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[Dr Frasier Crane]

That's actually one of the "sealed" things that Hotz' staff is referring to as not needing to be concealed (look at all of the other things that seem to have their attached documents in that statement).

Seems like you're showing us what Hotz' lawyers are referring to when they say that Sony isn't exactly playing by the rules.

And where did the serial "CG221368477-CECH-4489" come from?

The 4489 is the Gamestop store the PS3 was bought from (http://docs.justia.com/cases/federal/district-courts/california/candce/3:2011cv00167/235965/105/ see line 3 on page 3). So probably Geohot's lawyers combined the CG221368477-CECH-2001A and the Gamestop Store number 4489.

Mystery solved.

 

[squatingyeti]

But it would shoot a few holes in a defense that relied on you not knowing who Microsoft were or that they were based out of Washington State.

It's common practice to assert all of your defenses, even if one may seem contradictory to another. Regardless, if the firmware has its own EULA and TOS, wholly controlled by SCEI, SCEA is trying to say TOS for something unrelated prove jurisdiction.

They even asserted since he had a Twitter and Google account (both with TOS providing California jurisdiction) that, somehow, that means an unrelated issue can use those to submit California jurisdiction over an individual.

 

[Clear]

But, the agreement you are making is wholly related to PSN. The "software" (firmware) that he is charged with circumventing is wholly owned and created by SCEI. The TOS and software that SCEA is talking about is only dealing with PSN. Kellar has also asserted that SCEA is not (or was not at the time, they have IIRC restructured) a subsidiary of SCEI. I have no idea on that, but apparently Hotz's side have looked at something leading them to that belief.

We have no idea what they actually have under seal and whether it holds water, as SCEA has gone about putting anything they choose, including public forums, "under seal"

The point is that by displaying the TOS notification as part of the sign-up process, the user of the console Geohot submitted to the court was made aware that for all legal intents and purposes SCEA was the responsible party.

Faust's post a little ways up indicates that Sony have submitted under seal information that ostensibly corroborates that on a certain date, that machine was used to create a PSN account from an IP corresponding (to some degree) to Hotz home address.

Its a chain of evidence basically linking Hotz to SCEA via his impounded PS3, and therefore proving jurisdiction.

From what I understand, Hotz and his team aren't even contesting this evidence (aside from using Sony's choice to submit under seal it to spin perception to their advantage), and are instead taking the tack that while the account was created, Hotz himself didn't create the account.

Hotz problem is that his avoidance/unawareness of SCEA as the legally responsible party in spite of these facts/events is stretching credulity given his ownership and apparent deep knowledge of the system.

 

[Fularu]

You're reading it wrong. If they bring a cause of actions that result from those TOS, you have subjected yourself to whatever jurisdiction was in the TOS. I think the issue and the debate is, does TOS from something you did not break, bring jurisdiction over you?

Then why does Nintendo (for example) state :

If you want to sue us with respect to a claim related to this agreement, your lawsuit must be brought in King County, Washington, and you consent to the jurisdiction of courts located there.

I read it as "If you have a litigation with us, you have to sue us where we are. I can't read it as "We'll sue you where we are and you have no say in it".

With Microsoft, I again read it as "if you have a dispute with us, it has to be in our jurisdiction :

If this contract is with Microsoft Corporation, you consent to the exclusive jurisdiction and venue of state and federal courts in King County, Washington, USA for all disputes relating to this contract or the Service.

 

[squatingyeti]

The point is that by displaying the TOS notification as part of the sign-up process, the user of the console Geohot submitted to the court was made aware that for all legal intents and purposes SCEA was the responsible party.

Responsible party for PSN. His actions are not being brought because of PSN. The only party Hotz could be directing his actions at, is the party in which holds the EULA and TOS for what he circumvented. That would be SCEI

Faust's post a little ways up indicates that Sony have submitted under seal information that ostensibly corroborates that on a certain date, that machine was used to create a PSN account from an IP corresponding (to some degree) to Hotz home address.

Its a chain of evidence basically linking Hotz to SCEA via his impounded PS3, and therefore proving jurisdiction.

I don't think agreeing to the PSN TOS submits you to jurisdiction for a separate issue. Again, that's like saying agreeing to MS Office TOS submits you to that if you break the Windows TOS (purely an example meant to prove a point as both may very likely say the exact same. We do know PSN TOS and the FW EULA/TOS do not)

From what I understand, Hotz and his team aren't even contesting this evidence (aside from using Sony's choice to submit under seal it to spin perception to their advantage), and are instead taking that tack the while the account was created, Hotz himself didn't create the account.

I believe their argument is the serial is wrong and Hotz has said he has no such account. As far as the filed "under seal" being used to spin perception, I would suggest you read the filings. Sony has "filed under seal" the vast majority of their evidence. Including evidence that simply contained forum posts publicly available or websites publicly accessible.

Hotz problem is that his avoidance/unawareness of SCEA as the legally responsible party in spite of these facts/events is stretching credulity given his ownership and apparent deep knowledge of the system.

They are only legally responsible for PSN in the US. They hold no responsibility for software on the PS3, and that is made clear in the software EULA/TOS that Hotz circumvented.

 

[squatingyeti]

Then why does Nintendo (for example) state :



I read it as "If you have a litigation with us, you have to sue us where we are. I can't read it as "We'll sue you where we are and you have no say in it".

With Microsoft, I again read it as "if you have a dispute with us, it has to be in our jurisdiction :

Right, for all disputes growing from that TOS, you submit to their jurisdiction city/state. If you had some other claim, not arising from that TOS, you could try for a different place of jurisdiction.

What SCEA has done is say a dispute NOT rising from PSN TOS, subjects Hotz to the PSN TOS.

Well, Kellar made the claim of SCEA not being a subsidiary of Sony Inc in the original motion and SCEA did not provide any evidence otherwise or dispute such in their response AFAIK:

SCEA is not Sony Inc. and has not been a subsidiary of Sony Inc. since April 1, 2010. Complaint ¶19

Sony is trying to use specific jurisdiction, but it seems even having a PSN account would not subject Hotz to California jurisdiction because all 3 points must be satisfied:

See Data Disc, Inc. v. Systems Tech Assocs, Inc., 557 F.2d 1280, 1287 (9th Cir. 1977). To properly exercise specific jurisdiction, (1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) The claim must be one which arises out of or results from the defendant's forum-related activities; and (3) Exercise of jurisdiction must be reasonable. Id. All three prongs must be met, and the inability to satisfy any of the aforementioned prongs will result in the failure to establish jurisdiction over the defendant. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004).

Part 1 would be satisfied, but not 2 as this cause is not related to PSN at all.

 

[squatingyeti]

Does anyone want to explain how TOS for one thing can subject you to the jurisdiction of that TOS when the cause of action is not related? It seems California has set out how jurisdiction can be obtained and it appears to me, that even if Hotz had a PSN account, that would not satisfy what would be necessary.

 

[params7]

Does anyone want to explain how TOS for one thing can subject you to the jurisdiction of that TOS when the cause of action is not related? It seems California has set out how jurisdiction can be obtained and it appears to me, that even if Hotz had a PSN account, that would not satisfy what would be necessary.

I guess Sony will have to show how his CFW releases directly affected PSN's operations? Which will be really interesting to see because none of his releases contributed to any hacking online or the running of pirated games online.

 

[Zoe]

Does anyone want to explain how TOS for one thing can subject you to the jurisdiction of that TOS when the cause of action is not related? It seems California has set out how jurisdiction can be obtained and it appears to me, that even if Hotz had a PSN account, that would not satisfy what would be necessary.

You could try reading Sony's filing to get their side.

http://groklaw.net/pdf2/SonyvHotz-103.pdf

Prior to distributing the Metldr Keys, Hotz had extensive contacts with California
relating to his efforts to hack the PS3 System. Specifically, Hotz used Google’s Blogspot
service based in California to generate interest in his circumvention of the PS3 System.
Hotz touted his hacking exploits on his interactive “On the PlayStation 3” blog. Bricker
Decl., ¶18, Exh. P. On that California-hosted blog, Hotz openly interacted with others
regarding his hacking of the PS3 System. Id.

Now, in an attempt to avoid jurisdiction, Hotz disingenuously argues that since
Google maintains the site, Google is responsible for its interactivity and not Hotz. Yet it is
Hotz who chose to blog about his unlawful conduct and to have discussions with third
parties regarding that same conduct over the Internet. 12
Additionally, Hotz has used
other interactive tools based in this District, such as Twitter and YouTube, to report on his
hacking of the PS3 System. Bricker Decl., ¶15, Exh. K; Docket No. 28, (Bricker Decl.,
¶24, Exh. W). Hotz also utilized an account with PayPal, a California company, through
which SCEA believes that Hotz received financial benefit relating to his circumvention
activities. Bricker Decl., ¶23, Exh. U. 13
Hotz has also given an interview regarding his
hacking of the PS3 System to The Register, an online technology publication whose U.S.
operation is based in San Francisco, California. Bricker Decl., ¶13, Exh. I. These
contacts together with the harm Hotz aimed at SCEA in California are easily sufficient to
establish personal jurisdiction.

12
In doing so, Hotz consented to jurisdiction in California by agreeing to the forum
selection clause in the terms of use agreement he signed with Google. Hotz agreed to
similar jurisdictional provision in order to use Twitter to disseminate information regarding
his efforts to hack the PS3 System. Bricker Decl., ¶8, Exh. G.
13
On March 15, 2011, Judge Spero authorized the issuance of a subpoena to PayPal
to determine whether any funds from California have been deposited in Hotz’s PayPal
account from January 1, 2009 to February 1, 2011. (Docket No. 96.) SCEA served this
subpoena on March 17, 2011.

They're arguing that because he used Blogspot (Google) and Twitter to disseminate information related to the case, that establishes jurisdiction.

 

[graywolf323]

You could try reading Sony's filing to get their side.

damn it man stop trying to bring logic into this

 

[mclem]

They're arguing that because he used Blogspot (Google) and Twitter to disseminate information related to the case, that establishes jurisdiction.

So, er, where are Neogaf's servers based? Should Clipper be afraid?

 

[squatingyeti]

You could try reading Sony's filing to get their side.

http://groklaw.net/pdf2/SonyvHotz-103.pdf




They're arguing that because he used Blogspot (Google) and Twitter to disseminate information related to the case, that establishes jurisdiction.

Umm...I did read Sony's filings and that claim is shaky at best. Google and Twitter are not after him, so again, we are back to (what I can only hope is flawed at best) that you can force jurisdiction on an individual over TOS that did not bring rise to the action. His actions would have to be directed at California. Posting on places provided from California does not mean your actions are directed at California. That same logic would allow someone that posted about something on facebook that becomes a suit, be sued where facebook is. I would pray the EFF would find that horrifying.

damn it man stop trying to bring logic into this

Yeah, let's ignore that some of my post quotes are directly from Sony's filings and play derp derp.

 

[jcm]

SCEI is not a Delaware corporation. SCEA is incorporated in Delaware, and headquartered in California. SCEI is both incorporated and headquartered in Japan, like Sony.

If Sony fails to win jurisdiction, they'll most likely sue him in NJ, not Delaware.

 

[mclem]

Nobody is saying he's "guilty" of misappropriating donations and should go to jail or get sentenced to the iron maiden, it's not like we're talking about an official charitable organization here with tax receipts and everything, it's just a bunch of guys sending money to George Hotz for a supposed "legal fund", even IF he used some of it to pay for his South American trip or used the money to buy gum drops, we'll never know and won't be able to prove either way, the point is we don't know how he's using the money and whether the money actually goes towards his legal defense, we DO know that George Hotz went on vacation in the middle of the current law suit and removed parts of the hard drive he was supposed to turn over, it's not about being "guilty", people can have a negative opinion of him, we're not sentencing him here, merely speculating.

"I want to say some names to you. Ted Bundy. Jeffrey Dahmer. Geohot. What do they have in common? We don't know them"

 

[mclem]

Latest Grokkage:

http://www.groklaw.net/article.php?story=20110329223521993

Basics, filtered through my own understanding.

The judge appears to agree that this discovery motion *could* tie Geohot to California.

Geohot's lawyers can study the SDK in an environment controlled by Sony and make notes, but they cannot take a copy away to research outside that environment.

Hotz does have to make a deposition in California (April 15th)

Groklaw seems to believe that this is an all-or-nothing gambit by Sony, that they're certain that this discovery will tie him to California. If it's unsuccessful, then Geohot is a lot better off, and we'd be looking at NJ at the very least; if successful, California's pretty much a certainty.

There seems to be an implied assumption that *possession* of the SDK implies an agreement with Sony, even if you didn't actually get licensed by Sony. That strikes me as odd. Does that mean that if they're using that gambit, then possession of such a kit is *not* copyright infringement (which is what I believe it should be?)

...at least, that's as much of it as I can comprehend. Lawyers wrinkle my brain.

 

[Curufinwe]

Nice summary. That April 15th deposition is going to be very interesting.

 

[squatingyeti]

I think accessing PSN and even having an account shouldn't tie him to California. This action is not arising from anything to do with PSN. The PS3 software has its own EULA/TOS and the circumvention of that software, not the PSN is what brought this action. You can be all for Sony, but there's no way anyone should support that breaking one TOS can force jurisdiction of a separate TOS.

Now, if he has the SDK, which he probably does and he probably didn't get rid of after hacking the PS3, he is outright fucked. First, he does not have a license for the SDK which is not legal. Second, by not having a license and what he's done, he has assuredly broken the EULA/TOS for the SDK which gives SCEA every reason to win jurisdiction.

There seems to be an implied assumption that *possession* of the SDK implies an agreement with Sony, even if you didn't actually get licensed by Sony. That strikes me as odd. Does that mean that if they're using that gambit, then possession of such a kit is *not* copyright infringement (which is what I believe it should be?)

Well, possession wouldn't necessarily need to mean he agrees, but it would certainly mean SCEA can say having the SDK allowed him to hack the PS3. Therefore, this action is arising out of that issue, whether he agreed to the EULA/TOS or not, he subjected himself to them when he used it.

The only saving grace for Hotz at that point would be if the SDK follows along with the PS3 software in that SCEI created the EULA/TOS.

 

[mclem]

Now, if he has the SDK, which he probably does and he probably didn't get rid of after hacking the PS3, he is outright fucked. First, he does not have a license for the SDK which is not legal. Second, by not having a license and what he's done, he has assuredly broken the EULA/TOS for the SDK which gives SCEA every reason to win jurisdiction.

I believe there is an open-source SDK out there. Which does raise interesting questions about if he has that and not Sony's SDK, how to conduct the search to ensure that there's no false positives? His lawyers will have to be very careful and thorough.


Edit: I *think* - but I'm not certain - the implication is that if he has ever possessed the SDK, he connected to PSN to download it.

 

[squatingyeti]

I believe there is an open-source SDK out there. Which does raise interesting questions about if he has that and not Sony's SDK, how to conduct the search to ensure that there's no false positives? His lawyers will have to be very careful and thorough.


Edit: I *think* - but I'm not certain - the implication is that if he has ever possessed the SDK, he connected to PSN to download it.

The open-source SDK would not have been anywhere near ready (for what he would need IIRC) when he was doing his thing. Also (if the court doesn't want to create the slipperiest slope), they should be able to win the PSN argument all day long. Even if he lied, this action is not arising from the PSN TOS.

You may be right, but I find it more likely that the implication of possessing the SDK would be that he used it to circumvent the security of the PS3. Thus, breaking the EULA/TOS and being tied to the cause of this action. On that point, and if SCEA, not SCEI like the PS3 software, is in control of the SDK, he's going to be in California.

 

[mclem]

You may be right, but I find it more likely that the implication of possessing the SDK would be that he used it to circumvent the security of the PS3. Thus, breaking the EULA/TOS and being tied to the cause of this action. On that point, and if SCEA, not SCEI like the PS3 software, is in control of the SDK, he's going to be in California.

My phrasing was inverted from what it perhaps should have been; my implication was meant to be that if he connected to PSN, he could have acquired the SDK (or at least, 'the means through which he could hack the PS3') through that... somehow. I think.


One mild aside: I think it's on record that some of the PS3s were purchased second-hand. What if a previous owner connected to the service? That's another thing the lawyers will need to take care with.

 

[phosphor112]

Latest Grokkage:

http://www.groklaw.net/article.php?story=20110329223521993

Basics, filtered through my own understanding.

The judge appears to agree that this discovery motion *could* tie Geohot to California.

Geohot's lawyers can study the SDK in an environment controlled by Sony and make notes, but they cannot take a copy away to research outside that environment.

Hotz does have to make a deposition in California (April 15th)

Groklaw seems to believe that this is an all-or-nothing gambit by Sony, that they're certain that this discovery will tie him to California. If it's unsuccessful, then Geohot is a lot better off, and we'd be looking at NJ at the very least; if successful, California's pretty much a certainty.

There seems to be an implied assumption that *possession* of the SDK implies an agreement with Sony, even if you didn't actually get licensed by Sony. That strikes me as odd. Does that mean that if they're using that gambit, then possession of such a kit is *not* copyright infringement (which is what I believe it should be?)

...at least, that's as much of it as I can comprehend. Lawyers wrinkle my brain.

It seems like possession of software, whether illegally obtained or not, would imply an agreement with the license. The thing is, the license was obtained illegally. That's what it seems to me.

 

[Massa]

One mild aside: I think it's on record that some of the PS3s were purchased second-hand. What if a previous owner connected to the service? That's another thing the lawyers will need to take care with.

The PS3 slim that was associated with PSN was bought new at a Gamestop by geohot. It's the one he kept the original box for because he thought it was pretty.

 

[squatingyeti]

It seems like possession of software, whether illegally obtained or not, would imply an agreement with the license. The thing is, the license was obtained illegally. That's what it seems to me.

Agree. Doesn't matter how he would have got it or whether he actually agreed to the terms. By using it, I would believe that subjects him to those terms. It would also allow SCEA to claim the SDK allowed him to hack the PS3 and is a cause of this action. I think SCEA actually did create the EULA/TOS for the SDK and unless SCEI did, Hotz fucked up.

I would find it highly unlikely that he hasn't possessed the SDK. Now, if it's not on his hard drive, good luck proving it. However, it's probably on his hard drive. Gonna try to hunt down who is responsible for the SDK.

 

[lupinko]

Need Phisheep to weigh in on this.

He already said he wouldn't go near this.

 

[phosphor112]

Agree. Doesn't matter how he would have got it or whether he actually agreed to the terms. By using it, I would believe that subjects him to those terms. It would also allow SCEA to claim the SDK allowed him to hack the PS3 and is a cause of this action. I think SCEA actually did create the EULA/TOS for the SDK and unless SCEI did, Hotz fucked up.

I would find it highly unlikely that he hasn't possessed the SDK. Now, if it's not on his hard drive, good luck proving it. However, it's probably on his hard drive. Gonna try to hunt down who is responsible for the SDK.

I'm sure he used the SDK at one point. It's improbable that he or failoverflow hacked the PS3 so easily without it. Mind you, all the major hacking breakthroughs only appeared after the SDK leak.

Whether they'll find it on the HDD or not is another story. Geo is a really intelligent guy when it comes to computers, he could have easily wiped and overwritten (with dummy info) any sectors the data was on.

 

[squatingyeti]

I'm sure he used the SDK at one point. It's improbable that he or failoverflow hacked the PS3 so easily without it. Mind you, all the major hacking breakthroughs only appeared after the SDK leak.

Whether they'll find it on the HDD or not is another story. Geo is a really intelligent guy when it comes to computers, he could have easily wiped and overwritten (with dummy info) any sectors the data was on.

I guess if it's found on his HDD, they'd really only have two possible arguments:

1) SCEI is responsible for the EULA/TOS so SCEA still has nothing here (not sure if it is SCEI)

2) The SDK allows you to create software for the PS3, but does not allow you to hack it. Hotz can be charged with copyright infringement, but violating such did not bring about this action. (would need to learn more if the SDK helps hack or just create software for use on the system)

 

[staticneuron]

I think accessing PSN and even having an account shouldn't tie him to California. This action is not arising from anything to do with PSN. The PS3 software has its own EULA/TOS and the circumvention of that software, not the PSN is what brought this action. You can be all for Sony, but there's no way anyone should support that breaking one TOS can force jurisdiction of a separate TOS.

Actually under the General License restriction and terms portion of the ToS. They do have Similar wording as the EULA that applies to any/every software obtained using their network before you download it to any device. It also establishes the property belongs to Sony and that it is a deal you made with SCEA.

Scary thing about the wording is that you don't have to even agree to it explicitly. If you simply use their services, it is the same as agreeing to it. So unless geo got someone else to DL a firmware update , every single time he most likely ran afoul of the ToS which in turn means he violated number 7 of the agreement which holds him responsible under number 15 within the agreement which means his issue is with SCEA and he must submit to personal jurisdiction in California.

SCEI is responsible for the EULA/TOS so SCEA still has nothing here (not sure if it is SCEI)

You mention that again but someone should have pointed it out to you already where the companies are founded and where their headquarters were at. Within the EULA SCE that is mention is an all encompassing term for ALL the divisions. SCEA has handled Playstation related dealings for "years". When there was a DRE error lawsuit for the PS2, who settled the case? Who did immersion name to stop sales in the states as well?

As said in the response before Sony lawyers points out

http://groklaw.net/pdf2/SonyvHotz-103.pdf

1. SCEA is the exclusive distributor of PS3 Systems in the United States


2.SCEA’s existence is not news to Hotz. When
Hotz purchased a new PS3 System – one of the four in his possession – Hotz received
PS3 documentation which repeatedly mentions SCEA through-out.

3.Through his unlawful conduct, Hotz has directly targeted and harmed SCEA by
providing to users the ability to: (a) circumvent multiple TPMs on the PS3 Systems that
SCEA distributes and (b) run pirated versions of the software that SCEA and its licensees
have developed for the PS3 System.

4. The fact that SCEI has also been harmed by Hotz’s conduct does not in any way undermine the clear evidence of harm to SCEA in California that was the inevitable effect of Hotz’s actions.

 

[EricHasNoPull]

Is the OP GeoHotz little 12 year old brother?

But seriously people we should just sit back and let this play out, instead of making crazy fueled threads twice a week based on what Sony's and Hots lawyers say, it's kinda getting annoying.

 

[mclem]

Scary thing about the wording is that you don't have to even agree to it explicitly. If you simply use their services, it is the same as agreeing to it.

Doesn't the very start of it:

PLEASE READ THIS ENTIRE AGREEMENT AND INDICATE WHETHER YOU AGREE TO ITS TERMS BY CLICKING THE "ACCEPT" OR "DO NOT ACCEPT" BUTTON AT THE END OF THE AGREEMENT. ACCESS TO THE PLAYSTATION®NETWORK ("PSN") AND QRIOCITY™ SERVICES ("QRIOCITY") (COLLECTIVELY, "SONY ONLINE SERVICES") IS EXPRESSLY CONDITIONED UPON ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. IF YOU CLICK THE "DO NOT ACCEPT" BUTTON, YOU WILL NOT BE ABLE TO ACCESS PSN OR QRIOCITY.

suggest that if you do not agree to it explicitly, you do not have *access* to said services? Is that not Sony's responsibility to enforce?

 

[Forkball]

The "breach of contract" claim Sony is making because geohot violated the PSN User Agreement has to be the funniest charge I've ever seen.

 

[jcm]

Actually under the General License restriction and terms portion of the ToS. They do have Similar wording as the EULA that applies to any/every software obtained using their network before you download it to any device. It also establishes the property belongs to Sony and that it is a deal you made with SCEA.

Scary thing about the wording is that you don't have to even agree to it explicitly. If you simply use their services, it is the same as agreeing to it. So unless geo got someone else to DL a firmware update , every single time he most likely ran afoul of the ToS which in turn means he violated number 7 of the agreement which holds him responsible under number 15 within the agreement which means his issue is with SCEA and he must submit to personal jurisdiction in California.

You can't sign into PSN or create a PSN account without agreeing to the TOS. The TOS for the firmware doesn't have the forum selection clause, so just updating your firmware doesn't force you to agree to California jurisdiction.

 

[squatingyeti]

Actually under the General License restriction and terms portion of the ToS. They do have Similar wording as the EULA that applies to any/every software obtained using their network before you download it to any device. It also establishes the property belongs to Sony and that it is a deal you made with SCEA.

Scary thing about the wording is that you don't have to even agree to it explicitly. If you simply use their services, it is the same as agreeing to it. So unless geo got someone else to DL a firmware update , every single time he most likely ran afoul of the ToS which in turn means he violated number 7 of the agreement which holds him responsible under number 15 within the agreement which means his issue is with SCEA and he must submit to personal jurisdiction in California.

Yes, but I think there is good argument that the "property" is PSN. PSN is merely one application of many that can work on the PS3. Agreeing to the TOS of PSN should not apply its jurisdiction over you if you break the EULA/TOS of the PS3 software. Again, that's like arguing the MS Office TOS can be used if you do something to MS SQL Server that causes an action. That is an extremely slippery slope. Even the TOS state:

and further agree that any dispute arising from or relating to this Agreement

That is the main point and there is precedent (IIRC) backing that something with the TOS would need to be the cause of the action. This case was brought because Hotz circumvented the security of the PS3 software, which is not PSN software.

Furthermore, agreeing to the TOS of something on one machine, does not spread it across every machine you own. Agreeing to MS Office TOS on your desktop in your home office does not also agree to it on your desktop in the study.

As said in the response before Sony lawyers points out

2.SCEA’s existence is not news to Hotz. When
Hotz purchased a new PS3 System – one of the four in his possession – Hotz received
PS3 documentation which repeatedly mentions SCEA through-out.

The box, the click through with firmware and anything EXCEPT the sealed manual all say SCEI.

3.Through his unlawful conduct, Hotz has directly targeted and harmed SCEA by
providing to users the ability to: (a) circumvent multiple TPMs on the PS3 Systems that
SCEA distributes and (b) run pirated versions of the software that SCEA and its licensees
have developed for the PS3 System.

SCEA would like you to believe he targeted and harmed them, even to the point of changing his famous quote, in their filing, about hiring him so that it appears he was speaking only to them. Furthermore, SCEA only distributes and markets the PS3. They did not create the TPMs or any of the firmware (software) running the PS3. Point (b) is comical and shows that Sony has been trying to paint Hotz as a pirate. Hotz's CFW does NOT enable piracy.

4. The fact that SCEI has also been harmed by Hotz’s conduct does not in any way undermine the clear evidence of harm to SCEA in California that was the inevitable effect of Hotz’s actions.

I'd say it's more than clear he was not directing anything at SCEA as they have nothing to do with the production of the PS3 or the creation of the software he hacked and then stated he could help protect next gen.

 

[staticneuron]

You can't sign into PSN or create a PSN account without agreeing to the TOS. The TOS for the firmware doesn't have the forum selection clause, so just updating your firmware doesn't force you to agree to California jurisdiction.

But you don't need an account to DL the firmware from the website. What people aren't aware of is that sony has written thier ToS's that even by using the website alone, you are subject to the The same jurisdiction dilema.

http://us.playstation.com/support/termsofuse/

Because we reserve the right to change the Terms of Service at any time, we recommend visiting this page periodically to make sure that the rules have not changed since your last visit. By using these Sites, you agree to be bound by all of the current terms of service.

Everything on or used in connection with our Sites, including text, images, graphics, logos, audio and video content and software (collectively, “Content”) – with the exception of User Generated Content as defined below – is owned by us or our affiliates, subsidiaries, licensors or suppliers. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works or in any way exploit any of the Content (including Content that the Sites enable you to download or save) without our express permission.
19. GOVERNING LAW AND JURISDICTION.

These Terms of Service and all questions relating to the performance, interpretation, breach or enforcement of these Terms of Service, or the rights, obligations and liabilities of you and us under them are governed by the laws of the State of California. You agree that all disputes, claims or litigation arising from or related in any way to these Terms of Service and our relationship with you will be litigated only in a court of competent jurisdiction located in San Mateo County, State of California. You agree to be subject to personal jurisdiction and venue in that location.

Yes, but I think there is good argument that the "property" is PSN. PSN is merely one application of many that can work on the PS3. Agreeing to the TOS of PSN should not apply its jurisdiction over you if you break the EULA/TOS of the PS3 software. Again, that's like arguing the MS Office TOS can be used if you do something to MS SQL Server that causes an action. That is an extremely slippery slope. Even the TOS state: That is the main point and there is precedent (IIRC) backing that something with the TOS would need to be the cause of the action. This case was brought because Hotz circumvented the security of the PS3 software, which is not PSN software.

Furthermore, agreeing to the TOS of something on one machine, does not spread it across every machine you own. Agreeing to MS Office TOS on your desktop in your home office does not also agree to it on your desktop in the study.

The PSN is not "property" it is a service. The "property" they are talking about is any Sony based software and content you can get from that service which includes but is not limited to the system software.

This Agreement applies to software, content and access to software, content and services provided through or in connection with Sony Online Services, including via the PlayStation®Store and virtual communities, whether delivered onto the PlayStation®3 computer entertainment system, the PSP® (PlayStation®Portable) system, a personal computer, selected BRAVIA® televisions, Sony Blu-ray® Disc players or otherwise. Such access, software, and content include subscriptions, data, system software, fixes, updates or newer releases and related materials.


7. GENERAL LICENSE RESTRICTIONS AND TERMS

Except as stated in this Agreement, all content and software provided through Sony Online Services are licensed non-exclusively and revocably to you, your children and children for whom you are a legal guardian (collectively for purposes of this section, "You" or "Your"), solely for Your personal, private, non-transferable, non-commercial, limited use on a limited number of activated PlayStation®3 computer entertainment systems, PSP® (PlayStation®Portable) systems, VOD Devices and any other hardware devices, including peripherals that are sold or licensed by a Sony company, authorized by SCEA in the country in which your account is registered. All intellectual property rights subsisting in Sony Online Services, including all software, data, and content subsisting in or in connection with the operation of Sony Online Services, the Online ID, the access to content and hardware used in connection with Sony Online Services (collectively defined as "Property"), belong to SCEA and its licensors. All use or access to Property shall be subject to the terms of this Agreement, other applicable agreements, if any, and all applicable copyright and intellectual property rights laws. You may not sell, rent, sublicense, modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Property. Except as stated in this Agreement or otherwise expressly permitted by SCEA in writing, you may not reproduce or transfer any portion of the Property. You may not create any derivative works, attempt to create the source code from the object code, or download or use any Property for any purpose other than as expressly permitted. You may not bypass, disable, or circumvent any encryption, security, digital rights management or authentication mechanism in connection with Sony Online Services or any of the content or service offered through Sony Online Services.

Basically the language is redundant and it is written in the eula, which parts the Eula superceeds the PSN ToS. Yes, the PSN ToS does talk about System software and also has an agreement which you agree not to modify/tamper with the software.

SCEA would like you to believe he targeted and harmed them, even to the point of changing his famous quote, in their filing, about hiring him so that it appears he was speaking only to them. Furthermore, SCEA only distributes and markets the PS3. They did not create the TPMs or any of the firmware (software) running the PS3. Point (b) is comical and shows that Sony has been trying to paint Hotz as a pirate. Hotz's CFW does NOT enable piracy.

Except they are not arguing that his CFW allows piracy, they are going after him because of other code he released. Especially the keys.

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").

 

[squatingyeti]

But you don't need an account to DL the firmware from the website. What people aren't aware of is that sony has written thier ToS's that even by using the website alone, you are subject to the The same jurisdiction dilema.

I don't think that could hold water, even in the crazy Cali courts. The EFF would be on that like stink on shit. "Hi, you visited our site, welcome to our jurisdiction".

The PSN is not "property" it is a service. The "property" they are talking about is any Sony based software and content you can get from that service which includes but is not limited to the system software.

You can also get the system software from places other than PSN. The system software contains its own EULA/TOS and is from SCEI.

Basically the language is redundant and it is written in the eula, which parts the Eula superceeds the PSN ToS. Yes, the PSN ToS does talk about System software and also has an agreement which you agree not to modify/tamper with the software.

Again, said agreement can only be applied to the system you make it apply to. Agreeing to a TOS on one computer does not mean you agree on every computer you own. Also, this is the updated PSN EULA/TOS.

Except they are not arguing that his CFW allows piracy, they are going after him because of other code he released. Especially the keys.

All under the DMCA and they are absolutely claiming his CFW allowed piracy. Everything he did involves circumventing the software of the PS3. Anything else is an end-around attempt to assert jurisdiction in California. Outside of the SDK helping hack the PS3 (which I'm still not sure it does as it is designed to write software for the PS3) and having a EULA/TOS applied by SCEA, not SCEI, I would hope people can see the slippery slope SCEA would be trying to have allowed.

 

[Christine]

But you don't need an account to DL the firmware from the website. What people aren't aware of is that sony has written thier ToS's that even by using the website alone, you are subject to the The same jurisdiction dilema.

I was able to download the firmware without even viewing the TOS, much less taking action that could be construed as manifesting assent, e.g. clicking on an "I agree" button.

The holding in Specht v. Netscape Communications Corp. is fairly decisive on this issue - I have not legally agreed to the TOS and am therefore not bound by it. The existence of boilerplate asserting that users are deemed to have assented simply by their use of a website does not trump essential principles of contract law.

 

[squatingyeti]

Even Sony itself likes to differentiate between the System software, it's EULA and everything else:

system software that is pre-installed in the PS3™ hardware, or Is subsequently provided via update or upgrade releases. Such system software is licensed to you under the terms and conditions of a separate end user license agreement at http://www.scei.co.jp//ps3-eula

This Agreement is a contract with SCE. This Agreement applies to any system software or firmware included in the PS3™ system, and any patches, updates, upgrades, or new versions of the system software or firmware provided to or made available for your PS3™ system through any SCE service or online network, SCE website or PS3™ system game disc (software is collectively, "System Software").

 

[staticneuron]

I don't think that could hold water, even in the crazy Cali courts. The EFF would be on that like stink on shit. "Hi, you visited our site, welcome to our jurisdiction".



You can also get the system software from places other than PSN. The system software contains its own EULA/TOS and is from SCEI.


Again, said agreement can only be applied to the system you make it apply to. Agreeing to a TOS on one computer does not mean you agree on every computer you own. Also, this is the updated PSN EULA/TOS.

All under the DMCA and they are absolutely claiming his CFW allowed piracy. Everything he did involves circumventing the software of the PS3. Anything else is an end-around attempt to assert jurisdiction in California. Outside of the SDK helping hack the PS3 (which I'm still not sure it does as it is designed to write software for the PS3) and having a EULA/TOS applied by SCEA, not SCEI, I would hope people can see the slippery slope SCEA would be trying to have allowed.

Well, I think we are going to have to disagree about what the Eula states, despite that not being under contention in this case.

The DMCA clause that Sony is perusing for geo isn't about piracy iirc, but about circumvention of protected systems and/or facilitating the ability to do so. I am sure his CFW can be used as an example of him actually succeeding but to get to him on what they seem to be going after him on, they are going after him distributing the code.

And you are correct that it applies to the system he used it on but to imply that agreeing to one software agreement absolves him of altering another copy of that same software is certainly something I would have to see vetted in court.

I was able to download the firmware without even viewing the TOS, much less taking action that could be construed as manifesting assent, e.g. clicking on an "I agree" button.

The holding in Specht v. Netscape Communications Corp. is fairly decisive on this issue - I have not legally agreed to the TOS and am therefore not bound by it. The existence of boilerplate asserting that users are deemed to have assented simply by their use of a website does not trump essential principles of contract law.

Interesting because there have been more recent cases in which people have been held to browser and clickwrap tos/eulas. Including an issue with servicemagic and dell.

It is something that is seemingly faced on a case by case basis.

Even Sony itself likes to differentiate between the System software, it's EULA and everything else:

Like I told you above, there are some redundant language and they acknowledge that in said agreements.

Your continued access to or use of the System Software will signify your acceptance of any changes to this Agreement. In the event of any conflict between this Agreement and the Terms of Service and User Agreement for SCE's online network, the terms of this Agreement shall control the use of or access to, the System Software.

They clearly wrote it, to be overlapping on purpose to try to cover their bases as much as possible. The court case will be a perfect example to see if they did they right thing.

 

[squatingyeti]

Like I told you above, there are some redundant language and they acknowledge that in said agreements.

They clearly wrote it, to be overlapping on purpose to try to cover their bases as much as possible. The court case will be a perfect example to see if they did they right thing.

I wonder if it was overlapping like that before or after Hotz? They changed the TOS for PSN shortly afterward.

 

[staticneuron]

I wonder if it was overlapping like that before or after Hotz? They changed the TOS for PSN shortly afterward.

It was the same before. It was under discussion between me and other friends after the OtherOS removal.

 

[Zoe]

I wonder if it was overlapping like that before or after Hotz? They changed the TOS for PSN shortly afterward.

TOS changes have really only been centered around Plus/subscription services and recently the SNEA change.

 

[squatingyeti]

I would hope the court does not agree with overlapping TOS's like that because that goes beyond this issue. It's basically allowing a company to say this TOS will be used against you if an action arises from that TOS.

As long as PSN and system software are two separate things, they should be ruled by two separate TOS's. If Sony chose to make them the same, that's fine, but as a consumer, I have a hard time accepting the TOS for something unrelated can be used.

Where I'm going is this precedence being set and having some ridiculous effect on some other case where companies start trying to tie different TOS's together. Something like MS saying, "well, if you read the Windows 7 EULA/TOS, you will see under 23 that since you have a pc with Windows 7, which can interact with your X-next, and you have looked at your X-next suspiciously, breaking the law and violating its EULA, we bring this action and assert jurisdiction and cause based on the Windows 7 EULA/TOS."

 

[mclem]

Isn't the ToS on http://us.playstation.com/support/termsofuse/ explicitly claiming to override the law?

These Terms of Service and all questions relating to the performance, interpretation, breach or enforcement of these Terms of Service, or the rights, obligations and liabilities of you and us under them are governed by the laws of the State of California. You agree that all disputes, claims or litigation arising from or related in any way to these Terms of Service and our relationship with you will be litigated only in a court of competent jurisdiction located in San Mateo County, State of California. You agree to be subject to personal jurisdiction and venue in that location.

Compare and contrast with http://legaldoc.dl.playstation.net/ps3-eula/psn/u/u_tosua_en.html :

Except as otherwise required by applicable law, this Agreement shall be construed and interpreted in accordance with the laws of the State of California applying to contracts fully executed and performed within the State of California. Except as otherwise required by applicable law, both parties submit to personal jurisdiction in California and further agree that any dispute arising from or relating to this Agreement shall be brought in a court within San Mateo County, California. In the event of litigation to enforce any part of this Agreement, all costs and fees, including attorney's fees, shall be paid by the non-prevailing party to the extent permitted by applicable law.

 

[mugwhump]

You could try reading Sony's filing to get their side.

http://groklaw.net/pdf2/SonyvHotz-103.pdf




They're arguing that because he used Blogspot (Google) and Twitter to disseminate information related to the case, that establishes jurisdiction.

whoa

that's pretty retarded

I mean, wow.

 

[poppabk]

whoa

that's pretty retarded

I mean, wow.

Why is that retarded?

 

[darkpower]

Why is that retarded?

Well, I find it retarded that they are going the extra mile and trying to scrap together anything they possibly can to get this case in CA! This is starting to look like a desperate group of people rather than a company that's confident that they know they can win based whatever laws apply. They are trying to find ANY loophole they can possibly can.

I also find it retarded that Spero, someone who a few people have said is a fair judge, is even ENTERTAINING this, even still!

This is getting entirely retarded, I agree. Sony needs to just give it up, already. Let him have the case in NJ if you think he's so fucking guilty. Stop making it so fucking obvious that you're just trying to screw the guy over by dragging him everywhere you want him to be. It just makes them look like they have something to hide themselves.

 

[poppabk]

Well, I find it retarded that they are going the extra mile and trying to scrap together anything they possibly can to get this case in CA!

They are lawyers, thats their job. With the added incentive for the lawyers that if they win the jurisdiction they get the chance to try the case and earn beaucoup bucks, if they lose they have to hand it over to some lawyers in NJ.

 

[squatingyeti]

Why is that retarded?

I believe what he is finding retarded is that SCEA is attempting to say that because he used google and twitter, he is subject to and has accepted those two TOS's. Ok, that's fine. Then, SCEA has taken this amazing leap that because those two TOS's have jurisdiction in california, this separate case having nothing to do with google, twitter, or either of their TOS's, can be brought in California. Ooooookay, yeah. That doesn't sound remotely ridiculous to you?

Maybe next they'll find he used winrar to zip his CFW and say since he obviously accepted those terms of service, this case arising with nothing to do with them, can now be heard in a small village outside anchorage alaska, requiring a native to get you there. I mean, because that's what winrar's TOS say (not really, but you get the point).

 

[poppabk]

I believe what he is finding retarded is that SCEA is attempting to say that because he used google and twitter, he is subject to and has accepted those two TOS's. Ok, that's fine. Then, SCEA has taken this amazing leap that because those two TOS's have jurisdiction in california, this separate case having nothing to do with google, twitter, or either of their TOS's, can be brought in California. Ooooookay, yeah. That doesn't sound remotely ridiculous to you?

Maybe next they'll find he used winrar to zip his CFW and say since he obviously accepted those terms of service, this case arising with nothing to do with them, can now be heard in a small village outside anchorage alaska, requiring a native to get you there. I mean, because that's what winrar's TOS say (not really, but you get the point).

Its not about accepting the terms of service but establishing that he had minimum contact with the state of California.

 

[darkpower]

Its not about accepting the terms of service but establishing that he had minimum contact with the state of California.

Comparing to what, exactly? You're making it sound like if even ONE person from CA even THOUGHT about visiting his website, then game over for him. That's not being even REMOTELY realistic.

This is them continuing to throw things at the wall in the hopes that something sticks. How many avenues are we going to try here?

And how much longer are people going to support things like this?

 

[squatingyeti]

Its not about accepting the terms of service but establishing that he had minimum contact with the state of California.

Actually Sony's claim about google and twitter was exactly that he had accepted their TOS's, and therefore submitted to California jurisdiction (as both of their TOS's use California). Also, he needs to have directed this action at California. Those are passive sites, just like his website and are not directed at California.