
Hotz fires a powerful blast back at Sony's California jurisdictional claims - grellas
http://www.groklaw.net/article.php?story=20110327185437805
======
grellas
The bombshell here (and it is just that) lies in the forced last-minute
production of the agreements between Sony Computer Entertainment America
(SCEA) and Sony Computer Entertainment Inc. (referred to in the papers as
"Sony Japan").

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).

~~~
Natsu
I honestly don't know why the judge has entertained this for so long. They've
tried to bury him in discovery from the outset and they have far more
resources than he does as a private citizen. They've not been able to show any
California links beyond what a normal person might have from merely using the
internet.

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.

------
SeanDav
I really try hard not to buy Sony anymore. Not fanatical about it, but why
support a company that does this, along with installing rootkits and other
behaviour of course.

~~~
danieldk
I sympathize. However, it is very hard to completely avoid their products if
you love music or movies.

~~~
eekfuh
Well if you love music or movies, you can easily avoid PAYING for their
products.

~~~
redthrowaway
Even if you don't support piracy, you can easily avoid paying _Sony_ by just
buying used.

~~~
patrickyeon
Buying used doesn't support anybody else involved in the production. If you're
worried about the ethics of piracy, I do not understand how buying used
changes things.

~~~
derobert
The existence of a resale market likely increases the initial purchases of the
item.

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").

~~~
patrickyeon
True, but if you want to take that look, buying used doesn't effectively keep
your money out of Sony's hands either. You're just laundering it to keep your
own conscience clean. Of course, not paying for it at all doesn't help anyone
involved.

------
shazow
What an amazing overview of the legal proceedings. Clearly a lot of effort
went into this, huge thanks!

~~~
sp332
Groklaw is consistently amazing like that. PJ manages to make complex cases
intelligible without dumbing things down so much that you feel like it's just
an editorial. Of course there is editorializing, but it's mostly to point out
how crazy some of the stuff is that's happening. It feels like getting the
opinion of an expert instead of punditry with an agenda.

Oh, and PJ's earlier coverage of this case:
<http://www.groklaw.net/article.php?story=20110322114658410>

------
Tyrannosaurs
"The implication is that SCEA might be fighting dirty, providing misleading
information to the court."

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.

~~~
YooLi
I agree with you. That said, where does it cross the line from beneficial spin
to providing misleading information? Can, for instance, a landlord claim to a
court that a tenant agreed not to throw loud parties in the rental contract
(even if there was no such provision) and leave it up to the the tenant's
defense to correct that no, the rental contract says nothing about parties? To
me this would be misleading information, but I am highly ignorant of how
courts work.

~~~
markklarich
It can, actually, get much worse. While cross examining the other side, the
opposition attorney can, and often does, state an assumption in the middle of
a question that misstates a fact. If you don't object, then that statement
becomes fact. In other words, every statement made must be considered. Is this
something I am willing to allow?

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.

~~~
_delirium
_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._

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.

~~~
GFischer
I have long been interested in the possibility of a legal AI, although only as
a mental exercise (with lawyer parents and siblings, hard not to :) ).

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 :)

~~~
_delirium
I'm not really an expert in the area; have just run across some sessions on it
at the general yearly AI conferences I attend (AAAI, ECAI, and/or IJCAI). The
keywords "legal reasoning" and "legal argumentation system" will get you quite
a lot of stuff though. The latter bleeds into general "argumentation systems",
since one way of modeling legal reasoning (though not the only one) is that
it's a specific sub-species of debate or argumentation, rather than a specific
sub-species of logical inference. (Of course, you might ask: isn't debate
ideally logical as well? Empirically, it seems, the answer is: not entirely.)

~~~
GFischer
Thanks! Both the explanation and the keywords will direct my search handily :)

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"

------
javanix
What exactly was the rationale for changing the title of this article from the
one on Groklaw?

------
FreshCode
@Sony, just drop the case. I hate to rant, but this is _bad press_. I am a
developer and an early adopter; your attempts to make an example out of Hotz
has further soured an opinion still bathed in the lukewarm wake of your
infamous rootkit. If and when I have time to play games, I will do so on an
XBox.

------
drags
Despite my distaste for Sony, I worry that the tone and claims of bad faith in
Hotz's filing will distract from the overall strength of his argument.

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.

<http://notabug.com/kozinski/loseappeal>

------
eli
Sounds like some spinning of his own in explaining why he did not fully comply
with a judge's order that he take the code offline:

 _"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."_

------
markklarich
It would help to read this Wikipedia article to better understand this post.
The post is based on court filings addressing personal jurisdiction in an
internet case. It seems California has weighed in on the subject and knowing
what they are looking for helps to understand the nature of the arguments.
[http://en.wikipedia.org/wiki/Personal_jurisdiction_in_Intern...](http://en.wikipedia.org/wiki/Personal_jurisdiction_in_Internet_cases_in_the_United_States)

------
jonursenbach
Who/what exactly is blickmaniac? Trying to Google for any info on that has
been futile and only leading me to news articles about Hotz vs Sony wanting to
find the identity of them.

~~~
vessenes
One of the many assertions made by SCEA is that Hotz agreed to SCEA's terms of
service, and (I believe) that he did so in California.

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.

------
albemuth
maybe we should start a Spartacus-like "I am blickmaniac" movement

~~~
inklesspen
Lying to a judge is not typically a good strategy. SCEA likely has more
details about who blickmaniac is; they just haven't disclosed them yet.

~~~
burgerbrain
You are presumably operating under the assumption that geohot really _is_
blickmaniac^. If he's not, any possible further details SCEA has either would
not be in their best interest to share, or would fall apart upon further
examination. Furthermore, as none of us, I assume, are currently under oath,
or even in the court room, there is realistically little harm in publicly
claiming to be blickmaniac.

^And he's not, because I am blickmaniac, and I'm not geohot.

------
metageek
Does any of this count as barratry? Even if the underlying case is valid, it
seems as if SCEA's attempt to bring it in California is frivolous.

------
pdenya
Is there any reason SCEA wants to file in CA other than making it inconvenient
for Hotz?

~~~
omh
Does Japan have a DMCA-style law?

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.

~~~
jlazarow
If the case was brought up in Japan, then wouldn't Hotz just need to avoid
ever stepping on Japanese soil in order to stay out of trouble (regardless of
the outcome of the case).

------
coverband
Love this... Better than a soap opera. (I don't own a PS3, so don't feel any
attachment to either side.)

~~~
wtallis
You don't need to have a PS3 to have a stake in this mess. Sony is fighting
for the right to remove features from a product as part of "security updates",
to prevent jailbreaking from becoming legal for devices other than
smartphones, and for several other precedents that would be very bad for the
internet privacy and open source software.

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.

------
CWuestefeld
All of this has very little to do with the actual suit. This is all over the
question of jurisdiction.

~~~
GrandMasterBirt
An interesting turn of events. However a ruling on this will indicate that if
sony wants to sue anyone for hardware hacking, they will have to do it in the
jurisdiction of where the person lives, not where sony choses.

~~~
CWuestefeld
Well, not so much. This isn't a higher court, so it's not setting any
precedent wider than this court itself. Of course, other courts _might_ choose
to take these findings as guidance, but there's no requirement for them to do
so.

------
younata
I couldn't help but laugh at how ridiculous SCEA is.

~~~
originalgeek
I know. If I was a SCEA Exec, I would be asking my lawyers "WTF do I pay guys
for? So you can get pantsed by some kid?"

------
s3graham
What does the declaration of "unawareness" that Hotz filed mean (near the
end)?

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.

~~~
pyre
Really? Do you know the names and business locations of all the subsidiaries
of whatever popular brand is out there? Do you know all of the subsidiaries
under the "Universal" umbrella? What are the addresses of all of them? What
are their responsibilities?

~~~
s3graham
Fair enough, I could believe that he did not know the address of SCEA. Of its
existence? Someone who's as deeply involved with consumer tech devices and
software as he is, it seems pretty unlikely that he would not have encountered
them.

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.

~~~
eitland
In all seriousness: Do you read the footers of every page you visit?

