Sony Computer Entertainment America LLC v. Hotz et al

Filing 104

DECLARATION of Ryan Bricker in Sopport of 103 Opposition/Response to Motion filed bySony Computer Entertainment America LLC. (Attachments: # 1 Exhibit A to Bricker Decl., # 2 Exhibit B to Bricker Decl, # 3 Exhibit C to Bricker Decl, # 4 Exhibit D to Bricker Decl, # 5 Exhibit E to Bricker Decl, # 6 Exhibit F to Bricker Decl, # 7 Exhibit G to Bricker Decl, # 8 Exhibit H to Bricker Decl, # 9 Exhibit I to Bricker Decl, # 10 Exhibit J to Bricker Decl, # 11 Exhibit K to Bricker Decl, # 12 Exhibit L to Bricker Decl, # 13 Exhibit M to Bricker Decl, # 14 Exhibit N to Bricker Decl, # 15 Exhibit O to Bricker Decl, # 16 Exhibit P to Bricker Decl, # 17 Exhibit Q to Bricker Decl, # 18 Exhibit R to Bricker Decl, # 19 Exhibit S to Bricker Decl, # 20 Exhibit T to Bricker Decl, # 21 Exhibit U to Bricker Decl)(Related document(s) 103 ) (Smith, Mehrnaz) (Filed on 3/18/2011) Modified on 3/21/2011 (ys, COURT STAFF).

Sony Computer Entertainment America LLC v. Hotz et al

Doc. 104

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KILPATRICK TOWNSEND & STOCKTON LLP JAMES G. GILLILAND, JR. (State Bar No. 107988) TIMOTHY R. CAHN (State Bar No. 162136) MEHRNAZ BOROUMAND SMITH (State Bar No. 197271) HOLLY GAUDREAU (State Bar No. 209114) RYAN BRICKER (State Bar No. 269100) Two Embarcadero Center Eighth Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Email: [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiff SONY COMPUTER ENTERTAINMENT AMERICA LLC UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION SONY COMPUTER ENTERTAINMENT AMERICA LLC, Plaintiff, v. GEORGE HOTZ; HECTOR MARTIN CANTERO; SVEN PETER; and DOES 1 through 100, Defendants. Case No. 11-cv-00167 SI DECLARATION OF RYAN BRICKER IN SUPPORT OF PLAINTIFF SONY COMPUTER ENTERTAINMENT AMERICA LLC'S OPPOSITION TO DEFENDANT GEORGE HOTZ'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE Date: April 8, 2011 Time: 9:00 a.m. Courtroom: 10, 19th Floor Judge: Hon. Susan Illston

I, Ryan Bricker, declare as follows: 1. I am an attorney in the law firm of Kilpatrick Townsend & Stockton LLP, counsel

of record for plaintiff Sony Computer Entertainment America LLC ("SCEA") in the abovecaptioned matter. I make this declaration on personal knowledge and if called as a witness could and would testify competently thereto.
DECLARATION OF RYAN BRICKER IN SUPPORT OF PLAINTIFF SONY COMPUTER ENTERTAINMENT AMERICA LLC'S OPPOSITION TO DEFENDANT GEORGE HOTZ'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE - CASE NO. 11-cv-000167 SI

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2.

Attached hereto as Exhibit A is a true and correct copy of SCEA's letter to

counsel for George Hotz memorializing the parties' meet and confer session on February 14, 2011, and the parties subsequent telephone call on February 15, 2011, regarding various discovery issues. 3. Attached hereto as Exhibit B is a true and correct copy of an email sent by

counsel for SCEA to counsel for Hotz, proposing a location and schedule for inspection of Hotz's PS3 Systems, and offering an extension for Hotz's discovery responses. 4. Attached hereto as Exhibit C are true and correct copies of Hotz's responses to

SCEA's First Set of Interrogatories, and Hotz's objections to SCEA's First Demand for Inspection. Hotz did not verify his interrogatory responses and objected to the inspection of the PS3 Systems. On March 9, 2011, SCEA wrote Hotz requesting that he correct the deficiencies in his production, provide a verification of his discovery responses and provide the relevant jurisdictional discovery. 5. Attached hereto as Exhibit D is a true and correct copy of correspondence sent

by counsel for SCEA to counsel for Hotz, proposing a two-week extension of all briefing and hearing deadlines relating to Hotz's Motion to Dismiss. Also attached hereto as Exhibit D is a true and correct copy of correspondence from counsel for Hotz, refusing the two-week extension proposal. 6. Using information from SCEA identifying the GameStop location (Store No.

4489) where Hotz purchased the PS3 System bearing Serial No. CG221368477-CECH2001A, I determined that the particular GameStop store is located at: 4 Garden State Plaza, Suite 1029 Paramus, NJ 07652 Using this information, I determined that the particular GameStop store is 5.6 miles from Hotz's residence in Glen Rock, NJ. Attached hereto as Exhibit E is true and correct copy of the <www.gamestop.com> report identifying the location of Store No. 4489, and a true and correct copy of a Google map showing the distance between that store and Hotz's residence. 7. Attached hereto as Exhibit F is a true and correct copy of a forum thread from

DECLARATION OF RYAN BRICKER IN SUPPORT OF PLAINTIFF SONY COMPUTER ENTERTAINMENT AMERICA LLC'S OPPOSITION TO DEFENDANT GEORGE HOTZ'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE - CASE NO. 11-cv-000167 SI

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<forum.gsmhosting.com>, including the following post from user "blickmaniac": "Just curious what people would pay for exclusive rights to this solution. Tracfone W175g unlocked and debranded. PM me." 8. Attached hereto as Exhibit G, are true and correct copies of the terms of service

agreements published by Google and Twitter. The terms of service provided by each of these online service providers include forum selection clauses that require users to agree to jurisdiction in California. 9. Attached hereto as Exhibit H is a true and correct copy of Hotz's website,

<geohot.com>, offering the Metldr Keys (also known as the root keys), links to download the "3.55 Firmware Jailbreak" and the "Signing Tools," and stating, "if you want your next console to be secure, get in touch with me." This copy of the site was accessed on January 9, 2011. This exhibit is Highly Confidential and Filed Under Seal. 10. The IP logs provided by BlueHost, the web hosting service for Hotz's

<geohot.com> website, record various actions taken by those who visited the website. Some logged events include the command "GET /jailbreak.zip", indicating that that visitor clicked on the "jailbreak" hyperlink on Hotz's site, thereby requesting to download the 3.55 Firmware Jailbreak file. I directed our agents at eLitigation Solution ("eLit Solutions") to isolate the IP log events that included the "GET /jailbreak.zip" download command, in order to determine how many download requests were sent to <geohot.com>. Then, I directed eLit Solutions to narrow these results to include only unique IP addresses, removing repeat entries. I directed eLit Solutions to use IP locator software to determine the geographic location of these IP addresses. Once eLit Solutions delivered to me a list of IP addresses located in California that requested to download the 3.55 Firmware Jailbreak file (jailbreak.zip), I used the HTTP codes within the IP logs to determine whether the download requests were successful. If the HTTP code was 200, 206, or 304, I determined that the user behind that IP address had successfully downloaded the 3.55 Firmware Jailbreak. If the HTTP code was 404, the user behind that IP address was unable to download the 3.55 Firmware Jailbreak. Sorted by date, the number of California IP addresses that downloaded or attempted
DECLARATION OF RYAN BRICKER IN SUPPORT OF PLAINTIFF SONY COMPUTER ENTERTAINMENT AMERICA LLC'S OPPOSITION TO DEFENDANT GEORGE HOTZ'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE - CASE NO. 11-cv-000167 SI

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to download the 3.55 Firmware Jailbreak from < geohot.com> follows: · 1/8/2011 ­ 1/12/2011: 6,001 unique California residents requested the Jailbreak (276 were unsuccessful, 5,725 were successful downloads) · 1/13/2011 ­ 1/27/2011: 8,140 unique California residents requested the Jailbreak (449 were unsuccessful, 7,691 were successful downloads) · 1/28/2011 ­ 3/7/2011: 3,236 unique California residents requested the Jailbreak (all 3,236 were unsuccessful downloads) Fourteen of these download requests came from IP addresses in Foster City, California. Because it is possible that these download requests were initiated by SCEA employees, I excluded these results. Further, I excluded the two 3.55 Firmware Jailbreak download requests initiated by SCEA's counsel. Subtracting these sixteen download requests, since Hotz posted the 3.55 Jailbreak a total of 17,361 California residents requested to download the file, and 13,400 California residents successfully downloaded the Jailbreak. 11. Since mid-January 2011, Kilpatrick Townsend & Stockton LLP ("Kilpatrick

Townsend") has engaged in enforcement efforts to limit the trafficking of various circumvention devices relating to PlayStation®3 computer entertainment system ("PS3 System") that have been distributed via the Internet since Hotz released his 3.55 Jailbreak and other circumvention devices. 12. From mid-January to date, Kilpatrick Townsend has sent takedown notices to

an array file hosts. Also as a result of our enforcement efforts we have noted hundreds of listings originating in the San Francisco Bay Area offering installation of PS3 circumvention devices through online marketplaces. 13. Attached hereto as Exhibit I is a true and correct copy of an article titled,

"Playstation cracked wide open", dated January 25, 2010, by Dan Goodin for The Register, an online tech publication whose US operation is based in San Francisco, CA. Dan Goodin, reporting from San Francisco, CA, writes in the article that George Hotz has "penetrate[ed] the previously impervious PlayStation 3 gaming console." The article also includes the following direct quotes from by George Hotz:
DECLARATION OF RYAN BRICKER IN SUPPORT OF PLAINTIFF SONY COMPUTER ENTERTAINMENT AMERICA LLC'S OPPOSITION TO DEFENDANT GEORGE HOTZ'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE - CASE NO. 11-cv-000167 SI

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"Basically, I used hardware to open a small hole and then used software to make the hole the size of the system to get full read/write access."

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"Right now, although the system is broken, I have great power. I can make they [sic] system do whatever I want."

14.

As a result of Hotz's hacking efforts, consumers and third party game

developers have complained that individuals are using "hacked" PS3 Systems to cheat during online gameplay, thereby damaging the integrity and fairness of multiplayer video games, compromising the security of some users' PSN accounts, and harming SCEA's reputation and goodwill with its consumers and third party game developers. Attached hereto as Exhibit J are true and correct copies of the following articles reporting examples and magnitude of individuals using "hacked" PS3 Systems to cheat during online gameplay, and the resultant harm to SCEA: · Top 5 Reasons Hackers are Hurting the Sony Community, Not Helping, by Steve Kohlbecker, published on February 18, 2011, at <http://loot-ninja.com>, describing how Hotz's hack is damaging the PlayStation 3 gaming community. · How to share Platinum Trophys, by "mzil", published on January 10, 2011, at <http://nextgenupdate.com>, instructing forum readers how to cheat using "Geohot 3.55 CFW". This is redacted to remove user ID. · PS3 set for a lot of piracy, by "Sean", published on January 14, 2011, at <http://realtalkgaming.com>, summarizing game developer Martin Walfisz's concerns that "due to the nature of the [Hotz] breach, . . . Sony will struggle to detect which consoles are running illegally pirated content" thereby making the hack difficult to stop. · PS3 Piracy Could Eclipse PSP, by Martin Robinson, published on January 14, 2011, at <http://ign.com>, quoting game developer Martin Walfisz, who explained, "I would assume that pirated copies can be stored on the HDD as well making it so easy to use that PS3 piracy, given time, might even surpass the handhelds." · PS3 "Trophy Unlocker" threatens to break Trophy system, by Debabrata Nath,

DECLARATION OF RYAN BRICKER IN SUPPORT OF PLAINTIFF SONY COMPUTER ENTERTAINMENT AMERICA LLC'S OPPOSITION TO DEFENDANT GEORGE HOTZ'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE - CASE NO. 11-cv-000167 SI

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published on January 14, 2011, at <http://vg247.com>, reporting a new homebrew app called "PS3 Unlocker" that allows "users running custom firmware to achieve 100 percent completion in any game and unlock all the trophies in the process." The article says: "All this is the result of George `Geohot' Hotz completely hacking the PS3 by exposing its security keys . . . earlier this month." Will PS3 Trophy Unlcok Hack Render Game Incentives Useless?, Anthony Taormina, published on January 14, 2011, at <http://gamerant.com>, expressing concern of the PS3 hack that unlocks trophies will spoil the incentives to compete fairly in online gaming through the PS3 community. Attached hereto as Exhibit K are true and correct copies of articles published at

<ihackintosh.com> and <gamesradar.com> reproducing screen captures of Twitter messages posted by Hotz using the Twitter account "geohot." The messages read "fine, one tweet... i just hacked the PS3... http://geohotps3.blogspot.com" and "PS3 exploit released... good luck community http://geohotps3.blogspot.com" respectively. 16. Within 24 hours of releasing his jailbreak, Hotz's circumvention devices had lead

to video game piracy. Attached hereto as Exhibit L is a true and correct copy of a forum thread titled "Geohot: Full 3.55 CFW Jailbreak Is Working!", posted on January 7, 2011. On this page, there is a direct link to George Hotz's YouTube video (See Docket No. 28, ¶25, Exh. W) as well as an embedded excerpt of a chat session with George Hotz (operating under the moniker "geohot"). This exhibit is Highly Confidential and Filed Under Seal. Also attached in Exhibit L is a true and correct copy of this embedded chat text. Additionally, attached hereto as Exhibit M is a true and correct copy of a How To guide: "Jailbreak PS3 Running 3.55 Firmware [Guide]", published on January 9, 2011. This exhibit is Highly Confidential and Filed Under Seal. Also, attached hereto as Exhibit N is a true and correct copy of a forum entry titled "Full Backup Working on Geohot CFW 3.55," providing instructions of how to play copied, pirated games using the code distributed by George Hotz. The page was accessed on January 10, 2010. This exhibit is Highly Confidential and Filed Under Seal. 17. Attached hereto as Exhibit O is a true and correct copy of an article published by

DECLARATION OF RYAN BRICKER IN SUPPORT OF PLAINTIFF SONY COMPUTER ENTERTAINMENT AMERICA LLC'S OPPOSITION TO DEFENDANT GEORGE HOTZ'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE - CASE NO. 11-cv-000167 SI

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BBC news reporting Hotz's efforts to hack the PS3 System, titled "iPhone hacker publishes secret Sony PlayStation 3 key", published on January 5, 2011. 18. Attached hereto as Exhibit P is a true and correct copy of a blog post titled

"OtherOS Supported on 3.21OO" published by Hotz on April 7, 2010, and the corresponding comments. Approximately one week after Hotz published the post, a user named "someguy" posted a comment referencing SCEA. Later that same day, a user with the handle "us.playstation.com" posted corporate information from SCEA's website (http://us.playstation.com/corporate/about/theplaystationstory/), then continued to post multiple excerpts from the Terms of Service and User Agreement for the PSN (http://us.playstation.com/support/useragreements/ps_playstation_network_nov_07.html), which repeatedly references SCEA. Hotz also actively participated in the comment section of this blog entry, posting six comments himself. Due to the large size of the original document, I have omitted irrelevant pages and highlighted relevant text. This exhibit is Highly Confidential and Filed Under Seal. 19. Attached hereto as Exhibit Q are true and correct copies of blog posts titled

"Legal Defense Fund" and "First round of donations is closed" published by Hotz, and touting the success of his legal defense fundraising requests. 20. Attached hereto as Exhibit R is a true and correct copy of PlayStation's website,

at <http://us.playstation.com/corporate/about/>, stating: "Sony Computer Entertainment America LLC (SCEA) is responsible for keeping PlayStation® growing and thriving in the United States, Canada and Latin America. Based in Foster City, California, SCEA serves as headquarters for all North American operations and is a wholly owned subsidiary of Sony Corporation of America Inc." 21. Attached hereto as Exhibit S is a true and correct copy of an email sent by

Michael Grennier of The Intelligence Group on March 17, 2011, explaining that hard drives without controllers are unusable. 22. Attached hereto as Exhibit T is a true and correct copy of a forum thread on

<http://psx-scene.com>, including a post published by Hotz under the username "geohot" on
DECLARATION OF RYAN BRICKER IN SUPPORT OF PLAINTIFF SONY COMPUTER ENTERTAINMENT AMERICA LLC'S OPPOSITION TO DEFENDANT GEORGE HOTZ'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE - CASE NO. 11-cv-000167 SI

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January 2, 2011, announcing that certain circumvention devices, including the Metldr Keys, are available at his website, and posting a link to the <geohot.com> site. This exhibit is Highly Confidential and Filed Under Seal. 23. Attached hereto as Exhibit U is a true and correct copy of a blog post published

by Hotz on January 23, 2010, at <geohotps3.blogspot.com> titled "Hello hypervisor, I'm geohot", and explaining that Hotz had gained "read/write access to the entire system memory." Hotz encourages readers to "follow @geohot on twitter". Comments in response to the blog post appear below the text, some indicating that Hotz received online financial donations, including the following: adminsaid... i love u man!!!!!!! i really am! we are waiting to play all the ps3 games atleastt! i will donate u January 23, 2010 6:44 AM CSCsaid... i agreed on donation to Geohot !!! January 23, 2010 7:45 AM Kirillersaid... Thanks GeoHot, substantial donations are coming to you, dont even think of sharing the info or taking any bribe from sony, people will offer far much greater amount and satisfaction then sony ever will :) Keep it on the downlow, so it dosnt get patched or f*cked with, we dont want to end up at ground 0 once again after so many years. Cheers to you buddy. January 23, 2010 9:02 AM I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on March 18, 2011, at San Francisco, California.

__/s/ Ryan Bricker_______________ Ryan Bricker
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DECLARATION OF RYAN BRICKER IN SUPPORT OF PLAINTIFF SONY COMPUTER ENTERTAINMENT AMERICA LLC'S OPPOSITION TO DEFENDANT GEORGE HOTZ'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE - CASE NO. 11-cv-000167 SI

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