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Judge in Sony v. Hotz Expresses Concerns at Today's Hearing About Jurisdiction
Friday, January 14 2011 @ 07:52 PM EST

The hearing on Sony's motion for a temporary restraining order in Sony v. Hotz was today, and while there was no ruling yet, the judge, US District Judge Susan Illston, reportedly expressed doubts that her court has jurisdiction. She didn't order George Hotz to turn over all his computers and CDs and such today. Sony was asking her to impound all his computer gear. Here's the latest on this increasingly interesting litigation.

The Register reports:
The move by US District Judge Susan Illston on Friday was a blow to Sony, which argued that the 21-year-old hacker, whose real name is George Hotz, should be forced to surrender his computer gear and the code he used to circumvent digital rights management features in the gaming console. Illston rejected arguments that Hotz's use of Twitter, PayPal, and YouTube, all located in the Northern District of California, were sufficient contacts with the region to establish personal jurisdiction.

“If having a PayPal account were enough, then there would be personal jurisdiction in this court over everybody, and that just can't be right,” Illston told James G. Gilliland Jr., an attorney representing Sony. “That would mean the entire universe is subject to my jurisdiction, and that's a really hard concept for me to accept.”...Illston said she may still decide that she has jurisdiction over Hotz if presented with evidence of more substantial contacts to Northern California.

Particulary when Hotz says in his affidavit [PDF] and Opposition [PDF] to Sony's TRO Motion he never solicited any funds in connection with his work on Playstation and even asked people not to donate, and the only evidence Sony presented was money Sony donated, hinting that it was done to try to establish jurisdiction. David Kravetz at Wired has further details:
But if using Twitter or Facebook is enough to bring a case to San Francisco, “the entire universe would be subject to my jurisdiction,” the judge told the Sony attorney about his argument.

Gilliland countered, arguing that the PlayStation’s terms-of-service agreement demands that legal disputes be settled in federal court here, near where Sony Computer Entertainment America is based.

In the end, Judge Illston said she would rule at an undisclosed time.

“Serious questions have been raised here,” she said.

Like Hotz saying he doesn't have a Playstation account and so isn't bound by the terms of service anyway. Hopefully she noticed that detail in his affidavit. PCMag has some background on the alleged hack, what caused it, and the latest on the class action regarding Sony's behavior, namely Sony turning off functionality people had bought their Playstations to use:
The Hotz case could hinge on several class-action suits that were filed last year after Sony removed the "OtherOS" functionality. Those suits, which have been consolidated in a collective class action, are currently involved in resolving disputes in the discovery phase, where evidence is collected. A hearing in a Northern California district court overseen by Judge Edward M. Chen is set for February.

The OtherOS functionality originally shipped as one of the core features of PlayStation 3, as well as the ability to run older PlayStation 1 and PlayStation 2 games. Over time, however, Sony began stripping out some of the functionality from its consoles; the latest "Slim" versions of the PS3 can neither run the PS2 games or enable OtherOS. Sony also disabled the OtherOS functionality from older consoles via the version 3.21 update in April 2010.... Still, Hotz's lawyers said that consumers had a right to the OtherOS functionality.

"While most companies issue firmware upgrades to increase a product's abilities over its life cycle, Sony has taken the unacceptable and draconian approach of decreasing the PS3's capabilities by actually destroying a core feature of the PS3," Yasha Heidari, managing partner with Heidari Power Law Group in Atlanta, said in a statement. "Imagine taking in your car for an oil change and having the manufacturer remove your car's air conditioner, radio, and half its horsepower because of fears that other hypothetical individuals might abuse their vehicles. It just doesn't make any sense, and it's a slap in the face to the consumers that put their support behind the product."

She's referring to Sony in March insisting on a firmware patch that wiped out OtherOS, a feature that inspired many folks, like the US Air Force Research Laboratory, to specifically buy Playstations to get that functionality. What Hotz is accused of by Sony has to do with trying to retain the functionality that people paid for, or get it back, not for piracy purposes. CNET reports Hotz is speaking out:
"Actually, no," Hotz said in response to a question asking if his jailbreak allows users to run pirated games on the console. "The way piracy was previously done doesn't work in my jailbreak. And I made a specific effort while I was working on this to try and enable home-brewing without enabling things I don't support, like piracy."

Hotz then turned his attention to Sony's claim that his jailbreak violates the Digital Millennium Copyright Act. The far-reaching act currently allows mobile phone owners to jailbreak their devices without fear of recourse. However, it doesn't specifically mention other devices.

"I think the same precedent should apply," Hotz said. "If you can jailbreak one closed system, why can't you jailbreak another?"

Do you remember the lame things Sony folks said when they were caught with their notorious rootkit, speaking of irony? My favorite was Sony's president of Global Digital Business, Thomas Hesse's immortal words, which I have put on our permanent Sony/DRM page that "most people, I think, don't even know what a rootkit is, so why should they care about it?"

But if I put a rootkit on your computer, would it not presumably be a violation of the Computer Fraud and Abuse Act, assuming the necessary scale?

I don't recall Sony calling itself a felon under the Computer Fraud and Abuse Act for all that it did, by the way, despite it accessing other people's computers without their authorization and doing damage to other people's computers if they tried to remove the rootkit. When first caught, they defended it as an important tool to prevent piracy.

Heh heh. Sony has issues.

And it all kind of makes one wonder if the executive level at Sony, where decisions about such things as who to sue and when, understand the tech here or how they look to customers when they do things like this. Piracy! A felony! Where is Sony's sense of proportion? Even just fair play? I mean, at least get the right guy in the right jurisdiction. To be fair myself, here's a rundown of Sony's point of view and here's why it's worried.

Orin Kerr nominates Sony's lawyers for "Today’s Award for the Silliest Theory of the Computer Fraud and Abuse Act". Silly? Yes. Unless you are the kid being accused and threatened by a huge international corporation with that very big and dangerous stick. Then it's not so humorous any more, is it?


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