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.
“[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.
This article brought to you by Sony.
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.
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.
wow… this is an uncharacteristically bad article.
@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.
@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.
@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.
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