…goes to the arguments made by Sony’s lawyers in a complaint and motion for a TRO in a recently-filed civil case: Sony Sues PS3 Hackers. The argument: You’re guilty of felony computer hacking crimes if you access your own computer in a way that violates a contractual restriction found in the fine print of the licensing restriction of the product imposed by the manufacturer.
I realize the complaint characterizes the defendants as hackers, and the CFAA is supposed to be about hacking. But think for a moment about the nature of this claim. You bought the computer. You own it. You can sell it. You can light it on fire. You can bring it to the ocean, put it on a life raft, and push it out to sea. But if you dare do anything that violates the fine print of the license that the manufacturer is trying to impose, then you’re guilty of trespassing onto your own property. And it’s not just a civil wrong, it’s a crime. And according to the motion for a TRO, it’s not just a crime, it’s a serious felony crime.
I’ve seen a lot of civil cases trying to use the vague language of the Computer Fraud and Abuse Act in creative ways. But this is the first case I know of claiming that you can commit an unauthorized access of your own computer. And that claim justifies today’s award for the Silliest Theory of the Computer Fraud and Abuse Act.
Fub says:
Just wait until he finds out about all those torn off mattress tags.
January 13, 2011, 4:24 pmzuch says:
Just a reminder. Read those 37 pages before you click “I agree”. Or you’ll be answering to John Law….
On my list of patentable inventions: Secure biometric ‘click’ identification and verification.
Ooops. Disclosed. And no longer patentable. :-)
Cheers,
January 13, 2011, 4:25 pmAtticus says:
This has taken some time coming, but was fully expected in the era of TPMs and protected computer modules. Expect similar strategies if people hack the TPM protected pathways that Comcast et al. have in their cable modem cards that they use to deliver content. When legal remedies have failed, companies have used non legal remedies like locking out linux based tv software like myth etc., and forcing people to use windows. It sounded hysterical and many people dismissed it when security advocates first warned of this future in the TPM based world, but yes, users don’t really have control of their computers anymore.
January 13, 2011, 4:27 pmSoronel Haetir says:
You might well be allowed to do most anything with the hardware (although even there I bet you could get into littering trouble, possibly with some sort of hazardous materials enhancement if the prosecutor felt like being vindictive), but you have not in fact purchased much (if any) of the software if you are running windows. You have a license to use the software and have agreed not to use itin any number of ways. Unlike your oft used website ToS hypos where the ToS need not even be read with software licenses you are given an explicit chance to read and reject.
That being said I expect Sony’s DMCA and other copyright based claims to be far stronger in this context.
January 13, 2011, 4:30 pmDave N. says:
I was getting ready to post and realized that Soronel Haetir had said what I was going to say in a manner much better than I could have.
January 13, 2011, 4:40 pmByomtov says:
Soronel,
But software has some sort of physical embodiment. It’s a set of physical marks on a disk that I own. Surely I can change those marks, just as I can put notes in the margin of a book I own.
January 13, 2011, 4:46 pmPersonFromPorlock says:
How about a court ruling that any contract presented after the sale is invalid, even if the purchaser agrees to it?
January 13, 2011, 4:47 pmJohn A. Fleming says:
I’m not sure why this is silly. They uncovered the root key, and wrote some code to re-flash the firmware to allow the running of pirated games. Some of the horses have left the barn, Sony wants to close the doors before the whole herd is lost.
It’s the distribution of the cracking software application that seems to be the crux of the legal issue. Knowing the root key is not enough.
The problem is the PS3 design – apparently the part that held the root key and authentication mechanisms is also in rewritable memory, that can be rewritten merely by running an appropriately crafted application. Bad Sony engineers, no cookie for you.
Sony is trying to stem the distribution of this crack code, which now enables pirated games. You own the console hardware free and clear, but the games are licensed.
The difference between this and iPhones, is that an iPhone jailbreak allows an owner to run an application not sold in the Apple store. But for the PS3, mostly no-one (except for true uber-geeks) is trying to write a non-Sony game application. This hack is so they can all run pirated games.
January 13, 2011, 4:48 pmOrin Kerr says:
Soronel, Dave N,
I realize that the IP rights are licensed, but would you argue that the computer hacking statute tracks IP rights? What does IP have to do with it?
January 13, 2011, 4:49 pmOrin Kerr says:
John A Fleming,
A legal argument is silly or not based on whether the legal claim makes sense based on the facts, not whether the plaintiffs seem to have a good reason to file a lawsuit.
January 13, 2011, 4:52 pm1Ler says:
I must concede that I’m not convinced that the CFAA claim is frivolous. Under a non-extreme interpretation of the statute, the consumer contract could certainly make certain types of access to the hardware (i.e., jailbreaking) “unauthorized” and thus illegal. Is this outrageously stupid? Of course. But many laws are. I think this is just another example of how terrible/outdated the CFAA is.
And I’ll go ahead and acknowledge that I’m in dangerous waters in not agreeing with Prof. Kerr on this subject.
January 13, 2011, 4:53 pmToby says:
This might be good time to remind everyone that Sony distributed root kit on their music CDs just a few years ago that trashed the PC’s ability to listen to any music..
For those that want the full dweeb version
http://blogs.technet.com/b/markrussinovich/archive/2005/10/31/sony-rootkits-and-digital-rights-management-gone-too-far.aspx
For others
January 13, 2011, 4:59 pmhttp://en.wikipedia.org/wiki/Sony_BMG_copy_protection_rootkit_scandal
Joe says:
@John A. Fleming – the failoverflow exploit DOES NOT allow users to run pirated software. Get your facts straight.
To my knowledge, there hasn’t been a modification of their exploit to run pirated software (yet), but I’m sure someone will make it happen sooner or later.
failoverflow’s exploit is strictly for howbrew software and/or running Linux, a feature which many users paid for (and Sony later disabled).
In any case, we paid for the hardware, so we can do whatever we want to it.
January 13, 2011, 5:04 pmIspep Teid says:
I’d prefer not to read them and try to keep a defense.
January 13, 2011, 5:04 pmGiant Frog says:
contractual restriction found in the fine print of the licensing restriction
Illegal contract? If you bought a car (or whatever) and there was a “you can’t work on it” clause hidden somewhere in the contract or sales agreement, would that hold up in court?
January 13, 2011, 5:07 pmIspep Teid says:
Typically, statutory law is considered nimbler and more responsive to changing circumstances than common law. But some of the recent computer and warrant issues have left me wondering whether that’s always the case.
January 13, 2011, 5:07 pmDoc Merlin says:
“You’re guilty of felony computer hacking crimes if you access your own computer in a way that violates a contractual restriction found in the fine print of the licensing restriction of the product imposed by the manufacturer.”
Um, thats /exactly/ what the laws say about this, and why we in the open source community fought so hard against them. It first came up with the DMCA and I called my Senator to explain why it was flawed, the next day we saw the act had been amended to allow reverse engineering for cryptographic purposes, but was otherwise untouched :-(
January 13, 2011, 5:13 pmNickS says:
The US Coast Guard would not look kindly on sending computer equipment out to sea in a liferaft.
January 13, 2011, 5:16 pmRay says:
Be careful about putting that computer on a raft and pushing it out to see. You could be in trouble if it drifts onto a Cuban beach.
January 13, 2011, 5:17 pmBriscoe says:
I think the argument is not as absurd as it seems, it’s just based on the wrong statute. The Ninth Circuit has recently held that the “anti-circumvention” provision of the Digital Millennium Copyright Act (17 U.S.C 1201) is violated by any conduct that circumvents a technological measure controlling access to something protected by copyright, regardless of whether the conduct results in or has an nexus with a copyright violation. MDY Industries Inc. v. Blizzard Entertainment, No. 09-15982 (Dec. 14, 2010). Under 17 U.S.C. 1204, a violation of sec. 1201 is a felony punishable by 5 years/$500K for a first offense.
So it looks to me like the ridiculous argument might just cite the wrong law.
January 13, 2011, 5:18 pmAnderson says:
You can bring it to the ocean, put it on a life raft, and push it out to sea.
Or maybe not?
January 13, 2011, 5:20 pmCopyright Lawyer says:
You can bring it to the ocean, put it on a life raft, and push it out to sea. But if you dare do anything that violates the fine print of the license that the manufacturer is trying to impose, then you’re guilty of trespassing onto your own property. And it’s not just a civil wrong, it’s a crime.
This sounds like a criticism not just of Sony’s use of the CFAA, but more generally with the premise underlying the DMCA. As I recall, though, you have spoken/written in support of the DMCA in the past.
(note: I am not really an opponent of the DMCA….just pointing an interesting tension.)
January 13, 2011, 5:24 pmAnderson says:
circumvents a technological measure controlling access to something protected by copyright, regardless of whether the conduct results in or has an nexus with a copyright violation
Interesting. So I shoplift a copyrighted book from Barnes & Noble, having removed the little tag that sets off the doorway sensors. I’ve violated the DMCA?
January 13, 2011, 5:24 pmJohn A. Fleming says:
They’re distributing crack code that enables theft of intellectual property, and the right to profit from it (game piracy). You have a license to run Sony software to play authentic games. You don’t have a license to run modified Sony software to play pirated games. And tney accessed code that Sony took measures to keep protected.
Doesn’t Congress have the power to regulate interstate commerce to prevent or shutdown software piracy networks? These guys just created one. The facts seems to make sense to me that this is a CFAA violation (based on my reading of the pleadings, and your helpfully provided link to your paper, thanks).
Distributing crack code for iPhones is different, because it allows you to either write your own application (which Apple allows you to do anyway for your private use), or purchase and run applications that Apple declines to include as “approved” software in their stores. That will last, until somebody takes advantage of software defects to write a trojan that attacks the telecommunications network infrastructure. At which point, the CFAA will be once again extended.
January 13, 2011, 5:25 pmOrin Kerr says:
Copyright Lawyer,
Sorry if it sounds that way; it’s not meant to be such a criticism. The CFAA and DMCA are different statutes enacted for different reasons to do different things. As a result, whether one should sensibly apply doesn’t have any bearing on whether the other should sensibly apply.
I have made a “lukewarm” case for the DMCA, as you note, available <a href="“>here.
January 13, 2011, 5:30 pmCopyright Lawyer says:
I don’t think that tag would qualify as an access control as it doesn’t actually control access to the content of the book.
Regarding the MDY decision, I think the Ninth Circuit is clearly correct. The Federal Circuit’s interpretation of the DMCA, under which DMCA liability requires a nexus to copyright infringement, is an anomaly and is contrary to the plain language of 1201 and its legislative history.
January 13, 2011, 5:31 pmUrso says:
It’s only “silly” if the TRO gets denied.
January 13, 2011, 5:36 pmbeyond games says:
I doubt that everyone I know is an uber-geek, probably at most they are mid-geeks, yet the overwhelming majority of people I know are interested in this so they can restore the functionality for which they bought the PS3 – to run a linux distribution on it. A use which was originally included in the PS3, and was snatched away by Sony long after people grew accustomed to running Linux on their hardware.
January 13, 2011, 5:37 pmTNeloms says:
I’m not a lawyer, but I’m not sure it’s that sillyso can someone explain this to me further? I’m thinking about the distinction between physical and intellectual property. Let’s say I give you a flash drive with a file that I want you to have, and a second file with my valuable IP that I password protect and tell you not to access — and you sign a contract agreeing to these provisions.
Just because you now own the physical flash drive and can set fire to it and so forth does not mean you own the IP in that second file. You never were given ownership of that file, so it shouldn’t be considered your property. So it makes sense that cracking the password and using that file could be considered “stealing” and be a criminal offense.
The law already distinguishes between physical and intellectual property, so it makes sense to say that I can sell you a physical object (flash drive or PS3) without you owning all of the IP that happens to reside in it. Moreover, allowing me to separate out what I sell you is pretty important in today’s world, because there often isn’t a way to sell certain software products without giving you physical potential access to other IP.
January 13, 2011, 5:38 pmAnderson says:
You are surely right, Copyright, but I note that the store *does* limit my access to the content: I may inspect it only within the store, unless I buy it.
January 13, 2011, 5:40 pmCopyright Lawyer says:
Understood, but I am just pointing out that for purposes of the DMCA, that would not constitute an access control. As a result, the MDY decision would not support the absurd form of liability you were positing in your example.
I think we are on the same page, though. (Really, I just got excited that anyone was discussing the MDY case. There is a lot to find quite fascinating in the opinion.)
January 13, 2011, 5:45 pmJohn A. Fleming says:
Joe,
I read the complaint and TRO. Sony alleges that geohot (and others) did just that. They allege that fail0verflow’s efforts (which did not allow piracy) was subsequently extended by geohot, and the result of geohot’s and others efforts is now an app being distributed that re-flashes the PS3, and enables the running of pirated games. (At least that’s what I seem to understand, based on reading the sensationalized lawyerly description of the exploit.)
If you have first hand knowledge of this exploit, and its scope and effects, would you care to provide a more dependable set of facts?
January 13, 2011, 5:52 pmAnderson says:
that would not constitute an access control
I’ve looked at the MDY decision but not the DMCA. I didn’t see “access” defined in MDY, at least not at a glance.
January 13, 2011, 5:55 pmBriscoe says:
As noted above, probably not, since the tag doesn’t control access to the book. But instead, assume you disable a burglar alarm to break into a library. That’s an example the Federal Circuit used in its reasoning to reach the contrary conclusion. But the Ninth rejected the Federal Circuit’s reasoning.
January 13, 2011, 5:56 pmJohn A. Fleming says:
Joe, I should say that I think that it is perfectly OK to mod the PS3 to allow you to run Linux, and your own custom apps on top of that. But distributing a game piracy-enabling application (as is alleged) crosses the line.
January 13, 2011, 5:58 pmDale Sheldon-Hess says:
This is hardly the first time this has come up.
http://www.techdirt.com/articles/20090804/1537125771.shtml
And to reinforce the previous CFAA/DMCA overlap, that case was DMCA-based, despite being for the same activity (jailbreaking a game console.) Which, incidentally, is legal to do to your phone, even though a modern phone is perfectly capable of also playing games:
http://www.techdirt.com/articles/20101022/04205511542/jailbreaking-your-iphone-legal-jailbreaking-your-xbox-3-years-in-jail.shtml
January 13, 2011, 5:59 pmCopyright Lawyer says:
As I recall, the definition of “access control” is not discussed in MDY much, if at all, because the parties stipulated that Warden (the program in question) was an access control. There is a TON of caselaw on it, though. I can’t think of a single circuit where an anti-shoplifting tag could even arguably be considered an access control.
January 13, 2011, 6:03 pmAlaska Jack says:
Wow. As a layperson, I’d love an explanation as to how this relates to the first sale doctrine. Isn’t that doctrine basically what Kerr is restating in the original post?
I guess I was under the impression that once I sold you something, I have no say in how you use it or what you do with it. Sure, I can make you sign something, but that doesn’t hold any legal weight.
This came up a long time ago in a timber issue I was working on. A legislator wanted to tie a timber mill’s access to state lands, to the condition that the mill would have to actually mill the logs (and do some other value-added stuff) in state. The lawyers said nuh-uh; once you’ve sold the logs to the mill owners, you can’t tell the mill owners what to do with them.
– aj
January 13, 2011, 6:08 pmCopyright Lawyer says:
The Federal Circuit opinion your referring to is widely regarded as somewhat hysterical. It is based on a parade of horribles that just don’t really add up. A burglar alarm on a library is not an “access control” for purposes of the DMCA. For starters, the burglar alarm is not attached to a copyrighted work. The existence of copyrighted works inside the library would not make the alarm an “access control.” A lot of these types of examples are advanced by law professors, but are somewhat divorced from reality. I do not mean that to disparage the law professors, because they certainly are interesting and worthwhile hypos to think about.
January 13, 2011, 6:08 pmCrazyTrain says:
Not true actually. The DMCA/copyright bases for at least some form of a TRO is pretty strong. But that makes the decision to include this ridiculous theory even dumber — why hurt your credibility when you have a strong argument on other grounds? I think the lawyers and Sony just couldn’t resist calling these people felons, etc.
January 13, 2011, 6:16 pmAnym_Avey says:
I think your example is more akin to breaking into unlockable content. What would be closer to this case is if you tried to enforce a provision that prevented the user from deleting this file that he could not use, so that he could access the additional space on the thumb drive which he could use.
This is actually a bit more complicated than that, since the PS3 is essentially a custom computer device, but with a locked down OS that nobody is supposed to be capable of accessing without Sony’s authorization. The hackers who are being targeted in this suit broke that lock so that the hardware could be used more broadly, and Sony had a fit because in order to share that with others, the hackers published the key.
Seems like Sony will probably win the battle but lose the war, which is roughly what happened with DeCSS (the DVD encryption key fiasco from 2000).
January 13, 2011, 6:16 pmBrendan says:
Now, whose job is it in our legal system to consider the parties’ implications of certain matters of law? Wasn’t there a case where the Supreme Court said implications of legal policy wasn’t there job? Too bad our society doesn’t teach everyone the basics of contract law.
January 13, 2011, 6:30 pmBrendan says:
Whoops. Also forgot all about basic IP law.
January 13, 2011, 6:31 pmLior says:
Alaska Jack: the “first sale doctrine” is a limitation on copyright. The case here is about federal criminal law regarding cracking.
Prof. Kerr: You juxtapose two uses of “hacking” which have two very different meanings.
John Fleming: What defendants did may be morally or socially wrong, but could you please identify the specific crime they are supposed to have committed? The programs they run are intended to only be used by people on computers they own, so by definition whoever runs the program has the authorization to do so. They may be guilty of contributory copyright infringement, but that’s not the same as violating the CFAA.
More generally, say I buy some Sony hardware. Why should it be a crime for me to run whatever software I wish on my own hardware? Sony may give me a discount on the hardware in return for a contractual provision in which I promise to only use software bought directly from Sony, but if I then turn around and use other software I’m only liable for breach of contract (a civil wrong) — or do you believe that breach of contract should be a federal felony? Similarly for assisting others in running software they choose on their own computers. That may constitute interference in the business relationship between Sony and its customers, but as long as the owner of the computer runs the software, by definition it cannot be said that this use of the computer is “unauthorized”.
January 13, 2011, 6:36 pmSloma says:
You are wrong there is Homebrew in form of games, apps and emulators. Same thing as in case of Apple. Piracy is just side effect.
January 13, 2011, 6:37 pmLior says:
On a tangent: when I hear about lawyers doing such things I always wonder why we don’t constitute legal review panels staffed by medical doctors, designed to second-guess the actions of the lawyers and discipline them for straying so far from acceptable legal practice.
January 13, 2011, 6:39 pmAlaska Jack says:
Lior -
I’m sure you are right, but that doesn’t help me understand it.
I have a book – Mark Twain, let’s say. I decide that there are not enough ethnic slurs in it. I white out some words and write in a few more virulent racial epithets. I do not then offer this new Mark Twain “Alaska Jack” edition for sale.
Am I still good? Or no? How is this different than modifying my computer or smartphone?
– AJ
EDIT – Oops, should have used a book still under copyright.
January 13, 2011, 6:50 pmSigivald says:
I realize the complaint characterizes the defendants as hackers, and the CFAA is supposed to be about hacking.
That is hacking.
(See Hacker, sense 7. The “Hacker’s Dictionary” is as authoritative as anything can be about what “hackers” use the language to mean.
Note that of course, in that use, “hacking” is neither immoral nor typically criminal.)
More relevantly, disabling the TPMs (cryptographic security modules in the hardware that, in essence, only let approved software run) sure seems like it does violate the DMCA, quite explicitly, which is also part of Sony’s complaint. They’re pretty much dead to rights there, as I understand the DMCA. (The DMCA’s wisdom is another matter from its text.)
The CFAA violation is less obvious – it starts on (internal numbering) Page 15 of the linked complaint PDF.
Sony alleges, quite plausibly (64) that the complaint is not merely “accessing the computer”, but “accessing the computer” and specifically gaining protected information (the TPM keys) of significant value.
The value to Sony (in lost video game royalties) is nigh indisputable since a side effect of this hack (“to let people run linux”) is ALSO, unavoidably, “to let people run pirated videogames” – and the market for those is demonstrably huge.
The latter costs Sony real, actual piles of money. So “damage” is satisfied.
Some of the other complaints are less plausible – 65 and 67′s “damage” to the computer is only from Sony’s point of view, and who gets to decide would normally be the owner or operator of the computer, not its manufacturer. Likewise the claims of “reckless” damage at 66.
68′s “intent to defraud” is tricky, but not knowing the relevant statutory definition of “defraud” might or might not be correct.
(There are plenty of other dubiously legal things they did, too, like running a modified version of Sony’s firmware – they have copyright on that, and just modifying it as you see fit because you’d prefer your hardware work differently seems to be well within the sort of thing copyright law can punish.
Now, using a completely different firmware on the PS3 would be another matter…
I don’t think it should be a felony to crack the encryption requirements on your own hardware, but Sony might well be right about the current state of the law.)
January 13, 2011, 6:55 pmOrin Kerr says:
Sigivald,
I’m pretty much a descriptivist when it comes to language. One community defines “hacking” differently than everyone else. As between letting one community define it and following the general common usage, I think the best practice to avoid confusion is to follow the common usage.
January 13, 2011, 6:59 pmEH says:
The CFAA charges have to do with “accessing” and “damaging” a “protected computer.” Basically customer subordination, Sony calls it “exceeding their authorized access.”
The DMCA elements are copyright-based via both circumvention device, basically “instructions,” and distribution, via YouTube video and a posting of the tools and keys on their website. Sony’s “circumvention device” is knowledge, plain and simple.
January 13, 2011, 7:30 pmKatahdin says:
Forget hacking TPM chips. What if Dell includes a proviso stating ‘you will not use this computer to make posts criticizing Dell’ or even ‘you will not use this computer to purchase another computer from anyone else than Dell’.
Does that pose the same issues?
Does it matter if I bought it from Goodwill instead of from Dell?
January 13, 2011, 7:36 pmpmorem says:
The CFAA charges have to do with “accessing” and “damaging” a “protected computer.” Basically customer subordination, Sony calls it “exceeding their authorized access.”
How is this different from what Sony did with the rootkit?
That is, why are felony charges warranted here, but Sony did not face felony charges when it deliberately installed software without user consent, and permitted third party access to user’s computers?
January 13, 2011, 7:44 pmSigivald says:
Orin: True, but it sure seems like a LOT of what they did is “hacking” as well under the common use “illicit computer stuff” definition.
The CFAA claims are largely dubious (and I agree completely that the problem here is the vagueness of the language, since I don’t think Congress intended the CFAA to ever apply to circumvention of protections on one’s own hardware), but the DMCA ones aren’t.
And if it’s illicit under the law it’s still “hacking” even under the non-hacker/cracker-distinction uses.
My point there was mostly meant to ironically point out that the thing you didn’t want to call hacking, reasonably enough, actually fits one of the most traditional and honored uses of the sense among people who self-identify as such (and are not criminals).
Katahdin: None of the relevant law or complaints her are about a “proviso” in a contract. They’re about actual access protections in a computer system.
If Dell somehow made a TPM or other hardware/firmware protection to stop that and you violated it, you might be violating the DMCA or (until tehy re-write it to not be lame) CFAA.
But none of the allegations in this complaint are about breach of contract, that I saw. Certainly the DMCA and CFAA complaints weren’t.
January 13, 2011, 8:04 pmMike says:
“You bought the computer. You own it.”
There’s your fallacy right there, thinking you’ve actually bought something. No different than the entertainment industry, the computer industry has moved to a model where you haven’t actually bought anything, you’ve purchased a rather limited license to do a limited range of things.
Once you abandon your archaic notions of “I paid for it, its mine”, it all makes sense.
January 13, 2011, 8:04 pmReaderY says:
Question.
I install programs on my computer which I sometimes later find behave in a way I don’t like.
Can I address this by creating and promulgating written terms of use for access to my computer, and then sue companies whose software accesses my computer (by means of my installing and using it) in a manner violating my terms of access?
Obviously by voluntarily putting their softwarein a position to access my computer the companies involved would agree to my terms of access. Companies that don’t like my terms could simply choose not to expose their softwarein a way likely accessible to my computer by not making it publicly available.
It’s their choice.
January 13, 2011, 8:10 pmJohn A. Fleming says:
Guys, here’s the money quote from the TRO:
One day later, in furtherance of his unlawful conduct, Hotz published on his website the “3.55 Firmware Jailbreak” code, a circumvention device or component thereof that disables, avoids, bypasses, removes, deactivates and/or impairs a critical TPM in the PS3 System. … The 3.55 Firmware Jailbreak code allows users to install and run unauthorized software – including pirated video games – in circumvention of the TPMs on the PS3 System. Mogilefsky Decl. ¶24. Indeed, in the last few days, people have already started copying, playing and trafficking in pirated copies of video games using the 3.55 eak. Bricker Decl. at ¶2, Exh. A. Most recently, on January 9, 2011, Hotz published “Signing Tools” that enable encryption and signing of unauthorized content, thereby permitting that content to run in circumvention of the TPMs on the PS3 System. Id. at ¶22, Exh. U; Mogilefsky Decl. at ¶25. These Signing Tools work together with the 3.55 Firmware Jailbreak to allow piracy. Mogilefsky Decl. at ¶25.
Signing Tools and “3.55 Firmware Jailbreak” enable and create an interstate market in pirated PS3 games, which until now has not existed. Congress has the power to prevent and/or destroy piracy networks.
If you want to be lawful, rewrite these two tools so that they allow you to load and run Linux and Linux apps, but not enable the unlawful running of SCEA copyrighted and licensed video games. At this point, you ‘re just socking it to the man, because he reneged on the promise to allow the hacker community to run Linux. So you’re trying to punish him by attacking his profits.
January 13, 2011, 8:19 pmYant says:
How is this different from posting instructions that explain how to jailbreak an iphone? How is this different from posting instructions that explain how to turn a refrigerator into a kegerator?
For what its worth, I watched an interview with Geohot a few minutes ago. In that interview he stated that he took steps to avoid allowing the running of pirated software.
January 13, 2011, 8:28 pmravenshrike says:
The one is the same as the other. In order to run on the PS3 an application needs to be code signed. Once code signed ANY application will run, be it Linux or a pirated game. there is no feasible way to differentiate between the two.
January 13, 2011, 8:34 pmRobert says:
Er…not quite.
When the PS3 came out, Sony advertised it as something that can do everything – computing, gaming, TV, etc. Sony’s commercials still make reference to this. It ran a flavor of Linux (or a flavor of Linux could be installed on it), and so it was able to be used for things like networked computing – i.e., stringing a bunch computers (in this case, the PS3) together in order to form a network of computers to work on problems that were too complex for a single computer alone. Many scientific labs had taken advantage of the PS3′s low price tag in comparison to similarly capable computer in order to make relatively cheap computer networks to work on complex problems.
Some time back, well after the release of the PS3, Sony released a required firmware patch that significantly restricted the PS3′s ability to be used for anything other than gaming and watching media. This affected both new consoles as well as older ones that had been bought before the abilities were clamped down, including the ones used as a computer network. One could say that Sony was in fact responsible for the first breach in contract by retroactively restricting what consumers could do on hardware the consumers already owned. This “hack” was simply an attempt to address that.
January 13, 2011, 9:08 pmLior says:
Jack: Copyright law gives the copyright owner the exclusive right to do some things, including selling copies of the work, creating derivative works etc.
I don’t think that you changing the physical copy you own is really “creating a derivative” work. Even if it were, it would be protected under “fair use”. Similarly, if you wrote a translation of the book to another language (definitely a “derivative work”) but didn’t show it to anyone.
But _selling copies_ really is generally a right reserved to the copyright owner. So if you want to create and sell (or even give away!) copies of a copyrighted book you generally need a license from the copyright owner. “First sale” is a limitation on that right: if the copyright owner sold you a book, then you can resell, lend or give away that physical book without a license. But again, just because you bought a copy of the book doesn’t mean you can now show to others your translation of the book.
So there are three stages to the process here:
0. By default (absent copyright law), if you see some information you can relay it to others. For example, if you read a book you can then copy it and give your friend a copy.
1. Copyright law changes things: it reserves to the copyright holder some rights, which before anyone could exercize, for example the right to sell copies.
But the natural way to phrase this right is too general: it gives the copyright holder too much power, so copyright law also includes some limitations on the rights which the copyright owner was given at stage 1.
2. So, “First sale” limits the rights in that some of them (e.g. the right to sell copies) does not apply to the resale of a physical copy that was legally sold. (Similarly, “fair use” limits the rights so that I can, for example, quote your comment in my reply without violating your copyright in your comment).
————
All of this is completely irrelevant to the computer crimes statute. There is no law like copyright law, which gives someone else rights in a physical computer you own. So doing whatever you want to your computer is simply something you can do. In other words, since the computer crime statute is about what you do to computers owned by others, it doesn’t need an explicit exception to things you do to your own computer.
January 13, 2011, 9:16 pmHasdrubal says:
The thing that really confuses me is the fact that Sony initially explicitly allowed people to install non-Sony software on their PS3. They then changed their license and removed the ability that people bought the machines for. Now they’re trying to prosecute people for felonies simply for doing what Sony explicitly allowed at the point of sale.
That sounds a lot like bait and switch. It is also an example of the massive imbalance of power that copyright holders have to unilaterally change contracts after purchase at will.
This is almost getting into Catch22 territory.
January 13, 2011, 10:56 pmNorman Yarvin says:
Hell hath no fury like a megacorporation scorned. The people behind this break didn’t just break security, they broke it irrecoverably (on all existing consoles). What is perhaps worse from the corporate point of view, they taunted Sony in their talk, calling their security an “epic fail” (which indeed it is; Sony made a truly boneheaded error in their encryption, using a constant where they were supposed to use a random number.) Sony can’t possibly hope to squash the break; this is a matter of personal revenge.
January 13, 2011, 11:04 pmZiz says:
The alarm on my car, however, does protect the copyrighted owners manual.
January 13, 2011, 11:48 pmZiz says:
How is that change binding on the prior owners? How would they even know the change happened?
January 13, 2011, 11:50 pmZiz says:
The software’s EULA probably says they aren’t liable for the bad stuff the software does. That would trump your agreement, which no one would ever see, much less approve.
January 13, 2011, 11:57 pmOrenWithAnE says:
If you get those companies to agree to such terms, sure, why not?
January 14, 2011, 12:55 amJerrod Ankenman says:
Suppose that during the time when the PS3 was able to run Linux, that someone had a) put some documents on the hard drive that they had copyright in and b) put some kind of password protection on the files. When Sony patched their software to remove the ability to run Linux, would they have been guilty of a DMCA circumvention violation?
January 14, 2011, 1:47 amJim says:
@Jerrod
I’m not sure if your question is serious, but I don’t think deleting (or making inaccessible) a copyrighted work is circumventing copyright protections. The copyright protection would still work as well as before, perhaps better.
January 14, 2011, 1:59 amAlaska Jack says:
Lior -
Thanks! So, as far as “cracking” a computer, cracking your own computer isn’t a crime; but it can be a crime to create and distribute a program that makes it possible for others to crack THEIR computers. Is this correct?
– aj
January 14, 2011, 2:10 amKen Arromdee says:
So what happens when some of the same restrictions are restricting both Linux and piracy and you can’t make Linux run without making it easier for someone to pirate?
(Which is basically what happened. Of course, doing one step that is also necessary for piracy isn’t the same as enabling piracy, but that’s how Sony spins it.)
January 14, 2011, 2:49 amThomasS says:
This is a bit impractical. You can try to place various restrictions on a boot loader, but if the goal is to “load whatever those linux guys write next” your loader has to be able to load more or less anything. Suppose I said that you could build and sell cars, so long as they didn’t work on one particular highway.
January 14, 2011, 3:24 amRich says:
NOPE: You almost assuredly will violate the license. As mentioned you really don’t “own” that expensive software you just sort of rented it. :)
Look at Microsoft, if you go to their website for updates they will download a piece of software that checks the validity of the software on your computer.
January 14, 2011, 8:32 amM. Gross says:
I’m afraid the ship has already sailed in terms of dumb legal protections for software. One must wonder why the software industry gets to criminalize breaking of their contracts, while most others must rely of civil remedies…
I blame the Republicans. Democrats are bought and paid for by the content/media industry, but what’s the Republican’s excuse? Not like Hollywood loves them…
January 14, 2011, 9:52 ambob says:
once again Orin Kerr seems to want the courts to read in provisions into the CFAA in order to get to the desired result.
the CFAA talks about unauthorized access to “a computer” not “a computer of another.” it does not specify the owner of the computer so why should someone interpreting the statute do so just because it seems like bad policy? (and yes I agree its terrible policy, to criminalize the violations of these long “i agree” type contract provisions)
however, interpreting “a computer” as “a computer of another” is not necessary to make the statute not unnecessarily broad, as even according to your article, the vagueness problems are caused by the words “unauthorized access” not the words “a computer”
and once again Orin Kerr, who is always very careful to remind OTHERS of the importance of the difference between descriptive and normative claims, confuses the two when its something HE cares about.
January 14, 2011, 10:16 amJay says:
Please correct me if I am wrong:
You are free to reject the license.
The problem is that if you reject the license, nothing else gives you permission to use their software.
So as long as you replace their software, with Linux say, then you are in compliance with the law.
January 14, 2011, 10:20 amMike Jesse says:
Ok, unauthorized access of “a computer”. But authorized by whom? Bob, I hereby deny my authorization to use your computer to you! Are you now an unauthorized user of your computer? No? Why should Sony have any more right to determine authorized users of your computer than I do? Just because they made the bloody thing? Well fine and good, but they sold it. We’re not goblins. One of the fundamental parts of selling something is, you don’t own it anymore!
Does Microsoft get to, by dint of having written and holding the copyright on the OS for the laptop I’m using, get to dictate who is authorized to use my laptop? What part of copyright grants that? Because as far as I can see, the copyright that Sony holds on the software of the PS3 is the only ownership interest they have on the device, and it’s a pretty tenuous one.
January 14, 2011, 10:29 amMike Jesse says:
Here’s the problem with that. Say I want to remove ALL of sony’s code, write my own from scratch. No copyright issue there, right? and since I own the hardware, I should be able to do what I want with it right?
Sony’s hardware has, HARD CODED (aka, burned into hardware, unchangable), a mechanism that only allows code signed with a key to run at all. This is their entire technical method for piracy prevention. To get by that mechanism, to run my perfectly legal, self written code, I have to break that mechanism. It doesn’t matter if the first mechanism I decide to put in after is “Only run MY code now, which is perfectly legal and complies with copyright law”, if I make a tool that can bypass or fool that check and run my code, the same tool can be used to run ANY code. Including code that might violate the copyright of someone else. I have now just produced a tool that bypasses a copyright protection mechanism.
Well, we on this board would never do such a heinous thing as to violate someone’s copyright, so, it would certainly be perfectly legitimate for us to modify our device in ways that allow us to do legitimate things that don’t violate copyright, correct? Surely no congress would pass a law making it illegal to do something that enables other legal things, purely on the basis that other bad actors could misuse it to do illegal things, right?!
January 14, 2011, 10:41 ampc says:
Two related things: FreeBSD will now run on the PS3 and Prof. Touretzky has mirrored the PS3 jailbreak and dared Sony’s lawyers to come after him.
Now the important question: can I get a PS3 runnning FreeBSD to recognize a ZFS file system?
January 14, 2011, 10:55 amJ.T. Wenting says:
No doubt the original license included a clause that states that Sony reserves the right to change the license at any time and for any purpose.
January 14, 2011, 11:37 amIt’s no different from insurance policies that include similar clauses and have been deemed quite legal.
J.T. Wenting says:
Under Sony’s PS3 license (which is no doubt pretty similar to Nintendo’s Wii license, etc.) any modification to the device at all is a violation of the license.
Essentially then, you don’t buy the physical device, you buy a license to use it. Sony could therefore in theory sue you if you put the PS3 in the trash and it gets incinerated or crushed in a landfill, as that of course changes the device.
Similar clauses are designed to prevent unlocking simlocked cellphones (there unlocking it is actually a violation of your contract terms with the provider) and some other electronics devices, designed to prevent reverse engineering usually and in case of game consoles attempting to prevent 3rd party modifications allowing the use of cartridges not supplied by the console manufacturer who often shipped the console at a loss in order to rake in the profits selling cartridges and accessoiries.
January 14, 2011, 11:44 amAnonymous #5 says:
@John A. Fleming
Jailbreaking or rooting the iPhone or any device will allow you to run pirated software, just the same as Jailbreaking the PS3. It is a side effect of the process. Once you have it rooted you have total control and can bypass any protection that maybe on the system. Many people Jailbreak their iPhone for the sole purpose of running pirated apps. Others do it so they can extend the functions of the system or play more fully with the hardware. Keep in mind Sony’s locks prevent you from having full access to the physical hardware you own. Sony removed the Linux support because it was used to crack the hypervisor which has no other purpose than to protect the hardware and keep you out of parts Sony didn’t want you using.
While currently there appears to be no market for 3rd party software on the PS3, that was because it was pointless to write, since you couldn’t run it. Now we can and people are. There will be more to come out of this than pirated games. The same is true of the Wii, once the system was cracked, homebrew software followed.
The crime shouldn’t be the process that cracks the system, it should be those that abuse it.
January 14, 2011, 12:06 pmpc says:
At what point does the user actually agree to the license with Sony? Let’s say I buy a PS3 and install Linux (or FreeBSD!) on it as soon as I open the box. What sort of contract did I sign with Sony that holds me liable for circumventing their software? What if I buy a used PS3?
January 14, 2011, 12:07 pmJose_X says:
Isn’t this the age old question of creating a gun? Just because others can use the gun to hold up a liquor store doesn’t make the creation of the gun illegal.
You are only using the gun to protect your home. That others have access to the specs to build their own guns for other purposes and then do so is what a good law should go after.
Ingenuity that allows you to use the property you bought in order to protect your files safely as you see fit (eg, via a Linux you compile) should certainly not be criminal if in fact that is how you are using that property.
BTW, information cannot be stolen if you merely create a copy. Copyright infringement is not theft. A bunch of people make a living allowing others to look at and use information they have generated. Clearly they are not being robbed countless of times by those creating all the copies.
January 14, 2011, 12:10 pmme says:
This is wrong. Geohot’s jailbreak did not allow pirated games to be run only homebrew apps and he got slammed for it by pirates. There was work by others to allow games to be run on 3.55 but as of now, none of it works.
As one of these “uber-geeks” who has written homebrew software for a console and saw a quantity of good software written for that console, I believe you’re wrong.
January 14, 2011, 12:49 pmbob says:
@Mike Jesse
in this scenario-they used their computers to access material they had contractually agreed w/ plaintiffs was inaccessible. sounds like unauthorized access to me.
in your scenario-you have told me not use my computer-but i have never agreed.
January 14, 2011, 2:10 pmSvartalf says:
Technically, it can’t be since it was sold to you. However, the prior owners would know because they couldn’t boot their Linux distributions or be able to install new ones subsequent to a specific firmware/OS update that you HAD to accept or not be able to get on the PSN or play certain games on the PS3.
January 14, 2011, 2:28 pmSvartalf says:
The license only extends to their software- and that’s a dodgy thing at that. The license has to be explicitly exposed BEFORE you pay money for the console for it to be actually applicable in the manner you’re claiming…per at least my understanding of how the UCC works. Licenses are only enforceable against you if you agree to them before purchase.
January 14, 2011, 2:31 pmj says:
Removing the tags is fine once you bring the mattress home. They are on the mattress to tell the consumer that the material inside the mattress is all new, or if it is recycled.
http://en.wikipedia.org/wiki/Law_label
January 14, 2011, 2:33 pmEH says:
Currently this is not possible, as the hack requires a modified firmware, which is the first piece of software run after the machine is turned on. Since accepting the PS3 license is the first thing you do after you turn a new one on, it is not currently possible to bypass it. Couple that with any difficulty in finding an unopened machine with an old enough version of the firmware and bypassing the license becomes very difficult indeed. Whether Sony includes language applying the likely-unseen license to subsquent owners is left as an exercise for the reader. They might even argue that the mere purchase implies acceptance of the license. Since Sony doesn’t allow anything to be done with the box outside of its license, it’s an easy jump.
January 14, 2011, 3:09 pmpc says:
I’m curious on how enforceable that is. After all, 7,500 gamers sold their immortal souls to a company by agreeing to a clickthrough license. They could even opt out and chose not to!
January 14, 2011, 4:03 pmMike says:
I’ll throw this out there: it’s quite possible that the whole PS3 itself was a restricted sale and therefore the owner of the PS3 does not have unfettered rights to the product. It’s very likely that the shrinkwrap license of the PS3 restricted the use of the hardware. This should not come as a surprise and this line of thinking was just affirmed by the SCOTUS is Costco.* See also Vernor v. Autodesk.
* Costco dealt with the first sale of a copyrighted “product” sold abroad. First sale was not a defense because it wasn’t made under U.S. law. (Sec. 109).
January 14, 2011, 5:40 pmFub says:
What a relief. I was almost ready to turn myself in.
January 14, 2011, 6:09 pmTurnTheTables says:
If the following turns out to hold water:
“intentional disablement of the valuable functionalities originally advertised as available with the Sony PlayStation 3 video game console. This disablement is not only a breach of the sales contract between Sony and its customers and a breach of the covenant of good faith and fair dealing, but it is also an unfair and deceptive business practice perpetrated on millions of unsuspecting consumers.”
http://arstechnica.com/gaming/news/2010/04/ps3-linux-support-removal-begets-class-actin-lawsuit.ars
Then Sony is the party that broke the sales contract. Problem solved.
January 14, 2011, 6:25 pmpc says:
But weren’t those cases dealing with the issue of resale? If I buy a watch overseas and gut the watch to make a toy for my personal use, does the manufacturer really have the ability to deny me that use?
January 14, 2011, 6:27 pmBeldar says:
I dunno. The floppy disk class action litigation against Toshiba ($2.1B settlement) in Beaumont, Texas, still gets my vote for silliest use.
January 14, 2011, 6:41 pmBernie says:
It’s clearly dangerous to society (not to mention Sony) that astronomers working on their PhDs, studying black holes want affordable computing.
And I guess the US Airforce is out of luck, too. They’ll have to drop their plans for an affordable cluster, to support more important things like Sony’s ability to control and exploit consumers.
We better not even mention the FBI’s use of PS3s.
Too bad for those those nasty customers who want to play their own games on their own computers — and conveniently, yet. How dare they! They MUST be “pirates”! Just like those astronomers, USAF guys and law enforcement types.
January 14, 2011, 8:03 pmJohnny A. Solbu says:
>But this is the first case I know of claiming
>that you can commit an unauthorized access of
>your own computer. And that claim justifies
>today’s award for the Silliest Theory of the
>Computer Fraud and Abuse Act.
The norwegian DVD-jon trial was exactly that. During the trial he was brought on trial in Norway by the movie industry, for “unlawfully
January 14, 2011, 11:02 pmtrespassing upon a computer system”. When his defense asked “Which computer has Jon trespassed upon?” the answer was: “His own.”
Yoelrey says:
Don’t know about the US, but where I live EULA are only valid if you get them before purchase. When you buy something like windows in a shop or preinstalled you get the license after purchase and as such any terms in it are null and void.
The result of that would be that you have bought the product and are therefore allowed to use it. But any restrictions intruduced after purchase are unenforcable. For example the restriction that you may only instal an OEM version on the computer it was supplied with. As long as you remove it from the original computer it came on you would be free to instal it on another. (Since you do not get the right to make additional copies when you bought the computer with windows installed)
Of course it has never been tested in court if you have the right to circumvent microsofts activation to exercise that right. In that respect laws here are as unbalanced as the DMCA so you probably can’t.
So the terms that you agree to be sued in california for Sony would be unenforcable over here. No one showed me such a license agreement when I bought my PS3 and it wasn’t on the box either. If a California judge would decide she has jurisdiction my only problem would be that I won’t be able to visit the US anymore.
January 15, 2011, 7:29 amTLMO says:
Use of “a computer” and authorization to do so imply two separate parties, making “a computer of another” redundant. The CFAA is vague regarding what unauthorized access means in a particular situation, but the party possessing the authority to grant access is usually not in dispute, I believe.
January 15, 2011, 9:09 amBrian Thomson says:
If you concede that the owner may bargain away the right of exclusion, it is suddenly not so far-fetched that the CFAA might be applicable against him.
January 15, 2011, 2:31 pmbugfox blog » Blog Archive » Sony Pushes the Envelope says:
[...] Orin Kerr eviscerates Sony’s legal maneuvers against the people who broke the PS3′s encryption: I realize the complaint characterizes the defendants as hackers, and the CFAA is supposed to be about hacking. But think for a moment about the nature of this claim. You bought the computer. You own it. You can sell it. You can light it on fire. You can bring it to the ocean, put it on a life raft, and push it out to sea. But if you dare do anything that violates the fine print of the license that the manufacturer is trying to impose, then you’re guilty of trespassing onto your own property. And it’s not just a civil wrong, it’s a crime. And according to the motion for a TRO, it’s not just a crime, it’s a serious felony crime. Today’s Award for the Silliest Theory of the Computer Fraud and Abuse Act [...]
January 15, 2011, 2:44 pmBargain? says:
Bargain? I don’t recall any sort of negotiation or discussion. I walk into the store, see the price on the shelf, grab a box and haul it over to the check-out line, hand over the stated price, and walk out of the store with my purchase. I even get a “Sales Receipt” to confirm my ownership.
That’s a “sale”. Sony may be calling it something else, but that doesn’t mean much. Otherwise bar-owners would be really paying organized-crime types “insurance”, rather than extortion.
The question is whether the legal system will be persuaded to buy into this fiction.
January 15, 2011, 4:15 pmDobromir Chodkowski says:
(…)You can light it on fire. You can bring it to the ocean, put it on a life raft, and push it out to sea.(…)
Are you ABSOLUTELY sure it does not violate any point of the license?
January 15, 2011, 4:54 pm;)
mark says:
Here you go–
According to CNET: (http://news.cnet.com/8301-13506_3-20028540-17.html)
The attack is most interesting in that it does *NOT* re-flash the box.
January 15, 2011, 5:39 pmTLMO says:
The part of the comment I was responding to is:
“the CFAA talks about unauthorized access to “a computer” not “a computer of another.” it does not specify the owner of the computer…”
There are a lot of problems with the way the Act is written. It doesn’t seem to me that who it is that has the authority to grant access to a given computer (the owner or their agent) is one of them, at least not from a practical standpoint. That could change, of course.
January 15, 2011, 8:47 pmTaking anti-hacking law too far? says:
[...] Arguing for a temporary restraining order in a civil dispute, lawyers for Sony argue that the federal “anti-hacking” law prohibits unauthorized access to one’s own computer. (As commenters point out, the company may also have less controversial arguments based on other areas of law, such as intellectual property and contract.) [Orin Kerr] [...]
January 16, 2011, 12:03 amMatthew says:
OK forgetting the license and contract issues and solely focusing on the CFAA:
Sony is maintaining it is a crime under the CFAA to circumvent the TPM chips (the physical hardware). One purpose is “Those TPMs prevent, restrict or otherwise limit access to certain sections of the PS3 System software and hardware. As a result, the TPMs ensure that the PS3 System functions in a safe and reliable manner.” (From Sony’s TRO Request pg 5)
Now would it be a crime to remove the TPM chips physically to use the motherboard and it’s components in a way completely unrelated to Sony’s IP? For instance to set up a blade server running the Linux kernel IBM designed for the chipset that IBM and Sony jointly developed? After all, that would be circumventing the digital security measures protecting the hardware of the device.
January 16, 2011, 3:00 amJ.T. Wenting says:
That is in fact the case in the EU.
Put in place to combat shrinkwrap licenses stating things like “by opening this package you agree to the license contained inside” the law was set up so such clauses cannot be legally binding.
As a result, in the EU at least, companies now have to take back opened packages of software (or indeed hardware in case of things like a PS3) if the customer refuses to accept the license and offer a full refund (no “restocking fees” allowed of course).
January 17, 2011, 1:24 amThis has caused some manufacturers to include licences in writing to prevent people making copies of DVDs, then returning the originals claiming they can’t agree to the license.
J.T. Wenting says:
Not quite. You’d at the very least be guilty of breach of contract, and maybe the DMCA or similar laws as well.
January 17, 2011, 1:33 amYou see, the only way to do as you propose would be to physically alter the device, which the contract you agreed to when you opened the box prohibits you from doing.
You’d have to reverse engineer part of that hardware as well, which requires studying copyrighted material in order to figure out how it works and in part copy that work in creating an alternative device which doesn’t incorporate parts of its functionality (which might be a breach of that copyright).
J.T. Wenting says:
Probably the box contains some sort of statement that “by opening this box you agree to the license agreement contained therein” (or it’s a sheet of paper in the box that states that if you don’t agree with what it says you can return it for a full refund, which is the EU directive).
January 17, 2011, 1:38 amIf you purchase a used device, you’re supposed to get all the documentation and stuff that it shipped with originally (I’m sure the license says something to that effect, software licenses always do) and the license itself is transferred, not just the device, therefore the buyer takes over the license from the seller, including all its restrictions.
J.T. Wenting says:
there is no problem. Let the license agreement state that buyer has the right to a full refund it he doesn’t agree with the license.
Of course the retailer will refuse that refund because the package has been opened :) but if so the importer or manufacturer will have to deal with such cases directly.
The software in this case is contained within the hardware, and the hardware itself is also intellectual property (as the electronic pathways are a copyrighted work).
January 17, 2011, 1:42 am| ste williams says:
[...] bought the computer,” George Washington School of Law professor Orin Kerr wrote on The Volokh Conspiracy blog. “You own it. You can sell it. You can light it on fire. You can [...]
January 17, 2011, 6:39 amJanuary 18, 2011 – Episode 196 « says:
[...] law professor Orin Kerr, who says Sony’s lawyers should win this prize for this argument: You’re guilty of felony computer hacking crimes if you access your own computer in a way that viol… We think the honor for dopiest use of the CFAA still goes to government prosecutors who prosecuted [...]
January 17, 2011, 12:58 pmBenjamin says:
Flemming,
Geohot’s hack made it possible to put linux back on, a function that Sony removed. Does it allow pirated games to run? Sure, it could, but that was not the intention of the hack. The hack was to allow Linux to run and take advantage of the video acceleration hardware of the PS3. Geohot is personally against software privacy.
My theory is that he used the DMCA exemption to fix the “other OS” software feature of the Playstation that Sony had broken. If the fix also broke the piracy protection scheme of Sony’s is irrelevant. The intention was to run Linux, not to pirate games.
January 17, 2011, 2:25 pmkerr says:
They are distributing a code that allows you to run LINUX and that is pirating?
Sony doesn’t own linuux and should have no say at all on what legal software, including LINUX you run on your own hardware
January 17, 2011, 5:34 pmJeremyR says:
They are distributing a hacked version of Sony’s own firmware (the operating system) that will run Linux (and pirated software).
And I think you don’t get how game consoles work. They aren’t computers, they come in with their own OS that only runs officially software. Sony (and MS) sell the consoles at a loss, and make up the losses on software sales (which they get a cut of).
If you are saying that companies can’t lock out software, then basically that destroys the whole game console business. Which this is actually. Sony lost hundreds of millions on PS3 hardware, now they have no hope of ever making it back (not that suing is going to help now, but they hope to prevent it in future consoles by discouraging hacking).
January 17, 2011, 10:15 pmTechnically Legal » Blog Archive » Episode 84: says:
[...] Sony Files Lawsuit Against PS3 Hacker GeoHot Today’s Award for the Silliest Theory of the Computer Fraud and Abuse Act [...]
January 17, 2011, 11:04 pmTechnically Legal » Blog Archive » Episode 84: Twitter Leaks? says:
[...] Sony Files Lawsuit Against PS3 Hacker GeoHot Today’s Award for the Silliest Theory of the Computer Fraud and Abuse Act [...]
January 18, 2011, 1:08 amMJWilson says:
Smart phone companies tried a similar suit against the phone users hacking their phones and using them on another phone network. The Supreme Court ruled that the owners had the right and I bet a similar outcome will happen in this case.
January 20, 2011, 4:32 amSony v. Hotz: Sony Sends A Dangerous Message to Researchers -- and Its Customers | Electronic Frontier Foundation says:
[...] content with the DMCA hammer, Sony is also bringing a slew of outrageous Computer Fraud and Abuse Act claims. The basic gist of Sony's argument is that the researchers [...]
January 20, 2011, 10:41 amScottW says:
1. Pirated Games on the PS3 have been around for about half a year, this just allows, in conjunction with other software, to be used to play pirated games on the latest firmware.
2. What if I found my PS3? No really, found it being thrown out because it had a poorly designed and then broken blu-ray drive which costs a good $150 to fix from Sony.
January 20, 2011, 12:51 pmElectronic Frontier Foundation article “Sony v. Hotz: Sony Sends A Dangerous Message to Researchers — and Its Customers” - Dukio says:
[...] content with the DMCA hammer, Sony is also bringing a slew of outrageous Computer Fraud and Abuse Act claims. The basic gist of Sony’s argument is that the [...]
January 20, 2011, 3:00 pmJailbreak PS3 » Electronic Frontier Foundation Comments on Sony vs Geohot Legal Mess says:
[...] content with the DMCA hammer, Sony is also bringing a slew of outrageous Computer Fraud and Abuse Act claims. The basic gist of Sony’s argument is that the [...]
January 20, 2011, 3:25 pmElectronic Frontier Foundation Comments on Sony vs Geohot Legal Mess | Ps3Guide says:
[...] content with the DMCA hammer, Sony is also bringing a slew of outrageous Computer Fraud and Abuse Act claims. The basic gist of Sony’s argument is that the [...]
January 20, 2011, 5:20 pmElectronic Frontier Foundation Comments on Sony vs Geohot Legal Mess | PS3 Exploits says:
[...] content with the DMCA hammer, Sony is also bringing a slew of outrageous Computer Fraud and Abuse Act claims. The basic gist of Sony’s argument is that the [...]
January 20, 2011, 9:10 pmBernie says:
Ummmm… “protecting” the hardware?
From whom? I bought it; it’s mine.
Too bad if Sony doesn’t like it. Grumbacher doesn’t get to approve or disallow my use of the oil paints they sold me, the builder of my home gets no say in my lifestyle or how I arrange my home, and Ford doesn’t get last word on my vacation plans, or what I use the van for.
And if Penguin Books or Christopher Fry don’t like my drama group’s presetation of The Lady’s Not for Burning — that’s just too bad. The architect gets no more rights over what business I can run out of my office, than the house-builder gets over my home. Shoehorning “intellectual property” claims into the issue doesn’t change the fundamentals — and it’s only the (relative) technological novelty and social ignorance that permits these questions to be raised without scorn.
January 21, 2011, 10:42 pmFold/Spindle/Mutilate 2.1 » Blog Archive » Sony’s latest attack on customer freedom says:
[...] endlessly worded terms of service that accompany all such products. As legal blogger Orrin Kerr writes, Sony’s stance is tantamount to saying, “You’re guilty of felony computer hacking [...]
January 23, 2011, 5:41 pmGaby says:
John A. Fleming, you obvious troll, you! Don’t forget to thank all those nice humans for feeding you on the way out, will you?
Pitty that it’s not just the trolls who feel like that. There are actual people out there who honestly believe that a company should be able to sue you for using their product. What’s more, those same people seem to be ok with the manufacturer removing the airco from their privately owned car after they’ve bought it, paid for it and even driven it.
To all those people I’d like to say, no /yell/: WAKE the F. UP!
Now go out and help all your friends and family to NOT buy anything Sony ever again, instead of complaining on here over how evil Sony is and how misguided some of these trolls are.
(Bonus points if you can help people return Sony gear as defective or help PS3 owners in suing Sony for deteriorating their property by way of firmware upgrade.)
January 25, 2011, 3:42 amRhialto says:
That is a logical contradiction.
January 27, 2011, 7:54 amSony v. Hotz: Sony Sends A Dangerous Message to Researchers — and Its Customers | Emporium of hidden gems says:
[...] content with the DMCA hammer, Sony is also bringing a slew of outrageous Computer Fraud and Abuse Act claims. The basic gist of Sony’s argument is that the [...]
January 27, 2011, 7:00 pmChrisG says:
No problem.
If I buy a PS3 second-hand, I don’t agree to any SONY-derived contract, and then I do as I like with the hardware / firmware, etc…
January 28, 2011, 11:32 amFen says:
I see why Sony would want to protect the software as well as the security of the hardware but what they are trying to do to George Hotz and fail0verflow is smoke and mirror work. Geohot and Fail0verflow did not modify any Sony code or mix any Sony code in with their software.
George’s hack was a patch written in his own code. Sony is trying to sue him because he broke their TOS for the PSN network, not for the lukewarm hardware or software agreement. Sony has even tried to go about it stating that Mr. Hotz has a PSN account and is therefore bound by those terms (He has never had one nor signed up for one) They then tried to send him money stating he is profiting from his work, another lie. They state that he is circumventing their security to allow pirating of games (Something he is against and had written measures in that would make sure people could not use backup managers on his patch) George has done nothing more than written custom code (Which as far as I know is not illegal) that works in tandem with Sony’s firmware. Sony’s arguments have no ground, especially if you follow the scene as closely as some do.
If Sony really wants to go after people that are damaging their software they should be looking at the people that released their own CFW which does contain Sony code and does allow pirates to play downloaded software (Google Kmeaw, Waninkoko CFW, then look up Geohot patch) Everyone here should really read all the facts before posting. Not just news sites but actual gaming sites where these “hackers” hang out, what better source of info then right from the horses mouth. About the only thing he is guilty of is posting the Metldr key (Which allows people to sign homebrew apps) But his specific patch in no way leads to playing pirated software.
In regards to the hardware yes I do own the PS3 and I should be allowed to do what I want with it, be it a custom firmware or a whole other operating system. What I should not expect is Sony to allow me to access their network or run PS3 games on a modified system. So if I ever decided to install unofficial Sony firmware on MY PS3 I expect to be banned from their network but never sued for putting different software on hardware I paid $500 for. If that is the case then I wait for the MS lawsuit against me for installing Linux on my PC that originally came with Windows XP.
If you really want to talk illegal then how about Sony resorting to old tricks and installing a rootkit on their latest update for the PS3? Or how they removed otherOS (where one would install Linux) And then quickly backpedaled to update the TOS to reflect that they can remove ANY feature of the PS3 without notice when the s**t hit the fan? BTW they forced customers into that update. either we removed Linux or we were not able to log on to the PSN or play newer games. Essentially to keep the functionality of our systems we have no choice but to update when they release a revision, that includes gaming and BD movies.
Sony touts the PS3 as a Computer Entertainment System, not a gaming system or a Blu-Ray player. A Computer system so it should fall under the same rules as any other computer, we are allowed to run homemade programs on Windows and Apple OS so why shouldn’t we be allowed to do so with the PS3? And if they want to flaunt an arguement against it and we really do not own the hardware then the Judge in the matter should force the Air Force, SETI, Standford and dozens of others to update the PS3 clusters they are running to disable the “Computer” portion of the PS3 and force the removal of the Folding@Home application on the PS3.
BTW John A Flemming, jailbreaking an iPhone does allow people to steal licensed apps. You really should do more research on the subject before you comment. Pirating is an unfortunate side effect but one or more person should not be held accountable for the actions of others especially when the intention was not for pirating. Its this kind of unintentional effects that big companies have been protecting themselves with for the longest time. Coffee is hot, we are not responsible if you burn yourself. Should work both ways don’t you think.
February 2, 2011, 6:30 amJustin says:
Silly sony. I like ChrisG’s solution.
February 3, 2011, 10:44 amSay It Ain’t So(ny) | The ASU Sports & Entertainment Law Blog says:
[...] sold PS3s. Now you claim that this isn’t just against the law, but that it’s a “serious felony crime” under the Computer Fraud and Abuse Act (another less-than-perfect law). You’re [...]
February 11, 2011, 11:15 am