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Hotz' legal team refutes SCEA case

Tue 29 Mar 2011 8:31am GMT / 4:31am EDT / 1:31am PDT
HardwareLegalPublishing

Lawyers argue that SCEA has no jurisdiction, Hotz never agreed to TOS

George Hotz' legal team has filed a reply to SCEA's opposition brief in the ongoing case about PS3 hacking. In it, Hotz' lawyers refute several of the pieces of evidence submitted by SCEA, as well as denying the company jurisdiction in the case.

New details of the case were posted on legal blog Groklaw, having been submitted to the court by Hotz' legal team at the weekend.

The reply calls into question several grounds for legal action quoted by SCEA, which is the arm of Sony pursuing the case, as well as attempting to discredit pieces of evidence.

One of the main thrusts of the argument is that, by attempting to pursue the case in California, rather than Hotz' native New Jersey, SCEA is making life unnecessarily difficult for Hotz, especially as his legal team refuse to acknowledge alleged downloads of software from PSN, which occurred in California, as having been made by the defendant.

Secondly, the filing claims that SCEA is not even the correct body to be pursuing the case - Sony Japan is the owner of the hardware and firmware, which are the only things affected by Hotz' actions. Hotz even claims to have been unaware of SCEA's existence until legal action began.

The team also places suspicion on SCEA's association of Hotz with a PSN account under the name of "blickmaniac". SCEA believes that this account belongs to Hotz, and by opening it he must have agreed to Sony's terms and conditions.

The Hotz team denies his association with the account, and also pointed out that the version of the Terms of Service submitted to the court by SCEA as evidence is dated after he allegedly opened a PSN account.

Sony alleges that the serial number associated with the account belongs to a PS3 console which was is Mr Hotz' possession. Hotz also claims to have never opened the terms and conditions issued with each PS3 console, of which he owned one brand new and three second hand.

Several complexities to the case appear to be developing, with Sony unwilling to back down in the face of what is likely stiffer opposition than it was expecting. That strength of opposition is no doubt bolstered somewhat by the donation-based legal fund set up by Hotz earlier in the case, which raised at least $10,000.

22 Comments

Kevin Clark-Patterson
Lecturer in Games Development

288 23 0.1
Sony, just give it up and move on...

Even if you 'win' you have really 'lost' so instead, focus on fixing the problem for future generations

Posted:3 years ago

#1

Kingman Cheng
Illustrator and Animator

929 150 0.2
Kevin +1

Posted:3 years ago

#2

Jon Gregory
Studying Comp Sci

4 0 0.0
First off, it's impossible to use a PS3 connected to the internet without having gone through and accepted the TOS at least once. Well, unless he hacked the systems and went around them, which still doesn't fly. Anyways, if Hotz owns those systems and they have gone through the TOS process while in his possession, then he is responsible as the owner. Regardless of whether it was him or some idiot acquaintance of some sort. Though I highly doubt any of that stuff about him not agreeing to the TOS is true. Most people don't think twice about that sort of thing.

Secondly, I don't really care who hands Hotz his ass on a platter... I just hope it happens. Not that I really like Sony, they're a corporation in the end, but just because I think Hotz screwed over the entire PS3 community. I don't have a problem with people who hack stuff for their own enjoyment alone. Like people who hack peripherals or mod things to make them do cool stuff. However, the second you do something that could potentially harm other gamers then you become the scum of the online gaming community. Don't even think about trying to sit here and tell me that Hotz didn't know releasing the information he did would cause pirates and cheaters to have a field day with the system. Subsequently having a massive negative impact on normal people who follow the TOS and actually spend their money to support the industry. He knew it, no one smart enough to figure that sort of thing out in the first place could possibly be so ignorant as to not think those actions would have a negative impact.

Posted:3 years ago

#3

John Donnelly
Quality Assurance

314 38 0.1
I will give his lawyers the credit here, not him.
I do not think for one second that he was not aware SCEA existed its a comment that stinks of legal minds finding holes to exploit.

I do think Sony need to back off and watch the steps they are taking here, they are doing themselves more harm than good.

Holtz does need to be taken down about a dozen pegs, his sucess againts Apple makes him think he is invunerable and free of the conquences of his actions. He is not and the damage he and other have done is beyond reproach.

Posted:3 years ago

#4

Greg Wilcox
Creator, Destroy All Fanboys!

1,993 902 0.5
+200 Jon.

Hotz is a dick, period. If he didn't dick around with Sony in the first place, he wouldn't have the dicks after him and have to dick out of the country to a hidey-hole (allegedly) while his life becomes a public matter. Had he simply done the right thing by simply shooting a note over to Sony telling them of the problem, he wouldn't be under all this shit. Blaming Sony for putting the hammer down on this fool because of his actions HE initiated is a bit childish.

Sure, Sony is pounding away on him hard, but it's not as if they singled out some random PSN user and is making his life miserable because they're pretending to be IRS agents who've stumbled on a braggy tax dodger or a traffic cop happening on a tipsy cyclist he decides to give a fierce clubbing to.

Thanks to one man's irresponsible actions (and people thinking it's fine to fund his legal fees because a lot of them don't get it either - I wonder if those donations are taxable in some areas?), Sony has no choice but to take this hard line to teach the kids a lesson (a sad, painful bent over a pipe lesson about trying to screw with a deep-pocketed corporation with a legal team full of trained ninja assassins). He brought this shit on himself and we all get to pay for his stupidity. That spells D-I-C-K to me.

Posted:3 years ago

#5

Brian Lewis
Operations Manager

97 38 0.4
In America, it is often the most unlikable people that push the legal boundary, and in doing so, provide a benefit to everyone. The comparable example I will give in this case is Larry Flynt.

Posted:3 years ago

#6

Till Dzierzon
Localization QA Tester

17 0 0.0
I can't believe there are actually people that side with Sony in this case. This is just wrong.
But instead of posting angry, hatefilled comments like the Sony supporters above, I just wish all the best to Hotz and Sony.
I think both can learn a great deal of that. Hotz how to release hacks and Sony how not to secure your product.

It is not a good reason to hate Hotz if you got beaten on PSN by cheaters by the way.

Posted:3 years ago

#7

Private
Industry

1,187 185 0.2
Yeah sure lets support the hacker who makes piracy possible. I wish him to get sued into oblivion. :)

Posted:3 years ago

#8
I can't believe there are actually people that side with Hotz in this case! Are you even on the right website? This is a site for game developers. Hotz's actions have potentially damaged the revenue streams of sony and game developers making PS3 games.

How can anyone condone his actions? On this website!

And if you're using the removal of otherOS as a justification, two things to bear in mind about that. One, the courts will only look at Hotz actions and ignore childish bleatings that "sony done him wrong". Two, if you need reminded that two wrongs don't make a right I suggest you go talk to your mommies.

Posted:3 years ago

#9

Greg Wilcox
Creator, Destroy All Fanboys!

1,993 902 0.5
@Till:

These posts aren't some silly teenage rants about PSN "cheaterz", so don't even try to take it to that level. For the record, I don't play console games online these days and even if I did... that's not even the point here. You work in QA, allegedly? If you ever get to the point where you're actually working on something that's YOURS, lets see where you stand when it gets stolen out from under you and you're sitting there cursing out the sky for a few minutes while some jerks are laughing away at your expense.

Larry Flynt at least had/has a point and no, he didn't didn't do anything "illegal" when he went after Jerry Falwell - he was just as offensive as humanly possible and a court agreed that this wasn't something he should have been persecuted so strongly over. It was HOW he did it that drew the most criticism, along with his choice of occupation (we're still backward puritans and supremely repressed in the U.S. of A. despite shoving toddlers onstage in sexy outfits as if it's something to be proud of).

There's a difference between folks that do useful hacks (some of that Kinect stuff is hilarious) and those who want to mess with stuff with malicious intent and act as if they're some harmless fumbler who somehow has NO idea that what's done will affect everyone using a console (before admitting in public that he did it so SCEA would put out a new console quicker or whatever other lame excuse I've read from Other OS removal and so forth and so on).

The problem with Hotz is his ego and talent getting the better of his common sense and while trying to make a point he could have made FAR better by not violating a TOS (and I'm sorry, not believing SCEA was/is a company is a LAME ass excuse, period) shows he's thinking he can outsmart any corporation by pretending he's causing no harm.

If he's in the right as his legal team claims, then shit, turn over the stuff SCEA wants to see and PROVE it. His lawyers know it's doom if they comply with Sony's demands, so this is going to drag out to an awful finish on both sides unless there's some sort of out of court settlement with a NDA tacked on. My bet is that if there is, Hotz won't shut up about it, appear on G4 or some online show to brag away and he'll get dragged into court again at some point down the road.

Again, there were plenty of ways to let Sony know of the exploit (and yes, their stupidity) that didn't revolve around SCEA twisting ALL our balls up as a result. You don't set fire to the orphanage to show the sprinklers aren't working. Got it?

Or: Take the dick way into trouble and you're taking that way out of it at some point. I'd say that's cause and effect 101 for you.

Posted:3 years ago

#10

Robert
Programmers

10 0 0.0
There are times when restrictive practices are irritating.

Hackintosh and various i-phone apps that are not permitted by apple for instance and are enabled via jail breaking.

Perhaps closed devices are not what a minority want, perhaps they should be protected - having said that there are plenty of more open systems that they could use instead.

Posted:3 years ago

#11

Greg Wilcox
Creator, Destroy All Fanboys!

1,993 902 0.5
Well, you make an irritation worse by continually rubbing it, correct? There are also times when you let those restrictive practices be because tinkering too much with the way things work can do a lot more harm than any potential good, best intentions be damned.

You're absolutely right about the 'minority' not wanting closed devices, as they've every right to. I'd say those apps you noted are harmless to people who have no use for them nor any idea that they exist (which would be the majority of users). I'll give you a big credit for noting that "there are plenty of more open systems that they could use instead."

Herein lies one main issue around this case. Hotz' mistake was sticking his arm in the tiger's cage and while he may have pulled a rabbit out of its ass while it was sleeping, it's awake, pissed off and wants that rabbit back, plus and arm and a leg for the hassle.

Posted:3 years ago

#12
What Hotz did is excusable to a certain extent. If he kept his knowledge behind closed doors and friends for the sake of homebrew, his argument would have merit. But all he did was a hand a proverbial gun to everyone capable of wielding it. People need to remember, he didn't steal a recipe, he stole and manipulated copyright code. Why not just deliver Hotz some street justice instead of using the courts anyway? Does he really need his legs? : )

All things aside, morality is in question for both sides here. But honestly, how would you feel if someone posted on the internet instructions on how to break into your house? In terms of livelihood, it's the same principal. This time it's just Sony and it's developers. Sony has definitely won some respect in the developer community for sticking up for those of us who don't have the deep pockets to support strong armed legal teams.

Edited 1 times. Last edit by David Hernandez on 29th March 2011 7:56pm

Posted:3 years ago

#13

Andrew Jakobs
Lead Programmer

210 75 0.4
@all those fools here that say Geohot screwed the PS3 community, you really should think again... It's the cheaters and illegal gamez players that are ruineing the community, not people like geohot (remember that his patch doesn't even allow for playing illegal gamez).. You don't go bitching at the car manufacturer who created the car that a moron ran over your cat/dog/child/whatever, you go after the moron...
It's the people who use the hacks for illegal/immoral things that should be punished.. And don't tell me it was GH's fault OtherOS was removed at all, as it wasn't, OtherOS was already removed from the Slim before GH started doing his first stuff (which Sony used as an excuse)..

Why not go after the people who create guns instead of the people who abuse them.. wait, we GO after the people who abuse them and not after the people who create them.................

Posted:3 years ago

#14

Private
Industry

1,187 185 0.2
What we have in Austria and also is in effect in Germany is causality. You can easily argue that the cause for enabling piracy (the effect) has been Hotz releasing the information on the internet no mater what his intentions where. Hotz is a brick but he can`t be such an ignorant brick that he was not fully aware what will happen after releasing the information and I don`t give a cent if he says he is against piracy or not because that was the clear outcome, so either way he is just completely ignorant or just really stupid.

The argument for OtherOS is invalid as far is it was not removed till Hotz started hacking the system via Linux. Please note not releasing the Slim at all via OtherOS is not removing it from the system. It was never shipped with the feature therefore it was not removed from the Slim. It was just never there and removing requires taking away and you can`t take away what wasn`t there. At the same time OtherOS was actually and really removed after Hotz started hacking with Linux from the systems that where shipped with it. Anyway people had years with OtherOS and I haven`t seen anything useful come out of it, and still don`t see any great homebrew content for that alleged "homebrew community" that exists apparently only in the head of Hotz.

Posted:3 years ago

#15

Greg Wilcox
Creator, Destroy All Fanboys!

1,993 902 0.5
Andrew, do you even LIVE in the U.S.? If you did, you'd KNOW the gun lobby here is a powerful force to be reckoned with, period. If there's a shooting that makes the news here, they're first in line to call for MORE guns to protect people and less restrictions so more people can carry guns. They demonize those who are victims of gun violence and have more than enough political clout to pretty much stall and shut down opposition to even the smallest attempt at reasonable restrictions. In some states, you can pack in churches, bars and other public spaces where you wouldn't think a gun was needed and so forth and so on, blah, blah and blah.

Now, none of this has a damn thing to do with hunters, collectors and sportsmen who use guns on a daily basis. However, the NRA and other pro-gun groups have made it seem as if EVERYONE who isn't 110% on their side is anti-gun, un-American (or a Democrat) and whatever other inane stereotype they can shift into a news cycle. For the most part, they're a screwed up bunch of paranoiacs who have little use for reality in regards to how the fact that too many guns means more violence not less (because its a combination of crazy people with absurd fears and easy access to firearms isn't a good mix). But deep pockets they have, along with a total misunderstanding of the Constitution and any other books they can twist into part of their flawed agenda.

That and the fact that this isn't about guns at all, nor cars or the price of ten pounds of beans at Costco. How is it that people who support those who do this crap have the weakest arguments that dance around facts and bring up all but the stuff in the debate?

Posted:3 years ago

#16

Aaron Mathias
Executive

6 0 0.0
"Thanks to one man's irresponsible actions (and people thinking it's fine to fund his legal fees because a lot of them don't get it either - I wonder if those donations are taxable in some areas?), Sony has no choice but to take this hard line to teach the kids a lesson (a sad, painful bent over a pipe lesson about trying to screw with a deep-pocketed corporation with a legal team full of trained ninja assassins). He brought this shit on himself and we all get to pay for his stupidity. That spells D-I-C-K to me."
Hi Greg, your above statements make one thing very clear - how DICK is spelt. But let me ask a simple question - How is it that you are paying for his stupidity? Any good PS3 game is nothing below 25 GB and the top rated ones like God Of War, Gran Turismo et al are around in excess of 40 GB. Given the data caps that have been introduced by ISPs around, I'm sure those wannabe "pirates" would be paying through their nose, arse etc etc. It would be simpler to buy a game. Unless the Hong Kong pirates have already started hawking it on... DVDs??? Naah, dont think so. BDs maybe??? Last I checked BD burners & BD discs cost a BOMB!
Again, If everyone hacked his/her PS3 to download said game/s, then we should have seen a huge dip in game sales. Has that happened? No it hasn't. Truth is, Sony's shenanigans have helped in granting celebrity status to GeoHotz's hack.
If theres anyone who hates his hack more than you it would be me for making me look like a fool buying GOW 3, GTA4, Killzone 2 when all of these games are available now for free on torrent sites and what not!
But at the same time I acknowledge that Hotz had the brains to work & develop a sophisticated workaround the PS3's encryption system. Now because of that could my dream of an XBMC on the PS3 finally come true? Could the PS3 be capable of outputting digital comics? That's what I am thinking. That's what I am excited about. And I can bet you dollar to donuts there are a L-O-T of people who are thinking of that and not necessarily downloading PS3 games.
So to put it pragmatically, the humungous download of PS3 games dissuads me from downloading them. I would rather buy the games and have peace of mind that nothing from the games has been ripped out and I am experiencing the game as it was intended to be. But Hotz's hack has brought my wish list of what the PS3 can do into the realm of possibility. Atleast a maybe...
I have gone through your posts and you come across as someone who is passionate about what he believes in. I appreciate that. But you are neither absolutely right nor absolutely wrong.

"Anyway people had years with OtherOS and I haven`t seen anything useful come out of it, and still don`t see any great homebrew content for that alleged "homebrew community" that exists apparently only in the head of Hotz"
Hi Werner, what according to you would you construe to be a useful & great homebrew on OtherOS? Or are you equating great homebrew content to a volume game of a plethora of apps as seen in todays "App crazy world"? For me great homebrew content has nothing to do with numbers, it has to do with usability.
For me a great homebrew content on OtherOS was the VLC player that enabled me to play all my region movie DVDs on the PS3. Can I do it today on my PS3? Nopes I cant. Is it a hassle? You bet it is.
So did Sony undertake a survey and then based on statistics decide to drop OtherOS? Well they sure as hell didnt ask me about it.
Again from your perspective you maybe right. But when I start reading "Anyway people had years with OtherOS...." I want to ask a straightout question, Who are these "people"? The last I checked, I brought my beautiful PS3 console with my own money, "people" didnt pay for it. So if I was a mere statistic for Sony to drop support for OtherOS then can I conclude that I am an outcast? If I am an outcast then can I declare that George Hotz is THE MESSIAH who redeemed the PS3 from its shackles of a crappy lop-sided DRM system and breath new life & sweetness of home brew apps (that apparently exists only in "Head of Hotz". By the way that would make a great game title!)?

Posted:3 years ago

#17

James Boulton
Tools & Tech Coder

120 143 1.2
I'm afraid you need people like Hotz to push the boundaries, this is how we expand our knowledge. And as far as having your own work stolen from under you as other people have mentioned -- well, yeah, it happens. I've worked in the industry long enough to know that any game I work on will be pirated at some point. It's inevitable I'm afraid, accept it.

I don't condone the piracy which Hotz's hacking has enabled, it will most certainly lose us revenue, however from his actions this will hopefully lead to a more secure future. From a technical standpoint we need hackers to move technology forward. And when they finally grow up and put their learned talents to good use they become incredibly good developers -- some of the best developers out there today started out cracking games back in the 80's and 90's, and I know this for a fact.

When you've delved through the depths of that much code, you become incredibly good at problem solving.

Posted:3 years ago

#18

Klaus Preisinger
Freelance Writing

953 804 0.8
Claiming to use the PS3 for anything but games is a lie.

If you are a home theater enthusiast, then the regional locks will cripple any fun you might have. If you are avid downloader, then most TVs today come with a convenient Matroska player build into the unit. No weird FAT32 format restrictions like the PS3 has, just connect whatever and it works. If your TV can't do that, then there are very cheap solutions on the market outperforming the PS3 and having costs lower than a PS3 controller.

The available hacks for the PS3 are not doing much either. Running Linux on the PS3 is not a fun experience for the average user, it is not adding real functionality or usefulness to the unit. The tools running on Sony's hacked firmware also do not have interesting features. The hack remains a solution for copying games, because Sony's legal battle inhibits people from doing anything else. If Sony did nothing, we would see an increase in people releasing interesting and useful programs. But by waging a legal war, Sony drives away the open software guys providing tools in public and without hiding their identity. As a result, we only see shady characters creating tool for copying games, which further fuels Sony's arguments for fighting Hotz and pushing him into a criminal corner.

For the moment, this must sound as if it was a clever strategy for Sony America. But with the highly eccentric hardware they are running and are likely to run in the future, it remains questionable if they have a future as a platform holder/developer. The people doing crappy community games on XBL now are all potential entry level programmers for software developers in the future. They have exposure to the XNA platform, Microsoft has a venue to push its platform. Sony is restricting any type of exposure and while the results might be unimportant now, but they will matter in 5-10 years.

Posted:3 years ago

#19

Aaron Mathias
Executive

6 0 0.0
"Claiming to use the PS3 for anything but games is a lie."
Oops! Is that so? In that case why did Sony even bother shoving in features like OtherOS, DivX & MP3 player et al in the PS3. Perhaps they were lulled into a false sense of security that gamers love these features. How stupid of Sony...

Posted:3 years ago

#20

Aaron Mathias
Executive

6 0 0.0
"I don't condone the piracy which Hotz's hacking has enabled, it will most certainly lose us revenue, however from his actions this will hopefully lead to a more secure future. From a technical standpoint we need hackers to move technology forward. And when they finally grow up and put their learned talents to good use they become incredibly good developers -- some of the best developers out there today started out cracking games back in the 80's and 90's, and I know this for a fact.

When you've delved through the depths of that much code, you become incredibly good at problem solving."

Well said James! I must admit, I am pleasantly surprised considering you are a game developer yourself.

Posted:3 years ago

#21

John Bye
Senior Game Designer

477 434 0.9
Klaus - "Claiming to use the PS3 for anything but games is a lie."

Speak for yourself. I use mine for watching DVDs and Blu-rays, streaming video files from my PC, browsing photos and even playing music sometimes. There's something to be said for having one box under the TV that does everything instead of half a dozen boxes taking up lots of space and sockets. I threw out my old media player when I got the PS3, and I only use my (region free) DVD player for watching US and Asian DVDs now.

Posted:3 years ago

#22

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