Sony sues over PS3 hacking - but will 'fair use' argument win the day?

Playstation root constitutes piracy, argues company - letting slip it has sold 41m consoles - but law precedent set last summer may be on the hackers' side

Sony is suing a group of hackers who worked out how to break the Playstation 3's firmware system so that it could be made to run any applications.

The hack could have allowed any sort of program or game - including pirated ones - to run on the console. Sony argues in its lawsuit that that constitutes computer fraud and copyright infringement - and accuses those involved of "distributing software, tools and instructions... that circumvent the technological protection measures in the PS3 system and facilitate the counterfeiting of video games."

[Darkfiber]

Nope. I hope those kids get their lives ruined by this.

[Infernostew]

They all better start watching Hbo's OZ and start taking notes so they don't end up becoming prags.

Edit: I know they sell it in England. Saw the complete series DVD in HMV when I was over there in September. If I remember correctly, it runs for about £50.

[Kran]

I live in the UK... What's OZ? I know what HBO is, but what does OZ look at?

Edit: Do you know if they show it in the UK at all? Sounds interesting.

[UnwanteDreamz]

Kran

OZ is an HBO show about prison.

[guitarded77]

@ Infernostew
OZ should be shown to kids in the 'Scared Straight' program. I'd hate to hear of anyone getting "spooned".

On Topic: This will not fall under 'fair use'. Fair use is very grey in some places, but the hacking issue is black and white... all they have to do is show intent and there are several arguments as to intent when it comes to hacking. The problem is that the hackers are all over the world and fall under different laws and jurisdiction.

[SkyGamer]

How do you think you are so righteous in condemning someone who never had piracy on their minds? So you want to condemn Nobel for creating dynamite to be as a tool but people use it for nefarious means? Is that Nobel's fault? How about a kitchen knife? Used as a tool and as a weapon but whoever created it be condemned? You are so backwards.

[Motion]

@SkyGamer

Piracy on the mind or not, what they did was illegal.

And to the other questions-
Nitroglycerin (used in dynamite)doesn't come with an end user agreement in which you agree to not modify it. And as for the knife... well thats just a totally irrelevant argument. Now, if people were taking their PS3s and smashing other people on the head with them, you might have something.

And one last thing, they are not trying to condemn the people who created the device as in your examples. They are condemning those (as per your examples) whom are doing nefarious things and using the knives as weapons.

[hellboy1880]

@ Motion

So you are fluent in all aspects of copyright law?

You state that this person is guilty, that's for the courts to decide.

Not you.

[Motion]

I'm not referring to copyright law/game piracy, I'm referring to stealing the PS3 key information. Which yes, was/is illegal. While not everything they are doing is illegal, some of the steps to get there have been.

[Infernostew]

OZ was a popular HBO drama series about a prison and it's inmates. Great show but it was really gritty and shocking.

[r1sh12]

Im pretty sure that I said the same thing yesterday.
Previous cases were on the hackers side:

"His defence will probably rest on recent cases which have shown that "jailbreaking" items for "fair use" is legitimate under US law. A landmark case last July allowed such jailbreaking – which gives people full access to the file system of the device – under "fair use"

I also dont condone piracy, but its the individuals who used geo hots tools to pirate. Geohot released it for homebrew, yes people will use it for piracy but those are the ones who should be getting caught.
Like I said yesterday there is a good chance this will be thrown out.

Even though this article states Sony have a good chance when it comes to terms of service - Who knows which user accepted the terms of service.
I mean, create an account with fake name, and credentials, Im sure all of these guys will have done that if they did accept the TOS.
Fail0verflow even said in that Chaos video they just wanted other OS back which is why the did it, since Sony removed it illegally while the advertised it thats an argument sony might have a problem with.
But anyway we have to see this after the courts rule on it, everyone is speculating including myself, Im just speaking from the trend of other cases.

[Dark_king]

Nope law is against them its pretty clear.They should of found another way to get the PS3 to run software.Signing it as offical Sony code was a crime.No if ands or buts about it,they forged Sony's digital signature.Sony is not only allowed to have them prosecuted to the fullest but will also be owed for any and all damages the hack brings about to Sony or any third party for that matter.

[xCaptainAmazing]

Look it up.

It remains to be seen whether or not they additionally violated some other law in the process (most notably the private keys). You can't own a string of numbers though, so we'll see what the court thinks.

If these guys are pronounced "not guilty" I will be laughing and anyone who thinks they have broken a law can eat it. However, if the reverse happens, I will be more than happy to eat my own words.

[Kran]

GOOD ON YA SONY!

I mean seriously (to the hackers) if you made something so expensive, would you like somebody to hack your item where it could (potentially) be fatal if bugged?

I mean not even the hackers realise their hack could become infected by another hacker.

[BLACKBOIJONES]

Don't we have any other news..This hacking thing is getting old now.

[Godmars290]

Yeah, at this point we are only talking about another console that can play pirated games. Though there is the question of older system emulation.

[Loner]

Dont like it dont read it
Simple

[MajestieBeast]

How do trolls like you get the right to publish stories, the mods are really asleep.

[Loner]

Nothing wrong with the stories i put up.
Its legitimate news

[koehler83]

As soon as they posted the key online, Fair Use went out the window.

That falls under the category of Trade Secrets.

Big no no.

[testerg35]

But is a number something that can be copyrighted? If I post 123253245 and that's someone's pin, can they sue me?

[DrillaKid]

It's not so much a matter of straight copyright law; rather it's based on statutes which exist in the US. Sony are trying to bring their keys/codes within the various definitions used in these statutes.

Whether they can or not we'll have to see. But the hackers better get some good lawyers - Kilpatrick Townsend & Stockton (Sony's advisers) are heavyweights in IP litigation.

[Dark_king]

If you told someones pin and who that someone was yes they could sue you for damages if they were any.

[koehler83]

It's not "a number" it's an algorithm.

[Proxy]

They key is a number. The number enters the encryption algorithm and if transformed by the algorithm properly it "unlocks" the system. I've created encryption algorithms myself, and anyone interested should check out this great book on the subject http://www.cacr.math.uwater... .

Court cases on such matters come out all different ways; who knows what will happen. I'll just say that as one who is able to program and hack (not crack, but hack) I appreciate the ability to run my own software on my own hardware.

[Armyntt]

Yawn. Another hacking article. Just stop posting them. The more articles posted the more people learn about it. Just like $ony should have done. Ignore it. The more you talk about it the worse it gets. Keep publicizing what they have done and you only make it worse. My 2 cents on the hackers. $ony is just wasting $$ on this. The hackers will be backed by some electronic liberty group funding their lawyers and by the time this makes it to a real court it wont matter and the hackers won anyways. This is a gaming site not a hacking site. Yes it has to do with gaming but people who care have already heard. We dont need another editorial on the subject. Also dont click on the links. You know what the article is about through the headline.

[Pillville]

Everybody screaming "Death to hackers" like they were responsible for 9/11 or something.

They figured out how to hack a 5 year old game console. Every other console has already been hacked. Every console in the future will probably be hacked.

Where's the big outrage coming from?

Where's the same anger against MS and Apple since iTunes and Windows Media Player ask to "rip" a CD to MP3 as soon as you put a CD in your computer? That has caused more pirating than every other "hack" combined.

[NatureOfLogic]

Well Said,bubble up

[the_1080p_guy]

Ps3 isnt even 4 years old,you must be confusing it with X360.

[Pillville]

I'm sorry, it's been 4 years 2 months 2 days since it was first released in Japan (11/11/2006).

[the_1080p_guy]

okay, but still 4.16 yr < 5yr , and i was thinking about Worldwide release (march 2007 in EU- 3yr 10 months ago ),forgot about Japan at the time.Sorry

[littlebigmarcpsps3]

i agree with you

[Laeto256]

unless there's a new development in the case can we not get this articles anymore? i mean these sites are just dying for hits. This is a legal matter with legal consequences, as much as some people like it hacking is against the law otherwise why would breaking a banks security be illegal? That's what is happening here they stole the security key to Sony's security system and besides using it on their console (yes their property) but they distributed it which puts them in deeper shit. Main thing that's pissing people off is the piracy that's going to spread effecting game developers.

[FailOverHero]

So that 41 million is the official sold to consumers then?

[btk]

If I get hold of your account details or credit card details, I don't run and post it on the Internet. This is in effect what they did.

[Drithe]

Years ago there were rumors that Sony PURPOSELY used to put chips or programs in their products that made them malfunction, after a certain amount of time, so people would have to buy more of that product. Google it.

The idea that Sony can brick a system, on purpose, is very scary to me. I understand doing it to someone who is trying to steal something from them, like games or movies online, or to cheat in games.

But what Sony's TOS says is that, if their patches brick your PS3 system, they are not responsible for it and you will just have to buy another PS3. They did this not in response to hackers, but in response to so many people's ps3's malfunctioning after the patches.

For years people have been complaining about the PS3 patches tearing their systems up. I have had one of them myself stop working after the patches, that being the original PS3 that came out.

Their TOS, supposedly, covers this now. But to that I say HOGWASH! Sony SHOULD be responsible if a patch bricks a system. They are simply trying to get out of it and not have to fix it.

As far as hackers and such, they do have a right to stop thieves who pirate games and try to cheat and create havok online, WITHIN the Sony infrastructure.

I dont like the PS3 being hacked. I dont like it at all and hope Sony wins on the hacking part, but loses big time on the TOS where they are no longer responsible for their patches 'BRICKING' systems.

End of Line.

[Ray186]

You know my PS3 YLOD 13 months after I brought it. Makes you think.

[IHateYouFanboys]

look, it doesnt REALLY matter what sony say in their Terms and Conditions when you sign up to the PSN - if they say 'by signing this you are entitling Sony to your first born child', and you sign it, Sony arent entitled to your first born child. what they try and pass off as legally binding and what actually IS legally binding are 2 different things.

many manufacturers only give 90 day warranties on their products, but as a consumer you have, by law, a right to have a product you buy last a 'reasonable' amount of time CONSIDERING its price and quality. this is why Sony were replacing YLOD PS3s LONG after their warranties had expired - because even though sony say you only get a 12 month warranty, if they tried to enforce it against people that paid US$599 for a product only to have it fail after 13 months, they would get taken to court and they would lose.

phone manufacturers are in the same boat, and theyve recently come under scrutiny (at least they have here in australia) for only offering 12 month warranties on phones that you get when you sign up for a 24 month contract. for consumers, it is REASONABLE that if you sign a phone contract for 24 months, your phone that you get with that contract should last 24 months. so even though you sign a thing saying you get a 12 month warranty and that you agree to it, it doesnt hold up when taken to court or the ACCC (fair trading company basically).

its happened to me before, and it went like this:
1. i ring the phone company saying my phone died and i want a replacement.
2. they say 'its out of warranty, not our problem'.
3. i say 'alright can you stay on the line, im ringing the ACCC'
4. they say 'sorry we'll replace your phone'

they know legally they have to replace/fix it. just because they write something and you sign it doesnt mean its legally binding.

[gotgame1985]

i find it funny that no one is mentching the fact that the ps3 has only sold 41 mil thats 9 mill behind microsoft