George Hotz

That doesn’t sit well with Sony, the company that in 2005 secretly loaded consumer music CD’s with rootkits. Sony claims the console jailbreak breaches the Digital Millennium Copyright Act and other laws, and would eat into game sales for the 41 million PS3 units sold.

The case highlights the inconsistencies of the DMCA.

Consider that in July, the U.S. Copyright Office legalized the jailbreaking of iPhones to allow those devices to run any apps the owner wants. But the office only entertains public proposals to grant so-called DMCA exemptions every three years, and has only granted about a dozen.

This means that Hotz and cohorts are being sued for producing a hack for the PS3, yet face no legal recourse for their similar hack, or “jailbreak,” of Apple’s mobile phone.

The DMCA makes it either a civil or criminal offense to traffic in wares meant to circumvent devices protecting copyrighted works. “Hotz published on his website the ‘3.55 Firmware Jailbreak’ code, a circumvention device or component thereof that disables, avoids, bypasses, removes, deactivates and/or impairs a critical TPM (technology protection measure) in the PS3 System,” the suit says.

Federal authorities invoked the DMCA in last month’s bungled prosecution against a Southern California man accused of modding Xboxes to play pirated or homemade games.

Sony’s complaint also alleges that Hotz and co-defendants breached the Computer Fraud and Abuse Act “by transmitting in interstate and foreign commerce a communication containing a threat to obtain information from a protected computer without authorization, or to impair the confidentiality of information obtained from a protected computer.”

That act, too, can be either a civil or criminal violation. It was unsuccessfully used to prosecute Lori Drew in the country’s first cyberbullying prosecution in 2009.

The Sony lawsuit asks a San Francisco federal judge to require Hotz and others to deliver to Sony “any and all computer hardware and peripherals containing circumvention devices, technologies, programs, parts thereof, or other unlawful material, including but not limited to code and software, hard disc drives, computer software, inventory of CD-ROMS, computer diskettes, or other material containing circumvention devices, technologies, programs, parts thereof, or other unlawful material.”

Most important, the lawsuit seeks unspecified monetary damages.

Hotz’ PS3 code is everywhere on the internet, and could never be removed from all its corners.

Despite attempts to have it removed, code is also widely available on the internet to decrypt the Content Scramble System on Hollywood’s DVDs. That code was published in 1999 by Jon Johansen, aka “DVD Jon.” Similar code to decrypt AACS from Blu-ray discs is also free for the taking, despite demands it be taken down.

Hotz was not immediately reachable for comment. His website has been redone to only provide links to Sony’s lawsuit and injunction request.

No hearing date has been set.

Photo: Wikipedia

See Also:

• U.S. Trying to Build Conspiracy Case Against WikiLeaks’ Assange
• Lori Drew Not Guilty of Felonies in Landmark Cyberbullying Trial
• Judge Clears CAPTCHA-Breaking Case for Criminal Trial
• Xbox-Modding Judge Berates Prosecution, Puts Trial on Hold
• Judge Bars ‘Fair Use’ Defense in Xbox Modding Trial
• Scientist Says DVD Copying Software Circumvents Encryption
• DMCA Muscle Kills DVD Copying, for Real
• Alleged HDCP Encryption Crack Is No Pirate Bonanza

Authors: David Kravets

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