What's Mine Is Theirs?

Does Sony have the right to disable a hacked console, and would that be cheaper than taking legal action?

You've bought your PS3. You rush home and load her up. You hide the receipt from your partner. You read the instructions and Code of Conduct and see that Sony can suspend you in certain circumstances. Or perhaps not. Who studies the small print when their shiny new hardware is glinting at them?

If you're gaming through the PSN and breach the Code of Conduct by being abusive, threatening or if a fellow gamer makes a complaint about you Sony can suspend your account for an unspecified timeframe. Anecdotal evidence from gamers' forums suggests that such freezes can be for even minor indiscretions from the use of mild insults or curse words to apparently irritating another user by "getting all the weapons first". Infuriating yes, but these are breaches of the Code and you are forewarned of the penalties so this could be fair enough. But it is not the end of the story.

Until very recently the architecture of the PS3 meant that only branded and authorised games were playable on these consoles and effectively the system was locked against pirated games (and the revenue stream for Sony is protected and effectively guaranteed). The security drew the attention of hackers who in 2010 released a USB dongle called PSjailbreak containing software which enabled users to play homemade and pirated games. The challenge continued and it seems that every few days lately security is again battered and breached.

Fail0verflow has recently broken the PS3's security by cracking its master key, and although only the method not the key itself was published by the hackers, the use of this key means that pirated games and software could be installed on the console. The intention, Fail0verflow says, was to develop the hack so as to allow the use of homebrew games on the PS3 rather than to enable the use of games which infringe Sony's copyright. Regardless of the intention, the outcome is clear. Primary copyright infringement has occurred under anti-circumvention provisions and the method has already been applied by another hacker who claims to have created the first custom firmware for PS3 and accredits Fail0verflow for the groundwork in providing the key.

With the PSP also the target of similar hacking it is perhaps indicative of the shape of things to come and the challenges Sony and other console manufacturers now face in protecting their intellectual property rights.

Sony has always reserved the right to suspend, whether temporarily or permanently, an online gaming account when the user is in breach of the Code. They have also been known to update, add or remove functionality through the network. So, although Fail0verflow claims that "there is no recovery from this" because a fix itself would need to be "signed off" by the key, we will wait to whether Sony is able somehow to devise and implement a solution to reset the master key across the board, on an individual basis or at all.

In the meantime Sony have sought injunctive relief and damages in the United States District Court, San Francisco Division, based on alleged violations by the hackers of the Computer Fraud and Abuse Act, copyright, the Computer Data Access and Fraud Act, misappropriation, trespass and breach of contract. Even after the issue of jurisdiction is resolved, the hackers seem reasonably confident that this quest will be fruitless for Sony. But alleged intention is irrelevant and the damage has been done.

However, one cannot help but wonder whether, following on from the latest hacks, we will see a swing towards Sony disabling or modifying a user's console rather than their online account as a punitive measure for copyright infringement and use of unauthorised games, despite that fact that this does not appear to be part of their terms and conditions or feature in the manuals.

On the one hand this seems draconian and at odds with the very concept of physical property ownership: if you spend hundreds of pounds on a piece of hardware you do expect to have control over it and be able to do what you like with it. You might be able to reconcile yourself to not be able to game online for breaching the Code but you'd think you could still play against the computer in your lounge as you always used to. This point is eloquently expressed by Pytey, a member of the Fail0verflow group of hackers "I haven't stolen anything ... it's my own hardware, I can run whatever I like on it". This isn't a universally held view by hackers, some of whom fear legal action against them.

Sony has currently flexed its muscles and demonstrated its litigious inclinations against the hackers. It would seem unlikely that it would take on every individual gamer who applies the key and plays pirated games in the same way. Console disablement would appear a more natural and appealing penalty rather than the legal routes for copyright infringement where potentially millions of defendants exist, since it provides certainty and at virtually no cost. This does however lead to an interesting point of physical versus intellectual property ownership and in the event of a conflict which will be the victor.

By virtue of section 13 of the Sales of Goods Act 1979, all goods which are sold by description will "correspond with the description". Console manufactures may therefore be moving into some grey legal territory if they modify or disable a console. It will be interesting to see what happens if in the future gamers or hackers themselves bring an action of their own along such lines. Untested in the courts as this area is, it just does not feel equitable and, if exercised, Sony may face a backlash from gamers especially since the PS3 is now so much more that just a pure games console and can be the home to all of your treasured photos and other media.

Console disablement as a punishment would appear to be a circumvention of the usual legal routes and, although clearly much more appealing than expensive, lengthy and uncertain litigation, is not going to be looked on kindly. It is interesting to note that, after an initial condemnation of such activities by hackers, Microsoft's approach now appears to be a slightly humbled acceptance of the intricacies of the hackers' minds and an offer to work with hackers rather than pull against it could be the best, and most productive, route for them to take. Further, in a comparable instance in the use of pirated copies of Windows, it is not Microsoft's policy to swoop in and disable the computer but rather to send a warning notice to buy a licence and then potentially take the infringer to court if they do not comply.

Litigation is expensive but we're talking about a company who has sold many millions of consoles globally. Perhaps that is small change to send an anti-piracy message, if they win.

Sony today announced that it is releasing a firmware upgrade to 3.56 for the PS3 console. It is unclear if that is to update the master key, but the timing seems right what with the restraining order granted against George Hotz (Geohot) and the cracked master key roaming freely across the internet.

From the perspective of Sony, it's their business, they will protect it, and they have the technology. Intellectual property rights could trump physical property ownership rights where there is conflict but we await the views from California to clarify a position.

Article written by Brett Farrell, associate, and Katie Hill, trainee, at Barlow Robbins LLP.

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Latest comments (12)

Christopher Bowen Owner, Gaming Bus 7 years ago
(Please note: the following is the view of someone based in the US and who is more versed in US Copyright law than he is with the UK's or EU's laws)

I think Sony would be reaching into VERY questionable waters if they were to brick consoles. For one, there would have to be proof that a "hacked" console is actually playing illegally pirated, commercially games instead of homebrew code. That would violate the precedent set when the courts ruled against Apple. Sony could try saying that the hack broke something unrelated and that the actions weren't malicious, but a quick reverse engineering of the relevant code would prove that wrong.

The best Sony can do is ban PSN accounts, from a legal standpoint. Bricking consoles is going a step too far, and it's only going to take one false positive to make things explode.
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Kingman Cheng Illustrator and Animator 7 years ago
In short I can only see this having disastrous results for Sony.
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Stefan Holzhauer webdeveloper 7 years ago
Sony made some quite big mistakes when it comes to DRM. First the secret installation of a rootkit via an audio-CD which was a public relations desaster.

Then disabling the Linux-Mode on the PS3 which was a major reason fpr a lot of people I know to buy the platform. The removal was obviously because of the fear that the device would be crackable via this Linux installations. Removing a feature AFTER the customers bought a piece of hardware is a VERY bad move as it communicates: "We don't care about you!" (the same as the rootkit installation)

Now going to court to make an example and very obvioulsy telling the customers: "You may have bought that console, but WE tell you what you are allowed to install on it." Another very bad and very dumb move, especially when looking what was ruled when Apple tried to do the same...
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Show all comments (12)
Andreas Kannegiesser Project Manager, Enzyme Testing Labs7 years ago
I agree with Christopher, bricking the console is too much and very questionable.
What Sony could do, however, and I'm not sure about the technical possibility of this: If the people claim that the console is theirs, ok. Sony has the copyright for all software (firmware for roms, os) on the console, why not removing all software from it? Leaving the hackers with a blank console, at least it would keep them busy in a way to program their own operating system for it.
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Christopher Goodno Studying Computer Sciences, University of Maryland7 years ago
As is shown by the latest CoD BO bans, Sony isn't bricking consoles. They're doing game-by-game bans.

Only the community has brought up the concept of bricking consoles, which is a fairly preposterous concept. There is nothing in the EULA/TOS that says Sony can destroy the offline uses of the machine, only that they can ban the machine from PSN.

***"You may have bought that console, but WE tell you what you are allowed to install on it."***

That's the thing, it's not what they're allowed to install on it. It's what they're allowed to install on their OS, which requires illegally signed software that hasn't gone through their approval process.

Honestly, I'm fairly surprised that people "in the industry" fail to understand the need to protect one's IP, in this case a software and platform for software release/security, in order to allow continued release of the media for which the system was made.

Edited 1 times. Last edit by Christopher Goodno on 28th January 2011 2:43pm

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Tom Keresztes Programmer 7 years ago
That this issue reminds me of Neuromancer is only the sign of my age.
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Andrew Jakobs Lead Programmer 7 years ago
Well, if sony doesn't respect my rights, why should we respect theirs? I've bought the PS3 initially for bluray and OtherOS, being able to play PS3 games was a plus, later the playing games also became a bigger part. Now I'm stuck with only being able to use the PS3 for half the stuff I bought it for, because updating would loose OtherOS. There was no real reason why they had to remove the function (they already removed it from newer hardware (which was also BS IMHO)). People say 'oh but who cares about OtherOS', what if Sony's main business was bluray and for some odd reason gaming would interfere with their bluray business due to some weird fluke, how would you like it if they removed the gaming part, you would screen bloody murder I guess..
It's just not done, removing advertised functions after the device is sold..

But Geohot has an advantage with the court ruling when it comes to 'closed' mobile devices like the iPhone (which makes it now legal to jailbreak an iPhone), as there is no difference.

Edited 1 times. Last edit by Andrew Jakobs on 28th January 2011 6:30pm

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Private Industry 7 years ago
"There was no real reason why they had to remove the function"

There was a reason, Hotz hacking into the system via Linux. For all people who complain about the removal of other OS please send Hotz a thank you letter. In his interview he said himself he hacked into the system via Linux to get access to some of the parts and not because Linux was not on the Slim he didn`t care about that.

I don`t think they are going to brick systems, that would lead into a very problematic area legal wise. What I would expect is that the consoles are getting banned from the PSN like MS does with 360 consoles. That would not stop piracy, but at least it would stop cheaters in online games for a start.

But something needs to be done from Sony to protect their investment and protect the investment developers do when they make games for the system and protect the online games from cheaters.

Edited 1 times. Last edit by Private on 29th January 2011 11:26am

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Daniel Vardy Studying HND IT, De Montfort University7 years ago
why dont they embrace 'piracy' and homebrew as potential customers rather than potential lawsuits.
removing otheros was a bad move from a consumer point of view as the PS3 was sold advertising it, then it was removed (im sure theres some consumer laws that should prevent this).
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Robert Kelly7 years ago
I can't see them bricking consoles as it would be a PR nightmare. As for proving that you have it hacked, it's quite easy. Someone recently published all the security serves your PS3 talks to on boot up (provided you have an internet connection) and it gives away all your play lists etc..

They could send a warning message to pirates like Microsoft after banning them, to get them to stop. But really I don't know, MW2 I hear is unplayable so it's not just piracy that's the problem. Again it's the innocent consumer who doesn't do anything wrong that caught in the crossfire once more :(
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Klaus Preisinger Freelance Writing 7 years ago
Imagine Sony having the ability to remotely brick a console. How would they deliver this? Via update? Via network commands? Via existing firmware "feature"? Certainly not, since this would give hackers a chance to read the code. After that hackers would have the power to brick Sony consoles themselves. If such code ever gets out, the PS3 would not have a PR nightmare, it would simply cease to exist as a platform.

Would you buy hardware that can remotely be destroyed? Independently of the destruction being legal, within Sony's rights, or being the right response supported by the public. Because I certainly would not buy a device which makes my money collateral in a war between two factions that should not concern me at all.
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Michael Carter Jr Studying Business Administration, Ivy Tech Community College7 years ago
I hear most of you talking like Sony is afraid of creating a PR nightmare. Does their past actions not already prove that they don't care about these things. I honestly think that Sony executives believe that they can do no wrong, and bricking their customers consoles as well as paving the way for any and all of their consoles to be bricked as well simply means that those people will just buy more consoles from them, in turn making them richer. And the sad thing is Most PS3 users would do exactly that. I have never seen such blind misguided trust in a company as I have seen in Sony fanatics.

When Sony crashed my computer simply because I played a audio CD on it, I vowed then to never buy Sony hardware ever again. and I am proud to say since 2005 our home is Sony hardware free, so thankfully I can enjoy this battle from the sidelines.
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