun request for subpoenas made it perfectly clear that there was absolutely no longer any excuse for such a rush to misjustice. Did it really matter if we had the sham hearing before or after the impoundment? I guess it looks better to have the hearing before the impoundment rather that after.

We seem to have traveled back to feudal (futile) times with corporations taking the role of the nobility and humans taking the role of the serfs. Despite the obvious lies and half million past transgressions of Lord Sony, the court takes his word over the word of the peasant geohot. Lord Sony's transgressions were mostly against peasants and since they don't count neither do the transgressions.

Sure, let's chop off geohot's hand just to make sure he can't make any money to defend himself against the further bogus charges from Lord Sony. Just like the peasantry were not allowed to own their own land, modern day peasants are not allowed to own their own electronics anymore. All electronics are now controlled by the corporations that paid to have them manufactured and while peasant are allowed to buy such electronics, they are not allowed to own them. Therefore it only makes sense that peasants should be presumed guilty until proven innocent and the nobility should be presumed innocent even after being proven guilty. If Lord Sony is upset, then clearly the uppity peasant did something terribly wrong and must be punished.

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

[ Reply to This | # ]

Privacy
Authored by: kh on Tuesday, February 15 2011 @ 01:32 AM EST
1. How long will Sony have his stuff? If it's a year or two, most of the
equipment will be obsolete. He will have moved on. Probably best for him to
write the equipment off. It would seem then that Sony's motion is punitive
only. All the data is in the public domain and it's staying there.

2. Why should Sony get access to his private business and data? Perhaps he can
ask that Sony can't get access, only a legal counsel?

[ Reply to This | # ]

The Modified Preliminary Injunction Order in SCEA v. Hotz
Authored by: tredman on Tuesday, February 15 2011 @ 01:50 AM EST
I'm at a loss like everybody else. In similar cases, there
is usually a protective order in place that requires that the
equipment be inspected and handled by a third party that both
sides can agree on. This seems to me like giving Sony
unilateral power.

---
Tim
"I drank what?" - Socrates, 399 BCE

[ Reply to This | # ]

Encrypted files
Authored by: Anonymous on Tuesday, February 15 2011 @ 06:21 AM EST
Here's a hypothetical. What happens if some of the files on Hotz's hard drive
are encrypted. Can Sony say "These files 'might' contain information
related to circumvention" and impound them on suspicion?

AFAIK, Hotz has not been required to hand over encryption keys.

[ Reply to This | # ]

Searching Computers
Authored by: The Mad Hatter r on Tuesday, February 15 2011 @ 07:32 AM EST

OK, so Sony is going to get his computers, and be able to search them. But...

The vast majority of computer experts who might do this know Windows. We don't
know what operating system Hotz uses. If he uses Linux, and Sony's law firm
and/or in house counsel doesn't have the skills necessary, what happens? Or for
that matter he could be running Solaris, BSD, or even Mac OSX, none of which the
average lawyer is likely to be familiar with. For that matter just think of the
early days of personal computing, when no one was familiar with computers :)

I am assuming that when a seizure of computers happens, that the computers
wouldn't be available to anyone in the Sony organization who wants to look at
them. At least I would hope not!

So PJ, what does Sony do if it can't understand what it's got because of lack of
necessary skills?



---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

How can he defend himself?
Authored by: Anonymous on Tuesday, February 15 2011 @ 09:05 AM EST
How can geohot run any kind of defense if Sony have *all* the records of any
of his potentially infringing activity? If he retains a copy of anything, Sony
will
point out he is in violation of this order. Without the ability to research
what
he said, to whom and when, it is very hard to rebut any Sony allegations,
especially if they misquote and build fabricated cases from researching this
impounded material. This motion seems to fundamentally flawed, denying
geohot a defense surely must be immediate grounds for appeal if he is found
guilty, but if I understand correctly, once you been found guilty (and violating

DMCA is a criminal, not a civil, offense) then the presumption of guilt no goes

against you and you must prove innocence - a much higher burden of proof.
Hopefully someone more legally informed can put some of my fears to rest
here, this looks very far from justice at the moment.

[ Reply to This | # ]

Can the defendant ask for a Tech Rep and Legal Rep to be present?
Authored by: Anonymous on Tuesday, February 15 2011 @ 10:11 AM EST

Specifically to take inventory of anything Sony does take a copy of or delete from the storage media?

Or is this something likely to occur behind closed doors at Sony?

I figure the odds they'll attempt to access information such as a facebook account so they can harvest personal information of contacts to be quite high.

But then, perhaps I'm a bit prejudiced due to Sony's apparent lack of ethics (removing functionality post-sale, installation of rootkit software). Perhaps in this instance, they'll comply fully with proper Legal procedures and won't use this as an opportunity to take discovery out-of-turn.

Hmm.... wonder if I'll see some porcine avians today.

RAS

[ Reply to This | # ]

"any Circumvention Devices"
Authored by: Anonymous on Tuesday, February 15 2011 @ 10:20 AM EST

It'll be interesting to see how that plays out.

This could be anything from using awk (having parsed out html with awk, it is possible awk was used in reverse-engineering) to a hex editor to basic cryptography steps you can do with a pen and paper.

I just thought of something really funny. There was that "protection" mechanism on cd's once-upon-a-time where all you needed was a felt tip pen to "circumvent" it. For such an order, I could just see the defendant's Legal representative asking to come up to the bench to turn over the circumvention device and when he places a felt tip pen on the Judges desk the look on her face when she realizes what it is.

I'm not sure I'd do that myself... a Judge might feel slighted by that and find Contempt Of Court before the person proves that's how they circumvented the protection mechanism.

RAS

[ Reply to This | # ]

But it has not even been show to be a DMCA violation yet
Authored by: Anonymous on Tuesday, February 15 2011 @ 10:49 AM EST
To be a "circumvention device" under the DMCA, the key must
interfere with the copying of copyrighted content. As as
everything I have seen, it does not such thing. It stops
you from installing your legally acquired copy of linux. It
does not stop the playing of copied games. It seems very
muich to function like the code chips in ink cartridges. It
does not protect intellectual property, but merely protects
Sony from competition.

So ... this tech-clueless judge has given Sony the right to
rifle through his computers and destroy information that is
already public for what? We don't even know yet that a
crime has even been commited!

Is she really that stupid? Is she really that biased toward
corporations?

When judges become unthinking tools of the corporations like
this, then there is no hope for justice anywhere.

[ Reply to This | # ]

The Modified Preliminary Injunction Order in SCEA v. Hotz
Authored by: almansur on Tuesday, February 15 2011 @ 11:16 AM EST
How is this order, allowing the accuser to take property, anything other than
the judge calling the defendant guilty?


---
Al Mansur

[ Reply to This | # ]

"any Circumvention Devices"
Authored by: Anonymous on Tuesday, February 15 2011 @ 12:23 PM EST
Just what are they looking for? He may have made a copy of the ROM so they want dd or cp maybe a hex editor. Maybe a bus pirate used to sniff the communication off the bus, or an oscilloscope. Maybe it is the copy of firefox used to post his findings. Maybe there is a need for a forum similar to Groklaw to get the lawyers together with electrical engineers Grokbits.

[ Reply to This | # ]

DMCA catch 22
Authored by: Anonymous on Tuesday, February 15 2011 @ 02:25 PM EST
With as much as the DMCA has been abused in every other field,
why should it not be that if Hotz owns copyright on anything
on his computer (like say, his program for deriving Sony's
master key), and he simply password protected that copyrighted
material, that Sony's lawyers and/or the court could be found
in violation of the DMCA because they had to "circumvent a
device that protects copyrighted material" to obtain the
materials specified in this injunction?

The law is supposed to apply equally to all, correct?

[ Reply to This | # ]

What happens if ...
Authored by: Anonymous on Tuesday, February 15 2011 @ 07:40 PM EST
What happens to the property if the court then determines that it does not have
jurisdiction of this case?

[ Reply to This | # ]

words and effects
Authored by: Anonymous on Wednesday, February 16 2011 @ 05:13 AM EST
> (2) the Order of Impoundment is MODIFIED such that
> defendant Hotz will only be required to deliver his
> computers, hard drives, CD-roms, DVDs, USB stick, and
> any other storage devices on which any Circumvention
> Devices are stored (but not his Sony PS3 consoles)
> to Sony for the purpose of Sony isolating, segregating
> and/or removing the information on those devices
> related to defendantís circumvention of the
> technology protection measures in the PS3 system.
> Sony shall promptly return defendantís devices
> to Hotz after the information has been segregated
> and removed from defendantís devices.

How to remove parts (isolating, segregating and/or removing the information)
from cdroms and DVDs? Further more, how to hand over online backup spaces? Will
Sony cut out the information on paper (letters as backup)?

Isn't circumvention of the technology protection measures allowed? Isn't it only
criminal when you do it to copy protected content? How can Sony delete
information that is worth and legal?

Isn't a "Device" hardware? And how can it be stored on a hard drive?

Where are the definitions? If the order doesn't provide it, a dictionary should
do?

Will Sony cut out things from Library books that Hotz read about cryptography?
Isn't an algorithm to crack code a "Circumvention Device"?

This order may make sense in the point of the view of a judge and paragraphs.
But it lacks common sense and lacks the exact professional language for IT that
is needed.

Amnesty International should support Hotz if this order stands.

[ Reply to This | # ]

Sony - Make.Believe
Authored by: Anonymous on Wednesday, February 16 2011 @ 06:29 PM EST
Weird, it seems GeoHotz just followed the Sony message:

Believe that curiosity is the key to creativity.
Believe that anything you can imagine,
you can make real

I imagine running Linux on an updated PS3.

Maybe I am wrong and the message "Make.Believe" is actually their legal tactic.

Sony Make.Believe Link

[ Reply to This | # ]

Gorsh, I sure hope... (necessary barriers?)
Authored by: BitOBear on Thursday, February 17 2011 @ 12:26 PM EST
I sure hope that Mr. Hotz hasn't previously printed out or posted in-toto the
contents of his work.

Paper always gets overlooked as a means of communication in these issues. A QR
printout of the key materials and sources would be just as machine-readable as a
CD (My android phone could do it using a free ap) likewise scraping a web page
or the OCR we do here regularly.

I think that Mr. Hotz should move to have the materials delivered to a third
party, not SCEA, so that the act of scrubbing the machines of the restrained
items cannot coincidentally become a fishing expedition for materials not
related to the actual _restraining_ part of the Temporary Restraining Order.
Since this isn't compelled discovery but a TRO there needs to be some
non-trivial means to prevent the access being granted in the name of restraint
from becoming a back-door to discovery.

A third-party consultant would fill that bill nicely.

Additionally, as a professional in the field of computer science I have _many_
binary blobs and encrypted data on my various machines as a simple consequence
of doing my daily due diligence. Were i faced with such an order, the sum-total
of what the other entity could retrieve from my machines without my assistance
would be far less than 1, and it would mostly be boot information (e.g. various
versions of the linux kernel etc.)

My system startup and access requirements have grown so complex that I have
started a sourceforge project (a http://underdog.sourceforge.net if you care) to
simplify and unify my covariant system start architectures and isolation
requirements.

Then there are the scratch-file type things with horrible temporary names like
"version1.zip" and my monotone version control database (see
http://monotone.ca if, again, you care) which contains not just code but
versions of my novels and short stories, all encrypted an hashed is the nature
of monotone. The fact that said file, named simply Monotone_Development.db in my
case (but it could be called "bob.stuff" if I cared to be so lax,
could contain material related to a TRO like this, were it served on me, is
obvious _to_ _me_ but not likely so to say SCEA.

Understanding, and indeed "washing out", even the basic elements of a
hacker's computer is a non-trivial exercise as it is as much about psychiatry
and individuality as it is about technology.

So without the assistance of the owner/hacker such an exercise is essentially
futile.

Without barriers to collateral discovery, it is just a trip to Cancun for deep
sea trolling.

This isn't like impounding someones financial records or their hand-written
manuscripts. Even with the limits as mentioned there is nothing that doesn't
prevent _both_ sides from crying foul later.

Where are the barriers and certainty? This TRO is a legal landmine for both
parties. IANAL, but as a technologist, were I working for SCEA, I wouldn't want
to get anywhere _near_ Mr. Hotz computers until discovery. I would have asked
for a TRO to require Mr. Hotz to escrow full copies (backups) of his systems
performed with under the eye of a knowledgeable third party, and then gag his
ongoing disclosure to the public.

As soon as we see any "that wasn't there before I gave SCEA access to my
systems" claims, either against the contents of the computers themselves or
the list of SCEA complaints they will inevitably amend, there will be legal
worms _everywhere_.

This TRO lacks necessary requirements _and_ barriers, in my humble opinion of
course.

[ Reply to This | # ]

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