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Sony [SCEA] Asks to Go Deep-Water Fishing; Hotz Asks to Toss TRO, Narrow Impoundment Order - Updated 2Xs
Saturday, February 05 2011 @ 06:26 PM EST

George Hotz has filed a response [PDF] to the court's temporary restraining order, trying to persuade the judge in Sony Computer Entertainment America v. Hotz that her preliminary injunction should not issue:
As is shown below, a preliminary injunction here restrains legal acts of circumvention, is both overbroad and impermissibly vague, is impossible to perform, does not preserve the status quo, and amounts to prior restraint on speech, and the Order of Impoundment therein is likewise overbroad, unwarranted, and impounds confidential and privileged material. Accordingly, Mr. Hotz asks the Court to deny Plaintiff’s motion for a preliminary injunction....

The DMCA prohibits circumvention of "a technological measure that effectively controls access to a [copyright protected] work". 17 U.S.C. 1201(a)(1)(A). Circumvention is legal when the circumvented technology does not control access to a copyrighted work....

"Unauthorized access" is not "illegal access." Circumvention of technology, even when unauthorized, is not illegal when it does not regard copyrighted works. Information not protected by copyright is not protected merely because it is behind an anti-circumvention barrier. Thus, the Injunction is overbroad because Mr. Hotz is restrained from "publishing . . . any information . . . or other material" without regard to whether that information is protected by copyright, a prerequisite to anti-circumvention protection.

And Sony, meaning throughout Sony Computer Entertainment America or SCEA, is asking the court [PDF] to let it do expedited discovery on George Hotz's alleged contacts with California, in order to respond to his motion to dismiss for lack of jurisdiction/improper venue. They also ask the court [PDF] to speed up the hearing schedule, in light of the harm Sony feels it is suffering, asking that the hearing be held on February 9th, not in March. [Note Update 2 at the end: It's back again for March instead, on the 11th.]

They very much want to find out the "identity of the Fail0verflow Defendants and third parties who are illegally distributing the circumvention devices" and try to connect them with Hotz. But I think I see some serious privacy issues associated with Sony's requests, as I'll show you.

They want to subpoena Slashdot, YouTube, Twitter, Google, and Paypal, seeking information about various nyms and their alleged contacts with Hotz. Sony calls it limited discovery, but I would call it a very broad request. Here's part of what they want YouTube to hand over [PDF]:

1. All information and documents related to the use of your service(s) to host the content associated with and/or comprising the video titled "Jail broken PS3 3.55 with Homebrew", posted by user "geohot" and located at oc kLSXsCKDkg:: .

2. Documents sufficient to identify all names, addresses, and telephone numbers associated with the "geohot" account(s).

3. Information and documents sufficient to identify how many users have access to the "private" video identified in Request No. 1 above.

4. Information and documents sufficient to identify the usernames and/or accounts that have access to the "private" video identified in Request NO.1 above.

5. Documents reproducing all records of usernames and IP addresses that have posted or published "comments" in response to the video identified in Request No. 1 above.

6. Documents reproducing the text of all "comments" posted or published in response to the video identified in Request NO.1 above.

So, if you viewed that video, or commented on it, Sony wants to know your name and IP address, so as to contact you, I guess. Here's what it means that you have set a video to private on YouTube. I gather it means the only way you can view the video is if you are invited to view it by the person whose account it is. The problem with the request is that Sony has yet to demonstrate that this account has any connection to Hotz. Hotz stated in one of his affidavits the following:
7. I have never utilized an account with PayPal in connection with any activity relating to the Playstation 3 computer entertainment system.

8. I have never distributed a circumvention device or component through YouTube.

9. I do not currently have an account with Twitter, nor have I had an account with Twitter since on or about June 13, 2010.

10. I have not worked in concert with Defendants "Bushing," Hector Cantero, Sven Peter and "Segher". I have no association or connection with "FAILOVERFLOW," the purported group or organization that is allegedly composed of Defendants "Bushing," Hector Cantero, Sven Peter and "Segher".

11. I do not support piracy or counterfeiting.

What puzzles me is why Sony doesn't look through its own records to see if Hotz's IP address matches anybody's IP address on the PlayStation Network. Then they wouldn't need to subpoena anybody. If they can prove he accessed from California ever, for example, or accessed at all, they'd have enough, I'd think. Or did they do that already and there's no match?

And one of the subpoenas to Twitter [PDF] is asking for this:

1. All information and documents related to the use of your service(s) to register, create, maintain and/or use the Twitter account associated with Twitter Usernames "KaKaRoToKS", "gnihsub", "pytey", "bI4sty", "marcan42", and "faiIOverflow", located respectively at .:, .:, .:, .:, .:, and .:

2. Documents reproducing all content - including but not limited to all "Tweets" - posted and/or published by the Twitter accounts identified in Request NO.1 above, including but not limited to all content posted and/or published at the URLs identified in Request NO.1 above.

3. Documents sufficient to identify all names, addresses, and telephone numbers associated with the Twitter accounts identified in Request NO.1 above.

4. Documents reproducing all server logs, IP address logs, account information, account access records, and application or registration forms related to the Twitter accounts identified in Request NO.1 above.

Again, Hotz says he never had any Twitter account and never worked in concert with any of these people. So, without any further evidence, Sony wants all server logs? Including people who read those tweets? Talk about broad.

And the subpoena to Google asks for this:

1. All information and documents related to the use of your service(s) to host the content associated with and/or comprising the website and any related subdomains.

2. Documents and electronic data reproducing all content, including but not limited to text, images, comment text, and/or files, posted to or associated with the website and any related subdomains.

3. Documents sufficient to identify all names; addresses, and telephone numbers associated with the account associated with the .

4. Documents reproducing all server logs, IP address logs, account information, account access records, and application or registration forms related to the account identified in Request NO.3 above.

5. All documents related to any service that you have provided to the owner(s) or user(s) of the account identified in Request NO.3 above at any time, whether physically or electronically stored.

Wow. What do they mean by "electronic data" regarding "comment text"? The IP addresses of commenters? If so, we're getting into scary places now, given the flimsiness of Sony's evidence against Hotz so far and the utter lack of any evidence that people who viewed a video or left a comment have anything to do with anything but viewing a video and commenting on someone's blog. It could end up like going after sharks, but killing dolphins as collateral damage. I'm not sure Sony even realizes the magnitude of what it's asking for, by the way.

What bothers me is that it hasn't yet been demonstrated, to me, anyway, whether what Hotz did is illegal, first of all. He stated that he has not done anything illegal. That's part of what this case will decide. It turned out not to be illegal to jailbreak the iPhone, after all. In Hotz's filing, that's part of his argument that the TRO is overbroad:

The Library of Congress has recently determined that circumvention of firmware or software on mobile phones by the owner of that copy of the program, although unauthorized by the copyright owner, is exempted from the DMCA’s prohibition against circumvention. 37 C.F.R. § 201.40; 75 FR 43825, 43829. Under the language of the overbroad injunction, Mr. Hotz would be restrained from engaging in these plainly authorized acts of circumvention. The language prohibits Mr. Hotz from engaging in a broad range of explicitly exempted circumvention activities such as circumvention of DVDs, wireless telecom firmware and software, malfunctioning computer access dongles, and even ebook literature. Id. Additionally, restraining Mr. Hotz from encouraging others to engage in plainly authorized acts of circumvention having no relation to SCEA is not narrowly tailored to eliminate the specific harm alleged by SCEA and is thus, overbroad....

As shown above, the Injunction pertains to "unauthorized access" and not "illegal access." While citizens are presumed to know what is illegal, they are not notified of what is "unauthorized." Further, the Injunction restrains Mr. Hotz from engaging in unauthorized access of "other copyrighted works." "Other copyrighted works" is not a defined term yet is implemented into SCEA’s conclusory definition "Circumvention Devices," a term that is used throughout the TRO to define restrained conduct. The terms "unauthorized access," "other copyrighted works" and "Circumvention Devices" are not sufficiently specific. Therefore, the Injunction does not provide sufficient notice of prohibited conduct and is impermissibly vague.

I expect we'll see more related to this argument as the case goes along.

And Sony took back functionality it earlier had permitted and that people paid for, so was it illegal for Hotz to restore it? I don't know. There's a class action about that, so not everyone sees this story quite as Sony does.

This isn't as clear as Sony makes it seem, I don't think, nowhere near as clear as expedited discovery in a file-sharing case would be. Sony cites several cases where the music industry successfully got expedited discovery to "out" who the anonymous Does were in real space, so they could sue them. I see a difference between asking a court to let you find out who an anonymous individual is in real space when you have an IP address already that is definitely associated with infringing activity, so you can sue them and this case where Sony is asking for the IP addresses of viewers of a video or of all commenters on a blog.

In the first case, the outed Does can hire a lawyer to protect their interests and try to prevent a plaintiff from going overboard, even moving to quash the subpoena. But here, if there are innocents pulled into this dragnet, they don't have a lawyer to protect them. They don't even know Sony is going after them. Even Sony doesn't know yet if they've identified the right persons or whether which of them, if any, are definitely connected with infringement. Sony is guessing. That's why it wants to do expedited discovery. It wants the court to let them dig, in case their suspicions are so. That's just not the same as the file sharing cases, in my view.

Some of us might be thinking they should have done more fact-checking before they made such strong assertions that such contacts with Hotz existed. After all, they preliminarily persuaded the judge that they had sufficient evidence to keep the case in California. *Now* they ask the court to help them prove it, while purporting that they have already presented sufficient evidence to justify the relief. It can't really be both.

I'll be interested to see what Twitter, Paypal, Google, Slashdot, and YouTube do about these subpoenas, if the court allows this. Hopefully somebody in this picture will notify the folks whose information Sony seeks to access. Even accused infringers have some due process rights. It seems to be the trend nowadays for copyright holders to try to find a faster track than due process.

Here's a case that mentions the danger of expedited discovery before folks have attorneys to represent them, part of an explanation of how expedited discovery is supposed to work, Avaya v. Acumen Telecom [PDF]:

In addition, “[e]xpedited discovery may be inappropriate where defendants are required to unwarily incriminate themselves before they have a chance to review the facts of the case and to retain counsel.” Pod-Ners, 204 F.R.D. at 676 (internal quotation and citation omitted).
Sony makes it sound like this is a typical request. It is not, as you will see when you read that order explaining that it's supposed to be granted only in exceptional cases. Here's a more recent case, where the judge refused expedited discovery and the case was apparently dismissed. But here's another case where a court found that it can be appropriate in cases involving a preliminary injunction, which is the case with Sony:
11. Courts have not hesitated to expedite discovery in such circumstances. The advisory committee notes to Rule 26(d) expressly recognize that a Court should authorize expedited discovery where a preliminary injunction is requested. Fed. R. Civ. P. 26 advisory committee notes (expedited discovery by court order "will be appropriate, in some cases, such as those involving requests for preliminary injunction"); see also Ellsworth Assocs., Inc. v. United States, 917 F, Supp. 841, 844 (D.D.C. 1996) ("[E]xpedited discovery is particularly appropriate when a plaintiff seeks injunctive relief because of the expedited nature of injunctive proceedings"). Consistent with that authority, expedited discovery is routinely granted in actions involving infringement and unfair competition." Benham Jewelry Corp. v. Aron Basha Corp., No. 97 Civ, 3841 (RWS), 1997 U.S.
That last case is one Sony relies on. So we'll have to see how the judge views this case, in light of the competing interests. Not only do the Does not have lawyers yet, Sony is seeking their financial and other information from others, not from them directly. Normally, I'd expect Sony to seek expedited discovery to find out who they are and then do discovery with the Does. In other words, it all seems like Sony leaping over barriers it normally could not ignore, based on the alleged emergency to get this all settled super fast. I gather Sony is still suffering from the delusion that it can cleanse the Internet if it can just round up the ringleaders, so to speak. They don't get at all that it won't do a thing for them. It's too late. But I digress.

Here are all the filings:

02/03/2011 - 60 - RESPONSE TO ORDER TO SHOW CAUSE by George Hotz WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE. (Kellar, Stewart) (Filed on 2/3/2011) (Entered: 02/03/2011)

02/04/2011 - 61 - MOTION to Shorten Time For Hearing Motion on Expedited Discovery filed by Sony Computer Entertainment America LLC. (Attachments: # 1 Affidavit Holly Gaudreau, # 2 Proposed Order Proposed Order Granting Motion for Order Shortening Time)(Gaudreau, Holly) (Filed on 2/4/2011) (Entered: 02/04/2011)

02/04/2011 - 62 - MOTION to Expedite MOTION FOR EXPEDITED DISCOVERY filed by Sony Computer Entertainment America LLC. Motion Hearing set for 2/9/2011 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. (Attachments: # 1 Affidavit Declaration of Holly Gaudreau in Support of Motion for Expedited Discovery, # 2 Exhibit A to Decl of Holly Gaudreau, # 3 Exhibit B to Decl of Holly Gaudreau, # 4 Exhibit C to Decl of Holly Gaudreau, # 5 Exhibit D to Decl of Holly Gaudreau, # 6 Exhibit E to Decl of Holly Gaudreau, # 7 Exhibit F to Decl of Holly Gaudreau, # 8 Exhibit G to Decl of Holly Gaudreau, # 9 Exhibit H to Decl of Holly Gaudreau, # 10 Exhibit I to Decl of Holly Gaudreau, # 11 Exhibit J to Decl of Holly Gaudreau, # 12 Exhibit K to Decl of Holly Gaudreau, # 13 Exhibit L to Decl of Holly Gaudreau, # 14 Exhibit M to Decl of Holly Gaudreau, # 15 Exhibit N to Decl of Holly Gaudreau, # 16 Exhibit O to Decl of Holly Gaudreau, # 17 Exhibit P to Decl of Holly Gaudreau, # 18 Proposed Order Granting Motion for Expedited Discovery)(Gaudreau, Holly) (Filed on 2/4/2011) (Entered: 02/04/2011)

You can determine which exhibit has what information in it by reading the Affidavit Declaration of Holly Gaudreau in Support of Motion for Expedited Discovery, the first attachment to Sony's motion, because it's a list of what each exhibit is about:
2. Attached hereto as Exhibit A is a true and correct copy of a post at identifying the members of the fail0verflow hacking team, including the anonymous members “bushing” and “segher”. The post was accessed on February 4, 2011.

3. On February 4, 2011, my colleague and I conferred with counsel for defendant George Hotz, Stewart Kellar, about discovery issues under Fed. R. Civ. P. 26 (f), including SCEA's need to take expedited jurisdictional discovery in connection with defendant's motion to dismiss for lack of personal jurisdiction. Counsel did not agree to allow SCEA to take such expedited discovery.

4. Attached hereto as Exhibit B is a true and correct copy of SCEA’s First Set of Requests for Production to George Hotz.

5. Attached hereto as Exhibit C is a true and correct copy of SCEA’s First Demand for Inspection to George Hotz.

6. Attached hereto as Exhibit D is a true and correct copy of SCEA’s First Set of Interrogatories to George Hotz.

7. Attached hereto as Exhibit E is a true and correct copy of SCEA’s Notice of Deposition of George Hotz.

8. Attached hereto as Exhibit F is a true and correct copy of a sample subpoena to be served on Bluehost, Inc. regarding George Hotz’s website.

9. Attached hereto as Exhibit G is a true and correct copy of a sample subpoena to be served on Google, Inc. regarding George Hotz’s interactive blog.

10. Attached hereto as Exhibit H is a true and correct copy of a sample subpoena to be served on PayPal, Inc. regarding George Hotz’s account.

11. Attached hereto as Exhibit I is a true and correct copy of a sample subpoena to be served on Twitter, Inc. regarding George Hotz’s account.

12. Attached hereto as Exhibit J is a true and correct copy of a sample subpoena to be served on YouTube, LLC regarding George Hotz’s video entitled “Jailbroken PS3 3.55 with Homebrew.”

13. Attached hereto as Exhibit K is a true and correct copy of a sample subpoena to be served on SoftLayer Technologies, Inc. regarding George Hotz’s account.

14. Attached hereto as Exhibit L is a true and correct copy of a sample subpoena to be served on PayPal, Inc. regarding accounts held by Defendant Hector Cantero (“Cantero”), Defendant Sven Peter (“Peter”), Doe Defendant 1 (“Bushing”), Doe Defendant 2 (“Segher”) and “kakaroto.”

15. Attached hereto as Exhibit M is a true and correct copy of a sample subpoena to be served on Twitter, Inc regarding accounts held by Cantero, Peter, Bushing, Segher and kakaroto.

16. Attached hereto as Exhibit N is a true and correct copy of a sample subpoena to be served on Geeknet, Inc regarding accounts held by Cantero and Bushing.

17. Attached hereto as Exhibit O is a true and correct copy of a sample subpoena to be served on Kickstarter regarding an account held by Bushing.

18. Attached hereto as Exhibit P is a true and correct copy of a sample subpoena to be served on regarding accounts held by “hermesEOL, ”kakaroto,” “kmeaw,” “waninkoko,” and “grafchokolo.”

I think somebody goofed, though, in one of the Paypal subpoenas. Here's what they ask Paypal [PDF] to produce:
1. PayPal, Inc. is directed to furnish all documents, including electronically stored information, in its possession, custody or control.
Without telling PayPal more specifics than that, which they failed to do, it's obvious Paypal has no hope of compliance. I expect Sony will fix that. The other Paypal subpoena has necessary details, so maybe it was already corrected and they just filed the earlier one by mistake.

On the other hand, if Sony is waking up to the news that there are differences between Hotz and the Fail0ver folks, that at least would be progress. But I gather that day has not yet dawned, because Sony argues that they don't believe Hotz has been altogether forthcoming, and here's what they'd like to find out to "prove" a connection between Hotz and the others, something Hotz has denied:

The discovery requested is necessary because SCEA disputes whether Hotz has disclosed all relevant facts regarding the following jurisdictional discovery:
  • All contacts with California by Hotz and/or any third parties working with him on the unlawful conduct at issue in this lawsuit.

  • All of Hotz’s communications with individuals who have used or downloaded the circumvention devices offered by Hotz.

  • All conferences, forums and meetings attended by Hotz in California.

  • All benefits that Hotz has received in connection with his use and distribution of the circumvention devices.

  • All communications with Doe 1 Defendant (“Bushing”), an individual who likely resides in the Bay Area.

  • Any use of the PlayStation Network (“PSN”), which – after the submission of two declarations – Hotz still has been unable to unequivocally deny.
See Gaudreau Decl., ¶¶ 4-6, Exhs. B-D. Jurisdictional discovery sought from third parties on an expedited basis includes, for example:
  • Information from Google concerning Hotz’s discussion of his circumvention activities with others on his interactive blog.

  • Information from the content server host on the accessing and downloading of circumvention devices from Hotz’s website.

  • Information from PayPal on Hotz’s PayPal account regarding financial benefits obtained by Hotz as a result of his illegal activity.

  • Information from Twitter concerning Hotz’s communications with others via Twitter regarding his efforts to bypass the TPMs in the PS3 System

  • Information from YouTube concerning the viewing of Hotz’s video entitled “Jailbroken PS3 3.55 with Homebrew.”
See Gaudreau Decl., ¶¶ 8-18, Exhs. F-P. The discovery sought is relevant to the jurisdictional question presently before the Court because it will help establish Hotz’s contacts with California and that his unlawful activity was directed to, and harm was sustained by, SCEA in this District. SCEA’s proposed discovery is tailored narrowly to address the relevant jurisdictional issue. Accordingly, SCEA’s motion for leave to propound this discovery on an expedited basis should be granted.
Sony says this is the purpose of the discovery:
With this motion, SCEA seeks limited expedited discovery to enable SCEA to:
1. Obtain additional evidence of Hotz’s contacts with this District and the harm to SCEA here resulting from Hotz’s unlawful conduct;

2. Promptly identify each of the FAIL0VERFLOW Defendants, and their respective locations, so SCEA can expeditiously seek appropriate, effective injunctive relief from this Court; and

3. Promptly determine the identities of third parties hosting and distributing the circumvention devices so that SCEA can serve them with DMCA “take down” notices and, if necessary, seek appropriate relief from this Court.

Accordingly, pursuant to Federal Rule of Civil Procedure 26(d)(1), which expressly authorizes the relief requested here, SCEA moves for an order so that it may immediately expedite its targeted discovery. Specifically, SCEA requests that the Court order Hotz and third parties – who may either have information to help identify the infringers or may be knowledgeable about the unlawful scheme to distribute the circumvention devices – to respond to limited and targeted discovery no later than five days after service of the Court’s order granting this motion. This discovery is needed for SCEA to fully oppose Hotz’s motion to dismiss by February 18, 2011 in accordance with the Court’s order that Hotz’s jurisdictional challenges be presented “on a fuller factual record.” Order Granting Plaintiff’s Motion for TRO (Docket No. 51) at 2. Discovery is also needed to identify the FAIL0VERFLOW and Doe Defendants violating SCEA’s intellectual property rights with impunity. Allowing this limited discovery on an expedited basis serves the interest of judicial efficiency as the culpable parties will be timely identified early on in the action, jurisdictional issues resolved, the pleadings perfected early, and any injunctive relief properly fashioned against the right persons. Without it, SCEA will be severely hindered in its ability to effectively pursue those who are illegally distributing and trafficking in devices that circumvent SCEA’s PS3® System’s TPMs and inducing piracy of video games....

Hotz is unable to meet the “high burden” needed to deny jurisdictional discovery. As set forth more fully below, SCEA only seeks limited discovery to: (1) be responsive to the Court’s desire that the motion to dismiss be based on a further factual record; (2) build further evidence that sufficient contacts exist between Hotz and California and to further establish the harm to SCEA in California resulting from Hotz’s unlawful conduct; and (3) rebut contrary assertions made in Hotz's motion to dismiss and supporting declarations. These reasons clearly militate in favor of jurisdictional discovery. See, e.g., Harris Rutsky, 328 F.3d at 1135; Data Disc, 557 F.2d at 1285 n.1; Wells Fargo, 556 F.2d at 430 26 n.24.

I'd wager this all means Sony isn't so sure it can win on the evidence it has to date that it filed this lawsuit about. That's troubling, but I have no idea how much the judge will care. Her job is to create a fair playing field for both parties. She allowed Hotz to provide a fuller record, and now Sony wants to do the same, but it can't without further discovery.

The problem for Hotz is that if you use the word "hacker" in a court, judges tend to start turning purple. Judges don't know that hacker is a word that means someone who inventively and creatively solves a computer problem. Think Steve Wozniak, if you will. Or Richard Stallman. Researchers like Hotz see themselves like that. Cracker is a pejorative word for people who do harmful things by breaking in to other people's computers.

But I also see a glimmer of hope. Is Sony maybe starting to realize Hotz isn't their real problem? They clearly want to go after the Fail0verflow guys and anybody else involved in the jailbreaking efforts Sony hates so much and fears so much.

Another less noble possibility is that Sony wants to find more than one defendant in California, so they can argue that everyone, including Hotz, has to be sued there, on the theory that it's more convenient for the other defendants, so Hotz has to be there too, since there are more of them than him, that it's inconvenient for them to go to New Jersey.

Sony really wants to stay in California, if it can.

Sony responds immediately to Hotz's points about SCEA not being the appropriate party, in its section, Memorandum of Points and Authorities, in the motion to expedite discovery:

SCEA is the exclusive licensed distributor in the United States of the PlayStation®3 computer entertainment system (the “PS3 System”) and owner of copyrights in many original video game software titles developed to play on the PS3 System.
So that's the Sony answer to that, and assuming they can demonstrate it, with some indication that any of the games were impacted by any alleged bypassing of a technological method protecting copyrighted works, it could be enough.

Here's what Sony says to justify the fly-by-the-seat-of-its-pants process of making claims and then seeking to do expedited discovery afterwards: they did it in an "expeditious attempt to stop the distribution of these illicit circumvention devices". So. It's an emergency. Except isn't their claim that it was the April hacking that they care about, the one prior to Sony cutting off OtherOS? April is a long time ago for an emergency, methinks. Sony would probably argue though that they thought shutting off OtherOS would fix the first problem, then Hotz did the second hack, restoring OtherOS, and now they have an emergency.

Here's Sony's argument on why this is limited in scope:

Indeed, the discovery sought by SCEA is narrow in scope to capture relevant evidence only and minimize any burden on Hotz and third parties. SCEA’s categories of discovery requests include, for example:
  • Hotz’s communications with the FAIL0VERFLOW Defendants and others regarding his illegal activity.

  • Information from PayPal for identifying information for the FAlL0VERFLOW Defendants and other infringers.

  • Information from Twitter for information concerning the FAIL0VERFLOW Defendants and other infringers’ postings regarding circumvention devices.
Sony argues correctly that this is info that defendants would have to provide in discovery eventually anyhow. And without the expedited discovery, it won't be able to pursue these potential defendants, as Sony views them. But what if Sony is wrong? What if it built its case entirely on misunderstanding the tech? What if there hasn't been any contact between Hotz and the Fail0verflow guys? What if the nyms aren't even the people Sony thinks? How will it make these folks whole then, after it has already poked through their very private information? Shouldn't Sony have to properly identify people and make them defendants first? It's one thing to seek expedited discovery to identify folks; it's really another to rifle through their very personal information at such an early stage, I feel.

That doesn't mean the court won't let them do it. Copyright holders have a lot of power in US courts at the moment.

Sony's purpose in seeking it is to prove that California is the right place to sue everyone. But I fail to see why it's so important to sue in California that potential defendants that may or may not be in that state have to submit to being outed, just in case. Why isn't Sony suing Hotz in New Jersey, using discovery there to find out about Hotz's alleged contacts with others? Then it can sue the others if it so desires in California or wherever they are. So I don't see Sony as being in the same quandry as the music industry in its litigation, where it successfully argued that unless it did expedited discovery, it would lose its right to sue. Sony's not blocked from doing discovery in New Jersey or even in California the long way, so it's not in a position where it can't sue unless it does expedited discovery. And that is a very big difference.

It starts to feel like Sony wishes to bypass normal due process, because it's more convenient for Sony's law firm, which is in California. They surely know, after all, that neither Hotz nor the Fail0verflow guys are going to be able to pay damages, even if the court orders them to. Is that why Sony is fighting so hard to stay in California? Hotz has claimed so, in its motion, and now I begin to believe it. It's not like it's plausible to argue that speed will help Sony now that the horses have already left the barn. Sony has the right to seek relief, if someone has infringed its rights. That goes without saying. But it too has to play by the rules. They are there for a reason. And the reason is fairness to all parties in a dispute.

And speaking of privacy and Constitutional rights, Hotz raises those issues in arguing that the impoundment order is too broad:

The Mandatory Impoundment Order is overbroad and unnecessary. The alleged Circumvention Devices relating to SCEA are less than 100 kilobytes in file size. See Declaration of Bricker [Dkt. No. 42] Exh. T, Page 2. Mr. Hotz’ hard drives and other storage devices amount to several terabytes of storage. Ordering impoundment of Mr. Hotz’s storage devices to obtain a 100 kilobyte file is like starting a forest fire to cut down a single tree. Put another way, 100 kilobytes is to a single terabyte as one apple is to one billion apples. For cases "in which a party seeks mandatory preliminary relief that goes well beyond maintaining the status quo pendente lite, courts should be extremely cautious about issuing a preliminary injunction. Stanley v. University of S. Cal., 13 F.3d 1313, 1319 (9th Cir. 1994).

Additionally, the storage devices at issue here are used for a myriad of purposes unrelated to SCEA’s claims. Mr. Hotz’s storage devices contain confidential employment-related information, attorney-client privileged information, and otherwise private material protected by Mr. Hotz’s Constitutional right to privacy. Parsing out the information subject to the impoundment from the unrelated information is near impossible and would amount to an invasion of privacy. SCEA should not be afforded such an overbroad impoundment order.

This judge has already shown an inclination to believe Sony. If she reads the Hotz filing with an open mind, though, I think she must consider whether Sony has been making some overbroad claims. And in that sense, I think Sony is playing with fire. Maybe they know that with this judge, there's no danger to them from doing so, but I hope they are wrong about that. Constitutional rights are supposed to matter. And with that in mind, I do expect the judge to at least narrow the TRO and the impoundment order. I hope that she also rewrites the subpoenas so they are more limited and focus on the right folks and only the right folks.

Update: I don't know how California courts decide where harm occurs, but it seems that has address, which is in San Antonio, Texas, not in California. A whois on that address shows that it seems Sony uses Rackspace, and Rackspace is in San Antonio, Texas, with data centers in the following states, according to this Rackspace page:

Rackspace Overview
The Fundamentals
  • Founded in 1998
  • Based in San Antonio, TX
  • Nine (9) Data Centers: San Antonio, TX (2); Dallas, TX; Herndon, VA; Chicago, IL; Ashburn, VA; London, UK; Slough, UK; Hong Kong
  • Managed Hosting, Email & Apps and Cloud Hosting; all backed by Fanatical Support
Update 2: Note that the hearing has been changed to March 11th:

02/07/2011 - 63 - CLERKS NOTICE Continuing Motion Hearing March 11, 2011, at 9:00 a.m. (tfS, COURT STAFF) (Filed on 2/7/2011) (Entered: 02/07/2011)

02/07/2011 - 64 - ORDER setting motion to dismiss and motion for preliminary injunction on 3/11/11. (tf, COURT STAFF) (Filed on 2/7/2011) (Entered: 02/07/2011)

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