The hacker being sued for altering the firmware on the PlayStation 3 has fired back at Sony Computer Entertainment America's attempt to get the case heard in California.
SCEA's original lawsuit says George Hotz, aka geohot, violated copyright and the Computer Fraud and Abuse Act by publishing a jailbreak for the PlayStation 3 that allows the console to run other operating systems. Sony's complaint also says Hotz acted to circumvent the copy protections built into the device and trafficked in circumvention devices and components thereof. The trafficking refers to Hotz publishing the code on his blog.
Hotz and his legal team say it should be in New Jersey, where Hotz lives. If Sony can show that Hotz's actions were aimed at SCEA, the arm of the company that sells the PS3, then the judge could grant its motion to have the case tried there. But the company has to tie Hotz to California, either by showing concrete harm aimed there or by tying him to such activity in the state. (SCEA is located in Foster City).
Hotz's lawyer, Stewart Kellar, has argued against hearing the case in California because it would be a hardship for Hotz to travel there and it would set a precedent for companies being able to sue anyone, anywhere, on relatively flimsy grounds.
In the latest filings, Kellar says SCEA isn't even a subsidiary of Sony Japan, which is the actual producer of the PlayStation 3 and the entity that should be suing. Also, Hotz wouldn't have known that SCEA even existed, unless he read the manuals carefully and even then, the PlayStation's system, software and packaging all point to Sony Japan as the producer, according to Hotz's lawyers. Therefore his actions weren't directed at SCEA.
Hotz, in a declaration to the court, says he also didn't use the PlayStation Network to obtain the firmware he modified, so he isn't bound by the PSN's terms of service. In arguing for moving the suit to California, Sony cites the terms of service that say anyone who uses the PlayStation Network agrees to have disputes with Sony brought to court in San Mateo County.
Sony also says a large number of people downloaded Hotz's jailbreaking software live in California. Therefore, the company argues, the case should be heard in California because the harm Sony suffered (the jailbreaking) occurred there. Hotz's lawyers say the web site was a passive one, and Hotz wasn't selling the software. He also didn't solicit traffic. While thousands in California downloaded the jailbreaking software, just as many from other jurisdictions did as well.
The legal briefs also spar over who was complying with the discovery process, or not. Sony says that Hotz has thwarted discovery, removing vital components from the hard drives of the PS3 systems he delivered. When the company asked for the components, Hotz's counsel responded that Hotz was in South America. Hotz's lawyers fired back, saying that Sony itself has abused the process by issuing frivolous subpoenas and filing under seal documents that are available publicly on the web.