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Sony Must Show It Has Jurisdiction To Sue PS3 Hacker
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."
Little does Sony know that SCO has now found they infringe on no fewer than 238 of their patents!
No.
It just says that the information is out there, not that their client is responsible.
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.
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.
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.
The DMCA exemption 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."
"National Security is the chief cause of national insecurity." - Celine's First Law
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.
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.
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".
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.
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.)
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).
We don't see the world as it is, we see it as we are.
-- Anais Nin
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.
You are entitled to your own opinions, not your own facts.
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
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 jurisdiction already allowed.
Awesome, Hotz' attorneys used a car analogy in their press release.
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
IANAL
Realities just a bunch of bits.
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.
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).
They made it fuckin hard to crack the PS3 to play copies of whatever. Then when people came up with methods to do that, they removed "other OS feature" that allowed the crack. Then this guy finds a method and Sony loose control. I don't agree with Sony's over bearing control of the PS3, in particular the removal of features. However, I think it's clear what Sony are doing. They are making an example of what happens to you if you thumb your nose at them - publicly.
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.
Give me Classic Slashdot or give me death!
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.)
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.
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.
If the PLAYSTATION 3 video game console is not a telephone, then what's the Sony Wireless Bluetooth Headset for the PS3 supposed to do?
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 on one or more of the charges would not be reasonable, the judge is more likely to dismiss before sending the case to the jury.)
And jury nullification is more distant from a motion for a TRO, which is always decided on by
a judge and doesn't go to the jury in any case.
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."
Interestingly enough Sony's main claim to California jurisdiction is the "choice of venue" clause in their PSN ToS.
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
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 out of money or drops dead.
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.
Which would mean Sony has to prove that the defendant agreed to that ToS. After all, you can refuse to agree to the ToS, but still dump out the hard drive. For that matter, can the PS3 be used in offline mode without agreeing to the PSN ToS?