January 13th, 2011, 23:48 Posted By: wraggster
Sony will likely force the PlayStation 3 hackers to stop distributing the tools they created and released online it alleges are directly responsible for enabling piracy - at least temporarily.
It's bad news for George Hotz, aka Geohot, who led a group of high-profile hackers that successfully circumvented Sony's security measures designed to prevent gamers from running unofficial programs on the PS3.
According to legal documents published by Hotz on his blog, Sony believes the hackers have infringed areas of the Digital Millenium Copyright Act (DMCA) in obtaining the encryption and decryption keys of the console without authorisation, and that the defendants are directly responsible for enabling piracy via the tools they created and released online. A comprehensive round-up of the allegations can be found on Digital Foundry.
"A DMCA action was pretty much inevitable once word of this got out," said Jas Purewal, a games lawyer at Olswang and writer of Gamer/Law. "Difficult for me to see how Hotz will be able to avoid a successful DMCA claim, personally.
"So, all in all, no great surprises here - Sony really had no choice but to take these actions."
So, what's next for Hotz and the Fail0verflow hacking team now Sony has filed suit?
"In practical terms, it seems they [Sony] are applying for a restraining order and injunction against Hotz, which if successful would at least stop him distributing the hack," Purewal said.
According to Alex Chapman of Sheridans Solicitors, it's too early to comment on the merits of the claims in the case, but he described Sony's move as "a very early step in the action" and "ex parte", which means that a decision may be made without hearing from the defendants.
"Usually there will be a return date which will be an opportunity for the defendants to make their representations and for the Judge to consider the case more fully," Chapman explained to Eurogamer.
"Ex Parte applications are generally made where there is some urgency and the courts in those cases don't necessarily decide on the merits of the case but on the 'balance of convenience'.
"In this case Sony is asking that the information on the websites is taken down. It will be saying that the publication of these hacks/cracks causes it damage that cannot adequately be compensated in damages and the defendants are not inconvenienced by taking it down - since they can be compensated in damages."
Chapman suspects that the court will likely agree with Sony's request – for now, but that doesn't mean Sony will be victorious in the lawsuit.
"When courts look at cases where the disclosure of information like this is likely to cause a company irreparable damage they invariably do make the order requested, at least until the applicable return date," he said.
"This is important because if the defendants 'lose' this part of the action it does not mean that they have lost the whole case or that they are liable, just that they have to take down the content as the balance of convenience favours Sony."
Both Hotz and the Fail0verflow group have responded to Sony's lawusit.
"I am a firm believer in digital rights," Hotz yesterday told the BBC. "I would expect a company that prides itself on intellectual property to be well versed in the provisions of the law, so I am disappointed in Sony's current action.
"I have spoken with legal counsel and I feel comfortable that Sony's action against me doesn't have any basis."
The case continues.
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