Any technophile with an Internet connection can now hack a Sony PS3 using a method published online by George “GeoHot” Hotz. The hack, or “jailbreak,” raises some concerns regarding certain tech-savvy corners of Sony's market, who could use it to install unpaid-for software on the devices. But, says the Electronic Frontier Foundation (EFF), Sony has crossed the line with its lawsuit against Hotz citing the Computer Fraud and Abuse Act (CFAA) and the Digital Millennium Copyright Act (DMCA).
This kind of litigation is nothing new to the United States' IP regime, and Sony fits readily into the club of companies whose legal decisions strike discord with their own histories of technological foibles.
Sony's past mishandling of digital rights issues, like the copy protection rootkit scandal sheds an ironic light on the Sony vs. Hotz case. In that particular case of shenanigans, Sony made obvious the fact that the company was actively invested in mitigating consumers' legal rights to make digital copies of purchased goods. Corporate response to complaint was slow in coming, and at times took an astonished tone. Said Sony BMG Vice President Thomas Hesse: “Most people, I think, don't even know what a Rootkit is, so why should they care about it?” Such public disregard of potential threats to digital privacy--in light of explicit attempts to control digital behavior--indicates either a genuine misunderstanding or a disingenuous understatement. As it turns out, Sony is guilty of both.
As in Sony vs. Hotz, the company made no attempt to reconcile its DRM model with consumers' rights under Fair Use. In their case against Hotz, Sony's attorneys cite legislation criminalizing any attempt at circumventing DRM protection, even in the absence of copyright infringement. They go further, says the EFF, to assert that Hotz's “alleged contract violations” can be considered “crimes.” The suit exceptionally defines certain methods of access to one's own computer as criminal. That is, it applies the language in the CFAA about “unauthorized” access of a “protected computer” to simply accessing a personal machine, for personal purposes, which Sony happens to deem unacceptable.
The prosecutors also solicited an order from the judge “that Hotz 'retrieve' the code [for jailbreaking the PS3 console] from anybody he may have forwarded it to,” an order that the judge made and later rescinded. This completely untenable request further indicates what is on Sony's par either ignorance or duplicity. Either Sony is grossly misinformed as to the distributed nature of the Internet, or it is exercising a flippant pursuit of a purely symbolic quest to tame information.
In addition to recognizing Hotz's legal right to modify his own property for personal use, the court ought to set a clear precedent delineating the DMCA's definition of illicit DRM circumvention, or, better yet, strike down the law. An ideal, long-term solution can only involve copyright legislation that does not preemptively criminalize behavior that may or may not involve any copyright violation at all.





