Sony Attempt to 'Restrain' PlayStation 3 Hackers Doomed?

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Sony's clearly readying the hounds to foil recent hacks that lay bare the PlayStation 3's once impregnable security routines. But in light of recent rulings about 'jailbreaking', do they have a legal leg to stand on?

Their lawyers certainly think so. They've gone ahead and filed papers against George Hotz, a hacker who helped author and popularize a radical root kit bypass that allegedly disrobes the PS3 by allowing anyone to decrypt and sign PS3 code, including games, operating systems, and Blu-ray movies. (See 'Hackers Get to the Root of PlayStation 3'.) Hotz released a followup video explaining how to implement the hack last Friday.

Hotz, better known as iOS jailbreaker Geohot, revealed on his site last night that he'd been "served" by Sony, prompting speculation about the legal ramifications and causing confusion over whether the paperwork was preliminary or actual notification of a lawsuit.

Update: A "civil complaint" initiates a civil lawsuit, per the legal definition of a "complaint."

A quick read of the documents reveals what Sony's after. The "proposed order" is just as it sounds: A proposal that the Northern District Court of California find that Sony Computer Entertainment America "has shown a likelihood of success on the merits of its claims for violation of the DMCA [Digital Millennium Copyright Act] and CFA [Computer Fraud & Abuse Act]...that it will suffer irreparable harm" unless the court issues a restraining order shutting down sites that offer the hack, and impounds any computing technology involved in its creation.

Sony's asking for an immediate injunction, as well as "attorneys' fees," and "compensatory damages" in an amount "yet to be proven."

'Other OS' or Bust

Defendants named in the filing include Hector Martin Cantero (of blog Abort, Retry, Hack), Sven Peter, and a bunch of users Sony's referring to as "[John/Jane] Does 1 through 100." Cantero, Peter, and the rest represent fail0verflow, the hacker group partly responsible for reverse-engineering the PS3's security key generation process.

"500 - Internal Server Error," reads fail0verflow's website, followed by a pithy "Sony sued us." The site offers links to PDF versions of the "Motion For Temporary Restraining Order," the "Proposed Order," and "Complaint."

"Our motivation was Sony's removal of OtherOS," claims fail0verflow on their site, referring to a PS3 option that allowed users to install alternative operating systems like Linux. Sony stripped the feature from the console last March, prompting a class action lawsuit in April.

"Our exclusive goal was, is, and always has been to get OtherOS back," continues fail0verflow's message, adding that it has never "condoned, supported, approved of, or encouraged videogame [sic] piracy."

Hotz offers a similar disclaimer on his website, stating that he "[does] not condone piracy."

While fail0verflow claims they never published PS3 encryption or signing keys, Hotz's original front page, titled "keys open doors," included what appeared to be the PS3's root key in hex format. Hotz briefly removed the information from his site yesterday, but later restored it on a subpage.

Fair Use or Abuse?

Sony's legal actions were as inexorable as the PS3's security takedown, and while much of what's next hinges on delicate legal parsing, the bottom line is: Were Hotz and team "jailbreaking," i.e. gaining "root access" to the PS3?

The U.S. government exempted iPhone jailbreaking from the DMCA earlier this year, implying (if not explicitly stating) that jailbreaking is legal. Apple objected, but had to settle for warning its users that jailbreaking would void the iPhone's warranty.

But as PC World's Chris Head noted in July, the jailbreaking exemptions have broader implications than iPhone fiddling, allowing "academics to legally break DVD copy-protection to use films clips in the classroom, users to remove software and hardware security measures that are no longer supported by the publisher or manufacturer, and [legalizing] the investigation and correction of software flaws by third-parties."

How about "resurrect features formerly pushed as selling points, but subsequently removed by the manufacturer?"

We'll see. The recent DMCA exemptions don't bode well for Sony, but they're not all-inclusive, as Larry Downes points out in his insightful CNET guest piece 'The jailbreaking exemption has its limits'.

Poll time.

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