Jessie S
May 3, 2011

Sony vs. George “GeoHot” Hotz

Hacking the Play Station 3

The Play Station 3, a popular Sony gaming console, was said to be a closed, secure system. It might have been before George “GeoHot” Hotz, who famously was the first to jailbreak the iPhone, got his hands on the device. Hotz, a 21-year-old man, also hacked several other Apple devices before turning his sights on the Play Station 3. Jailbreaking a device simply means that the user “breaks” the security measures in the devices firmware that only allow authorized software and applications to run on the device. Hotz was able to exploit a security flaw in the Play Station 3 system that allows users to run Linux on their Play Station unit, which Sony previously supported, but later tried to prevent users from running.

Essentially, Hotz did to the PS3 what he did with the iPhone: he discovered a way to use his device any way he wanted. Unfortunately for Hotz, his actions have questionable legality. Hotz and other hackers contend that there should be nothing illegal in harnessing the technology in a device that they purchased with their own money. They claim that lawsuits question one of the basic presumptions of property ownership: the ability to make use of your purchased property free from the restraints of the seller. The argument is that once the buyer made the purchase of the device, it should be up to the buyer (in this case Hotz) to do what they want with it, not what the seller or manufacturer of the device (in this case Sony) would prefer that they do with it.

Sony, like Apple, does not want its devices to be jailbroken because to do so defeats their business model: sell a device that requires any extras the consumer desires to be purchased through the company’s own marketplace. Jailbroken devices are often used to run applications that the company does not support or pirated applications; thus, the company does not get its cut. In the case of Apple’s iTunes Store, Apple makes money by not only selling its iPhone, but also by taking a cut of the sales of the apps available in its store. When users jailbreak their devices, they gain access to “underground” app stores that Apple does not take a share from. Further, device manufacturers claim that jailbreaking a device constitutes copyright infringement. Specifically, they claim that modifications to the operating system that happen when using jailbreaking software violates the manufacturer’s reproduction and derivative works rights inherent in copyright protection.

The law is, predictably, unsettled on whether Sony or Hotz (and other hackers) is correct in its assertions on the legality of jailbreaking the Play Station 3, but the iPhone provides a glimpse into what the outcome of this controversy could be.

The DMCA and Fair Use

On one hand, the Librarian of Congress amended the Digital Millennium Copyright Act (“DMCA”) in 2009 to allow exemptions for certain modifications to mobile devices, specifically the iPhone. The 2009 exemptions allow mobile phone users to “unlock” their devices so that they may be used with different cell service providers, and to “jailbreak” their devices so that they can use applications that are not approved by the cell phone manufacturer. The Copyright Office stated that, contrary to Apple’s contention, jailbreaking a phone does not violate copyright laws. Instead, the Copyright Office said that it is protected under the fair use doctrine.

In an interview with the G4 channel’s “The Loop,” Hotz said that he believes that the iPhone DMCA precedent should apply to other “closed system” devices like the Play Station 3.[1] Hackers like Hotz would likely argue that the DMCA should work to exempt jailbroken gaming consoles and other consumer electronics with similar capabilities.

Device manufacturers and service providers alike would argue that the DMCA bars the hacking of the device. In the official comments that Apple filed regarding the DMCA exemptions of 2009, Apple argued that allowing users to jailbreak their iPhones contributes to copyright infringement and therefore should not be granted an exemption. As discussed above, this argument failed.

Sony Sues Hotz

The iPhone jailbreaking controversy ended arguably in favor of the hackers, or those wishing to modify their devices, when the DMCA exemption was granted. Hotz’s hacking of the Play Station 3 controversy, however, was not debated in the legislative process, but rather in the courts. Sony filed a lawsuit against Hotz, alleging that Hotz and others: violated the DMCA, the Computer Fraud and Abuse Act, the California Comprehensive Computer Data Access and Fraud Act, induced copyright infringement, engaged in breach of contract, tortious interference with contractual relations, common law misappropriation and trespass. Sony sought a temporary restraining order (“TRO”), enjoining Hotz from further hacking the Play Station 3 and inducing others to follow suit by making his technique available to others. The court granted the TRO.

Hotz consistently denied Sony’s allegations, yet in early April, he settled the case less than three months after the suit was filed.[2] The settlement agreement essentially bars Hotz from hacking any Sony device or even discussing others hacking of Sony devices.

While the settlement was likely a smart move on Hotz’s part, as facing a giant corporation with vast resources in court would likely prove to be an epic battle if not outright futile, the settlement means that it is still unclear which party was correct. Certainly that Hotz settled the case does not mean that he admits to any wrongdoing in his hacking of the Play Station 3. The Electronic Frontier Foundation (“EFF”), the non-profit organization that fought for the DMCA exemption for the iPhone and backed Hotz in the Sony suit, claims that Sony’s suit succeeded in one respect: it stifled the free exchange of research and exposure of security flaws that hackers find in their work.[3]

The Copyright Office hears DMCA exemption requests only every three years, with the next session to start in either late 2011 or early 2012. At the time the EFF wrote the request for the iPhone exemption, the Play Station 3 and other closed systems hacking was not an issue. However, we can expect to see these devices considered in the next exemption request period, and hopefully have some clarification on whether or not the DMCA prevents jailbreaking of devices other than mobile phones.

[1] Sony vs. GeoHot Hacker Lawsuit:
[2] A link to the Final Judgment is at the bottom of the Electronic Frontier Foundation’s commentary on the settlement.
[3] See link in footnote 2.