Sony Must Show It Has Jurisdiction To Sue PS3 Hacker 217
RedEaredSlider writes "A California court today asked that Sony show it has jurisdiction over the hacker who publicized a 'jailbreak' for the PlayStation 3 console. Judge Susan Ilston, in the US District Court for the Northern District of California, said Sony has to show that George Hotz, a hacker who posted a method of 'jailbreaking' PS3 consoles, has some connection to California if Sony is to claim damages for his work on the PS3."
For his part, Geohot has moved quickly to fight back against Sony's accusations. His legal team issued a statement (PDF), and also pointed out, "On the face of Sony’s Motion, a TRO serves no purpose in the present matter. The code necessary to 'jailbreak' the Sony Playstation computer is on the internet. That cat is not going back in the bag. Indeed, Sony’s own pleadings admit that the code necessary to jailbreak the Sony PlayStation computer is on the internet. Sony speaks of 'closing the door,' but the simple fact is that there is no door to close. The code sought to be restrained will always be a Google search away."
Can't have jurisdiction here (Score:2)
On the other hand, with my vast knowledge of how these things go, he'll probably wind up facing a stiff penalty of some sort.
Re:Can't have jurisdiction here (Score:5, Informative)
Your knowledge of the law, admittedly scant, is also utterly wrong.
Additionally, it's worth noting that the headline "Sony Must Show It Has Jurisdiction To Sue PS3 Hacker" belies typical /. cluelessness about any and all legal issues. You never have "jurisdiction" to sue somebody. COURTS have jurisdiction, not parties, and the jurisdiction means they have the power to HEAR the lawsuit.
Re:Can't have jurisdiction here (Score:5, Informative)
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Right. The court is asking Sony to explain why a California court (where they filed) has jurisdiction, because Hotz's lawyer filed a response saying "What's california got to do with it? He lives in New Jersey".
The downside, of course, is that Sony can simply say, "fine, we'll refile in New Jersey, which the defendant has happily admitted has jurisdiction."
TFA presents the issue as Sony's jurisdiction (Score:2)
(I do agree that the headline is poorly worded but it's derived from a technically-correct but also poorly worded line in TFA).
No, its not. TFA -- and not just in the sentence excerpted in TFS, which is technically wrong but which might, on its own, have just been an error in pronoun use -- presents the legal issue in dispute as being whether Sony (not the U.S. District Court for the Northern District of California) has jurisdiction.
In addition to the first sentence in TFS, which might be explained away as an error in pronoun use in a sentence intended to convey the correct issue of the court's jurisdiction, TFA states: "Hotz's law
Re:TFA presents the issue as Sony's jurisdiction (Score:5, Informative)
Interestingly enough Sony's main claim to California jurisdiction is the "choice of venue" clause in their PSN ToS.
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COURTS have jurisdiction, not parties, and the jurisdiction means they have the power to HEAR the lawsuit.
Sir –
Even more pedantically: Courts and other dispute resolution bodies (e.g. arbitrators) have what we refer to as "jurisdiction" when these bodies have the power to determine the outcome of a dispute i.e. the power to issue an award that is enforceable over the people (in personam), subject-matter, and property (in rem) in issue.
I've been taught through experience that the word "jurisdiction" ought to always be accompanied by an adjective that answers the question "over what?" Determining issues of
e-ttorney at law? (Score:2)
I hope his attorney has insurance against injuries sustained from excessive eye-rolling.
Muhahah (Score:4, Funny)
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Re:Muhahah (Score:4, Funny)
they have the code
int getRandomNumber()
{
return (4);
}
is theirs. only Darl is capable to get with this random representation. and courts already have proof in their notes based on alll stupidity he said when he was in court
Great Legal Team! (Score:2)
Isn't that a
Re:Great Legal Team! (Score:4, Insightful)
No.
It just says that the information is out there, not that their client is responsible.
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The milk is spilled on the barn door and the horses are out of the bag! And no use crying over the cats in the yard.
If we can hit that bullseye, the rest of the dominoes will fall like a house of cards. Checkmate. -- Zapp Brannigan
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It's still missing a car analogy.
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The milk is spilled on the barn door and the horses are out of the bag! And no use crying over the cars in the yard.
If we can hit that bullseye, the rest of the dominoes will fall like a house of cards. Checkmate. -- Zapp Brannigan
Re:Great Legal Team! (Score:4, Informative)
The defense's argument is not that George Hotz isn't responsible. He is responsible. The question is whether or not what he did was illegal. They're arguing that there is little difference between jailbreaking a phone (legally exempted in the DMCA) and a console (still illegal per the DMCA.)
Voice chat (Score:4, Interesting)
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For what it's worth (not much really), the PSP has Skype on it.
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...allow voice chat in game? I don't see what you were trying to indicate with that. I mean, I can voice chat with other people around with world using my PC, but that doesn't mean it's a telephone.
Any game with voice chat turns the PS3 into "a telecommunications device that transmits and receives sound, most commonly the human voice" [wikipedia.org]. PS3 with the Eye accessory already does video chat [playstation.com], which includes voice. Can you show that "telephone" is defined in copyright law to require connection to the PSTN, and if so, would that be reason enough to cancel rumored Skype [gamesradar.com]?
Re:Voice chat (Score:4, Insightful)
Seriously Your Honour, all I was doing was trying to do was fix my phone!
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No.
It just says that the information is out there, not that their client is responsible.
It does, however, suggest that there has been damage done. If Sony can show the client is responsible, then the question of whether a trade secret has been destroyed is settled, for example.
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Re:Great Legal Team! (Score:5, Insightful)
Exactly. No different than publishing a guide for hopping up your car.
"Breaking into" is simply pointless pejorative wording. Pointless because the car is already yours. You paid for it, you should be free to do whatever you want to with it.
Imagine if ford decided that you could no longer use their cars on expressways and reprogrammed the engine control unit to prevent the car from going over 45mph AFTER YOU HAD BOUGHT THE CAR.
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Okay, so a better analog might be publishing a guide on how to remove the rev limiter from the engine computer.
Re:Great Legal Team! (Score:5, Insightful)
More accurate would be a how-to on how to read and recreate/reprogram the logic tables used by the ECM, so that the existing ECM can be repurposed/have its behavior changed.
Especially considering that the released information on the PS3 is not about how to alter hardware; Rather, it is about how to read software built into the hardware, and how to gain full control over that hardware and convince it that the software you are running on it is legitimate.
In short, this restraining order is like Ford issuing same against somebody researching proprietary ODBII protocol data, out of fear that it could be used to circumvent said rev limiter with a forged firmware "factory" update.
The argument should be that this falls squarely within the "enable compatibility" clause of legal reverse engineering, much like research into the allegorical ODB protocol would be, (allows creation of compatible 3rd party ODB based code readers and diagnostic tools for one thing, also allows new code tables to be pushed to the engine), and that the restraining order is further useless since this research was not strictly original, and the resulting information is widely publicised. (meaning it is a waste of the court's time and a frivelous and vindictive move by the plaintiff which should be dismissed.)
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Oh come on.... you really expect that argument holds any weight??
"It's my car...house...equipment I bought it therefore I can do what I like with it", including something forbidden by terms of use and by the law? - I think not.
The divide is whether you think that it's you right to backup and protect your media investment, and companies like Sony should not stop you from doing that. - End of the day, Sony are protecting their interests, while we try to protect ours (the right to make backups of fragile media
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Sure hope not, especially if they are doing it in California. They'll get their nuts cut off and fed to them.
https://secure.wikimedia.org/wikipedia/en/wiki/Strategic_lawsuit_against_public_participation [wikimedia.org]
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Mr. Hotz manages to open his welded-shut hood using the secret knock he heard about from fail0verflow.
Inside he finds detailed instructions for starting the car printed on an instruction sheet. Like all good instruction sheets, it has an ISBN.
Mr. Hotz writes the ISBN on a poster and puts it up in his yard. Other people start ordering copies using the ISBN.
Sony drives by, screeches to a halt, and fires a cruise missile from their car (full of lawyers) at Mr. Hotz's front door.
The judge
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I once wrote such a guide, but my lawyers advised me that a how-to might be trouble. So I rewrote it as a poem entitled "The Rock and the Window".
Re:Great Legal Team! (Score:5, Interesting)
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"Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset."
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Technically speaking, the PS3 *IS* a wireless communication device that is locked down to run proprietary software.
It has builtin bluetooth and WiFi. It's just some homebrew away from being a VERY large bluetooth VoIP phone.
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Actually you can already do video calls if you just plug in a webcam. If they have exemptions for phones, they should have it for consoles. They should have it for everything..
Re:Great Legal Team! (Score:4, Informative)
That is not the only exemption, I believe 1201 f should apply as it is providing the information to allow the PS3 OS software to inter-operate with the software generating homebrew images.
http://cyber.law.harvard.edu/openlaw/DVD/1201.html#f [harvard.edu]
IANAL
Tune in next week for... (Score:2)
If California does not have jurisdiction then the DMCA is irrelevant to this whole episode.
But it would remain relevant to the next episode, in which Sony lawyers fly to the other side of the U.S. mainland.
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Keys like this cannot be copyrighted. They are not creative works in any way.
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Of course they are speech. how could they not be?
Anything you can say is speech. I could go recite the key on street corners if I like.
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This issue was already brought to bear by a university professor who made a very eloquent case for the DE-CSS algorithm and key to be treated as free speech.
While the case was lost, the judge did rule that object code and source code are forms of speech, so sharing the programs needed to crack the PS3 would naturally follow.
From the person behind the "Gallery of CSS descramblers" [cmu.edu]
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See my post above. A little VOIP software to make use of a 10$ bluetooth cellular handsfree dongle on the PS3, and the console magically becomes a telephone.
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I think if anything went forward the evidence against the guy is clear and they'd end up stipulating that he's the one.
That's why they're fighting jurisdiction and moving against restraining orders instead of taking it to court now and forcing Sony to show proof. If those don't work they should try to negotiate a cheap out, which Sony will piss on, so they probably won't bother to try. When it does get to trial, they'll fight over what it cost them and whether and how much should cost him. No sense pissi
Re:Great Legal Team! (Score:4, Interesting)
If Sony wishes to bring up potential harm instead of actual harm, the court ought to be reminded of the rootkits installed by Sony audio CDs on machines they didn't own or manufacture.
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And who says he was even using his own PlayStation?! :p
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It's hard to argue that he didn't do what he did, they're going to argue that what he did was legal. Like if I was accused of slander and responded with "Of course I called him an idiot, he is one!". I said what I said and stand by it, but that doesn't mean that what I did was slander.
"On the face of Sony's Motion" (Score:2)
Isn't that a confession?!
No. Read it again. He never admits to doing anything, whether or not it is illegal, so all the pertinent questions of law and fact are still out there. All he does is state the fact that Sony's own filing admits that the information that they are seeking to prevent getting out is already widely distributed on the internet, and argues, based on that, that on the basis of the claims in Sony's own filing requesting a TRO (temporary restraining order) such an order would serve no purpose.
They know that, but that's not the point (Score:5, Insightful)
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"Ruin him financially" you mean he might have to move out of his dad's garage?
Comment removed (Score:5, Funny)
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Cyberpunk (Score:2)
That's what all those old cyberpunk novels promised us. Big Japanese companies sending cybernetic ninjas to take-out rogue hackers.
Come on, Sony. Make it happen.
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Sony knows that they can't put the cat back in the bag, but that's not the point. The point is to make life as hellish as possible for the person who let the cat out, so the next bloke who considers doing it might find something else to do.
Unfortunately for Sony's motion for a TRO, such orders are allowed only for specified purposes (largely, to prevent irreversible harm), and punitive purposes are not an acceptable reason for a TRO.
Re:They know that, but that's not the point (Score:4, Funny)
In light of your slashID, I thought it important to mention that a corpse is an inanimate object, and even if you purchase it (legally, like for medical research) you cannot do whatever you want to it OR with it.
Just an FYI, in case you were wondering about the specific implications of edge cases to your generalism. You know. Stuff you'd want to do to/with a corpse. For science or something.
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Trade secrets are not protected in this manner. If you find them out they stop being secrets, neat huh?
You can harm Sony legally all you want. At worst he broke some EULA bs contract.
Saw this one coming (Score:5, Insightful)
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That argument won't work.
He should have sued them for taking away the functionality he paid for when he bought his box (if he bought it before they locked it down).
Even if he loses this case, he should still be able to sue them for that.
In fact, he should be using that as a bargaining chip: Drop your suit and let everyone use my code, or I'll counter-sue you and win and you'll have to compensate everyone who owns one of your boxes.
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They'd accept that deal in a heartbeat: they'd rather destroy him and keep a victory that lets them deploy more DRM-friendly stances in the future. I can't see a class action suit in this case as being anything more than a slap on the wrist.
Re:Saw this one coming (Score:5, Informative)
Before using a firmware release to disable OtherOS, Sony has said [ozlabs.org]:
Please be assured that SCE [Sony Computer Entertainment] is committed to continue the support for previously sold models that have the "Install Other OS" feature and that this feature will not be disabled in future firmware releases.
IANAL, but I believe the fact that geohot was using the exploit to re-enable OtherOS will be a vital part of his defense against charges he violated the DMCA. My understanding of the current case law is that if you circumvent a security measure for the sole purpose of violating someone's copyrights then you are liable for prosecution under the DMCA. But if you circumvent a security device in order to exercise a "fair use" then you are safe. A recent example of this was the announcement by the US Government (I forget which department) that is was legal to jailbreak iPhones in order to change carriers.
This then takes us back to the 1984 Supreme Court decision in Sony Corp. of America v. Universal City Studios, Inc [wikipedia.org] where they ruled that "making of individual copies of complete television shows for purposes of time-shifting does not constitute copyright infringement, but is fair use". The idea was that if there were valid (fair) uses of video recorders then video recorders were legal even if they could be used for infringement.
IMO (IANAL), geohot's exploit has fair uses, such as restoring OtherOS, and other uses that would infringe copyright (pirating games). Without the fair uses, geohot might have been in trouble.
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I don't think that "fair use" is the right term; it's too tied up in copyright, and doesn't extend to all kinds of uses that seem fair for anything not copyrightable. The jailbreak thing is actually in the law.
Now that his code is out, people using it are probably not liable for breaking protection on their systems.
Doesn't mean he's not liable for violating the agreement on his to create and distribute the code.
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If one were to buy a PS3 to hack on, and never connected it to the internet, how would one be bound by a terms of service?
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Because it shows you the eula when you first turn it on.
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After that I believe the computer belongs to me, to do with as I wish, seeing as I paid for it.
I should really be able to send Sony a letter asking them to reimburse me for their software licence seeing as I didn't use it.
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you mean this quote from the article you linked to
"Mr. Hotz expressly tells people on his website not to give him donations for his efforts," Kellar explained. "Even more harmful to Sony's personal jurisdiction argument, the only evidence put forward of Mr. Hotz' PayPal account appears to be a transaction initiated by the plaintiff."
Why would you say what you said when the link you posted as evidence says the opposite?
Oh you fool! (Score:2, Insightful)
Now they're going to seek injunction against Google. (Yes, I DO think they're THAT RETARDED.)
This has broader implications (Score:2)
Judge Ilston is rightfully concerned about Sony's argument here. If she were to accept their argument, it would be possible for someone to sue you in California if you use PayPal, or have a Twitter account, or a YouTube account, or any other kind of computer account in California. It would effectively create a kind of universal jurisdiction based solely on the fact that you use one of those Internet services. The Federal courts in California are already back-logged enough with just the personal jurisdict
Vroom (Score:5, Informative)
Awesome, Hotz' attorneys used a car analogy in their press release.
Plan B (Score:2)
Ya know, there's nothing stopping sony from filing exactly the same complaint in new jersey and then proceeding as planned.
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Of course that's what will happen, and GeoHot would much prefer that, because now he can show up at the courthouse in his own county to mount his defense instead of having to fly to California.
Re:Plan B (Score:5, Informative)
There's a reason they did this in California. The first is that it harasses the defendant by forcing him to defend a suit in a place where he doesn't live. The second is that California is where most of the USA's IP lawyers keep their crypts, and where SECA is headquartered, and they can't be bothered to find/hire someone barred in New Jersey or Massachusetts to pursue a case there. Yes, they really are that lazy. The special appearance was absolutely the right thing to do.
When I read Sony's application I knew there would be massive jurisdiction problems. I don't think the Sony Network agreement, even if the court finds that geohot agreed to it (good luck!), was written to cover this kind of litigation, and the rest of the bases for jurisdiction (Youtube? Paypal? Really, overpaid corporate law jerks?) are junk. The response is correct, too, that the Sony action seems to be bootstrapping jurisdiction for everyone else named through poor old geohot, which isn't going to fly. And it's also correct that there just isn't a good legal basis for issuing a TRO, which is supposed to be a TEMPORARY order in emergencies where there is a serious danger of impending harm.
IAAL, but not THIS kind of lawyer.
Checkout the output of my random number generator. (Score:3)
riv: 47 EE 74 54 E4 77 4C C9 B8 96 0C 7B 59 F4 C1 4D
pub: C2 D4 AA F3 19 35 50 19 AF 99 D4 4E 2B 58 CA 29 25 2C 89 12 3D 11 D6 21 8F 40 B1 38 CA B2 9B 71 01 F3 AE B7 2A 97 50 19
R: 80 6E 07 8F A1 52 97 90 CE 1A AE 02 BA DD 6F AA A6 AF 74 17
n: E1 3A 7E BC 3A CC EB 1C B5 6C C8 60 FC AB DB 6A 04 8C 55 E1
K: BA 90 55 91 68 61 B9 77 ED CB ED 92 00 50 92 F6 6C 7A 3D 8D
Da: C5 B2 BF A1 A4 13 DD 16 F2 6D 31 C0 F2 ED 47 20 DC FB 06 70
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Jury nullification works both ways.
Don't do it.
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Yes, Jury Nullification works both ways. If I'm on a jury, I will exercise my conscience. If I'm ever a defendant, I hope my jury will do the same. The world would be a much better place if people exercised their consciences more often.
jury nullification (Score:3)
Jury nullification works both ways.
Actually, jury nullification works one way (in favor of criminal defendants) and in one context (criminal trials.) A criminal jury trial is the only case where a judge cannot overrule, in either direction, a jury verdict if it is, in the opinion of the judge, not reasonable given the applicable law and the facts presented. And, in a criminal jury trial, it works only in the defendants favor; a judge can throw out a conviction reached by the jury if it is not reasonable (though in practice, if a conviction o
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In practice, anything that reaches a jury is a confused mess, everything else having been decided by the judge or stipulated by the lawyers.
Jury nullification can work both ways, for and against a defendant, or for and against the prosecution. They're both asserting points in the law, and the jury can ignore the law in either direction.
If the judge had enough of a clue as to what was really the answer, he probably wouldn't let it get that far. So a nullification would have to be pretty blatant for him to
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Jury nullification can work both ways, for and against a defendant, or for and against the prosecution.
No, actually, it can't.
They're both asserting points in the law, and the jury can ignore the law in either direction.
Sure, but the jury acting inconsistently with the law in either direction in a civil trial can be overridden by the court (either the trial court or appellate court), and the jury ignoring the law in a way which benefits the prosecution in a criminal trial can similarly be overridden. The power of the jury to nullify the law -- to ignore it in a manner which cannot be overridden -- is restricted to one-direction (favoring the defense) in one context (criminal trials.)
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Actually it doesn't work both ways. It only nullifies laws, it never makes new ones.
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Wouldn't happen anyway. Anyone who knows about that gets screened out.
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Hey everyone if you switch the spark plug wires on cylinders 2 and 4 you can turn a mustang into a mustang gt with an extra 15 hp.
Would that be illegal? No, even if Ford didnt like it.
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Stealing would indeed be bad. Can you explain how one could use this jailbreak to go into Sony head quarters and steal this IP so that Sony no longer had it?
Otherwise I think you mean copy this IP infringing on Sony's government granted monopoly.
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Like a hammer, there are all sorts of illegal thingsthat cann be fine with them yet they are legal to own and talk about...
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If ford makes an extra grand off the gt package then they are loosing money.
There are legitimate uses for the hack. I do not have to prove that no one is gonna use it illegitimately. It would be like saying Ford cannot sell cars because some people might use them in a robbery.
Someone WILL use this improperly. Thats not geohots fault though.
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What did he do wrong exactly?
Let people use their own hardware however they see fit. Oh no what a fucking tragedy.
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Since you obviously miss the point, that he has broken NO LAWS.
Just because he did something that others can use to do bad does not mean he is GUILTY OF ANYTHING.
Your the one here who does not seem to understand.
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It does not have to be 0%. This only has to have significant non-infringing use. Like the VHS case proved. This does since it adds homebrew and the ability to run alternate OSes.
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Millions of dollars in what now?
In any case your hardware you do with it as you like. Not his problem what people would do with it.
Oh and you are a tool.
Re:if there was ever a time for a fully informed j (Score:5, Insightful)
It is one thing to tinker with your own stuff. It's another to tell everyone else how to do the same with the full knowledge that most of those who listen will misuse it to commit illegal acts, and even those using it legally would be just as well served doing said legal activity on any number of other platforms.
Yes, those are two things. Specifically the first is exercising your property rights. The second is exercising your free speech rights.
Re:Isn't that kinda like saying... (Score:5, Informative)
Because others guys are doing it, it's okay for me to do it, or this case continue doing it? I don't see that as a particularly good defense.
which was most likely in reference to this comment by geohot's Lawyer:
On the face of Sony’s Motion, a TRO serves no purpose in the present matter. The code necessary to 'jailbreak' the Sony Playstation computer is on the internet. That cat is not going back in the bag.
Note: TRO = Temporary Restraining Order.
Sony's shy^H^H lawyers tried to get the court to give them all of geohots computer equipment before geohot had time to mount a defense. He was only informed of this attempt a few hours before the hearing.
The "cat is out of the bag" statement wasn't addressing whether geohot is guilty or innocent of any crime. It was addressing the lame attempt by Sony to confiscate all of geohots computers. Sony said they needed the court to take this rapid and extraordinary action to keep the world from learning how to perform the exploit. Since the information was already on the web, seizing geohot's computers would not stem the tide.
TL;DR: Sony was being an asshole and tried to use a temporary restraining order as an excuse to steal all of geohots computers. Geohot had already lawyered up and was prepared for this sneak attack.
YAESF (yet another epic Sony FAIL).
Re:Isn't that kinda like saying... (Score:4, Informative)
I suppose, but still seems darn weak.
It directly addresses the legal standard for issuing a temporary restraining order, which is issued before the legalities at issue are determined to prevent ongoing harm that might otherwise occur while the case is progressing. That there is no reasonable basis to believe that the TRO would prevent any ongoing harm is the strongest possible argument against a TRO, not a "darn weak" one.
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Then I shall stand correct. I still think it is kinda silly, but I didn't make the laws, and I'm sure in other cases it makes more clear sense.
The important thing to remember about a TRO is that it isn't the final judgement in the case; instead, its simply something that is available because lawsuits take time, and so courts need a way to restrain actions that might cause irreparable harm while the case is working its way through the system.
Its not primarily about what people ought to be allowed to do in a general, permanent sense (because those questions are what is decided in the resolution of the case), its about what do we need to do to make i
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In theory. In practice, particularly when there's a large disparity of power between the two parties, getting the TRO is as good as winning. You get the TRO, then drag the case out until the defendant runs ou
Especially because the PS3 is a phone in a way (Score:4, Informative)
Please allow me to summarize replies to similar questions above yours: "Because a PS3 is not a wireless telephone."
And the replies to that: "Yes it is. PS3 has voice chat and Wi-Fi."
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You mean bribe them?
That is what MS did, and as usual microsofties they sold out and they sold out cheap.