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Sony must prove PS3 hacker specifically targeted California

Hotz' lawyer alleges Sony using "double-hearsay" in accusations

The lawyer representing PlayStation 3 hacker George Hotz in his legal fight against Sony has claimed the case may hinge on geography.

"SCEA must demonstrate that Mr. Hotz 'purposefully availed' himself of the privilege of conducting activities in California, or purposefully directed its activities toward California," Stewart Kellar's latest motion (as seen by ArsTechnica) argued.

Sony has been demanding that the case be held in a Californian court, something even the judge had previously questioned. The case may thus be contingent upon Sony proving that Hotz was specifically targeting California in his actions.

Sony has previously attempted to leverage as evidence Hotz' use of Californian services PayPal, YouTube and Twitter to promoted the PS3 hack and ask for donations.

"In the present case, SCEA cannot demonstrate that Mr. Hotz's activity could even arguably be construed as expressly aimed at California," claimed Kellar.

"To the contrary, the sole alleged activity in this action involves Mr. Hotz - who is located in New Jersey - purportedly improperly accessing portions of his own Playstation computer -which is also located in New Jersey," he said.

Kellar also observed that "The Playstation computer is not made by SCEA. It is made by Sony Inc. which is a Japanese corporation."

An additional concern by Kellar is his allegation that Sony has misrepresented some of Hotz' comments as exhortation. Sony has claimed that Hotz wrote "If you want your next console to be secure, contact me, any of you."

Kellar, however, claims that " The double-hearsay quote, derived from a screenshot within a forum post within a website... omits the full statement, which undermines SCEA's claim that Mr. Hotz directed any statement toward SCEA."

Kellar's latest motion seeks a dismissal of the temporary restraining order issued against Hotz.

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Latest comments (21)

Shaun Farol Studying Computer Information Systems, California Polytechnic State University8 years ago
Well the judge certainly got one thing right. If we held a case in California simply because they had a presence in PayPal, YouTube, and Twitter because those are California corporations almost all the cases in the US concerning anyone with an internet presence at all would be held in California.
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Nick Pearce Photohgrapher / Videographer 8 years ago
I agree with you Shaun, but this does pose the question, where do cases like this get heard?

Should "HOTZ" get extradited to Japan?

If the case really hinges on jurisdiction, then the legal system is ill equipped to deal with this case and others like it...
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Mattias Oldenborg Programmer, Colossai Studios AB8 years ago
I should have become a lawyer instead..

Seems like a good gig for laughs:D
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Show all comments (21)
Stefano Ronchi Indie Game Developer 8 years ago
Lol what a crazy crazy world we live in: how is it that someone who did something illegal -yes yes hacking could or could not be illegal blah blah, please appreciate it's my opinion, others may not agree- is allowed to be represented by a lawyer to defend his illegal actions!?!
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Murray Rigluth Director Development, Sony DADC8 years ago
@Stefano

Because in many cultures - you are presumed 'innocent' until proven 'guilty'. The onus is on Sony to prove any wrong doing. Just because Sony stipulate you can't do this, you can't do that - it doesn't make it law. This is an almost identical situation to the iPhone and I expect the results to go the same way.
Especially as the PS3 was 'originally' marketed with OtherOS support. I suspect Sony used this feature to also reduce any 'import duties' - as happened in Italy with the PS2.

They imported the PS2 as a computer, so they paid less import tax - so when a case went to the Italian court about 'modchips' the judge ruled in favour of the 'modchippers' - as he said you should not have imported it as a 'computer' if it is clearly a single platform games console - as a computer people have the right to play whatever they want on it. Rightly or wrongly that's what a court of law decided.

It will be an interesting court case!

Unfortunately, even with 3.56 firmware - there is little Sony can do to prevent the modified firmwares appearing, yes they have changed the security key - but they still have to support the software signed by the previous keys - which is where the exploit is wide open.

Tough times ahead on the PS3 - although I do expect console sales to rise significantly, especially if Sony find a sensible way to block modified consoles accessing PSN.

Edited 1 times. Last edit by Murray Rigluth on 4th February 2011 4:13pm

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Terence Gage Freelance writer 8 years ago
But Stefano; everyone is allowed the right to legal defence, no matter the crime or allegation. It's up to the court to decide if a crime has been committed and if so, whether Hotz is guilty.

@ Alec - "YouTube and Twitter to promoted the PS3 hack"

Heads-up on a typo there.
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Jason Sartor Copy editor/Videographer, Florida Today8 years ago
It would be more interesting to see what the court system would rule if 5 million people who spent $60 each to buy and play Modern Warfare sued Hotz in a class action suit for $60 each ($300 million total) for Hotz breaking other people's products as the online component is now irrevocably broken.
After all, what or who gave Hotz the right to destroy other people's game experience they paid for?

Edited 1 times. Last edit by Jason Sartor on 4th February 2011 8:47pm

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Jim Webb Executive Editor/Community Director, E-mpire Ltd. Co.8 years ago
Jason, Hotz didn't break it. Gamers would have to sue the individual gamers using the hacks to modify the game.

Same principle as suing the gun manufacturer for their gun being used in a murder instead of suing the murderer.
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Jason Sartor Copy editor/Videographer, Florida Today8 years ago
Jimmy,

The gun analogy is not quite the same. As a gun maker that did not make a defective product may not be held liable you may have an accomplice in certain crimes. Two examples:

In Florida, the legal drinking age is 21. If an 18 year old got drunk and got behind the wheel and killed somebody he would be at fault and be tried as an adult as 18 is adulthood and voting age.
However, if he got the alcohol from an adult at a friends house from said friends parents during a party (This has happened before) the adult can and would be charged as an accomplice.

Or as being part of a bank robbery. You may not pull the trigger on a gun that killed a bank teller (in this case, the individuals who created the cheating mods and hacks), but if you gave the security code to the vault and provided inside knowledge of when and how the bank vault can be accessed (As Hotz did), you also would be an accomplice to the robbery and murder - as neither would have happened without the original data.

I think it is possible to hold Hotz as an accomplice. He didn't create the cheating hack, but he certainly bares responsibility for the problem.

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Klaus Preisinger Freelance Writing 8 years ago
@Jason

Do you blame the makers of lockpicks for every burglary? Do you blame the manufacturers of guns for every person shot?

We have to distinguish between a person making a tool and a person perpetrating a criminal act.

Hotz may have made a tool enabling people to do criminal acts among other things. But has he himself committed an act of piracy? The question is even if he facilitated an illegal act. Your example with the bank is too simpleton. Because your example is selected as such that there is a single purpose to the action. You do not break into bank vaults to do legal things. But with a computer you own, the situation is quite different. Because you own the target of your action. Sony does not own the PS3 of Hotz, they sold it to him.

Do you get charged for breaking and entering your own house, if you are the only person living there? No.
Does the maker of a lockpick get charged with burglary because some of his customers did not break into their own house? No. There is a clear distinction between being complicit and being related to the n-th degree to something happening on the planet. Else you would have to arrest all butterflies.
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Alfonso Sexto Lead Tester, Ubisoft Germany8 years ago
@Klaus

I understand what you say there. But I think I can make even more simple by seeing it this way: Lockpicks were made to open doors without a key (which can be done in a legal way and in an ilegal one), guns were made to shoot people (Again; it can be legal to protect yourself and your family but it's not legal to murder someone). This software the guy created was made to hack the PS3 (No legal way; hacking a console is always ilegal).

Also I hope this guy will not become the victim of a oppresive and evil corporation in the eyes of the press, sice this people LOVES to make it look like (at least in Europe it happens quite frequently).
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Klaus Preisinger Freelance Writing 8 years ago
@Alfonso

so far, most courts have ruled it to be legal to hack your own hardware. Most prominently in the case of the iPhone. We also make the error of tossing words around, such as hacking, which have a negative connotation to begin with. From the perspective of Hotz, his program simply allows him to use the PS3 in the way he wants. No government law is broken by making your own software run on your own hardware. Of course, the law of Sony does not want people doing that, but why would a judge enforce the law of Sony? That is not his job.

State laws are only getting broken, when the tools made by Hotz get appropriated for other things. But that does not make them illegal by nature. They have dual purpose, jsut like a gun a car and a washing machine.

You can flash any device in your home with your custom firmware. Your mainboard, your gpu, your router, your TV, your dvd drive, your stove, your car, all of that is done every day with nobody complaining. What's so special about the PS3 then?
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Logan Borsos8 years ago
@Alfonso
"This software the guy created was made to hack the PS3 (No legal way; hacking a console is always ilegal). "

Are you saying that it's illegal for a person to alter the property they own? If I saw the leg off of my table (thereby altering it) have I done something illegal?

Hotz's hack has not done any harm to anyone else in itself. The hacks people have made due to his hack have caused harm to others (e.g. MW2 is "unplayable").

Hot'z hack is the saw that cut the leg off of the table. Now if he shows someone how to cut the leg off of a table, is it his fault the person he showed this to beats someone to death with the leg of the table? Of course not.
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Aleksi Ranta Category Management Project Manager 8 years ago
"Are you saying that it's illegal for a person to alter the property they own?"

Yeah alter it whatever way you want but dont put it on the internet and say its just for enabling homebrew. We all know thats a load of bull.
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This is really getting out of hands and Sony is wasting money they should be using to better develop their software. If they haven't noticed going head to head with pirates isn't working. I've started a whole site around this topic, what a mess.
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Justin Jackson8 years ago
Please correct me if i am wrong, but is there not a disclaimer the the user must adhere to before they use their unit? And buy clicking yes to that disclaimer, mean that they (the user) agree to comply with the intended operational use the manufacturer asks?
1. Individuals voice/actions are meaningless and void of honor or morals.
2. Sony may as well rewrite their disclaimer to "Please rape and pillage our best efforts, thank-you"
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Klaus Preisinger Freelance Writing 8 years ago
In Europe, all those contracts and EULAs you have to agree to after buying the console are void to begin with. For all those agreements to be legally binding, the users would have to have agreed to them before putting the money on the table.

Sony can quote their Eula all day, as long as they do not have a copy of it with Hotz's signature on it, they cannot sue for breach of that contract.
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Justin Jackson8 years ago
@Klaus

Yes i figured as much, i guess i should edit my post of "must adhere to" to "is asked nicely to follow" and "comply with" to "ignore".
Which is exactly why i posted point 2.
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Alfonso Sexto Lead Tester, Ubisoft Germany8 years ago
@Klaus & Logan

The law that in this case plays on favor os Sony is that you actually don't own the system since you did not "buy" it; you "Payd the license" which is like a lifetime rental.

Under those rules Sony can put any normative they want over their machine, sicne it's still "their" machine.

Appart from that, a guy can do some hacking to modify its machine to work the way he likes (the case of this guy). But this hack let the door open for piracy (which could be prevented, as people did in the past with emulators being unable to run Games under one year older).

And last but not least, this guy may claim to have done that stuff for himself and his machine, but he made public all his finding in the internet (with public speech included). That takes all the credit from him.

But of course, this is just my opinion :)
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Kirill Yarovoy Game designer / Narrative designer / Writer 8 years ago
Lol, courts could be funny, Lawyers even more funny... anyone remember Jack Thompson?) Looks like a little of Jack Thompson exist inside every game industry lawyer ))
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Thiago Vignoli Creative Director, Fan Studios8 years ago
Company Vs Client is problem.
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