Hotz fires a powerful blast back at Sony's California jurisdictional claims

http://www.groklaw.net/article.php?story=20110327185437805

by grellas • 15 years ago

269 66 15 years ago

shazow• 15 years ago

What an amazing overview of the legal proceedings. Clearly a lot of effort went into this, huge thanks!

nutjob123• 15 years ago

I find these posts about legal proceedings much more interesting when the facts are stated with actual links to the relevant information.

sp332• 15 years ago

Groklaw is consistently amazing like that. PJ manages to make complex cases intelligible without dumbing things down so much that you feel like it's just an editorial. Of course there is editorializing, but it's mostly to point out how crazy some of the stuff is that's happening. It feels like getting the opinion of an expert instead of punditry with an agenda.

Oh, and PJ's earlier coverage of this case: http://www.groklaw.net/article.php?story=20110322114658410

javanix• 15 years ago

What exactly was the rationale for changing the title of this article from the one on Groklaw?

CWuestefeld2• 15 years ago

All of this has very little to do with the actual suit. This is all over the question of jurisdiction.

GrandMasterBirt• 15 years ago

An interesting turn of events. However a ruling on this will indicate that if sony wants to sue anyone for hardware hacking, they will have to do it in the jurisdiction of where the person lives, not where sony choses.

CWuestefeld2• 15 years ago

Well, not so much. This isn't a higher court, so it's not setting any precedent wider than this court itself. Of course, other courts might choose to take these findings as guidance, but there's no requirement for them to do so.

younata• 15 years ago

I couldn't help but laugh at how ridiculous SCEA is.

originalgeek• 15 years ago

I know. If I was a SCEA Exec, I would be asking my lawyers "WTF do I pay guys for? So you can get pantsed by some kid?"

pdenya• 15 years ago

Is there any reason SCEA wants to file in CA other than making it inconvenient for Hotz?

omh• 15 years ago

Does Japan have a DMCA-style law?

Even if it does, I'd guess that SCEA has a better (bigger?) team of lawyers than SCEJ when it comes to this sort of case.

Tyrannosaurs2• 15 years ago

They're not saying the case should have been bought in Japan or under Japanese jurisdiction (they admit it should be bought in the US, just that it should be bought in New Jersey as that's where the alleged offence was committed and because to bring it anywhere else is deliberately inconvenient to the defendant).

The point about SCEJ is that it should be them that should be bringing the case rather than SCEA.

Personally that one feels like clutching at straws as it doesn't invalidate the alleged infringement, just this particular case.

In the unlikely event that the judge threw it out based on this SCEJ would just bring the case using the same lawyers and the same materials (SCEJ and SCEA are both after all Sony and to assume that they wouldn't co-operate and share resource isn't really realistic).

jlazarow• 15 years ago

If the case was brought up in Japan, then wouldn't Hotz just need to avoid ever stepping on Japanese soil in order to stay out of trouble (regardless of the outcome of the case).

rorrr• 15 years ago

Some courts are more favorable in some areas. CA must be the most favorable when it comes to copyright cases.

roc• 15 years ago

People have a predictable and powerful tendency to put everyone into buckets via easily quantifiable properties and treat them very differently based on whether they see themselves as sharing those buckets.

Ergo, if a jury gets involved, it's worse for Sony if the action is framed as "Japanese corporation vs New Jersey citizen", given a jury composed of New Jersey residents.

If they can get SCEA/California jurisdiction, it's "California corporation vs New Jersey resident", given a jury composed of California residents.

tibbon• 15 years ago

Maybe their legal team isn't barred in NJ?

bhousel• 15 years ago

Corporations generally hire outside counsel to handle most of their legal practice. So Sony (or their subordinate companies) would hire megafirms that employ lawyers allowed to practice law anywhere in the world.

ChuckMcM• 15 years ago

The federal judiciary in California is sometimes better at handling complex intellectual property and technology rights cases because they have seen more go through. Because of this they also have some precedents which can be cited and which the ninth circuit is supportive of. I don't doubt if it were a complex financial scam that they would be happy to move it to New Jersey (where they have seen a number of securities cases go through)

SeanDav• 15 years ago

I really try hard not to buy Sony anymore. Not fanatical about it, but why support a company that does this, along with installing rootkits and other behaviour of course.

microtonal2• 15 years ago

I sympathize. However, it is very hard to completely avoid their products if you love music or movies.

eekfuh• 15 years ago

Well if you love music or movies, you can easily avoid PAYING for their products.

eneveu2• 15 years ago

Hard, but not impossible. I wanted to buy new headphones. I was considering the Sony MDR V6 (or the new model that recently came out, won't name the model, don't want to advertise for Sony...). I was ready to pull the trigger, when I thought about the whole whole Geohot fiasco (and other Sony fiascos before that). This led me to research more headphones, and settle on the Sennheiser HD 25-1 II. It costed me a little more, but I couldn't have been happier. Awesome headphones, avoided Sony.

dhimes• 15 years ago

I still haven't forgiven them for turning virtualization off by default in their BIOSs. Although they "undid" this for most of their machines (so I understand), they didn't for mine.

Pricks.

mrfu• 15 years ago

I "vote" with my money too. I wonder if there is an opportunity for an app that would easily enable a consumer to check whether the company (s)he is willing to buy from is in line with its ethics.

kls3• 15 years ago

I had an idea for a startup along this line (I call it the ethical investor) and my idea was to create a trader platform that profiled your ethical makeup and made stock recommendations based on your ethical profile.

kls3• 15 years ago

After the root kits I had it with Sony to the point of being fanatical (something that I generally am not) I research everything I buy, if it is encumbered by a single Sony (or one of it's subsidiary's) patents in which Sony receives royalties, I will not buy it, I boycott any Sony labeled music and I avoid everything Sony. I have never boycotted anything in my life but Sony is just over the top in abusing the system. They prove that the system is no longer set up for the people. The root kits would of landed any one of us as citizens in jail for a long time for such a wide spread infection of machines. Sony received no criminal charges and got a wrist slap of a settlement. Until they pay for their criminal behavior I will not purchase another product that has any Sony tech in it. Some time principals are more important than a gadget that one can truly live without. I contributed a fair amount to GeoHotz defense and hope that it helps to screw Sony over. If anyone that reads this is ever sued by Sony please email me, I will contribute to your defense fund.

Tyrannosaurs2• 15 years ago

"The implication is that SCEA might be fighting dirty, providing misleading information to the court."

That's kind of naive, this is how the law works - you make your case by putting the most beneficial spin on everything from your clients perspective ("he agreed to this when he did X").

The defendant then makes their case by putting the most beneficial spin on everything from their clients perspective ("X only extends to cover Y and therefore is not relevant").

The judge or jury then rule on who is right. That's not fighting dirty, it's the practice of law.

This is an analysis of the defence motions which are always going to be worded to make everything Sony has done sound deeply wrong and evil.

The Julian Assange defence was very similar - if you read through it you'd wonder how the case had ever been bought and yet the judge found against them on pretty much every point. They weren't fighting dirty, they were giving their interpretation of things and this is the same.

Not saying this isn't good, or interesting, just that it has a very specific and obvious bias and that irks me a little.

YooLi• 15 years ago

I agree with you. That said, where does it cross the line from beneficial spin to providing misleading information? Can, for instance, a landlord claim to a court that a tenant agreed not to throw loud parties in the rental contract (even if there was no such provision) and leave it up to the the tenant's defense to correct that no, the rental contract says nothing about parties? To me this would be misleading information, but I am highly ignorant of how courts work.

markklarich2• 15 years ago

It can, actually, get much worse. While cross examining the other side, the opposition attorney can, and often does, state an assumption in the middle of a question that misstates a fact. If you don't object, then that statement becomes fact. In other words, every statement made must be considered. Is this something I am willing to allow?

It seems that we want to think of a world that is logical and populated with verifiable facts. However, the world of the lawyer is fundamentally illogical (as are most humans most of the time) and facts only exist when either agreed to by the parties or determined by judge or jury. As a result events that you or I would consider to be unquestionably true may end up being not facts. I have seen this in supreme court opinions, appeals, and bench (judge-not jury) cases.

Sony knows this well. They have tons of money to throw at lawyers. Generally speaking, the more money spent, the more likely you will win.

The word "justice" is never used in law school.

drags• 15 years ago

Despite my distaste for Sony, I worry that the tone and claims of bad faith in Hotz's filing will distract from the overall strength of his argument.

From Kozinski's "How You Too Can Lose Your Appeal:"

Let's face it, a good argument is hard to hold down. So what you want to do is salt your brief with plenty of distractions that will divert attention from the main issue. One really good way of doing this is to pick a fight with opposing counsel. Go ahead, call him a slime. Accuse him of lying through his teeth. The key thing is to let the court know that what's going on here is not really a dispute between the clients. What is really going on here is a fight between the forces of truth, justice, purity and goodness--namely you--and Beelzebub, your opponent.

http://notabug.com/kozinski/loseappeal

eli• 15 years ago

Sounds like some spinning of his own in explaining why he did not fully comply with a judge's order that he take the code offline:

"The Code was also posted on Pastie. org and Github.com. Originally, it did not occur to me that these locations counted as within my custody or control."

markklarich2• 15 years ago

It would help to read this Wikipedia article to better understand this post. The post is based on court filings addressing personal jurisdiction in an internet case. It seems California has weighed in on the subject and knowing what they are looking for helps to understand the nature of the arguments. http://en.wikipedia.org/wiki/Personal_jurisdiction_in_Intern...

albemuth• 15 years ago

maybe we should start a Spartacus-like "I am blickmaniac" movement

inklesspen• 15 years ago

Lying to a judge is not typically a good strategy. SCEA likely has more details about who blickmaniac is; they just haven't disclosed them yet.

burgerbrain• 15 years ago

You are presumably operating under the assumption that geohot really is blickmaniac^. If he's not, any possible further details SCEA has either would not be in their best interest to share, or would fall apart upon further examination. Furthermore, as none of us, I assume, are currently under oath, or even in the court room, there is realistically little harm in publicly claiming to be blickmaniac.

^And he's not, because I am blickmaniac, and I'm not geohot.

grellas• 15 years ago

The bombshell here (and it is just that) lies in the forced last-minute production of the agreements between Sony Computer Entertainment America (SCEA) and Sony Computer Entertainment Inc. (referred to in the papers as "Sony Japan").

To establish personal jurisdiction over Mr. Hotz, SCEA must show that he had minimum contacts with California such that it makes it fair and reasonable to sue him in that forum over this set of claims. This is so-called "limited jurisdiction," and is to be distinguished from the "general jurisdiction" that enables you to sue someone in the state of his residence over any claim whatever (see my mini-primer on the technical aspects of this here: http://news.ycombinator.com/item?id=2335698).

The key to the limited-jurisdiction analysis here is whether Mr. Hotz "purposefully directed" his activities toward California (intending that they have an effect there) in committing the acts for which he was sued. It is not enough to show incidental contacts with the state because such a standard would allow any person to be sued anywhere in the United States over any matter simply for having, e.g., purchased a product from remote state x, or had some similar tangential contact. Remember, the standard requires the court to find contacts in the forum related to the wrongs committed such as to make it reasonable to require the distant defendant to have to defend the suit remotely.

Because of this, the vital question concerns the nature of the claims asserted in the lawsuit and whether such claims show that Mr. Hotz intended to affect a California resident in committing the wrongs alleged.

And this is where the bombshell comes in: in a forced document production that SCEA managed to stall until just a few days before Mr. Hotz's reply brief was due, it had to produce the key contracts between SCEA and Sony Japan, which contracts conclusively demonstrate that all copyrights that are alleged to have been violated in this case are owned by Sony Japan exclusively and that SCEA has nothing to do with them other than being one of many licensees of such copyrights within the Sony family of companies.

In other words, SCEA appears to have nothing legitimate to do with the case other than serving as a proxy by which Sony Japan hopes to bootstrap its way into California jurisdiction. SCEA is connected with the PlayStation Network terms of service having a California forum selection clause. The problem is that none of the claims in this case concern violations of such terms of service.

The clear implication is that SCEA is a puppet being used to manipulate the court for Sony's tactical purposes. This is reinforced by several collateral indicators. SCEA filed this suit and "flooded" the case with subpoenas that went far beyond the scope of the limited discovery allowed in this sort of case. It then went to great lengths to avoid being straightforward with the court about the copyright ownership upon which the DMCA claims were based. And it has filed a blizzard of affidavits and court papers trying to confuse the main issues in the case.

Of course, nothing is completely predictable in a court matter where a court must decide an issue based on a nebulous legal standard such as whether something is "fair" or "reasonable" under the minimum-contacts jurisdictional analysis. But these revelations, to me, look pretty damning. Essentially, Mr. Hotz's attorneys have provided near-conclusive rebuttals to all of SCEA's jurisdictional claims and left SCEA looking disingenuous. Judges usually do not react well when they come to believe that a party is trying to play them, and this rebuttal does a superb job of showing that that is precisely what SCEA appears to be doing.

I would sum this up by saying: if this is all that SCEA has got, it is in trouble on the jurisdictional question (as a fallback, Mr. Hotz's lawyers have also asked that the court be transferred to New Jersey under an "inconvenient forum" analysis, which also looks pretty strong for him). It will be interesting to see how this plays out. (The factual details are a bit more complicated than I have summarized them here but this, I think, captures the essence of what is going on - see the wonderful reporting and links of Groklaw to drill down further).

acabal• 15 years ago

Just wanted to pop in and say thanks for all of your comments on the legal articles on HN. Your summaries are always clear and easy to understand for a layman like me, and I really appreciate that :)

Natsu2• 15 years ago

I honestly don't know why the judge has entertained this for so long. They've tried to bury him in discovery from the outset and they have far more resources than he does as a private citizen. They've not been able to show any California links beyond what a normal person might have from merely using the internet.

Frankly, letting them fight over discovery is only magnifying the harm. This is a legal DoS attack of sorts, you don't solve those by adding more complex rules, you solve DoS attacks by nullrouteing the crap.

In other words, I wonder what would happen if a judge was brave enough to say right from the outset that they're not even going to listen to all these motions, they're just going to transfer the case.

s3graham2• 15 years ago

What does the declaration of "unawareness" that Hotz filed mean (near the end)?

Is that some sort of narrow legal definition, or is he actually declaring that he's really never heard of SCEA and didn't know they were located in California?

That seems highly unbelievable and a bit ridiculous.

pyre• 15 years ago

Really? Do you know the names and business locations of all the subsidiaries of whatever popular brand is out there? Do you know all of the subsidiaries under the "Universal" umbrella? What are the addresses of all of them? What are their responsibilities?

s3graham2• 15 years ago

Fair enough, I could believe that he did not know the address of SCEA. Of its existence? Someone who's as deeply involved with consumer tech devices and software as he is, it seems pretty unlikely that he would not have encountered them.

For example, searching for "sony playstation" and visiting the first link takes you to http://us.playstation.com/ which is an SCEA website as listed at the bottom of the page.

That's why I was asking. If it means something more like "I've never dealt with them personally or contractually", well then sure. But "never had knowledge of their existence" seems a stretch. Anyway, of course IANAL, etc.

Natsu2• 15 years ago

I've heard of Sony, but I had no idea there were so many Sony-related corporations and I've never heard of SCEA before this lawsuit.

Of course, I've been boycotting Sony since the rootkit. They've yet to give me a reason to stop. Just yesterday, I went out to replace my broken digital camera. Sony's cameras weren't even considered.

coverband• 15 years ago

Love this... Better than a soap opera. (I don't own a PS3, so don't feel any attachment to either side.)

wtallis• 15 years ago

You don't need to have a PS3 to have a stake in this mess. Sony is fighting for the right to remove features from a product as part of "security updates", to prevent jailbreaking from becoming legal for devices other than smartphones, and for several other precedents that would be very bad for the internet privacy and open source software.

Basically, if you're on HN, it's a safe assumption that you would be at least indirectly harmed if Sony got everything they're asking for from this case.

jonursenbach• 15 years ago

Who/what exactly is blickmaniac? Trying to Google for any info on that has been futile and only leading me to news articles about Hotz vs Sony wanting to find the identity of them.

vessenes• 15 years ago

One of the many assertions made by SCEA is that Hotz agreed to SCEA's terms of service, and (I believe) that he did so in California.

The user they identified as doing these actions was called "blickmaniac" (or maybe blickmanic according to some blogs). Hotz has denied being blickmaniac, and a number of people have come forward and claimed that he/she is blickmaniac, including, apparently, Hotz' neighbour.

Fundamentally, many of the maneuvers SCEA is going through right now are intended to demonstrate that Hotz had a contract with a California company, so that they can sue him in California.

Hotz's side is that he bought something made by Sony of Japan, and hacked at it while living in (New Jersey?), never connected to SCEA's network, never read any TOS, posted source code from New Jersey, etc.

What's at stake is partly the judge (the current judge ruled DVD copying is illegal if I recall correctly), inconvenience / expense for Hotz, and also from his perspective, hopefully showing SCEA up to be lying bastards, hurting their future case when jurisdiction is finally settled.

metageek• 15 years ago

Does any of this count as barratry? Even if the underlying case is valid, it seems as if SCEA's attempt to bring it in California is frivolous.

FreshCode• 15 years ago

@Sony, just drop the case. I hate to rant, but this is bad press. I am a developer and an early adopter; your attempts to make an example out of Hotz has further soured an opinion still bathed in the lukewarm wake of your infamous rootkit. If and when I have time to play games, I will do so on an XBox.

Hotz fires a powerful blast back at Sony's California jurisdictional claims

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