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Friday, January 28, 2011

Groklaw - Sony Wins TRO, Impoundment

Sony Wins TRO, Impoundment
Thursday, January 27 2011 @ 08:30 PM EST

Sony's motion for a temporary restraining order, asking for an injunction and impoundment, has been granted [PDF]. The Hon. Susan Illston says she thinks Sony has demonstrated that it is likely to prevail on its DMCA claim. She has also ruled that Sony has met its burden to show that the Court has specific jurisdiction over George Hotz in California, because "he purposefully directed his activities at the forum state."

A TRO is designed to prevent injury until a full hearing can take place, and a date for that isn't set yet. So that will be the next step. Meanwhile, there's a list of things that Hotz and anyone working with him can't do and must do. Like clean up the Internet by taking back whatever he put up there about how to circumvent. Sigh. And hand over any computers or equipment that has any infringing stuff on it, and not erase anything. The judge says Hotz's lawyers are free to file a motion challenging jurisdiction "on a fuller factual record," if they want to, and they've said they want to. But I doubt it will influence anything, judging by this order.

For now, it is ordered that George Hotz, his lawyers, and "all other persons or entities in privity or acting in concert or participation with Defendant Hotz" are temporarily restrained from the following:

1. Offering to the public, creating, posting online, marketing, advertising, promoting, installing, distributing, providing, or otherwise trafficking in any circumvention technology, products, services, methods, codes, software tools, devices, component or part thereof, including but 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 PS3 Systems and other copyrighted works (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, removed, or traffic in copyrighted works.

4. Engaging in unauthorized access to the PS3 System or the PlayStation 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 Nos. 1-5.

I can't believe they think this will work. The court also orders Hotz to "retrieve any Circumvention Devices or any information relating thereto which Hotz has previously delivered or communicated to the Defendants or any third parties." Hotz may be a genius coder, but I doubt even he has the power to censor the Internet or make it bend to his will, let alone remove knowledge from other peoples' brains. But it's a court order! This poor soul. How does he get a judge to comprehend that the order makes no sense in real life? It's too late to wipe the Internet or anyone's brain.

Hotz is also ordered to hand over to Sony "any computers, hard drives, CD-roms, DVDs, USB stick, or any other storage devices on which any Circumvention Devices are stored" in his "possession, custody or control." I guess it's off with his head, too, then, because he surely knows how to do what he did. People who live in countries that don't have the DMCA also know. Just saying.

I would have thought Sony would be more technically clueful about the Internet, but what they do well is get the law to help them out. That's the purpose of the DMCA, if you think about it, to scare people so they won't do what they otherwise can do. So Hotz is in some hot water at the moment, I'd say, an object lesson, and it'll stay that way until the hearing, a date for which is not yet chosen. And from my reading, I'd say after that too, at least with this judge.

There were some further filings leading up to the orders, and here they all are:

01/23/2011 - 44 - AFFIDAVIT of George Hotz in Opposition to 2 Plaintiffs Ex Parte Motion For Temporary Restraining Order filed by George Hotz. (Kellar, Stewart) (Filed on 1/23/2011) Modified on 1/24/2011 (ys, COURT STAFF). (Entered: 01/23/2011)

01/23/2011 - 45 - AFFIDAVIT of Yasha Heidari in Opposition to 2 Plaintiffs Ex Parte Motion For Temporary Restraining Order filed by George Hotz. (Attachments: # 1 Exhibit A)(Kellar, Stewart) (Filed on 1/23/2011) Modified on 1/24/2011 (ys, COURT STAFF). (Entered: 01/23/2011)

01/23/2011 - 46 - Supplemental Brief in Opposition to 2 Plaintiffs Ex Parte Motion For Temporary Restraining Order filed by George Hotz. (Kellar, Stewart) (Filed on 1/23/2011) Modified on 1/24/2011 (ys, COURT STAFF). (Entered: 01/23/2011)

01/24/2011 - 47 - Reply to Opposition to Defendant George Hotz's Supplemental Brief on Personal Jurisdiction filed by Sony Computer Entertainment America LLC. (Gaudreau, Holly) (Filed on 1/24/2011) (Entered: 01/24/2011)

01/24/2011 - 48 - ORDER granting 41 Motion to REMOVE INCORRECTLY FILED DOCUMENTS (tf, COURT STAFF) (Filed on 1/24/2011) (Entered: 01/24/2011)

01/24/2011 - 49 - ORDER granting 40 Administrative Motion to File Under Seal (tf, COURT STAFF) (Filed on 1/24/2011) (Entered: 01/24/2011)

01/27/2011 - 50 - ORDER granting 2 Motion for TRO (tf, COURT STAFF) (Filed on 1/27/2011) (Entered: 01/27/2011)

01/27/2011 - 51 - ORDER granting TRO (tf, COURT STAFF) (Filed on 1/27/2011) (Entered: 01/27/2011)

01/27/2011 - 52 - DOCUMENT E-FILED UNDER SEAL re 49 Order on Administrative Motion to File Under Seal by Sony Computer Entertainment America LLC. (Attachments: # 1 Exhibit J, # 2 Exhibit K, # 3 Exhibit L, # 4 Exhibit M, # 5 Exhibit N, # 6 Exhibit O)(Gaudreau, Holly) (Filed on 1/27/2011) (Entered: 01/27/2011)

Sony today announced a new "PlayStation Suite":

Sony Computer Entertainment Inc. (SCE) today unveiled “PlayStation®Suite” (PS Suite), delivering the PlayStation® experience to Android™ based portable devices*1. Through this entirely new initiative, users will be able to enjoy PlayStation content on an open operating system for the first time in PlayStation history.

In the dramatically evolving and diversifying mobile market, the number of users who enjoy games casually on a variety of devices including mobile phones, smart-phones and tablet PCs, has been increasing significantly. By offering “PlayStation quality” content to this rapidly growing market, SCE will not only deliver the PlayStation experience to a wider base of users around the globe, but will also be able to offer game developers and publishers the potential to further expand their business opportunities to these devices.

In providing the PlayStation experience on Android based portable devices, SCE will commence a “PlayStation®Certified” license program for hardware manufacturers. Through this program, SCE will offer necessary support, including development support as well as logo licensing, to ensure the delivery of PlayStation quality experience across various devices.

Unless they change their minds, I suppose, down the road. Because one thing we know for sure now. Sony intends to 0wn you, your hardware, their software, and your brain. You can buy whatever you wish, but they set the terms, and they'll sue you up the Kazoo if you stray off the reservation.

Here's the problem Sony faces, although not in this courtroom, as explained by Thomas Jefferson in a letter in 1813:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.
How will a judge possibly alter this? Sony doesn't care, probably what you know or figure out in the privacy of your home. What likely bothers them is Hotz telling others, and on the Internet, so the whole world could know. Sony would like to find a way to terrify kids away from tinkering, from knowledge or at least from sharing it, and I can't tell you that the court won't let them do it.

And then the US wonders why it's losing its edge in technology. It's as predictable as gravity. And to tell you the truth, it terrifies me, as an American, watching this play out. Because there are kids in other places, like Russia and China, who aren't being told not to tinker and share what they know.

Here's what the judge had to decide not to believe, two affidavits, first by George Hotz and then one by one of his lawyers. I'll leave off the headers and certificates of service, just for space. First, the Affidavit of George Hotz, #44:


Personally appeared before me, an officer duly authorized by law to administer oaths, George Hotz, who after first being duly sworn, states:

1. My name is George Hotz, and I am of required age and competent in all respects to testify regarding the matter set forth herein. I have personal knowledge of the facts stated herein and know them to be true.

2. I am a resident of the State of New Jersey. I have been a resident of the State of New Jersey since approximately 1995.

3. I was born in the year 1989.

4. I am not a resident of Rhode Island. I have never been a resident of Rhode Island.

5. I do not live at 111 NYB St., Providence, Rhode Island 02909. I have never lived at, visited, or appeared at 111 NYB St., Providence, Rhode Island 02909.

6. I have never created, used, or accessed the Playstation Network ("PSN") Online ID "Geo1Hotz".

7. I have never created, used, or accessed the PSN Online ID "koma1tose", "freedomapocalyse", "snapple18", "elijapi", "uKinfuriator", "gamecaveman", or "nyricansoldier".

8. I have never created, used, or accessed an e-mail address for "", "", "", "", "", "", or ""

9. A Playstation 3 Computer Entertainment System ("Playstation Computer") may be updated through a firmware update, which may be performed by placing a Playstation Computer firmware update on the Playstation Computer.


10. Updating a Playstation Computer via a firmware update does not require access to the PSN, nor does it require accepting the PSN's Terms of Service User Agreement or any other PSN agreement to install such firmware update.

11. I have never obtained a Playstation Computer firmware update through the PSN. I have only obtained Playstation Computer firmware updates via direct download links available on the internet.

12. I have never been prompted with an option or opportunity to accept or agree to the PSN's Terms of Service and User Agreement or any other PSN agreement when installing a Playstation Computer firmware update.

13. Accordingly, I have never accepted or agreed to, nor even been afforded the opportunity to accept or agree to, the PSN's Terms of Service and User Agreement or any other PSN agreement when updating my Playstation Computer via a Playstation Computer firmware update.

14. I have not worked with anyone using the internet handle "Bushing" and have no association or connection with any conduct allegedly performed by any individual using the internet handle "Bushing".

15. I have never attempted to obtain employment from Plaintiff, nor am I interested in obtaining employment from Plaintiff, nor would I accept employment from Plaintiff if offered such.

So he denies seeking a job from Sony. He says he isn't associated with or working with "Bushing", and most significantly he says he never agreed to any terms of use, in that he never "obtained a Playstation Computer firmware update through the PSN".

His lawyer, one of them, Yasha Heidari, confirms that you can upgrade without going through the Playstation Network in an affidavit:


Wow! Interesting and a little bit Scary Stuff!:O I'm not a Gamer or a Coder. So, I don't know all of the Ins and Outs of all of this. But what I do know is... When we buy something, it is ours to do with what ever we Please! There not talking about a Rented Car, Tool or House here... And I'm seeing this kind of issue being debated both Online and now increasingly in the Courts more and more lately. That's what makes it scary!:o That we could get in trouble with the Law, just for tinkering around with the Stuff we have Bought and Paid for and Sharing What we have learned with others!!!:( And the Crazy things is.... That the Corperations in their Quest to Control the Customers who have made them as Gigantic and Rich as they are today... Are steadyly Alienating US more and more with each attack, each Bite on the Hand that Feeds Them! I think that soon they will drive all of their Customers Away and to other Products. Perhaps to Free and Open Source Hardware that runs on Open Source Software and to Build their own... Like I have built my own Computers for the last 5+ Years Now... I know everyone can't or wont do Build Their Own. But, if their are Better More Free Alternatives offered and they are more coming out each year...  These Companies will end up being Crush their Less Controlling Competitors!


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