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Court Grants Sony Heavy Artillery for Its War on PS3 Hacking

Court Grants Sony Heavy Artillery for Its War on PS3 Hacking

People who surf to websites may not feel as though they're part of a teeming crowd, but in legal terms, their behavior is as public as walking through the doors of a museum. If it's a back-alley garage where people are handing out illegal tools, that's public too. So surfers who visited George Hotz's website to pick up code to circumvent Sony's restrictions on their PS3 consoles just might be getting a call from Sony's lawyers.

By Erika Morphy E-Commerce Times ECT News Network
Mar 7, 2011 12:13 PM PT

Sony will be able to proceed with its prosecution of a hacker who published an encryption key allowing PlayStation 3 owners to override Sony's copy-protection software and gain control of their consoles. The hack reportedly was built using earlier jailbreaks to the system.

A federal magistrate has granted the company subpoena power to gain access to the IP addresses of anyone who visited George Hotz's website from January 2009 onward. It also won subpoena power for data from YouTube and Hotz's GeoHot Twitter account.

Sony reportedly is basing its suit on the Digital Millennium Copyright Act's prohibition of "circumvention devices."

Sony did not respond to the E-Commerce Times' request for comment by press time.

Although Sony's tactic is fairly common in IP theft cases, privacy advocates have decried the move, saying the court granted the company overly broad subpoena powers.

Not a Privacy Issue

However, it appears that visitors to websites have little to no protection under privacy statutes.

Section 1201(a) of the Copyright Act prohibits circumventing a technological measure that restricts access to a copyrighted work, explained Jeff Goldman, a partner with Jeffer Mangels Butler & Mitchell.

"Based on what I understand to be the website operator's publicly expressed intentions, it would seem that he intentionally set out to and did violate these anti-circumvention provisions of the Copyright Act," he told the E-Commerce Times. "Courts have also generally held that there is no right of privacy in an IP address, since it is voluntarily conveyed to a third party to gain access to a website."

People may feel "safe" using the internet because they are in their home, but visiting an Internet site is really no different than visiting a brick-and-mortar store or a museum, said Goldman. "It is a public place, and you generally don't have a right of privacy in a public place. This is especially true when patronizing a public place where illegal products are being sold or given away. Anti-circumvention computer code certainly qualifies as an illegal product."

No Honor Among Thieves

Privacy policies only work when there is one in place, and presumably this particular site did not have one, Peter S. Vogel, a trial partner at Gardere Wynne Sewell, told the E-Commerce Times.

"The FTC has two things to say about privacy polices: You don't have to have one -- but if you do, you have to adhere to what you promise. It is safe to bet that anyone running a disreputable website is not going to make overly generous, if any at all, promises to its customers."

In short, people visiting a site to download software to help them break the law should not expect the website to fall on its sword for them, said Vogel, noting that "a reputable site, such as Amazon, tends to take such protections more seriously."

Innocent Visitor

What about curiosity seekers or otherwise innocent persons who may have visited the site but didn't download anything? They might still be contacted by Sony's lawyers, explained Christopher M. Collins, a partner with Vanderpool, Frostick & Nishanian.

"None of this is unusual," he said. "As a plaintiff, we would ask to have full access to the infringer's hard drive, communications and so on, to see who he or she is communicating with or sending information to."

That doesn't mean that all of those communications are suspect, though. A person who made one or two visits to the site is likely to be left alone, Collins said.

"Sony's attorneys probably won't look at -- just to throw a number out there -- all 10,000 people who visited the site, but they probably will get a sample. Also, anyone who clearly is on the site a lot will get a lot of attention."

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