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Lawyers Smack Sony's Hand as It Reaches for Hotz's Hard Drive

By Richard Adhikari
Mar 21, 2011 6:00 AM PT

Lawyers for George Hotz, whom Sony is suing for publishing codes used to jailbreak PlayStation 3s, claim the Japanese electronics giant has misled the court.

Lawyers Smack Sony's Hand as It Reaches for Hotz's Hard Drive

Sony Computer Entertainment America, based in California, is suing Hotz for publishing a secret encryption key and software tools that allow PS3 owners gain deep control of the video game consoles. SCEA won the right to search hard drives belonging to Hotz for the PS3 software developer's kit (SDK).

However, Hotz's lawyers say SCEA doesn't have the right to search hard drives because it doesn't own the copyright to the SDK. That copyright, the lawyers say, is owned by SCEA's Japanese parent instead.

"Our initial due diligence yields that this SDK is owned by Sony Computer Entertainment Inc.," Yahsa Heidari, managing partner of the Heidari Power Law Group and one of Hotz's attorneys, told TechNewsWorld. "That's a Japanese concern. Their principal place of business is Tokyo," he added.

So what? Well, if SCEA doesn't own the copyright to the SDK, it won't have the right to search Hotz's drive.

That doesn't mean Hotz will have to fly to Tokyo if his lawyers win their motion, though.

"Assuming George Hotz wins on his Motion to Dismiss for Lack of Personal Jurisdiction, if the case were to go anywhere after that, it would more likely be New Jersey," Stewart Keller, another of Hotz's attorneys, told TechNewsWorld.

Sony's lawyers at Kilpatrick Townsend & Stockton did not respond to requests for comment by press time.

Home Is Where the Lawsuit is

What's so important about jurisdiction?

Well, Hotz is a New Jersey boy, and SCEA's filing suit in the United States District Court for the Northern District of California, San Francisco Division, is unfair to him, Heidari contends.

"The question is whether our client, a 21-year-old man residing in New Jersey, can be hauled into court in California," Hotz's attorney Heidari stated.

SCEA wants to dig through Hotz's hard drive and look at his emails to see if there's any evidence pointing to the SDK in question.

While that may seem repugnant, it's allowed by law -- up to a point.

"Once you go into any sort of civil litigation, people can look at a lot of issues including emails, but they have to be reasonably calculated to have a bearing on the case, and they cannot be privileged," Heidari said. "Emails between Hotz and his attorneys are privileged, for example."

Freedom, Yeah

The case isn't just about Hotz; it's about the bigger question of whether consumers actually own the electronics products they buy and are free to use them as they wish.

"What we're doing in this case is very important for consumers and the public," Hotz's attorney Heidari suggested. "If creativity like Hotz's can be stifled because the company can dictate how you use your own equipment that you bought, that can stifle creativity for future generations.

The case also imperils individual freedoms, Darren Hayes, a professor at Pace University, told TechNewsWorld.

"The Constitution defends the individual's right to read anonymously, and case law shows that this right extends to the right to online privacy," Hayes pointed out.

Also, because SCEA wants to look at emails between Hotz and anyone else, "there are individuals who can now be named in this case who are not represented in the case and so do not have the opportunity to object to their identities being released," Hayes said.

"What will happen to those individuals named?" Hayes asked. "Will they in turn be investigated by Sony?"

Sony Aiming at Its Own Foot?

It's difficult to see just what Sony can gain from this lawsuit.

For one thing, it's targeting its own customers, an act that might give gamers pause when they look for their next gaming system.

Also, Sony contends that Hotz's jailbreaking ways have facilitated software piracy, though some critics call that a reach.

"The situation is that of a developer trying to restore a feature that Sony in Japan at one time provided -- Linux -- and discontinued when it found that wasn't used too often," Rob Enderle, principal analyst at the Enderle Group, told TechNewsWorld.

Hotz originally shot to fame as a teenager for hacking Apple products. But even Cupertino, itself often regarded as a stern micromanager of its own products, has by and large left him and other jailbreakers alone, aside from making modifications to products to stymie their progress. Meanwhile, Microsoft, whose Kinect has become the fastest-selling electronic device ever, will open that device's SDK to the public, in essence encouraging hackers to have at it. Why can't Sony do the same?

"Sony is nothing if not consistent, and they continue to repeat the same mistake, placing the need to control something ahead of the need to sell it," Enderle pointed out.

"Even Apple, which is a control freak, rarely makes this mistake," Enderle added. "Choosing their fights well is one of the many reasons Apple is doing so well and Sony so poorly."


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