Breaking: Sony to file TRO against notable hacker

By J. DeVoy

Known in hacker circles as “geohot,” George Hotz, along with Hector Martin Cantero, Sven Peter and the heretofore unnamed John Does 1-100, is facing an ex parte motion for a temporary restraining order by Sony Computer Entertainment America LLC (“Sony”) tomorrow, January 12.  Here’s the filing (A Legal Satyricon Exclusive(?)).

Working together, the defendants allegedly devised a way to circumvent Sony’s technological protection measures.  The defendants have been distributing this information across the internet, instructing others how to circumvent Sony’s protective measures and use counterfeit games on their Playstation 3 devices, according to the motion.

Saliently, Sony alleges that this use of technology – described as “hacking” on page 2 – is in violation of the Digital Millennium Copyright Act (“DMCA”).  The last notable time this issue was addressed came when people were frequently jailbreaking their iPhones in order to add third-party applications not supported by Apple.  During that controversy, the U.S. Librarian of Congress found that jailbreaking the iPhone was a fair use of the technology and exempt from 17 U.S.C. § 1201.  The Librarian of Congress additionally found that the following use was not prohibited by § 1201:

Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:

(i)  The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

But a little about the law, first.  17 U.S.C. § 1201(a)(1)(A) sets forth a comparatively straightforward prohibition:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

Fair enough, but most people lack the capacity to do that.  Given the sophistication of Sony’s digital rights management software, this problem would be too small to warrant mention without the internet.  Thus, § 1201(a)(2)(A)-(C) broadens the scope of prohibited behaviors (with similar measures found under § 1201(b)):

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

And if any ambiguity remained, § 1201(a)(3) is there to sop it up:

As used in this subsection—

(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and

(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

There are factors that determine the exemption of certain technologies and processes from § 1201, found in § 1201(g)(3).

Factors in determining exemption.— In determining whether a person qualifies for the exemption under paragraph (2), the factors to be considered shall include–

(A) whether the information derived from the encryption research was disseminated, and if so, whether it was disseminated in a manner reasonably calculated to advance the state of knowledge or development of encryption technology, versus whether it was disseminated in a manner that facilitates infringement under this title or a violation of applicable law other than this section, including a violation of privacy or breach of security;

(B) whether the person is engaged in a legitimate course of study, is employed, or is appropriately trained or experienced, in the field of encryption technology; and

(C) whether the person provides the copyright owner of the work to which the technological measure is applied with notice of the findings and documentation of the research, and the time when such notice is provided.

Problematically for Hotz, and others may disagree, but this case is distinguishable from the iPhone situation at first glance.  While the jailbreaking of the iPhone allowed for the phone to operate on different networks and use applications available from third parties who did not wish to play the Apple Store’s games.  Allowing the phone to operate on other networks furthered the Congressional goal of interoperability, while allowing users to install third party applications on the phone was not a copyright violation.  Pirating the applications would have been, but properly purchasing or licensing the rights to the software, even if used on a jailbroken phone, is not the same as full blown copyright infringement.

In contrast, this situation finds Playstation 3 users with a device to let them play games for which they possess neither copyright rights or licenses.  This dispute may appear to be about accessibility like the iPhone situation was, but there are no networks to be accessed here, or new applications to be run on the Playstation 3.  From the looks of Sony’s pleading and the surrounding media attention, the primary use of this development is for piracy and use of counterfeit games.  While producers of video games (or “vidjea games,” as my grandmother would say) may be an unscrupulous lot for trying to kill the first purchase doctrine, piracy is still unlawful.  As this situation appears to be wildly different from the iPhone disputes of yesteryear, geohot et al‘s workaround is not likely to be exempt from 17 U.S.C. § 1201.

13 Responses to Breaking: Sony to file TRO against notable hacker

  1. picklefactory says:

    …there are no networks to be accessed here, or new applications to be run on the Playstation 3.

    This is just what Sony says so that they can wave the piracy flag. In fact geohot et. al. said their primary motivator was Sony’s removal of the “Other OS” feature from the PS3, which allowed one to install a Linux or other UNIX distro, and which in typical Sony fashion they touted until they decided to cripple it.

    In fact the Cell processor that runs the PS3 is insanely powerful as a special-purpose CPU and was becoming very popular as a supercomputing/grid platform. Sony’s decision to remove “Other OS” suddenly leaves these projects unable to acquire new hardware to fill gaps left by failures.

    More details on the Air Force’s usage of Cell. I’m sure Google will find you a few more if you look.

  2. MikeZ says:

    Personally I stick to PC games and have never had a playstation/xbox/etc but is it possible to play an independant 3rd party game on a Playstation without going through Sony distribution channels? If you can’t do that then the hacking seems very similar to the iPhone case, or does Sony allow you to run whatever you want on its system?

    As for other networks I’d agree with the above poster. Game consoles nowadays are full blown PCs in disguise. So it seems like there are plenty of other networks and interoperability possibilities to be had.

  3. Zero says:

    You’re correct MikeZ, you cannot install or play 3rd party applications unless you go through Sony distribution channels. The point of the original hack was to regain the functionality lost by Sony’s removal of the Other OS feature. Hell, I’m confident that there are people in the Air Force who were waiting for team fail0verflow (the ones who originally got past the Sony security) to find a way to allow the installation of Linux back onto the PS3.

    Also, the current bypass of Sony’s encryption keys does not allow the running of pirated games yet because they did not get the keys for a key part of the hardware involved with games. Currently it can only be used to run Linux without any graphic capabilities. Sony is just attempting to scare people with a “Don’t mess with us!” gesture, like the mafia burning down a store that didn’t want to pay protection money, Sony wants to drag him through an expensive trial to prove a point.

    I’m also going to have to disagree with your opinion that it is different than the iPhone situation. It is precisely the same. The point is to allow Other OS functionality, installation of homebrew software. Unlike what sony is claiming it is NOT primarily for use of pirating games. In fact, team fail0verflow, when asked about pirating games stated that while they could continue along the route they were taking to get the encryption keys to allow it, they had no intention of doing it because that was not their goal.

  4. Andrew says:

    “From the looks of Sony’s pleading and the surrounding media attention, the primary use of this development is for piracy and use of counterfeit games.”

    You wrote earlier that “…allowing users to install third party applications on the phone was not a copyright violation.”

    Wouldn’t Sony have to demonstrate that GeoHat was somehow involved in piracy? As it stands, the tools that he developed will allow you to run third party applications on the PS3. Since Sony removed the OtherOS option, homebrew folks has no mechanism for installing Linux on their PS3, but with this development they can now do that.

    The difference between a desktop computer and a PS3 is negligible (from a technology standpoint), so interoperability can came into play.

    I work at a university research lab and there has been some promising work done on using GPUs as special-purpose processors for advanced scientific computing. Several of my coworkers have worked on projects specifically designed for leveraging the PS3’s computing power for scientific research.

    The work done by GeoHat (and others) will allow that research to continue. While piracy also occur because of this exploit, GeoHat has been very clear that he does not support piracy.

    The evidence does not support your conclusion that the purpose of this exploit is piracy.

  5. J DeVoy says:

    I see that there’s a dimension of the debate that I was not aware of previously, with regard to homebrew operating systems. A bit of a mea culpa: The last video game system I purchased, used, and bought games for was the Nintendo 64; I have a Playstation 2 that I bought off a friend in mid-2007 – long after the PS3’s debut – and used primarily as a DVD player. While I had read about the PS3’s operating system capabilities, I was and am not familiar with the full panoply of its possible uses.

    That said, it depends on how the homebrew works. If it’s like unauthorized applications on the iPhone, running on top of Sony’s factory OS, then it may not be a problem, along with accessing different networks (which I think is fundamentally different from the networks accessed by a phone, but that’s neither here nor there). I don’t believe, though, that anyone buys the iPhone or PS3 just for the hardware; doing so defeats the device’s entire purpose. So to that end, I find the argument that it’s not a DMCA violation somewhat disingenuous. Oh, and there’s the whole piracy issue, irrespective of whether it was the workaround’s primary purpose.

    • Andrew says:

      Actually, people do buy the PS3 just for the hardware. You cannot get comparable hardware for the same price. I was privy to a project where numerous PS3s were purchases for the sole purpose of parallel programming.

      There’s an MIT Course designed around programming on the PS3. If you’ll note, one of the requirements is installing Linux on the PS3. At the time of the course it was easy to do, but then Sony removed the OtherOS option. With the advent of the exploit in question it’s now possible to install Linux (or other software) on the PS3 hardware.

      The cell architecture (as picklefactory correctly noted) is incredibly powerful and there’s a fairly large group of people dedicated to using the hardware for purposes other than playing games (none of which involve copyright infringement). Does the law not allow for non-infringing use? This exploit was developed strictly for a non-infringing purpose.

      I’m not a lawyer, so this question is honest: Just because a technology allows infringement, does that make the technology itself infringing?

    • MikeZ says:

      “I don’t believe, though, that anyone buys the iPhone or PS3 just for the hardware; doing so defeats the device’s entire purpose.”

      As another poster pointed out the hardware in game consoles/phones are usually loss-leaders. Certainly my pre-pay cell phone cost me $10 bucks and it included $10 worth of minutes. By the loss-leader definition you couldn’t buy the equivalent hardware for the same price. That would lead me to believe that if someone wanted a small computer platform it would make even more sense to hack the PS3/Phone etc.

  6. picklefactory says:

    I don’t believe, though, that anyone buys the iPhone or PS3 just for the hardware; doing so defeats the device’s entire purpose.

    You are going to have to clarify what you mean by “just for the hardware” and “defeats the purpose”.

    Buying a PS3 just because it is a tiny computer with built-in network access and a very powerful special-purpose CPU does in fact make sense. When it comes to the PS3, because it’s quite easy to just load up Linux, “Other OS” allows one to run a truly vast amount of (usually free) pre-existing Linux/UNIX software for whatever purpose one might desire. That could certainly be worth $300, no piracy involved at all. I did this for a while — I used it to stream music down from another computer and to surf the web from my couch before Sony nuked it. I’ve never pirated a game.

    I’d argue it also makes sense to buy an iPhone because, again, it’s a tiny computer with a touch-screen. Though without the cooperation of a cell phone provider, it won’t be much use as a phone, so perhaps the iPod Touch is a better example. If you JB you can either pirate a bunch of apps using something like Installous, or you can not pirate them and install free apps (like, say, from Cydia) that wouldn’t make it through Apple’s review process. I know several people who have not pirated any apps and merely wanted to use something other than iTunes to manage their music collections.

    Some people buy a PS3 or an iPhone and only ever use them for their intended purposes, and that’s fine. Some people see an awesome piece of technology and want to hack. This second group of people are not necessarily pirates — they might be more interested in hacking or programming than games.

  7. Tim says:

    I completely believe that these hackers aren’t necessarily pirates. I just wonder if there’s any way for Sony to separate hackers who are pirates from hackers who aren’t. I also wonder if there’s any way for Sony to monetize the hacker/non-pirate set who don’t play any games. From my understanding, PS3 is and always has been a loss leader–Sony relies on the games to make money. If there was a way for Sony to sell JBd PS3s at a higher price than non JBd PS3s, and ensure that the two devices weren’t interchangeable, this probably wouldn’t be in court.

  8. Right Meow says:

    I don’t think it is an exclusive. PACER had it way before you guys did :)

  9. andrews says:

    There may be another problem with at least some of the claims. Normally the idea of using a computer beyond the access intended to be granted is pretty simple: connect to someone else’s computer and have your way with it.

    Here,however, it appears that the computer being used in an unauthorized manner is being so used by the owner. It is hard to say that an owner is not using his own computer in a way permitted by himself.

  10. Sean F. says:

    I believe the problem is that they enabled pirates. Even if they didn’t intend piracy, there were unforseen consequences of hacking the PS3 and distributing info on how to do it.

    Also, Sony makes most of its money from the PS3 from software sales. If people can pirate the software, or run third-party apps instead of buying PS3 games, then Sony loses a great deal of money.

    • Rorgg says:

      Sony having an untenable business model isn’t a justification for banning reasonable and otherwise legal use.

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