decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books


Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook


Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

The EFF Letter: Sony's subpoenas "impact the free speech interests of myriad third parties"
Sunday, March 06 2011 @ 12:21 PM EST

Wired's David Kravetz has published the EFF letter [PDF] it sent to the judge in SCEA v. Hotz, and I have it for you as text.

George Hotz's lawyers agreed to the subpoenas issuing, so long as the information gleaned is kept attorneys' eyes only, according to the letter [PDF] Sony sent the Magistrate Judge Joseph Spero, and the judge merely signed off on it. I don't see Hotz's lawyer signing the letter too, which I'd normally expect. Why he'd agree to such a broad reach is disturbing. EFF noticed, telling the judge that the subpoenas implicate free speech interests of third parties not involved in the litigation, but nobody else seems to care. EFF is most concerned about the subpoena to YouTube, but the one I find overbroad is the subpoena to the company that hosts his web site, as I'll show you. No one else is looking out for the third parties in this picture, so if I were one of the third parties and I knew it, I'd be on the phone to my lawyer or EFF super pronto, asking him if I could block.

Let me show you what I mean about overbroad, looking at just one piece of what Sony demands that Hotz's web host supply:

3. Documents reproducing all records of IP addresses that have accessed or downloaded files hosted using your service and associated with the website, including but not limited to the "" file, from January 1, 2009 to the present,.
To the *present*? Think they'll haul in some dolphins with that tuna? Zillions of people went there out of simple curiosity when the story broke, I'm sure, and lots of people download articles to read them later. Is there a law against that? Their IP address belongs to Sony now. How narrowly tailored is such a request? So, that's why EFF sent its letter.

Now, there's a case that lets parties in civil litigation go after discovery of third parties, Doe v., Inc, but the normal rule from that case is that it has to be materials that are core, meaning related to a core claim or defense. EFF cited the case in its letter. Here, this is about jurisdiction, trying to prove a link to California. Sony is free to sue Hotz in New Jersey, and if they did, none of this deep-water fishing would be necessary. So I ask you: is it core? Or is it just that Sony wants to stay in California? Is that a core claim or defense sufficient to override the First Amendment rights of third parties?

Let's look at that case. It was about putting a name to anonymous commenters, and the court wouldn't allow it. Bear with me, because I need to quote a fair-sized chunk to make my point clear, and to further that purpose, I've highlighted particularly relevant sections:

C. Analysis of the present motion.

In the present case, TMRT seeks information it says will validate its defense that "changes in [TMRT] stock prices were not caused by the Defendants but by the illegal actions of individuals who manipulated the [TMRT] stock price using the Silicon Investor message boards." This Court must evaluate TMRT's stated need for the information in light of the four factors outlined above.

1. Was the subpoena brought in good faith?

This Court does not conclude that this subpoena was brought in bad faith or for an improper purpose. TMRT and its officers and directors are defending against a shareholder derivative class action lawsuit. They have asserted numerous affirmative defenses, one of which alleges that the defendants did not cause the drop in TMRT's stock value. TMRT could reasonably believe that the posted messages are relevant to this defense.

However, as originally issued the subpoena seeking the identity information was extremely broad. The subpoena would have required the disclosure of personal e-mails and other personal information that has no relevance to the issues raised in the lawsuit. This apparent disregard for the privacy and the First Amendment rights of the online users, while not demonstrating bad faith per se, weighs against TMRT in balancing the interests here.

2. Does the information sought relate to a core claim or defense?

Only when the identifying information is needed to advance core claims or defenses can it be sufficiently material to compromise First Amendment rights. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977) (in order to overcome the journalistic privilege of maintaining confidential sources, a party seeking to identify those sources must demonstrate, inter alia, that the "information goes to the heart of the matter[.]") If the information relates only to a secondary claim or to one of numerous affirmative defenses, then the primary substance of the case can go forward without disturbing the First Amendment rights of the anonymous Internet users.

The information sought by TMRT does not relate to a core defense. Here, the information relates to only one of twenty-seven affirmative defenses raised by the defendant, the defense that "no act or omission of any of the Defendants was the cause in fact or the proximate cause of any injury or damage to the plaintiffs." This is a generalized assertion of the lack of causation. Defendants have asserted numerous other affirmative defenses that go more "to the heart of the matter," such as the lack of material misstatements by the defendants, actual disclosure of material facts by the defendants, and the business judgment defense. [FN6] Therefore, this factor also weighs in favor of quashing the subpoena.

[FN6. Many of TMRT's affirmative defenses might be viewed by this Court as "non-core," including comparative fault, estoppel, laches, and unclean hands.]

3. Is the identifying information directly and materially relevant to a core claim or defense?

Even when the claim or defense for which the information is sought is deemed core to the case, the identity of the Internet users must also be materially relevant to that claim or defense. Under the Federal Rules of Civil Procedure discovery is normally very broad, requiring disclosure of any relevant information that "appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). But when First Amendment rights are at stake, a higher threshold of relevancy must be imposed. Only when the information sought is directly and materially relevant to a core claim or defense can the need for the information outweigh the First Amendment right to speak anonymously. See Los Angeles Memorial Coliseum Comm'n, 89 F.R.D. at 494 (holding that a party seeking to enforce a subpoena to disclose non-party journalistic sources must demonstrate that the information is of "certain relevance.")

TMRT has failed to demonstrate that the identity of the Internet users is directly and materially relevant to a core defense. These Internet users are not parties to the case and have not been named as defendants as to any claim, cross-claim or third-party claim. Therefore, unlike in Seescandy.Com and America Online, Inc., their identity is not needed to allow the litigation to proceed.

According to the pleadings, the Internet user known as NoGuano has never posted messages on Silicon Investor's TMRT message board. At oral argument, TMRT's counsel conceded this point but stated that NoGuano's information was sought because he had "communicated" via the Internet with Silicon Investor posters such as Truthseeker. Given that NoGuano admittedly posted no public statements on the TMRT site, there is no basis to conclude that the identity of NoGuano and others similarly situated is directly and materially relevant to TMRT's defense.

As to the Internet users such as Truthseeker and Cuemaster who posted messages on the TMRT bulletin board, TMRT has failed to demonstrate that their identities are directly and materially relevant to a core defense. TMRT argues that the Internet postings caused a drop in TMRT's stock price. However, what was said in these postings is a matter of public record, and the identity of the anonymous posters had no effect on investors. If these messages did influence the stock price, they did so without anyone knowing the identity of the speakers.

TMRT speculates that the users of the InfoSpace website may have been engaged in stock manipulation in violation of federal securities law. TMRT indicates that it intends to compare the names of the InfoSpace users with the names of individuals who traded TMRT stock during the same period to determine whether any illegal stock manipulation occurred. However, TMRT's innuendos of stock manipulation do not suffice to overcome the First Amendment rights of the Internet users. Those rights cannot be nullified by an unsupported allegation of wrongdoing raised by the party seeking the information.

4. Is information sufficient to establish TMRT's defense available from any other source?

TMRT has failed to demonstrate that the information it needs to establish its defense is unavailable from any other source. The chat room messages are archived and are available to anyone to read and print. TMRT obtained copies of some of these messages and submitted them to this Court. TMRT can therefore demonstrate what was said, when it was said, and can compare the timing of those statements with information on fluctuations in the TMRT stock price. The messages are available for use at trial, and TMRT can factually support its defense without encroaching on the First Amendment rights of the Internet users.


The Internet is a truly democratic forum for communication. It allows for the free exchange of ideas at an unprecedented speed and scale. For this reason, the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.

Courts should impose a high threshold on subpoena requests that encroach on this right. In order to enforce a civil subpoena seeking the identifying information of a non-party individual who has communicated anonymously over the Internet, the party seeking the information must demonstrate, by a clear showing on the record, that four requirements are met: (1) the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.

The Court has weighed these factors in light of the present facts. TMRT has failed to demonstrate that the identify of these Internet users is directly and materially relevant to a core defense in the underlying securities litigation. Accordingly, Doe's motion to quash the subpoena is GRANTED.

See how high the bar is supposed to be? What about those dolphins swimming with tunas and now about to be caught by Sony's broad subpoena? Are their First Amendment rights being honored? I don't see how.

And I especially don't see how if the only issue at the moment allegedly is that Sony wants to stay in California. Sony is perfectly free to sue Hotz in another state. Nothing, therefore, blocks Sony's ability to pursue its claims if third parties are protected. How does Sony's desire to remain in its home state override the First Amendment rights of uninvolved anonymous third parties?

I know. Some will answer, Yes, but Sony wants to find out who to sue next.


And that's exactly what the subpoenas are not supposed to be about. If it wants to do that, it has to ask for that, thus giving the third parties an opportunity to ask a court to quash the subpoenas.

How does Sony get around this? Partly by getting Hotz's legal team to agree, or so Sony claimed. I'm still waiting for confirmation on that. The judge accepted Sony's word, but I don't. So let's see how Sony dealt with the issues raised by EFF's letter.

In Sony's letter representing to the judge that Hotz had agreed to the subpoenas, it mentioned the EFF letter and asked the judge to disregard it as "moot", which he did. Let's take a look:

B. The Electronic Frontier Foundation Amicus Curiae Letter Is Improper And Moot

Disregarding the fact that the parties already reached agreement on this subject, on February 24, 2011, the Electronic Frontier Foundation (“EFF”) submitted an amicus curiae letter based on the original subpoenas (not the subpoenas as narrowed by the parties), asking the Court to deny issuance of the purportedly “overly broad” subpoenas to Bluehost, Twitter, Google, and YouTube. Because the parties have already met and conferred and narrowed the subpoenas identified by the EFF, the amicus curiae letter is moot as it essentially amounts to a request for an advisory opinion on an issue that has already been resolved. Had the EFF notified SCEA’s counsel of its intent to submit the letter, counsel would have informed EFF of the modifications agreed to by the parties, thus obviating the purported need for the EFF to burden the Court with its unpermitted letter brief.

Indeed, the EFF has failed to seek leave from this Court to submit its letter, which it is required to do. In any event, should EFF now seek leave to submit its amicus curiae letter, such a request should be denied. Generally, an amicus brief should only be allowed when “a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case, or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.” Community Ass’n for Restoration of the Env’t v. DeRuter Brothers Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wa. 1999) (citing Northern Sec. Co. v. United States, 191 U.S. 555, 556 (1903)). None of these circumstances are present here. First, nothing in the record suggests that the parties lack competent representation. Second, as the EFF concedes, SCEA “may properly seek information to pursue the limited question of this Court’s jurisdiction over Mr. Hotz.” As discussed above, the subpoenas in question are in fact narrowly tailored toward jurisdictional discovery. Finally, the EFF has not shown that it possesses any information that may assist the Court that the parties’ counsel cannot already provide. Accordingly, the EFF has failed to demonstrate that its amicus brief is warranted and its letter should not be considered by the Court.

Even if the Court was to reach the substance of the amicus curiae letter, the EFF’s assertions are without merit. The proposed subpoenas agreed to by the parties do not implicate the “free speech” concerns suggested by the EFF. The third party subpoenas merely seek information regarding Mr. Hotz’s transactions with entities based in California, as well as information regarding whether California residents accessed Mr. Hotz’s web content and/or had interactions with Mr. Hotz. SCEA is entitled to this jurisdictional discovery.

1. The Third Party Subpoenas Are Narrowly Tailored For Jurisdictional Discovery And Proper Under Applicable Law

None of the authorities cited by the EFF justifies denying the issuance of the third party subpoenas sought by SCEA. Indeed, the legal standard set forth in the very case relied upon by EFF, Doe v., 713 F. Supp. 2d 1088 (W.D. Wa. 2001), makes clear that SCEA should be allowed to serve the subpoenas. Under Doe, a subpoena to a third party is proper when: “(1) the subpoena seeking the information was issued in good faith and not for any improper purpose,3 (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.” Id. at 1095. As explained below, the third party subpoenas are proper under the Doe analysis.

As you see, Sony quoted rather selectively, leaving the real meat and potatoes off the plate. EFF knew the parties had agreed to let the subpoenas issue, but it nevertheless sent the letter. The judge ignored the concerns raised. This isn't necessarily the end, but the problem I see is Sony will already have the IP addresses of the folks they want to sue next, without so much as a direct request. Supposedly this is only about jurisdiction. But it doesn't feel like it to me. It feels to me like Sony is killing two birds with one stone and getting what they want through a back door. That's good lawyering, I guess, some would say, but if you think the First Amendment is truly vital, you do not admire it. I feel for those innocent third parties, who are now wondering how they got roped into something just for reading a web site. Sometimes professional fishermen think a few dead dolphins are worth it to make money on catching tuna. If you care about the dolphins, though, it feels very different. And, yes, I am absolutely appalled.

Meanwhile, there will be a hearing on jurisdictional discovery associated with the impoundment issues Hotz and the third party chosen to search his computers have raised:

91 - Filed & Entered: 03/04/2011
Clerks Notice
Docket Text: CLERKS NOTICE SETTING TELEPHONIC DISCOVERY HEARING. Telephonic Discovery Hearing re: Joint Letter on Impoundment Issues [docket no. 86] set for 3/10/2011 at 11:00 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. (klhS, COURT STAFF) (Filed on 3/4/2011)
The judge will be in the room, and the parties' attorneys will call in. But you can attend too, should you desire to witness what transpires. But as always, it's prudent to call the court and verify. There can be last-minute changes.

And here's the EFF letter:


February 24,2011

TO [email]

Magistrate Judge Joseph C. Spero
United States District Court
Northern District of California
Courtroom A, l5th Floor
450 Golden Gate Avenue
San Francisco, CA 94102

Re: Sony Computer Enturtainment Americø LLC v. Hotz, et al.,
Case No. C-11-00167 SI (N.D. Cal)
Amicus letter concerning Docket #62

Dear Judge Spero,

I am writing on behalf of the Electronic Frontier Foundation (EFF) as an amicus curiae to raise several concerns regarding the proposed jurisdictional discovery in the above-captioned case, specifically the subpoenas that the Plaintiff plans to issue to various online service providers.

EFF, a donor-supported non-profit organization, is concerned about the proposed subpoenas because they squarely impact the free speech interests of myriad third parties to this case, interests that are not represented by the parties here. EFF has worked for many years to protect the rights of individuals to speak and to access speech online anonymously, including serving as principal counsel or as amicus in several of the leading cases establishing the standards for discovery of the identity of online anonymous speakers.

Specifically, the proposed subpoenas to YouTube, Bluehost, Google and Twitter. (Exhibits F, G, I and J to the Declaration of Holly Gaudreau in Support of Motion for Expedited Discovery ["Gaudreau Decl."], docket no.62) appear to seek identifying information for anonymous individuals who are not parties to this lawsuit, based solely on the fact that they accessed or commented on information that defendant George Hotz published. For example, one subpoena demands production of documents such as identifying information for persons who have accessed any files associated with (see Ex. F at p. 6); another seeks information regarding persons who have accessed a video apparently posted on YouTube by defendant George Hotz, (Ex. J at p. 6) and even user names and IP addresses (which may reveal identifying information) for persons who have commented on the video (id.).

As this Court has recognized, this kind of discovery raises important constitutional issues. See USA Technologies, Inc. v. Doe,7l3 F.Supp.2d 901, 906-07 (N.D.Cal. 2010). As the Supreme Court long ago acknowledged, the First Amendment includes the right to receive ideas. Stanley v. Georgia, 394 U.S. 557,564 (1969). The First Amendment also shelters the right to speak and read anonymously. See, e.g., Doe v., Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001) ("The right to speak anonymously extends to speech via the Internet. Internet

Hon. Joseph Spero
February 24, 2011
Page 2

anonymity facilitates the rich, diverse, and far ranging exchange of ideas."). Accordingly, "efforts to use the power of the courts to discover the identities of anonymous speakers are subject to a qualified privilege" that must be addressed before discovery is proper. USA Technologies, 713 F.Supp.2d at 906.

To be clear, the constitutional privilege to remain anonymous is not absolute. Plaintiff may properly seek information necessary to pursue the limited question of this Court's jurisdiction over Mr. Hotz. Careful application of the constitutional standard is particularly important, however, where, as here, the discovery seeks information about non-parties and where, as here, the relationship to the narrow jurisdictional question at issue seem tenuous at best, particularly where the only basis for the overreaching requests appears to be that third-parties accessed Mr. Hotz's online publications or commented upon them.

The leading case in this context is Doe v., supra, in which the defendant in a shareholder class action lawsuit issued a subpoena request seeking identifying information for twenty-three participants in an internet message board, ostensibly because it claimed that messages posted on the board, rather than any action by the defendant, had caused defendant's stock to drop., l40 F. Supp. 2d at 1090. The court found that "the standard for disclosing the identity of a nonparty witness must be higher . . . Nonparty disclosure is only appropriate in the exceptional case where the compelling need for the discovery sought outweighs the First Amendment rights of the anonymous speaker." Id. at 1095. The court held that the requested information should not be produced unless (1) the subpoena was issued in good faith; (2) the information sought was related to a core claim or defense; (3) the identifying information sought was directly and materially relevant to a core claim or defense; and (a) information sufficient to establish or disprove that claim or defense was unavailable from any other source. Id., see also Foda v. Capital Health, 20l0 WL 2925382 (N.D. Cal. 2010); Enterline v. Pocono Medical Center, 2008 WL 5192386 (M.D.Pa. 2008).

The same standard must apply here, and it is difficult to imagine how Plaintiff can meet it given that it is authorized only to take targeted jurisdictional discovery. (Order Granting Plaintiff's Motion for a Preliminary Injunction; Referring parties to Magistrate Judge Spero for Discovery and Issues Related to Preliminary Injunction, docket no. 79). The identities of individuals who visited Mr. Hotz's website and viewed or commented on his video seem unlikely to be directly or materially relevant to the narrow jurisdictional question of whether Mr. Hotz can be sued in this district. And even if a marginal relevance showing could be made, it would not outweigh the First Amendment rights of those individuals to anonymously access the website and video. In any event, we are deeply concerned that it appears that the parties have made no attempt to even address the 2theMart standard. Unless and until the Plaintiff can make the required showing, we respectfully urge the Court to decline to authorize discovery of nonparties' identifying information.

In addition, the Video Privacy Protection Act, l8 U.S.C § 2710, protects some of the records Plaintiff seeks. The VPPA protects "personally identifiable information," which is defined to include "information which identifies a person as having requested or obtained specific video materials or services." § 2710(a)(3). Requests 3, 4 and 5 of the subpoenas to YouTube (Gaudreau Decl. Ex. J), appear designed to uncover this very information. The VPPA permits the disclosure

Hon. Joseph Spero
February 24, 2011
Page 3

of such information in a civil lawsuit only "upon a showing of compelling need for the information that cannot be accommodated by any other means" and then only if the subscriber has received notice and an opportunity to contest the request. § 2710(b)(2)(F). Unless and until Plaintiff meets this high standard, this Court should not authorize the subpoena to YouTube with these requests.

Finally, the Stored Communications Act, 18 U.S.C. § 2701 et seq., absolutely prohibits Request 6 in the YouTube subpoena (Gaudreau Decl. Ex. J), which seeks the content of communications left in comments on the private video. See l8 U.S.C. § 2702, see also O'Grady v. Superior Court, 139 Cal.App.4th 1423, 1448 (Cal.App. 2006) (Pursuant to the SCA, contents of communications may not be disclosed to civil litigants even when presented with a civil subpoena); In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D.Va. 2008) ("Agreeing with the reasoning in O'Grady, this Court holds that State Farm's subpoena may not be enforced ... because the exceptions enumerated in § 2702(b) do not include civil discovery subpoenas."); Federal Trade Comm'n v. Netscape Communications Corp., 196 F.R.D. 559, 561 (N.D. Cal. 2000) ("There is no reason for the court to believe that Congress could not have specifically included discovery subpoenas in the [SCA] had it meant to.")

For these reasons, we respectfully request that the Court deny the issuance of the overly broad subpoenas proposed, or, at a minimum, require a showing by the parties that the subpoenas (and any other subpoenas that may be issued) have been narrowed to meet the standards required by law. EFF remains willing to assist the Court with this matter further.

Respectfully submitted,

Corynne McSherry, Esq.
Intellectual Property Director
Electronic Frontier Foundation

cc: James G. Gilliland, Jr., Esq., Counsel for Sony Computer Entertainment America, LLC
(via email)
Stewart Kellar, Esq., Counsel for Defendant George Hotz (via email)


The EFF Letter: Sony's subpoenas "impact the free speech interests of myriad third parties" | 234 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 Sunday, March 06 2011 @ 12:27 PM EST
To assist PJ, please indicate the nature of the correction in the title of your
post where possible.

[ Reply to This | # ]

Off Topic here please
Authored by: tiger99 on Sunday, March 06 2011 @ 12:29 PM EST
Please, no on-topic stuff in this thread, or we will have to devise a suitable

Please observe PJ's posting guidelines, and try to make clickable links where

[ Reply to This | # ]

Newspick discussions here please
Authored by: tiger99 on Sunday, March 06 2011 @ 12:31 PM EST
Please try to identify which Groklaw newspick item you are referring to in the
title of your post. If possible, consider making a clickable link so the
relevant article is still accessible after it scrolls off the bottom of the

[ Reply to This | # ]

Keep the Comes coming!
Authored by: tiger99 on Sunday, March 06 2011 @ 12:33 PM EST
If you are working on transcribing the Comes depositions, you know what to post

[ Reply to This | # ]

Nonsense posts can go here......
Authored by: tiger99 on Sunday, March 06 2011 @ 12:35 PM EST
Trolls, shills, astroturfers, the aerodynamics of furniture. etc.

Hint: We have not heard much of the Footgun™® lately.....

[ Reply to This | # ]

The EFF Letter: Sony's subpoenas "impact the free speech interests of myriad third parties"
Authored by: Anonymous on Sunday, March 06 2011 @ 12:39 PM EST
I still don't get how if the ips are attorneys eyes only, and therefore gor
the purposes of this liitogatiom how they can use them in snother one.

[ Reply to This | # ]

The EFF Letter: Sony's subpoenas "impact the free speech interests of myriad third parties"
Authored by: Anonymous on Sunday, March 06 2011 @ 01:09 PM EST
Continuing my last comment, I've researched attorneys eyes
only protective orders, and every one I've seen says that the
material is for "the purposes of this litigation only." Sony
suing all the downloaders would make it for the purposes of
another litigation.

[ Reply to This | # ]

How do judges feel when this "digital" related type of case comes to them, and they are newbies?
Authored by: Anonymous on Sunday, March 06 2011 @ 01:58 PM EST
How do judges feel when this "digital" related type of case
comes to them, and they are newbies?

Should newbie judges be over-tasked with this digital stuff
(that they must not feel comfortable with)?

Do the judges draw straws in the cloak room to see who gets
the shortest, and *has* to take that "computer" case?

Could there be help courses that they can take to get up to
speed? Something?

[ Reply to This | # ]

The EFF Letter: Sony's subpoenas "impact the free speech interests of myriad third parties"
Authored by: Anonymous on Sunday, March 06 2011 @ 02:53 PM EST
I think a lot of people are missing a larger issue here with these subpoenas. I
watched a youtube video of Hotz after clicking on a link in a nationally
published tech news story. How many news organizations and reporters watched the
videos, linked to them, linked to the web site or quoted the web site?

If this were about politics or religion, would this be allowed? I'm not naive
enough to think that the public right to privacy isn't being violated every hour
of every day by one government or military agency or another, but for the
casting of this type of overly broad net to be openly and publicly approved by
any court in this country is unconscionable.

Who is this judge to approve an international corporation having my IP address
for merely following a link published in a nationally syndicated news story? How
dare he? This goes beyond violating free speech, it is a violation of the right
to see, read and hear. It can't get much worse than that. Tell me if trhis judge
has at least a high school diploma. Did he not take a course in American
government in school?

[ Reply to This | # ]

Has Sony subpoenaed German ISPs?
Authored by: Anonymous on Sunday, March 06 2011 @ 04:00 PM EST
Following the raid on Alexander Egorenkov, aka graf_chokolo,
he uploaded his material and Sony played a game of whackamole
as they issued takedown orders and the stuff appeared elsewhere.
When it went onto torrents both Sony and the uploaders seemed
to realise it was Game Over. Except that graf_chokolo's prize wasn't
just a single "circumvention device", it allegedly contained various
keys, his entire toolkit and instruction manual. Sony have a price of
one million euros on graf_chokolo's head.

OK it's across the Atlantic, but hey, this is the internet. Would somebody
please tell the judge in California her case no longer matters.

[ Reply to This | # ]

Assumed guilty until proven innocent
Authored by: jbb on Sunday, March 06 2011 @ 04:02 PM EST
Since we are at a very early stage in the proceedings, the defense hasn't been given a chance to argue the merits of the case or even get the judges up to speed on the tech involved or the dire consequences of a decision in Sony's favor (no private property containing limited access firmware). From my perspective, the judges seem to be ignoring obvious facts (such as geohot voluntarily taking down everything Sony was complaining about) and believing everything Sony says while disbelieving the defense.

I doubt it, but maybe, just maybe, this approach was valid for impounding geohot's equipment. But if the roles were reversed, for example if Sony had been accused of intentionally releasing a rootkit into the wild on what were supposed to be audio CDs, I don't think we would be anywhere even close to the impoundment of Sony equipment. What if Sony were sued over hundreds of thousands, perhaps millions, of violation of the CFAA? Would the plaintiffs be given every possible benefit of the doubt if they asked for a TRO to seize Sony's equipment in order to prevent further harm?

Now that geohot has taken down the information in question and the impoundment order is in place, for justice to be served it is vital that the judges stop assuming geohot is guilty until proven innocent and stop giving Sony the benefit of every possible doubt. IMO, at this early stage of the game, the defense shouldn't be required to file motions and objections to protect geohot's encryption keys or to halt Sony's massive dragnet of the internet. I don't understand why the judges aren't slapping Sony down hard for making such inappropriate requests even without prompting from the defense.

To me, it appears that the judges are presuming geohot is guilty and the proceedings in the court are pretty much a rubber-stamping formality. The presiding judge forgot to hold a hearing on the TRO and just ruled in Sony's favor. After being reminded via a last-second motion by the defense (who got chastised by the judge for their efforts), it appears that most of what the defense said was given no credence. Why was there a need to impound after the defendant voluntarily took down everything in question and promised not to put it back up?

[ ] Obey DRM Restrictions
[X] Ignore DRM Restrictions

[ Reply to This | # ]

What recourse for third parties?
Authored by: Anonymous on Sunday, March 06 2011 @ 04:06 PM EST
If Sony and George Hotz's lawyers agreed to the subpoenas,
that still doesn't settle the privacy issues of the people
being impacted.

Will Google and the others just roll over?

Do the third parties have no rights? It looks like EFF has
documented that they do.

Can the third parties sue Sony, regardless of the
"agreement", for some sort of harm? I mean, if you and I
were in a fight and I punched a third party, perhaps we
could agree that neither of us should be accountable for it,
but that doesn't make it so!

[ Reply to This | # ]

What about those dolphins swimming with tunas
Authored by: fstanchina on Sunday, March 06 2011 @ 04:42 PM EST
I have another question:
is there *any* indication that there is actually any tuna swimming in those

In other words, how would a list of people who accessed Geohot's website, sent
money on Paypal or watched that video on Youtube have anything to do with
jurisdiction issues?

[ Reply to This | # ]

The EFF Letter: Sony's subpoenas "impact the free speech interests of myriad third parties"
Authored by: JamesK on Sunday, March 06 2011 @ 04:47 PM EST
3. Documents reproducing all records of IP addresses that have accessed or
downloaded files hosted using your service and associated with the website, including but not limited to the
"" file, from January 1, 2009 to the

Wouldn't an ISP have to track and record every user and all their traffic, in
order to be able to provide this sort of info? As in spying on their


(I am not a lawyer and I don't play one on TV)

[ Reply to This | # ]

Sony's subpoenas evidence of their own Streisand effect footgun
Authored by: Crocodile_Dundee on Sunday, March 06 2011 @ 07:22 PM EST
I expect that Sony will discover when the web pages in question got widespread
interest, and whether that was before or after they fired their footgun.

I certainly heard about the issues via slashdot, but I didn't visit his page
until after I heard about the lawsuit. It just didn't interest me that much.

It would be absolutely great to subpoena people from CA and ask them whether it
was circumvention or cor curiosity caused by the lawsuit which drove them to the
site. I wonder if Sony would then have to sue their own lawyers?

That's not a law suit. *THIS* is a law suit!

[ Reply to This | # ]

Cconsequence of not following due process
Authored by: Anonymous on Sunday, March 06 2011 @ 09:08 PM EST
There has been a number of comments regarding instances of the judge not
following due process in this case, the TRO and these overly broad subpoenas
discussed here being just some examples.

Whether this failure of judicial due process is because of the judges overloaded
work schedule, incompetence or bias is not known but it is frightening that such
procedural errors are allowed to continue to be made.

So my question is, if the judge is not following due process due for whatever
reason, what legal recourse is there?

Can the judge be held to scrutiny by a higher judicial body before further
errors are made?

Can the judge be forced to step aside and hand over to another wig?

Is an injustice being allowed to continue until an unjust determination is made
with the only legal option being a later appealed to sort out such injustices
(if indeed they can be sorted out)?

[ Reply to This | # ]

I know a guy
Authored by: Anonymous on Monday, March 07 2011 @ 12:25 AM EST
I know of someone who went to the geohot website and downloaded the fix to
restore removed features to the PS3. This person also viewed Hotz's video on

This person doesn't even own a PS3 and has never used one.

Should this person contact EFF and tell them that he wants the release of his
name blocked from SCEA's overly broad and non-core discovery?

If a lot of people in a similar situation would contact EFF, is it possible they
could build a better case?

[ Reply to This | # ]

Data Capture & Jurisdiction
Authored by: sproggit on Monday, March 07 2011 @ 01:38 AM EST
Based on what I've read thus far, this case is based solely in the United States
and is being conducted under US Law. SCEA is an American Corporation and thus an
American legal entity. Mr Hotz is a US citizen.

Given the global nature of the internet (I am not a US citizen and do not reside
in the United States) there is a very high degree of probability that the
discovery data demanded by SCEA will include non-US individuals.

Can anyone explain - I have not seen it yet - how the discovery request proposes
to act in regard to non-US access to Mr Hotz's web pages?

I dare say that someone will argue that because the host computer is based in
the US that the case will therefore be conducted under US law and all access to
the servers will be subject to US legal oversight... but if this happens within
this case, then a precedent will be made and somewhere in the world a country
that still respects privacy is going to have a good time setting up ISPs and web
hosting services...

I bought a PS/3 in 2008 because I was only using Windoze for gaming and decided
that I disliked Microsoft enough to stop even that. The PS/3 seemed like the
most viable alternative, but recently I've seen that Sony are every bit as bad
as MS. I think it's time to go back to playing canasta with genuine playing
cards. Does anyone know if there are IP claims on that?


[ Reply to This | # ]

Is TMRT on point?
Authored by: Ian Al on Monday, March 07 2011 @ 03:35 AM EST
Here's a thought I wish I hadn't had.

PJ poses the question explored in TMRT of whether the subpoenas' damage to free
speech related rights was justified because it addressed a core defence.

The issue of personal jurisdiction is not the subject of either claims or
defences, as far as I can see. For instance, in New Jersey the subpoenas would
not be agreed by the parties or the court for jurisdictional purposes because
jurisdiction was not part of the case.

Does the court need to make new law based on the TMRT opinion? Does the court
need to rule that a lack of jurisdictional evidence does not justify
compromising the rights related to free speech in order to, potentially, gain
that evidence? Perhaps, on the other hand, jurisdiction and ongoing damage are
the only issues currently before the court and are therefore the core issues at
this point. Unless jurisdiction is resolved, the case cannot continue beyond the

If I were the judge and unless I had the personal 'phone number of King Solomon
I think I would say 'I'm too busy with another case at the moment' and scratch
my head until the time to opine ran out.

Ian Al
SCOG: Intentionally left Blank Rome upt

[ Reply to This | # ]

The EFF Letter: Sony's subpoenas "impact the free speech interests of myriad third parties"
Authored by: jacks4u on Monday, March 07 2011 @ 04:18 AM EST
So, is this "Abuse of Process"? Sony advancing their core claim and
more, while purporting to only advance a jurisdictional claim?

Can the companies subpoenaed here challenge? If so, are they likely to? Can Hotz
file an instant appeal of the order allowing these subpoenas? Can Sony ever be
sanctioned by the court for such bad-faith manoeuvring? Is this court
rubber-stamping whatever Sony wants? If so, why? Perhaps that's why Sony is
fighting so hard to keep this particular venue???

[ Reply to This | # ]

Tune = needle ....
Authored by: Anonymous on Monday, March 07 2011 @ 12:59 PM EST
What happens if Sony finds there are so many addresses in those lists that they
can't identify any tuna in that huge school of dolphins?

[ Reply to This | # ]

What if Sony Lied?
Authored by: Anonymous on Monday, March 07 2011 @ 01:01 PM EST
How does Sony get around this? Partly by getting Hotz's legal team to agree, or so Sony claimed. I'm still waiting for confirmation on that. The judge accepted Sony's word, but I don't. So let's see how Sony dealt with the issues raised by EFF's letter.

Obvious question here, but what would happen if Hotz's legal team went to the judge and stated that they had never agreed to the subpoenas - i.e that Sony had flatly lied to the judge? Would the judge continue to let Sony do what it wants, or would Sony face sanctions?

Just speculation at the moment, but interesting none the less.

[ Reply to This | # ]

I am somewhat confused
Authored by: Alan(UK) on Monday, March 07 2011 @ 03:41 PM EST
I am not even sure why all this information is available at all. Why do these
organizations keep all these IP addresses? Is it information that they happen to
keep for commercial reasons or is there some legal requirement to keep it?

Microsoft is nailing up its own coffin from the inside.

[ Reply to This | # ]

Anonymous motion to quash
Authored by: Anonymous on Tuesday, March 08 2011 @ 06:49 AM EST
I am sickened by the overreach of the subpoenas granted to Sony. When news
broke of George Hotz' jailbreak, I went to his site and viewed his video. Would
anyone here write a well-formed anonymous motion to quash? I would like to
distribute it and encourage others in similar situations who are offended to
also file similar motions.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )