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PlayStation (Games) Sony The Courts Games

Sony Must Show It Has Jurisdiction To Sue PS3 Hacker 217

Posted by Soulskill
from the quick-guys-make-up-something-that-sounds-technical dept.
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."
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Sony Must Show It Has Jurisdiction To Sue PS3 Hacker

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  • With my scant knowledge of law, I know they can't claim real jurisdiction over the hacker himself. The hardware is another story, but unlikely too.

    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.
    • by Anonymous Coward on Friday January 14, 2011 @05:21PM (#34884166)

      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.

      • by suutar (1860506) on Friday January 14, 2011 @05:52PM (#34884570)
        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".
        • Re: (Score:2, Informative)

          by Theaetetus (590071)

          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."

      • by debrain (29228)

        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

  • I hope his attorney has insurance against injuries sustained from excessive eye-rolling.

  • Muhahah (Score:4, Funny)

    by mark72005 (1233572) on Friday January 14, 2011 @05:09PM (#34883958)
    Little does Sony know that SCO has now found they infringe on no fewer than 238 of their patents!
  • "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."

    Isn't that a
    • by synthesizerpatel (1210598) on Friday January 14, 2011 @05:14PM (#34884036)

      No.

      It just says that the information is out there, not that their client is responsible.

      • 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

        • by lennier1 (264730)

          It's still missing a car analogy.

          • Re: (Score:2, Informative)

            by Anonymous Coward

            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)

        by aardwolf64 (160070) on Friday January 14, 2011 @05:56PM (#34884624) Homepage

        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.)

      • 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.

    • by jandrese (485)
      I don't think he was ever planning to claim that it wasn't him to released the codes. His defense is probably going to be that what he did was tinker around with hardware he owned and published the result to the internet. Basically that he didn't break any laws.
    • Re:Great Legal Team! (Score:5, Interesting)

      by xaoslaad (590527) on Friday January 14, 2011 @05:16PM (#34884092)
      They put the word jailbreak in there. I forsee the defense attempting to use thebrecent decision by the the Library of Congress for jailbreaking under the DMCA. I was wondering if they would try this. I also wonder if it will work.
      • by msauve (701917)
        The DMCA exemption [copyright.gov] given by the LoC applies only to wireless phones (and doesn't use the term "jailbreak"):

        "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."
        • by xaoslaad (590527)
          I know; but the act is commonly referred to as jailbreaking. Im also aware that as it's written it seems to only apply to phones, but that may not stop them from trying. It may not even be their defense; it may just be an attempt to compare it to a protected activity and ge people thinking whats the difference.... I just dont think it was worded that way by coincidence.
          • by wierd_w (1375923)

            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.

            • 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)

          by GryMor (88799) on Friday January 14, 2011 @06:18PM (#34884912)

          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

    • by blair1q (305137)

      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

    • 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.

    • 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.

  • by alvinrod (889928) on Friday January 14, 2011 @05:29PM (#34884270)
    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. If nothing else they can haul him to court, ruin him financially, and hope for some kind of favorable legal precedent so that next time around it's even easier for them to come down with a hammer on the next poor bastard that dares to do whatever he wants with his own property.
    • Re: (Score:2, Funny)

      by Paracelcus (151056)

      "Ruin him financially" you mean he might have to move out of his dad's garage?

    • by DigiShaman (671371) on Friday January 14, 2011 @06:00PM (#34884690) Homepage

      Back in the old days, an organization from Japan would send over Ninjas to take care of the problem. I bet Sony misses those days -sigh-

      • Did the Pirates kill all the Ninjas as they crossed the open seas?
      • 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.

    • 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.

  • by genfail (777943) on Friday January 14, 2011 @05:39PM (#34884390)
    And so apparently did George Hotz. This the best case you could have against an Anti-Circumvention suit. Really he could argue that all he was doing was restoring features Sony removed from the PS3 (after many customers bought it) and the fact that he took several anti-piracy stances on his website only helps. I hope it goes all the way to the supreme court.
    • by blair1q (305137)

      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.

      • by gknoy (899301)

        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.

      • by DrJimbo (594231) on Friday January 14, 2011 @06:27PM (#34884992)
        There is already at least one class action suit against Sony for dropping the OtherOS feature.

        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.

        • by blair1q (305137)

          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.

          • by gknoy (899301)

            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?

            • by cynyr (703126)

              Because it shows you the eula when you first turn it on.

              • by PReDiToR (687141)
                I could have read it, disagreed, and then formatted the hard drive, knowing that it voided my warranty.
                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.
  • Oh you fool! (Score:2, Insightful)

    by Anonymous Coward

    The code sought to be restrained will always be a Google search away.

    Now they're going to seek injunction against Google. (Yes, I DO think they're THAT RETARDED.)

  • 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)

    by jam244 (701505) on Friday January 14, 2011 @06:17PM (#34884886) Homepage

    Imagine taking in your car for an oil change and having the manufacturer remove your car's air conditioner, radio, and half its horsepower because of fears that other hypothetical individuals might abuse their vehicles.

    Awesome, Hotz' attorneys used a car analogy in their press release.

  • Ya know, there's nothing stopping sony from filing exactly the same complaint in new jersey and then proceeding as planned.

    • GEE I BET THEY NEVER THOUGHT OF THAT.

      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)

      by saihung (19097) on Friday January 14, 2011 @10:47PM (#34886764)

      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.

  • by KPexEA (1030982) on Friday January 14, 2011 @09:55PM (#34886536)
    erk: C0 CE FE 84 C2 27 F7 5B D0 7A 7E B8 46 50 9F 93 B2 38 E7 70 DA CB 9F F4 A3 88 F8 12 48 2B E2 1B
    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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