Hotz fires a powerful blast back at Sony's California jurisdictional claims
groklaw.net
groklaw.net
To establish personal jurisdiction over Mr. Hotz, SCEA must show that he had minimum contacts with California such that it makes it fair and reasonable to sue him in that forum over this set of claims. This is so-called "limited jurisdiction," and is to be distinguished from the "general jurisdiction" that enables you to sue someone in the state of his residence over any claim whatever (see my mini-primer on the technical aspects of this here: http://news.ycombinator.com/item?id=2335698).
The key to the limited-jurisdiction analysis here is whether Mr. Hotz "purposefully directed" his activities toward California (intending that they have an effect there) in committing the acts for which he was sued. It is not enough to show incidental contacts with the state because such a standard would allow any person to be sued anywhere in the United States over any matter simply for having, e.g., purchased a product from remote state x, or had some similar tangential contact. Remember, the standard requires the court to find contacts in the forum related to the wrongs committed such as to make it reasonable to require the distant defendant to have to defend the suit remotely.
Because of this, the vital question concerns the nature of the claims asserted in the lawsuit and whether such claims show that Mr. Hotz intended to affect a California resident in committing the wrongs alleged.
And this is where the bombshell comes in: in a forced document production that SCEA managed to stall until just a few days before Mr. Hotz's reply brief was due, it had to produce the key contracts between SCEA and Sony Japan, which contracts conclusively demonstrate that all copyrights that are alleged to have been violated in this case are owned by Sony Japan exclusively and that SCEA has nothing to do with them other than being one of many licensees of such copyrights within the Sony family of companies.
In other words, SCEA appears to have nothing legitimate to do with the case other than serving as a proxy by which Sony Japan hopes to bootstrap its way into California jurisdiction. SCEA is connected with the PlayStation Network terms of service having a California forum selection clause. The problem is that none of the claims in this case concern violations of such terms of service.
The clear implication is that SCEA is a puppet being used to manipulate the court for Sony's tactical purposes. This is reinforced by several collateral indicators. SCEA filed this suit and "flooded" the case with subpoenas that went far beyond the scope of the limited discovery allowed in this sort of case. It then went to great lengths to avoid being straightforward with the court about the copyright ownership upon which the DMCA claims were based. And it has filed a blizzard of affidavits and court papers trying to confuse the main issues in the case.
Of course, nothing is completely predictable in a court matter where a court must decide an issue based on a nebulous legal standard such as whether something is "fair" or "reasonable" under the minimum-contacts jurisdictional analysis. But these revelations, to me, look pretty damning. Essentially, Mr. Hotz's attorneys have provided near-conclusive rebuttals to all of SCEA's jurisdictional claims and left SCEA looking disingenuous. Judges usually do not react well when they come to believe that a party is trying to play them, and this rebuttal does a superb job of showing that that is precisely what SCEA appears to be doing.
I would sum this up by saying: if this is all that SCEA has got, it is in trouble on the jurisdictional question (as a fallback, Mr. Hotz's lawyers have also asked that the court be transferred to New Jersey under an "inconvenient forum" analysis, which also looks pretty strong for him). It will be interesting to see how this plays out. (The factual details are a bit more complicated than I have summarized them here but this, I think, captures the essence of what is going on - see the wonderful reporting and links of Groklaw to drill down further).
Frankly, letting them fight over discovery is only magnifying the harm. This is a legal DoS attack of sorts, you don't solve those by adding more complex rules, you solve DoS attacks by nullrouteing the crap.
In other words, I wonder what would happen if a judge was brave enough to say right from the outset that they're not even going to listen to all these motions, they're just going to transfer the case.
How? Hypothetically, say the utility you'd get out a specific album is $8. The price is $10, so, naturally you won't buy it. However, you normally tire of music in, say, a year. You realize you can sell it them for $4. So instead you go ahead and buy it ("it really only costs me $6, 'cause I can sell it when I'm done with it").
But Sony is indeed a major record label / movie producer. I didn't think about it, since I've recently focused on electronic music, mainly listening to free podcasts [2]...
The only album I bought in the last few years was Girl Talk's "Feed The Animals", because I really liked the "pay what you like" model (similar to what Radiohead did with "In Rainbows"): http://en.wikipedia.org/wiki/Feed_the_Animals#Release
Anyway, sorry for derailing the thread by talking about hardware. I think it was a good example of a buying decision affected by Sony's unacceptable behavior, but I am aware of the limited alternatives when one wants to buy music or movies produced by Sony. I guess I'd buy anyway if there is an artist I like and I don't have any other option.
[1] : which are supposedly high quality, albeit pricy, TVs... well, I'll still look for alternatives, like I did for my headphones
[2] : I need to find some time to start discovering new artists again (maybe using YC's like.fm?), and to study the various online DRM-free music stores (their pricing, formats, and availability in France), to start buying music again, instead of listening to such podcasts. I also want to give back to all the artists that made these podcasts possible.
Pricks.
Oh, and PJ's earlier coverage of this case: http://www.groklaw.net/article.php?story=20110322114658410
That's kind of naive, this is how the law works - you make your case by putting the most beneficial spin on everything from your clients perspective ("he agreed to this when he did X").
The defendant then makes their case by putting the most beneficial spin on everything from their clients perspective ("X only extends to cover Y and therefore is not relevant").
The judge or jury then rule on who is right. That's not fighting dirty, it's the practice of law.
This is an analysis of the defence motions which are always going to be worded to make everything Sony has done sound deeply wrong and evil.
The Julian Assange defence was very similar - if you read through it you'd wonder how the case had ever been bought and yet the judge found against them on pretty much every point. They weren't fighting dirty, they were giving their interpretation of things and this is the same.
Not saying this isn't good, or interesting, just that it has a very specific and obvious bias and that irks me a little.
It seems that we want to think of a world that is logical and populated with verifiable facts. However, the world of the lawyer is fundamentally illogical (as are most humans most of the time) and facts only exist when either agreed to by the parties or determined by judge or jury. As a result events that you or I would consider to be unquestionably true may end up being not facts. I have seen this in supreme court opinions, appeals, and bench (judge-not jury) cases.
Sony knows this well. They have tons of money to throw at lawyers. Generally speaking, the more money spent, the more likely you will win.
The word "justice" is never used in law school.
This observation that "legal logic" is not quite the same as traditional rational-thought logic has led to an interesting "legal reasoning" subfield of AI over the past decade or so (with some precursors dating back further) that tries to formalize exactly what logic it is following, and how it differs from traditional rationality. That area develops alternative logics, reasoning procedures, etc., in order to do things like simulate case outcomes, suggest possible arguments to make, evaluate alternative strategies, etc. Until relatively recently many people did think that the right way to make a legal reasoning system was to treat the law as logical rules, and the legal reasoning problem as a problem of rational inference over rules+evidence... which turns out not to be that accurate an account of how law actually operates.
I didn't know there were advancements in the AI field pertaining to that, I'll try to look them up, but would be very grateful if someone could point them out :)
There's also a section on the Wikipedia article on Argumentation theory:
http://en.wikipedia.org/wiki/Argumentation_theory
"Computational argumentation systems have found particular application in domains where formal logic and classical decision theory are unable to capture the richness of reasoning, domains such as law and medicine"
What about when referring to judges?
From Kozinski's "How You Too Can Lose Your Appeal:"
Let's face it, a good argument is hard to hold down. So what you want to do is salt your brief with plenty of distractions that will divert attention from the main issue. One really good way of doing this is to pick a fight with opposing counsel. Go ahead, call him a slime. Accuse him of lying through his teeth. The key thing is to let the court know that what's going on here is not really a dispute between the clients. What is really going on here is a fight between the forces of truth, justice, purity and goodness--namely you--and Beelzebub, your opponent.
"The Code was also posted on Pastie. org and Github.com. Originally, it did not occur to me that these locations counted as within my custody or control."
The user they identified as doing these actions was called "blickmaniac" (or maybe blickmanic according to some blogs). Hotz has denied being blickmaniac, and a number of people have come forward and claimed that he/she is blickmaniac, including, apparently, Hotz' neighbour.
Fundamentally, many of the maneuvers SCEA is going through right now are intended to demonstrate that Hotz had a contract with a California company, so that they can sue him in California.
Hotz's side is that he bought something made by Sony of Japan, and hacked at it while living in (New Jersey?), never connected to SCEA's network, never read any TOS, posted source code from New Jersey, etc.
What's at stake is partly the judge (the current judge ruled DVD copying is illegal if I recall correctly), inconvenience / expense for Hotz, and also from his perspective, hopefully showing SCEA up to be lying bastards, hurting their future case when jurisdiction is finally settled.
^And he's not, because I am blickmaniac, and I'm not geohot.
Even if it does, I'd guess that SCEA has a better (bigger?) team of lawyers than SCEJ when it comes to this sort of case.
The point about SCEJ is that it should be them that should be bringing the case rather than SCEA.
Personally that one feels like clutching at straws as it doesn't invalidate the alleged infringement, just this particular case.
In the unlikely event that the judge threw it out based on this SCEJ would just bring the case using the same lawyers and the same materials (SCEJ and SCEA are both after all Sony and to assume that they wouldn't co-operate and share resource isn't really realistic).
Ergo, if a jury gets involved, it's worse for Sony if the action is framed as "Japanese corporation vs New Jersey citizen", given a jury composed of New Jersey residents.
If they can get SCEA/California jurisdiction, it's "California corporation vs New Jersey resident", given a jury composed of California residents.
Basically, if you're on HN, it's a safe assumption that you would be at least indirectly harmed if Sony got everything they're asking for from this case.
Is that some sort of narrow legal definition, or is he actually declaring that he's really never heard of SCEA and didn't know they were located in California?
That seems highly unbelievable and a bit ridiculous.
For example, searching for "sony playstation" and visiting the first link takes you to http://us.playstation.com/ which is an SCEA website as listed at the bottom of the page.
That's why I was asking. If it means something more like "I've never dealt with them personally or contractually", well then sure. But "never had knowledge of their existence" seems a stretch. Anyway, of course IANAL, etc.
Of course, I've been boycotting Sony since the rootkit. They've yet to give me a reason to stop. Just yesterday, I went out to replace my broken digital camera. Sony's cameras weren't even considered.