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Stipulation: Hotz to Turn Over Computers to Neutral Third Party - Updated
Friday, February 18 2011 @ 11:23 AM EST

This will make a lot of you feel better. The parties have come up with a stipulation in Sony Computer Entertainment American v. Hotz regarding what Hotz must do about handing over his computers. The new Preliminary Injunction [PDF] now says that he is to turn his materials over to a "neutral" third party, not to SCEA's lawyers, and after the neutral party combs through them, it all is returned to Hotz. All but whatever they "segregate" out of them. He won't get that back until the end of the litigation, should he prevail, which this court at least currently thinks is less likely than that Sony will. There will be a hearing on Hotz's motion to dismiss on April 8, 2011.

Here's the Stipulation and the exhibit with the terms of the preliminary injunction and the computer hand-over:

02/17/2011 - 83 - STIPULATION AND [PROPOSED] ODER RE: PRELIMINARY INJUNCTION AND HEARING ON MOTION TO DISMISS by Sony Computer Entertainment America LLC. (Attachments: # 1 Exhibit A to Stipulation and [Proposed] Order Re: Preliminary Injunction and Hearing on Motion to Dismiss)(Gaudreau, Holly) (Filed on 2/17/2011) (Entered: 02/17/2011)

Here's the meat of the stipulation:
1. The Preliminary Injunction shall be entered in the form of Exhibit A attached hereto.

2. SCEA shall file its Opposition to Defendant Hotzís Motion to Dismiss on March 18, 2011;

3. Defendant Hotz shall file his Reply, if any, on March 25, 2011.

4. The hearing on Defendant Hotzís Motion to Dismiss shall be held on April 8, 2011.

And here's what the preliminary injunction reads like now, from the exhibit:
PRELIMINARY INJUNCTION

IT IS HEREBY ORDERED that Defendant Hotz and his officers, employees, attorneys and representatives, and all other persons or entities in privity or acting in concert or participation with Defendant Hotz, be enjoined from:

1. Offering to the public, posting online, marketing, advertising, promoting, installing, distributing, providing, or otherwise trafficking in any circumvention technology, products, services, methods, codes, software tools, devices, components or part thereof, including but not limited to the Elliptic Curve Digital Signature Algorithm ("ECDSA") Keys, encryption and/or decryption keys, dePKG firmware decrypter program, Signing Tools, 3.55 Firmware Jailbreak, root keys, and/or any other technologies that enable unauthorized access to and/or copying of the PS3 System and/or enable compatibility of unauthorized copies of other copyrighted works with the PS3 System (hereinafter, "Circumvention Devices").

2. Providing links from any website to any other website selling, offering for sale, marketing, advertising, promoting, installing, importing, exporting, offering to the public, distributing, providing, posting, or otherwise trafficking in any Circumvention Devices.

3. Engaging in acts of circumvention of TPMs in the PS3 System to access, obtain, remove, or traffic in copyrighted works.

4. Engaging in unauthorized access to the PS3 System or the PlayStation 2 Network ("PSN") in order to obtain, access, or transmit any program, code, information or command therein.

5. Publishing, posting, or distributing any information, code, program, instructions, video, or other material obtained by circumventing TPMs in the PS3 System or by engaging in unauthorized access to the PS3 System or the PSN.

6. Assisting, facilitating or encouraging others to engage in the conduct set forth above in 1-5.

IT IS FURTHER ORDERED that Defendant Hotz, his officers, employees, attorneys or representatives, and any and all other persons acting in concert or participation with Defendant Hotz, with notice of this Order, shall preserve, and not destroy, erase, delete, dispose of, or alter any documents or records, in whatever format, including electronic documents, computer files, computer discs and drives, that relate to, reflect, record, or contain any information regarding the manufacture, distribution, promotion, marketing, advertising, purchase, sale, offer to sell, trafficking, import, export, installation, payment, storage, and/or shipment of any and all of the Circumvention Devices, or any communications with any party concerning the manufacture, distribution, promotion, marketing, advertising, purchase, sale, offer to sell, trafficking, import, export, installation payment, storage, and/or shipment of any and all of the Circumvention Devices.

IT IS FURTHER ORDERED that Defendant Hotz is required to deliver his computers, hard drives, CD-roms, DVDs, USB sticks, and any other storage devices on which any Circumvention Devices are stored (but not his Sony PS3 consoles) to a third party neutral selected by the parties for the purpose of isolating, segregating and/or removing the information on those devices related to Defendant Hotz's circumvention of the TPMs in the PS3 System. Defendant Hotz's devices shall be promptly returned to him after the information has been segregated and removed from those devices. The logistics and protocol for this impoundment shall be worked out by the parties with Magistrate Judge Spero.

IT IS FURTHER ORDERED that the $10,000.00 posted by SCEA on January 27, 2011 as security for the Court's issuance of the Temporary Restraining Order shall suffice for this Preliminary Injunction.

IT IS FURTHER ORDERED that this Preliminary Injunction shall remain in effect during the pendency of this case unless otherwise stipulated to by the parties or ordered by the Court.

So it won't be Sony pawing through his stuff. The $10,000 posted by Sony is for the purpose of making Hotz whole at the end if he wins. The court knows at this early point only that it believes Sony will win from what it currently knows, but more could happen.

One thing that will definitely happen is the hearing on the Hotz motion to dismiss. If that were to be granted, then it's back to Go and Sony will then have to file in New Jersey, where Hotz actually resides.

Please note that paragraphs 2, 5 and 6 technically apply to Hotz and those acting "in privity" with him, but in real life apply to the world, including you and me, so please don't post any links to anything "selling, offering for sale, marketing, advertising, promoting, installing, importing, exporting, offering to the public, distributing, providing, posting, or otherwise trafficking" in what the court would view as "circumvention devices", etc. The language is very broad, and includes not "publishing, posting, or distributing any information, code, program, instructions, video, or other material obtained by circumventing TPMs in the PS3 System or by engaging in unauthorized access to the PS3 System or the PSN" and not "assisting, facilitating or encouraging others to engage in" anything listed in the five paragraphs 1-5.

I want to report on the case, not become part of it. Thanks for being extra careful. You see how Sony litigates, so if in doubt, please don't.

Update: More filings:

02/18/2011 - 84 - ORDER ENTERING PRELIMINARY INJUNCTION AND CONTINUING MOTION. Motion Hearing set for 4/8/2011 09:00 AM before Hon. Susan Illston. (tf, COURT STAFF) (Filed on 2/18/2011) (Entered: 02/18/2011)

02/18/2011 - Set/Reset Deadlines as to 57 MOTION to Dismiss FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE. Motion Hearing set for 4/8/2011 09:00 AM before Hon. Susan Illston. (tf, COURT STAFF) (Filed on 2/18/2011) (Entered: 02/18/2011)

So the judge signed the stipulated order, and the hearing on Hotz's motion to dismiss has been reset for April 8 at 9 AM.

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