Hacker jailbreaks PS3, pwned by Sony

Last week news emerged that a group of hackers, led by one George Hotz, have jailbroken the PS3 – in other words, they had successfully circumvented the security measures put in place by Sony to prevent users from running whatever programs they like on the PS3.  
This has caused shockwaves to say the least, particularly given Sony’s previous claims regarding the impregnability of the PS3.  You can read more about what happened regarding the hack itself via the BBC or have a look at Rob Fahey’s editorial about it on Gamesindustry.biz.
Ofc, I’m interested in the legal aspects of this incident.  As, it seems, are the handful of my readers who emailed me to ask what might happen to George Hotz as a result of his hacking escapades.  And the answer is….Sony are suing him.
As Gamesindustry.biz reports:
“[Sony] alleges the defendants “circumvented effective technological protection measures” for the PlayStation 3 and other copyrighted works, and “trafficked in circumvention technology, products, services, methods, codes, software tools, devices, including but not limited to the Elliptic Curve Digital Signature Algorithm Keys, encryption and/or decryption keys, dePKG firmware decrypter program, Signing Tools, 3.55 Firmware Jailbreak, and/or any other technologies that enable unauthorized access to and/or copying of PS3 Systems and other copyrighted works.
Sony alleges the defendants have violated the Digital Millenium Copyright Act, the Computer Fraud and Abuse Act, the Copyright Act and related state and common laws covered by the California Comprehensive Computer Data Access and Fraud Act, according to legal filings published by Hotz.  “
Thoughts
A DCMA action was pretty much inevitable once word of this got out.  For non-US readers: the DMCA makes it illegal for you to try to circumvent technological protection measures which a software company puts in place to protect its software (the equivalent in the UK is in the Copyright, Designs and Patents Act 1988 – you can read more about that here in the context of modchips).  One example is The Warden, the anti-bot program used in World of Warcraft (and recently in the court’s spotlight as part of the WoW Glider case).  Another is the technical measures put in place by Sony in the PS3 which Hotz has now broken.  Difficult for me to see how Hotz will be able to avoid a successful DMCA claim, personally.

UPDATE: Jono793 points out that there could be complications in Sony’s DMCA argument given that it was only a flaw in Sony’s security which allowed Hotz to jailbreak the PS3 in the first place.  I imagine this would mean an enquiry into the arcane detail of the DMCA in order to determine whether that is a problem for Sony.  However, it seems to me that if the court allowed a loophole for circumvention devices which do not work properly, it would be opening the floodgates to that argument in every DMCA case going forward – perhaps unlikely therefore.

Then there are some other claims being advanced by Sony.  The copyright claim is another no-brainer and goes hand-in-hand with the DMCA claim.  I imagine the copyright argument goes something like this: the PS3 console software is a copyright work, which you are only allowed to use in accordance with a EULA.  If you jailbreak that software, you are outside the scope of the EULA and therefore likely committing copyright infringement.  Which is a Bad Thing – not least because, in the USA, it can lead to huge damages awards against the infringer.

UPDATE: As Artfunkel notes in the comments below, the copyright claim might not be that straightforward to run.  After all, a jailbroken PS3 runs the same software – the same games – as a vanilla PS3.  Sony could ofc argue that a jailbroken PS3 is a breach of the EULA and therefore automatically copyright infringement – but that argument didn’t get very far in the WoW Glider appeal recently.  If this case fights, there could be some complex legal argument here.
Lastly, there is what looks like a claim over the act of hacking itself.  Again, no surprises there: generally it is illegal to hack software belonging to someone else, regardless of what you do with the fruit of that hacking – whether it  be private use or public dissemination.  Sony is of course using a Californian statute; for those who are interested, the principal UK equivalent is the Computer Misuse Act 1993, which you can read more about here.
So, all in all, no great surprises here – Sony really had no choice but to take these actions.  In practical terms, it seems they are applying for a restraining order and injunction against Hotz, which if successful would at least stop him distributing the hack.  Good luck to them.
Follow us at http://www.twitter.com/gamerlaw or subscribe to our email updates here

26 comments

  1. I'm not sure they'll win the copyright claim. The group haven't actually modified let alone cracked the console: it will still only run code signed with Sony's private key, as it was designed to. All they did was examine the machine and discover (thanks to a cock-up by Sony) what that key is.

  2. Two questions here.

    1) How does the DCMA define circumvention? Sony says that what Hotz and Fail0verflow did circumvented copy protection measures on the console. Hotz will no doubt argue that there was no real circumvention, and that what they did was only allowed by Sony's bad housekeeping.

    2) Did Hotz/Fail0verflow act in bad faith? I.E. did they have an implicit responsibility to inform Sony about the exposed code when they discovered it? If so, working out and releasing the master key would probably constitute bad faith in some form.

  3. @Artfunkel – actually I think that's a very good point. It makes me think of the court casting doubt on Blizzard's argument in the WoW Glider case that breach of the EULA automatically involves copyright infringement. The court refused this on the basis that the gamers were just doing what they would do anyway. I can see the parallel between that and a jailbroken PS3 thanks to Mr Hotz. Will update the OP.

    @Jono-
    (1) Good point. Imo, if the court allowed a loophole for circumvention devices which do not work properly, it would be opening the floodgates to that argument in every DMCA case going forward – unlikely.

    (2) I don't know enough about the relevant DMCA caselaw and local law to tell you, sorry.

    @Essex – how so? I don't approve of how Hotz acted and I don't know how legally he will be able to defend himself.

  4. @Jas Purewal:
    could you be more specific when you talk about how you do not approve of how Hotz acted? could you also explain how your own moral views have a direct impact on this case and the legal implications of this case for both parties?

    you pretty much talk about things from the corner of sony and have a dismissive tone as if this is going to be open and shut. that is uncharacteristic for this website which, at least from what i have seen in the past, usually does a pretty decent job of representing the case from both sides and being, well… maybe not impartial, but usually a hell of a lot less bias than this.

  5. @Essex

    I appreciate your comments about this blog generally, but I disapprove of Hotz releasing the hack out into the wild, in circumstances where he knew or should have known the piracy implications it raises. Look at what has happened to the PS3 in the few days since then if further evidence was needed on that front.

    As to my personal views, ofc they have no impact on the case. As to the case itself, with the exceptions I've mentioned in the post, and while clearly its very early on and the court documents haven't become publicly available, I don't think Hotz is in a brilliant position. We'll have to see if I'm right.

    1. Thanks , I&osuqr;ve recently been searching for info about this topic for ages and yours is the best I have discovered so far. But, what about the bottom line? Are you sure about the source?

  6. I want to point out my respect for your kindness for those people that really need help on this important content. Your personal commitment to passing the solution all around had become astonishingly valuable and has continually allowed folks just like me to achieve their objectives. Your interesting facts implies a lot a person like me and extremely more to my mates. Thanks a ton; from everyone of us.

  7. I enjoy you because of your entire hard work on this web page. Betty really likes managing research and it’s obvious why. Many of us know all relating to the compelling form you present important things by means of this blog and as well as improve contribution from some other people about this concern while my girl is truly understanding a whole lot. Take advantage of the rest of the year. You are always performing a splendid job.

  8. I actually wanted to write a simple remark so as to say thanks to you for all of the great tricks you are giving out on this site. My long internet search has now been honored with professional ideas to go over with my great friends. I would assume that most of us website visitors actually are really lucky to live in a decent website with so many marvellous individuals with beneficial techniques. I feel somewhat grateful to have seen your web page and look forward to really more awesome minutes reading here. Thanks a lot again for all the details.

  9. I actually wanted to write down a word so as to appreciate you for those awesome advice you are showing at this site. My particularly long internet research has at the end been rewarded with brilliant strategies to go over with my good friends. I would suppose that most of us website visitors are truly blessed to live in a very good community with so many awesome individuals with valuable advice. I feel really privileged to have encountered your webpage and look forward to so many more brilliant times reading here. Thanks a lot once again for everything.

  10. I really wanted to construct a small remark in order to say thanks to you for some of the superb secrets you are writing on this site. My particularly long internet lookup has at the end been honored with useful ideas to share with my family and friends. I ‘d declare that we site visitors actually are undoubtedly endowed to dwell in a great site with so many marvellous people with beneficial suggestions. I feel very much happy to have seen your entire site and look forward to plenty of more enjoyable times reading here. Thanks a lot once more for a lot of things.

  11. Thanks a lot for providing individuals with an extremely brilliant chance to read from this web site. It can be very beneficial and also full of a great time for me and my office fellow workers to visit your blog at least three times in 7 days to read through the newest guidance you have got. And of course, I’m certainly impressed considering the breathtaking guidelines you serve. Selected 1 points on this page are really the finest we have all ever had.

  12. I needed to post you this very little remark just to say thank you as before relating to the fantastic secrets you have featured on this site. This is quite generous of people like you to convey unreservedly exactly what numerous people would have advertised as an ebook to end up making some bucks for their own end, chiefly since you might well have done it in case you wanted. Those creative ideas also worked as a good way to fully grasp that other people have similar dreams just as mine to grasp very much more with regards to this matter. I am sure there are several more fun periods in the future for those who check out your blog post.

  13. I want to convey my love for your generosity in support of persons that really want help with that situation. Your special dedication to getting the solution throughout has been definitely important and have constantly allowed those just like me to achieve their pursuits. Your amazing warm and friendly help denotes this much to me and substantially more to my peers. Thanks a ton; from everyone of us.

  14. I wish to express appreciation to the writer for bailing me out of this type of difficulty. Because of researching throughout the internet and coming across techniques that were not beneficial, I was thinking my life was well over. Living minus the answers to the issues you’ve fixed all through your good guideline is a crucial case, as well as ones that would have badly damaged my entire career if I had not noticed your web blog. Your primary ability and kindness in dealing with all the details was important. I don’t know what I would’ve done if I hadn’t come across such a subject like this. I can also now relish my future. Thank you very much for your expert and result oriented help. I won’t be reluctant to propose your web page to any individual who should receive tips on this issue.

  15. A lot of thanks for all of your work on this web page. Kate take interest in getting into research and it’s really simple to grasp why. Almost all hear all concerning the powerful manner you deliver rewarding techniques by means of this website and therefore boost participation from website visitors about this content while our princess is in fact learning so much. Have fun with the rest of the new year. You have been doing a tremendous job.

  16. I happen to be commenting to make you be aware of what a perfect experience our child gained visiting your web page. She picked up such a lot of things, which include what it is like to possess a marvelous giving heart to let the others quite simply know specific specialized topics. You undoubtedly did more than her expectations. Thanks for showing the good, trustworthy, explanatory as well as easy thoughts on the topic to Ethel.

  17. I precisely desired to thank you so much again. I’m not certain what I could possibly have made to happen without those ideas contributed by you directly on this theme. Completely was the frightening issue in my position, but being able to view the very specialized tactic you managed it forced me to weep with joy. I am just grateful for this assistance and in addition pray you recognize what an amazing job you happen to be getting into training others all through your web site. I know that you have never come across any of us.

  18. I have to show some appreciation to this writer just for rescuing me from this type of matter. Because of checking throughout the world wide web and obtaining strategies that were not helpful, I thought my entire life was gone. Existing without the presence of strategies to the problems you have sorted out by way of your good blog post is a serious case, and the ones which may have adversely damaged my entire career if I hadn’t encountered your site. Your main knowledge and kindness in dealing with all the pieces was valuable. I’m not sure what I would have done if I hadn’t encountered such a point like this. I can also at this time look forward to my future. Thanks a lot very much for this reliable and effective help. I will not hesitate to suggest the sites to anybody who should have guidance about this situation.

  19. I precisely wanted to thank you very much all over again. I’m not certain the things I might have achieved in the absence of the entire aspects provided by you about this industry. It truly was an absolute scary situation for me personally, nevertheless witnessing a skilled mode you solved that took me to jump over joy. I am just grateful for this work and then have high hopes you find out what an amazing job you’re doing instructing men and women through your websites. Probably you haven’t met all of us.

  20. I am only writing to let you understand of the helpful encounter my wife’s princess enjoyed reading your web site. She discovered a wide variety of pieces, not to mention what it is like to possess a wonderful helping style to have other people with ease understand certain complex topics. You really surpassed my expected results. Thank you for delivering such necessary, trusted, informative and unique thoughts on that topic to Mary.

  21. I and also my pals were examining the excellent tips and tricks from your website and then immediately came up with an awful suspicion I never thanked you for those techniques. Most of the people were absolutely warmed to read all of them and have now actually been making the most of them. Many thanks for actually being well considerate as well as for considering varieties of brilliant resources millions of individuals are really wanting to learn about. My very own honest regret for not saying thanks to you sooner.

  22. I’m writing to let you understand what a magnificent encounter my cousin’s princess went through viewing your web page. She came to understand some details, which included how it is like to possess an ideal helping style to have many others very easily fully understand specific grueling subject matter. You truly surpassed her expectations. Thank you for coming up with the informative, dependable, edifying and also easy thoughts on the topic to Ethel.

  23. Thank you for all of the labor on this site. My aunt take interest in engaging in investigation and it’s easy to see why. We notice all relating to the powerful ways you offer effective solutions via this web blog and as well improve response from some others on that situation plus our own girl is certainly studying a lot. Enjoy the remaining portion of the new year. You are conducting a fabulous job.

Comments are closed.