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Judge Spero Rules on Jurisdictional Discovery in SCEA v. Hotz
Tuesday, March 29 2011 @ 11:48 PM EDT

The telephonic hearing in SCEA v. Hotz was yesterday, the one about how to handle jurisdictional discovery, and here's what Magistrate Judge Joseph Spero decided to do. Keep in mind, though, that this is still not the main event. This was about how to handle George Hotz's impounded devices, which is related to Sony's expressed need to do discovery to oppose Hotz's motion to dismiss on jurisdictional grounds. So we're still in the buildup phase, where SCEA is fighting like the devil to find a way to pin Hotz to California's jurisidiction, which so far it has been unable to do. It's a split decision, you might say, with Hotz winning some and losing some and ditto for SCEA.

The filings:

03/29/2011 - 118 - Minute Entry: Telephonic Discovery Hearing held on 3/28/2011 before Joseph C. Spero re: Joint Letter Re: Jurisdictional Search of Mr. Hotz's Impounded Hard Drive [docket no. 98] (Court Reporter Kathy Sullivan.) (klhS, COURT STAFF) (Date Filed: 3/29/2011) (Entered: 03/29/2011)

03/29/2011 - 119 - Proposed Order re 118 Discovery Hearing, [PROPOSED] ORDER RE PROTOCOL FOR JURISDICTIONAL DISCOVERY ON IMPOUNDED DEVICES by Sony Computer Entertainment America LLC. (Smith, Mehrnaz) (Filed on 3/29/2011) (Entered: 03/29/2011)

03/29/2011 - 120 - Notice of Withdrawal of Motion to Quash (Wrubel, Kenney) (Filed on 3/29/2011) (Entered: 03/29/2011)

03/29/2011 - 121 - Transcript of Proceedings held on 3/28/11, before Judge Joseph C. Spero. Court Reporter/Transcriber Katherine Powell Sullivan, RPR, CRR, CSR, Telephone number 415-794-6659/Katherine_Sullivan@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 6/27/2011. (Sullivan, Katherine) (Filed on 3/29/2011) (Entered: 03/29/2011)

Update: And now, on April 4, a Stipulated and Proposed Order has been filed for the judge's signature:

04/04/2011 - 124 - STIPULATION re 122 Order STIPULATION AND PROPOSED ORDER RE: SUPPLEMENTAL BRIEFING SCHEDULE AND HEARING ON MOTION TO DISMISS by Sony Computer Entertainment America LLC. (Boroumand Smith, Mehrnaz) (Filed on 4/4/2011) (Entered: 04/04/2011)

- End Update.]

As you see, Softlayer has withdrawn its motion to quash.

The parties couldn't agree on a protocol, so what's the judge's decision? The hard drives will be copied in their encrypted state. Then Hotz is to provide passwords so TIG, the neutral third party, can make copies of them unencrypted while Hotz is there watching. Sony is to provide TIG copies of the Playstation3 Software Development Kit and a list of urls and cookies the parties agreed to have searched to see if any impounded device ever accessed or signed in to the Playstation Network. For some reason, the judge appears to agree with SCEA that this matters enough to keep this process going to try to find out once and for all what the truth about that is.

SCEA has to give the SDK to Hotz's lawyers also to review, after they sign an NDA, but at the offices of SCEA's lawyers. They can't make a copy. They can take notes, Attorneys' Eyes Only. I know. Ridiculous, but there it is. SCEA more or less won that one.

Then the lawyers for both sides meet and figure out together what search terms TIG should use to search with. TIG is then to verify the urls and cookies that SCEA has provided, to make sure the sites are in fact "located on the PSN Secure Area" (that sounds like a Hotz side suggestion), and after that TIG does that search as well as keyword searches, all to figure out if the PSN Secure Area was accessed by "the computer system".

If any SDK, or portion thereof, is found, there are further keyword searches, again agreed upon by the parties. And heaven help Hotz if any are found, I'd say.

Then TIG hands over the results to Hotz's lawyers, to weed out anything privileged, and after that it goes to SCEA with a privilege log, if any privileged material is found. Hotz can review it also, but otherwise it's attorneys' eyes only also.

Hotz has to go to California and be deposed on April 15th. SCEA won that point too.

Finally, the magistrate will recommend to the presiding judge that the schedule be shifted so each side has time to file supplemental briefing, no doubt all about whatever is found in the discovery process. SCEA has to file by April 20th, in this revised schedule, if the presiding judge adopts it, which she is likely to do, and then Hotz gets to reply by April 22nd, followed by a hearing on May 6 or whatever date is convenient for Judge Illston.

I know one thing. SCEA had better find something, or Hotz is likely to fly away, either back to New Jersey or free as a bird altogether. Alternatively, if any proof is found that Hotz did indeed access the Playstation Network, I'd guess this order means he will have to endure litigation in California. Plus his name will be more or less mud in this court, which never helps your cause. The reason I say this is because I don't think the judge would set up such an elaborate protocol all about that one issue unless he thought it would be sufficient to tie Hotz to that state. My guess is SCEA really pulled out all the stops at the hearing to get this discovery. If they thought they had enough already, the digging would stop. Also, keep in mind that the general rule in litigation is that plaintiffs tend to get discovery requests approved. If you recall, SCO succeeded in getting IBM ordered to turn over every version of AIX from the founding of the world. Not that it did SCO any good. But the magistrate judge did order it.

Here's the text of the minutes:

ORDERED AFTER HEARING:

Plaintiff shall submit the modified version of the Hotz proposed order to Judge Spero by 10 AM on 3/29/11.

Lead trial counsel shall meet-and-confer in person on agreed upon search terms. Mr. Hotz shall on or before 4/1/11 respond to TIG. TIG should provide results of searches and processes to Mr. Hotz’s counsel on or before 4/5/11.

Mr. Hotz’s counsel will produce non-privileged material from the search and a privilege log to Plaintiff’s counsel by 4/11/11. Mr. Hotz shall be deposed on 4/15/11. Parties shall propose the following briefing scheduled to Judge Illston on the Motion to Dismiss:

Pla’s supplemental brief shall be filed by 4/20/11.

Dft’s supplemental reply brief shall be filed by 4/22/11.

Hearing on Motion to Dismiss to be heard on 5/6/11 or as is convenient to Judge Illston’s calendar.

Here's the proposed order, as text, with all the details:

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

KILPATRICK TOWNSEND & STOCKTON LLP
JAMES G. GILLILAND, JR. (State Bar No. 107988)
TIMOTHY R. CAHN (State Bar No. 162136)
MEHRNAZ BOROUMAND SMITH (State Bar No. 197271)
HOLLY GAUDREAU (State Bar No. 209114)
RYAN BRICKER (State Bar No. 269100)
[address, phone, fax, emails]

Attorneys for Plaintiff
SONY COMPUTER ENTERTAINMENT AMERICA LLC

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SONY COMPUTER ENTERTAINMENT AMERICA LLC,

Plaintiff,

v.

GEORGE HOTZ; HECTOR MARTIN
CANTERO; SVEN PETER; and DOES
1 through 100,

Defendants.

_________________

Case No. 11-cv-00167 SI

[PROPOSED] ORDER RE
PROTOCOL FOR JURISDICTIONAL
DISCOVERY ON IMPOUNDED DEVICES

_________________

On March 10, 2011, the Court ordered plaintiff Sony Computer Entertainment America LLC (“SCEA”), Defendant George Hotz (“Hotz”), and the third party neutral, The Intelligence Group (“TIG”), to meet and confer on a protocol for the search of the impounded devices to determine whether: (1) they contain all or portions of the development tools for the PlayStation® 3 System (“PS3 System”) and (2) the impounded devices have been used to

access or connect to the PlayStation Network (“PSN”). On March 16, 2011, the parties submitted competing protocols together with a Joint Letter Related to Jurisdictional Search of Mr. Hotz’s Impounded Hard Drives (Docket No. 98) to the Court. On March 28, 2011, the Court held a Telephonic Discovery Conference regarding the Joint Letter. Having reviewed the papers and heard arguments from the parties, the Court orders as follows:

(1) TIG will forensically image the impounded devices in their encrypted state.

(2) Mr. Hotz shall make himself available to TIG on or before April 1, 2011 to provide TIG access to his computer and passwords for the purpose of creating un-encrypted images of the devices. Mr. Hotz shall make himself available to TIG until the process is completed.

(3) Counsel for SCEA shall provide to TIG copies of the following items which will be copied into evidence files:

(a) A copy of the PS3 System Software Development Kit (“SDK”)

(b) A list of URLs and cookies and other information agreed upon by the parties which might appear on a user’s computer if they accessed the “secure” area of the PSN which requires a valid user name and password (“PSN Secure Area”)

(4) SCEA shall make the SDK available for review by Mr. Hotz’s outside counsel for record in this action under the following conditions:
(a) Mr. Hotz’s outside counsel of record (“Qualified Persons”) may review the SDK at SCEA counsel’s office at Kilpatrick Townsend and Stockton LLP in San Francisco on a “stand alone” secure computer system (i.e. the computer system will not be linked to any network, including a local area network (“LAN”), an intranet or the Internet). Qualified Persons shall sign a Non-Disclosure Agreement before reviewing the SDK.

(b) No recordable media or recordable devices, other than those physically installed in a computer or cell phone, shall be permitted into the area containing the stand alone computer system, including without limitation sound recorders, peripheral equipment, cameras, CDs, DVDs, or drives of any kind. No computers, recordable media, or recordable devices may be connected to any such stand-alone secure computer system or otherwise

2

used to copy or record the SDK from such stand-alone secure computer system. No means capable of connecting computers, recordable media, or recordable devices to the stand-alone secure computer system shall be permitted into the area and no computers may be used to duplicate or re-write any portions of the SDK.

(c) The stand alone secure computer system shall be password protected.

(d) Counsel for SCEA shall provide the password and the SDK to Qualified Persons, who will then be allowed to insert the SDK in the stand alone secure computer system.

(e) Qualified Persons may not alter, dismantle, disassemble or modify the stand alone secure computer system or the SDK in any way, or attempt to circumvent any security feature of the stand alone secure computer system or the SDK in any way.

(f) No copies shall be made of the SDK, whether physical, electronic, or otherwise. Qualified Persons may take notes of his thoughts and impressions during any review of the SDK. Any notes concerning the SDK shall not be used to circumvent the restrictions herein against making copies of the SDK. Persons viewing the notes shall do so in a manner consistent with restrictions on material designated as HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY’S EYES ONLY INFORMATION.

(5) Counsel for the parties shall review and agree to search terms that TIG shall use to conduct searches in an effort to prove or disprove access to the PSN Secure Area. These agreed upon terms will be provided to TIG no later than April 1, 2011. Lead counsel for the parties shall meet and confer in person to determine these search terms.

(6) Counsel for the parties shall review and agree to search terms that TIG shall use to conduct searches on any SDK material found on the devices. These agreed upon terms will be provided to TIG no later than April 1, 2011. Lead counsel for the parties shall meet and confer in person to determine these search terms.

(7) TIG shall review the URLs and cookies provided by counsel for SCEA and verify that the sites are located on the PSN Secure Area.

(8) Once the forensic images of the un-encrypted drives have been pre-processed, TIG shall conduct the following procedures:

3

(a) TIG shall search the devices for URLs and cookies, and other information agreed upon by the parties in an attempt to prove or disprove that the computer system had accessed the PSN Secure Area.

(b) TIG shall conduct keyword searches as agreed to by both parties in an effort to prove or disprove that the computer system had accessed the PSN Secure Area.

(c) TIG shall search the devices and determine if all or any portion of the SDK provided to TIG by SCEA exists on the devices.

(d) TIG shall search all or any portion of the SDK that is found on the devices with additional search terms agreed to by the parties.

(9) TIG shall provide the results of the searches to counsel for Mr. Hotz on or before April 5, 2011. Counsel for Mr. Hotz shall review this data and provide counsel for SCEA with a privilege log, on or before April 11, 2011, containing sufficient information so that counsel for SCEA may be able to determine if the information is privileged. Other than material as to which a privilege has been asserted, the results of these searches and processes shall be produced to counsel for SCEA on or before April 11, 2011. This production shall be designated as HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, and treated as such by both parties, except that Mr. Hotz shall be permitted to review this production for purposes of his defense in this lawsuit.

(10) Mr. Hotz shall appear for his deposition in California on April 15, 2011.

(11) This Court shall recommend to the Honorable Susan Illston the following revised schedule for supplemental briefing and for the hearing date for Mr. Hotz’s Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue:

Supplemental briefing filed by SCEA: April 20, 2011

Reply filed by Mr. Hotz: April 22, 2011

Hearing on Motion to Dismiss: May 6, 2011 or as soon thereafter as is
convenient for Hon. Susan Illston.

4

IT IS SO ORDERED.

DATED:_______________

____________________
HON. JOSEPH C. SPERO
UNITED STATES MAGISTRATE JUDGE

5


  


Judge Spero Rules on Jurisdictional Discovery in SCEA v. Hotz | 218 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: artp on Tuesday, March 29 2011 @ 11:55 PM EDT
Eror -> Error in the Title Block, please.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Off Topic Thread
Authored by: artp on Tuesday, March 29 2011 @ 11:57 PM EDT
Way off topic. Nothing about Spero's ruling, discovery, hard drive encryption,
or California lawyers, please.


---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

News Picks Thread
Authored by: artp on Tuesday, March 29 2011 @ 11:59 PM EDT
Comments about articles in the sidebar on the right.

URL's and Title of the article are appreciated, as they tend to scroll off
fairly rapidly.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Comes Transcripts Goes here
Authored by: artp on Wednesday, March 30 2011 @ 12:01 AM EDT
See the link for "Comes v. MS" above for details.


---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

When does Hotz counter for his costs?
Authored by: kawabago on Wednesday, March 30 2011 @ 12:23 AM EDT
It looks like Sony is going after an innocent person, they know he's innocent
but want to scare everyone away from Playstation. When they find nothing they
should pay dearly for it. Also, since Sony wants innocent people to not use
their products I'm going to give them what they want. No more Sony anything. I
hope everyone will follow me out the door.

[ Reply to This | # ]

No! No! No! Problems. Objection!
Authored by: SpaceLifeForm on Wednesday, March 30 2011 @ 12:44 AM EDT
(1) TIG will forensically image the impounded devices in their encrypted state.

Sounds good on paper.

(2) Mr. Hotz shall make himself available to TIG on or before April 1, 2011 to provide TIG access to his computer and passwords for the purpose of creating un-encrypted images of the devices. Mr. Hotz shall make himself available to TIG until the process is completed.

No! No! No!

Too quick.

Loss of chain of custody of the unencrypted image.

TIG has already demonstrated they are not trustable.

Hotz needs to get another neutral party (preferably two or three) that will be there, at the scene, and also get copies of the encrypted and unencrypted filesystem images *AT THE TIME* that Hotz is there, so that there is another party that could prove tampering by TIG.

Otherwise, TIG could plant 'evidence' into the litigation that was not really there!

And then, Hotz would have to prove a negative!

One 'Neutral' does not fair litigation make.

Many eyes make all bugs shallow.

Many eyes also make all facts shallow.

One 'neutral' does not make the facts shallow.

This judge is getting snookered.

---

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

[ Reply to This | # ]

Playstation developmet kit
Authored by: Anonymous on Wednesday, March 30 2011 @ 12:49 AM EDT
I notice that the order does not specify which version(s) of the SDK that might
be found. Will they search for any/all or just a specific one?

Also, that there are more than a few sites that claim to have various versions
for download. While presence of one of those kits might point to copyright
infringement, that some versions are readily available can not necessarily point
to an agreement with any Sony entity.

z!

[ Reply to This | # ]

The SDK Flim-FLam man
Authored by: SpaceLifeForm on Wednesday, March 30 2011 @ 01:14 AM EDT
The rest of the ruling (points 3 to 11) is a distraction
to the first two points of order, so that everyone
overlooks the scam.

---

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

[ Reply to This | # ]

Mr. Hotz shall appear for his deposition in California on April 15
Authored by: Anonymous on Wednesday, March 30 2011 @ 01:54 AM EDT
Huh? Does he have to go to CA for a jurisdictional deposition?
Or is this the Main Course deposition? Can it then transfer to
NJ (or East Texas) if that's where jurisdiction is determined?

[ Reply to This | # ]

I don't see why the SDK is a big deal
Authored by: kh on Wednesday, March 30 2011 @ 02:05 AM EDT
Why would Hotz having the SDK on his system be such a big deal?

Also, why do they need a copy of his disk unencrypted? They could do the search
with him there, or better he could do the search and they could watch and get a
copy of the results.

[ Reply to This | # ]

2nd-hand systems?
Authored by: Willu on Wednesday, March 30 2011 @ 02:19 AM EDT
Previous legal efforts by Sony have been to show that Hotz signed up for
the PSN by looking at playstation network data. This appears to have been
extended to looking to see if the devices themselves have accessed the PSN.

But, I thought some of the systems were second hand. In which case the
previous owner could have used them to access the PSN before Hotz bought
them.

i.e. PSN cookies on the drive does not imply that Hotz accessed the PSN -
you'd also have to show that those cookies were dated after Hotz purchased
the devices.

Is there some way of noting that possibility to the court before the
playstations are checked so that you don't have the appearance of looking
guilty before it is all sorted out? Or does it become a case of 'methinks he
doth protest too much'?

[ Reply to This | # ]

  • Cookies PS3 - Authored by: MDT on Wednesday, March 30 2011 @ 09:17 AM EDT
    • Cookies PS3 - Authored by: Anonymous on Wednesday, March 30 2011 @ 10:23 AM EDT
    • Cookies PS3 - Authored by: Anonymous on Wednesday, March 30 2011 @ 02:47 PM EDT
Judge Spero Rules on Jurisdictional Discovery in SCEA v. Hotz
Authored by: Anonymous on Wednesday, March 30 2011 @ 04:18 AM EDT
It appears the judges on this case are as biased as judge Gross was. They
already think Hotz is guilty of something and just squirming hard to not get
caught.

[ Reply to This | # ]

Pendulum arbitration
Authored by: cricketjeff on Wednesday, March 30 2011 @ 04:53 AM EDT
I have always rather liked this method for resolving a dispute.
Both sides put forward a reasonable argument and the arbitrator has to pick one.
However he or she is required to always rule out any unreasonable request, so if
one side just puts in mild conditions and the other demands an arm and a leg
from the first born child of each of the next three generations, all the mild
objections are automatically approved. Does wonders for making parties think
carefully, one stupid overstepping of the line and the other guy wins the point.
It is a terrible way to settle the final outcome of all cases, but excellent for
this sort of thing.

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

[ Reply to This | # ]

Judge Spero Rules on Jurisdictional Discovery in SCEA v. Hotz
Authored by: Anonymous on Wednesday, March 30 2011 @ 05:27 AM EDT
Some are more equal than others......

If the roles were reversed, I doubt Mr. Hotz would get the same consideration.

[ Reply to This | # ]

I hope there are further limitations
Authored by: Anonymous on Wednesday, March 30 2011 @ 05:39 AM EDT
...else wise it would appear Hotz has just been told he's going to go to
California.

I'm not familiar with the PS3 or even the SDK, but the
MS/Windows analogy would be something like the DirectX re-distributable
libraries (e.g d3dx39.dll etc).

All of which are unquestionably part of the DirectX SDK, but also will be found
on pretty much any windows hard drive, despite never actually going anywhere
near the SDK.

With such restricted access to the device with the PS3 SDK on it, I can see Sony
claiming 'look there, the SDK', and Hotz struggling to demonstrate that it might
look like part of the SDK, but it didn't actually come from the SDK.

[ Reply to This | # ]

Judge Spero Rules on Jurisdictional Discovery in SCEA v. Hotz
Authored by: Anonymous on Wednesday, March 30 2011 @ 07:00 AM EDT
It would be very interesting to find out what the search
terms will be. It seems to me that all SCEA has to do is
get one high probability return term in that list and its all
over. As a side note, has anyone ever received zero results
from a Google search? I've come close, but I don't ever
recall no matches.


[ Reply to This | # ]

Heaven help Hotz
Authored by: complex_number on Wednesday, March 30 2011 @ 08:31 AM EDT
To quote PJ
And heaven help Hotz if any are found, I'd say.

IANAL etc I tend to agree...
Unless he can prove that said files etc are available from places other than
Sony/SCEA. sorta like these pesky header files...




---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

I wonder if someone has given the Sony lawyers bad advice
Authored by: The Mad Hatter r on Wednesday, March 30 2011 @ 10:37 AM EDT

The seeming reliance they are placing on the SDK. It just seems so wrong. I
wonder if some engineer in Japan isn't happy with what they are doing, and gave
them some faulty advice. Something along the lines of, "Well, the only way
I could think of that he could have broken the TPM is to use the SDK." With
the engineer knowing full well that there's dozens of other ways, and that a
hacker almost certainly would not have used the SDK.

So when the search shows no trace of the SDK, it leaves Sony's lawyers with no
viable theory tying George Hotz to California and SCEA.

Mind you, this is only a guess, and as usual, I'm on some pretty heavy drugs,
and I'm about ready to pass out, so take it with a grain of salt. No, take it
with a kilogram of salt.


---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

Whose to say
Authored by: Waterman on Wednesday, March 30 2011 @ 10:44 AM EDT
that Sony has not moved items to the secure area that in the past weren't there?
Hotz's lawyer needs to demand that Sony, or their proxy, turn over the change
logs to the servers to prove that the SDK has always been secure.

[ Reply to This | # ]

How coherent must he be for the deposition?
Authored by: Anonymous on Wednesday, March 30 2011 @ 10:53 AM EDT
I've flown across the country a several times and it usually takes a bit of time
to recover from the travel. Is SONY putting him up in a hotel while he is there
or do they expect hm to be coherent when he steps of the plane? With flight
time and travel to and from the airports it's a long commute.

[ Reply to This | # ]

Judge Spero Rules on Jurisdictional Discovery in SCEA v. Hotz
Authored by: Anonymous on Wednesday, March 30 2011 @ 11:21 AM EDT
did hotz need to use the sdk to discover the keys? just wondering..

[ Reply to This | # ]

The world is running wierd
Authored by: YurtGuppy on Wednesday, March 30 2011 @ 12:08 PM EDT

Am I the only one who finds it strange when a company has to come to my house
and search my stuff to find out whether or not the two of us have ever had a
business agreement?





---
every guppy is a half-full kind of guy

[ Reply to This | # ]

Litigation Strategy
Authored by: sproggit on Wednesday, March 30 2011 @ 03:58 PM EDT
Groklawrians who have been around since the beginning of the SCO saga have been
witness to some fascinating discourse, here on Groklaw, about legal strategy.
There were any times in the various SCO cases where that company's activities
made no sense if they were truly seeking the restitution they claimed. The
strategy did make sense, however, if the strategy was to intimidate commercial
users of Linux, or to create FUD that would slow or halt the uptake of the
GNU/Linux Operating System.

It is less obvious, but exactly the same thing is starting to happen here.

SCEA has made an incredibly aggressive opening play against Hotz, but we need to
look past the immediate case in order to see the entirety of their strategy.
From what I have read to date, it falls into potentially 3 or 4 categories:

1. Intimidation
SCEA are only going to benefit from the publicity from this case. The message
that it sends the fringe community of private individuals who like to experiment
with technology is simple: "Try this with Sony kit and we will sue you in
to the Stone Age."

2. Getting Enough To Litigate
Based on discovery analysis from PJ to date, their case is mighty thin. Did they
really have enough? Or did they have enough to create sufficient doubt to permit
a fishing expedition? Did they choose Hotz because of his hacking activities, or
because at 21 he was a soft target?

3. Underhand Intelligence Gathering
Sony isn't just worried about the loss in revenue that will happen from people
who buy a PS/3 to run GNU/Linux on it. They make their profits from game sales,
so they will worry about people making pirate copies of game software. Right or
wrong, Sony probably figure that someone willing to hack a PS/3 to run Linux is
also willing to meddle with trying to figure out how to run copied games. Maybe
they figure they can harvest contact data or other information from Hotz in this
case.

4. Tipping The Scales
Sony want to win this case. It isn't just about Hotz, it's about sending a
message to other would-be PS/3 hackers that they should think twice. To win the
case, they are trying any tactic in the book. One of these is to push, push and
push again even before the trial has started. They want Hotz and his legal team
to have to respond to a slew of motions. They want Hotz to go to the trouble of
having to fly to California for depositions. They want to burn through all of
Hotz's legal defense fund long before this case gets to trial. They are being
incredibly successful in that regard.


Unless Hotz caves in, this case is going to be brutal, hard-fought and without
mercy.

Sony don't want the win, they want Hotz flattened. This isn't just about
victory, it's about scorched earth.

[ Reply to This | # ]

SCEA confounds the SDK, the runtime and public stuff
Authored by: Anonymous on Wednesday, March 30 2011 @ 04:22 PM EDT
In the somewhat surprising request to search for the non-jurisdictional issue
of SDK parts (a topic not previously explored and regarding which no previous
discovery nor defence has been prepared!), SCEA is fatally confounding 5
seperate sets of computer files:

1. The secretive PS3 SDK information whic SCEI provides under NDA to game
developers such as EA, IO Interactive. SCEA has not asked Hotz if he has ever
had access to these files and Hotz has made no sworn statement on this matter.

2. The runtime software which is included within PS3 computers and whose normal
usage is the described by the documents in set 1. The firmware files repeatedly
discussed in depositions by both parties probably consists of the majority of,
possibly all, these files. As such it is prpbably undisputed that Hotz has
accessed said files and confirming this through a search has no probative
value.

3. The previously secret encryption keys and corresponding procedures used by
SCEI to sign authorized firmware updates and/or game disks for PS3 computers.
It is undisputed that reconstructed versions of some of those files constitute
the jailbreak.zip file published by Hotz prior to this case and that Hotz hard
drives undoubtedly contains drafts, notes and background information regarding
those. Furthermore Hotz has publicly stated that he has withheld additional
files from this set specifically to protect SCEI and its affiliates (including
plaintif) from further harm of the kind alleged in the present case. Thus
presence of files closely resembling files from this set on the hard drives
searched is thus a fact already in evidence in this case and confirming this
through a search is duplicative and pointless.

4. Industry common files related to the hardware parts found in PS3 computers
and present in both the NDA protected PS3 SDK and in various generally available
SDKs such as the Sony sponsored tools for building software for the previously
available OtherOS feature of PS3 computers, and the tools published by IBM and
others for other uses of the Cell processor and other chips present in PS3
computers. Possession of files from this set is common amongst members of Hotz
profession and thus has no probative value, except possibly as exculpatory
evidence regarding the legality of defendants actions.

Thus searching Hotz computers for unspecified parts of Sony's PS3 SDK is
pointless and unnecessary and any accusations SCEA might make besed on finding
such files are likely to be both baseless and discriminatory.

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Hotz & Sony Settle
Authored by: Anonymous on Monday, April 11 2011 @ 01:48 PM EDT
Hotz & Sony Settle

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