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Hotz Will Ask Judge to Reconsider TRO Order - Updated
Monday, January 31 2011 @ 12:56 PM EST

Wired's David Kravetz reports that George Hotz's lawyers plan to ask US District Court Judge Susan Illston to reconsider her recent temporary restraining order and the requirement to surrender all his computers and peripherals and retrieve from the Internet any information he put there about hacking Sony's Playstation 3 to allow running unsigned code and to restore OtherOS functionality.

And there is an initial case management conference scheduled for April 22nd. April? It's January. So perhaps they are aware there will be a lot of motion practice before this case gets airborne. If any of you think it'd be a case you are interested in enough that you'd like to attend the court hearings, you can email me and I'll explain some basics.

Here is the clerk's notice:

01/28/2011 - 53 - CLERKS NOTICE Initial Case Management Conference set for 4/22/2011 02:30 PM. (Attachments: # 1 Standing Order) (tf, COURT STAFF) (Filed on 1/28/2011) (Entered: 01/28/2011)

And here's what Hotz's lawyer Stewart Kellar told Kravetz about their plans:
The judge’s Thursday ruling did not sit well with Hotz’ attorney, Stewart Kellar of San Francisco.

“The information sought at issue is less than 100 kilobytes of data. Mr. Hotz has terabytes of storage devices,” Kellar said in a Sunday telephone interview. “Impounding his computers, it’s like starting a forest fire to cut down a single tree.”

Within days, Kellar said he would petition U.S. District Judge Susan Illston to reconsider her ruling — which came in the form of a temporary restraining order requiring Hotz surrender the equipment next week. Hotz, he said, has already abided by Illston’s decision ordering him to remove the code from his website and YouTube.

That said, the code has spread like wildfire. Yet Illston appears to be ordering Hotz to make sure all the code is eliminated from the net.

The defendant, Illston ruled, “shall retrieve” code “which he has previously delivered or communicated.”

Kellar said that was impossible. “Mr. Hotz can’t retrieve the internet,” he said.

You can always ask a judge to reconsider an order, if you think he or she got something wrong. If you recall, IBM asked a judge to reconsider an order in SCO v. IBM once, and it worked out reasonably well for IBM. The judge adjusted the order. So it can happen. And while you can never predict what a judge will do, even if she fails to grant their request, it's still a chance to explain some technical things to her, since her expertise appears to be elsewhere. It's delicate surgery, because you essentially have to show a judge that she got something wrong. But to tell you the truth, judges are used to that and are reasonable souls, generally speaking, or learn to be, given the job's realities, and if Hotz's legal team can make a respectful but compelling case, this could work.

Maybe they could use Egypt as Exhibit A on the extreme difficulty in controlling the Internet. If an entire country can't shut it down or control its content, what hope does Hotz have of obeying her order as written, to "retrieve any Circumvention Devices or any information relating thereto which Hotz has previously delivered or communicated to the Defendants or any third parties"? I assume she means the Metldr key for PS3 that Hotz published when she writes "Circumvention Devices or any information relating thereto", but it's all over the Internet. And the judge's order asks Hotz to be like Mickey Mouse in The Sorcerer's Apprentice, trying to stop an overwhelming flood of waters by sweeping it with a broom. Sharing knowledge, for that matter, doesn't even depend on the Internet. Humans are just incredibly creative, sometimes in quirky ways, and there is no way that I know of to shut human brains down or to stop human beings from communicating with one another.

On the other hand, there is a law on the books. And judges are tasked with upholding the laws, whether they like them or not. That's my position too. But what would help would be if the judge would be a little more specific, by which I mean if she would detail with more precision exactly what she wants him to do and what would be enough to comply. And perhaps someone needs to think about how he can do anything involving the Internet if he has to turn over all his computer gear to Sony. Maybe they can try to cleanse the Internet. It might be a learning experience.

Update: Yo. I was kidding. But Sony is actually trying I guess. It sent a take-down notice to Github. It signed it "Truthfully." So it's a campaign. A campaign to cleanse the Internet.

Update 2: The word on the street about PS3 firmware v 3.56 is "rootkit", enabling Sony to execute code from the mother ship if they want to when users connect to the PlayStation Network. If so, that would make it possible to monitor who is using homebrew or cheating or whatever. Assuming this is so, and I don't consider it confirmed yet, I wonder if there is a notice about it in the terms or if it's like Sony's rootkit in 2005 on CDs that was hidden from customers. If anyone has access to the terms, I'd love to read them.


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