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Judge Denies Sony's (SCEA) Motion to Shorten Time - Updated 3Xs: Sony Goofs Bigtime
Wednesday, February 09 2011 @ 01:18 AM EST

Sony Computer Entertainment America's motion [PDF] asking the judge in the SCEA v. Hotz case to set an earlier date to hear oral argument on its motion to do expedited discovery has been denied.

But as I'll explain, I think it may indicate that George Hotz's motion to dismiss for lack of jurisdiction/improper venue will likely be denied as well and that they'll continue this case in California.

"Expedited discovery" in this context means the avalanche of subpoenas SCEA is asking permission to serve on various entities to try to find the Fail0verflow guys, who SCEA hopes to tie to Hotz. The purpose of all that is to demonstrate that the case should stay in California. The hearing had been set for March 11, and they'd asked if it could be speeded up to February 9, and the judge just said no. So, March 11 it is.

Here are the filings:

02/07/2011 - Set/Reset Deadlines as to March 11, 2011 (tfS, COURT STAFF) (Filed on 2/7/2011) (Entered: 02/07/2011)

02/07/2011 - Set/Reset Deadlines as to 62 MOTION to Expedite MOTION FOR EXPEDITED DISCOVERY. Motion Hearing set for 3/11/2011 09:00 AM before Hon. Susan Illston. (ys, COURT STAFF) (Filed on 2/7/2011) (Entered: 02/08/2011)

02/08/2011 - 65 - ORDER denying 61 Motion to Shorten Time (tf, COURT STAFF) (Filed on 2/8/2011) (Entered: 02/08/2011)

March 11's the date SCEA wanted changed to today, February 9, to give SCEA time to prepare for Hotz's motion to dismiss for lack of jurisdiction, which will also be heard on March 11. The parties stipulated [PDF] to that date. You have to admit that SCEA's motion kind of makes sense, to the extent that it wants to amplify its factual basis for tying Hotz to California:
Under the usual time table for noticed motions, SCEA’s motion cannot be set for hearing until March 11, 2011. However, this date is not early enough for SCEA’s motion to be heard since Hotz’s motion to dismiss is currently scheduled to be heard that same day. Therefore, absent an order shortening time, SCEA will be unable to complete discovery in time to fully oppose Hotz’s motion to dismiss by February 18, 2011, when its opposition is currently due. Accordingly, SCEA requests an Order Shortening Time so that its motion can be heard on February 9, 2011.
All they wanted was an opportunity to prepare, in other words. So why would the judge say no?

No reason is given, so all we can do is guess. So this is just me thinking out loud as to possibilities. There are several, ranging from the unlikely to the most logical. Maybe the judge saw there just wasn't time before February 9th would be here. Maybe she was booked already that day with other cases and didn't have an opening. Or maybe she wasn't convinced that there is such a screaming emergency as SCEA portrayed it. Maybe she's had a sufficiency of SCEA's aggression. Maybe she's wondering if there would be enough time for everyone potentially being subpoenaed to prepare to either comply with the subpoena or fight it. But I suspect it's something else entirely.

"SCEA will be severely prejudiced," it argued, " – and at risk of substantial harm – if its motion for expedited discovery is not heard on a shortened basis." This request is what the judge has denied. Now, why would she do that? Severe prejudice to a party is exactly what a judge isn't supposed to let happen.

The most obvious possibility then, I think, is that she feels SCEA doesn't need the expedited discovery, because she's inclined to rule for them without it. If you recall, SCEA stated it thought it had enough substance to win the jurisdictional issue already, and she may agree. After all, if she thought she was now inclining toward denying Hotz's motion anyhow and make him stay in California, why bother with expedited discovery? If she thought it possible she'd decide the other way, though, that the case *doesn't* belong in her court after all, if that was really up in the air, I think she'd be more inclined to grant SCEA's motion.

One final possibility is that Hotz's filings have so convinced her that she made an error that she figures there is never going to be a need for any kind of discovery in California, since she's going to dismiss for reasons none of the subpoenas can alter. I think that is the least likely.

Again, though, this is all just guesswork on my part, and you can always be wrong when you are guessing. This makes logical sense to me. People aren't always logical, though, as you may have observed, and so we'll have to wait and see what happens at the hearing.

As you may have noticed, we have set up a Timeline page for this case now. I can't believe how long it is already.

Update: File this under OMG. Sony has retweeted the code itself and it's spreading like wildfire, as PCMag and others are reporting:

On Tuesday night, New York City-based Travis La Marr, or @exiva on Twitter, tweeted the 40-digit root key to @TheKevinButler with the cryptic message, "Come at me." Kevin Butler is a character from Sony's Playstation 3 commercials that became so popular, the company turned him into a spoof spokesman for its Playstation products.

After La Marr's tweet, Kevin Butler responded by re-tweeting the entire jailbreak code and a playful message, "Lemme guess...you sank my Battleship?"

It didn't take long for Sony Computer Entertainment America (SCEA) to realize that its fake spokesman, managed by ad agency Deutsche in Los Angeles, had spread the jailbreak code around Twitter.

The careless retweet shocked even La Marr. ... In a followup tweet he posted, "My life is complete. Sue yourself, Sony" accompanied by a TwitPic of the code, which has already been deleted from Kevin Butler's page.

Of course, they are more likely to sue him, I suppose, but what will they do about getting *this* toothpaste back in the tube, which they squeezed out themselves? "Kevin Butler" had 70,000 followers, for starters, and the retweet is everywhere. Search for the key in Google, and you get about 179,000 results. How plausible will SCEA's lawyers sound at the hearing on March 11 now, asking for subpoenas so they can clean up the Internet?

[ Update 3: This particular key came from graf_chokolo and not geohot in a separate but related exploit to geohot's original hypervisor exploit. I have a link to demonstrate it, but I don't want Sony to sue me for linking, and so you'll have to take my word for it that I checked.]

In short, this litigation is providing Sony with an education in the Streisand Effect, and this latest incident hands them their PhD. The Internet isn't controllable the way SCEA thinks it is. Sometimes we all wish it were, but it's just not. I used to add to that thought, "barring martial law", as a kind of truth joke. But recently, we've seen that even martial law can't make it stop. I guess the only way to kill it would be *universal* martial law. Maybe that would work, or maybe the Internet is like cockroaches. No matter what you do, they survive somehow. That reminds me. Wasn't the Internet deliberately built to survive everything, nuclear blasts, anything? I'd say they did a fine job. It does.

There is a graphic on Wikipedia's page on the Internet by the Opte Project that will help Sony to understand why the Internet has a life of its own.

Update 2: Groklaw's jbb reminds us that Sony also revealed 90% of the other key at issue, and he explains what that means here. A relevant excerpt:

Perhaps in their rush to seize all of geohot's computers before he got wind of what was going on, Sony included 90% of the master signing key in documents they filed with this court.

Now a lawyer or a judge might naively think that having only 90% of the key is worthless since someone needs 100% of the key in order for it to work. But they would be, as we say in the biz, "wrong". Even divulging 10% of the key would be significant. Giving out 90% of the key is tantamount to giving the entire key away.

Essentially, most attacks on a public/private key crypto-system are measured by how many bits of the key are made redundant (or known). One way to look at it is via what is called a brute force attack where every possible key is tried. If a key has 100 bits then an attacker would need to try 2^100 (about 10^30, a one followed by 30 zeros) different keys in a brute force attack before being assured of finding the one that works. If 10% of the bits of such a key were divulged then an attacker would only need to try 2^90 keys. This is still a huge number but it would mean a brute force attack would be 1,000 times faster (10% of 100 bits is 10 bits and 2^10 is about 1,000).

But Sony didn't divulge 10% of their key in the court documents, they divulged 90%. In the example above, that would be like publishing 90 of the 100 bits in the key thus making a brute force attack 10^27 times faster so instead of trying 10^30 keys, an attacker would only have to try about 1,000 keys, which would be quite doable.

The bottom line significance, as he explains it, is that seizing Hotz's computers won't achieve a thing.

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