Published by LawTechie - March 7, 2011 - LawTechie

PS3 JailbreakThe Northern District of California has authorized Sony to issues subpoenas against Youtube, Google, Twitter and Bluehost, the host of George Hotz’s PS3-Jailbreaking website, to reveal the IP addresses of all users who had downloaded, watched videos about, and tweeted about Hotz’s Jailbreak utility (see ruling). George Hotz is the 21-year-old New Jersey hacker and named defendant in Sony v. Hotz, C-11-001671 SI (N.D. Cal), whose PS3-Jailbreak software allow users to “break” the encryption mechanism behind Sony’s PS3 gaming device, thus enabling it to play games and media from non-proprietary (read: non-Sony) DVDs.

The Court’s decision is certain to raise eyebrows because it seems to significantly broaden the standard for subpoenaing user information: Whereas courts across the country, including California, have traditionally required plaintiffs to show that they have a valid cause of action against unidentified users before such users’ identifying information could be revealed, here Sony does not even allege that PS3-Jailbreak downloaders did anything wrong.

Sony’s justification for seeking downloaders’ IP addresses is to prove, for jurisdictional purposes, that the bulk of Hotz’s software users reside in California rather than New Jersey — thus making California the proper venue for Sony’s action against Hotz. In Hotz, the Court seemed to rely on the general subpoeana standard of Doe v., 713 F.Supp. 2d 1088 (W.D. Wa. 2001), specifically that (1) the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source (we say seemed because the Court did not issue an opinion but rather “So Ordered” Sony’s letter to the Court which utilizes the above reasoning).

Arguably, the Court did not need to use the traditional Dendrite standard or one of its multi-State equivalents since Sony was seeking only the IPs of downloaders rather than trying to subpoena personal identifying information from such IPs. Nevertheless, California’s ruling would allow content providers like Sony a fairly simple mechanism for collecting a black book of IP addresses against which it could assert legal claims at some later time. Moreover, with regard to Sony’s subpoena to Youtube, it is interesting that the Court did not bother to issue an opinion to address the Electronic Frontier Foundation’s (EFF) amicus curiae argument that the Youtube subpoena, which could potentially disclose actual user information rather than just IPs, implicates the Video Protection Privacy Act and the Stored Communications Act.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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