Sony Computer Entertainment America LLC v. Hotz et al

Filing 127

STIPULATION TO FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION by Sony Computer Entertainment America LLC. (Gilliland, James) (Filed on 4/11/2011)

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KILPATRICK TOWNSEND & STOCKTON LLP
JAMES G. GILLILAND, JR. (State Bar NO.1 07988)
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

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Telephone: [phone]

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Email: jgilllandcækilpatricktownsend.com

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San Francisco, CA 94111
Facsimile: [phone]

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tcahncækilpatricktownsend .com
mboroumandcækilpatricktownsend .com
hgaudreaucækilpatricktownsend .com

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rbrickercæ kilpatricktownsend .com

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Attorneys for Plaintiff
SONY COMPUTER ENTERTAINMENT AMERICA LLC

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UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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SONY COMPUTER ENTERTAINMENT
AMERICA LLC, a Delaware limited

CASE NO. 11-cv-000167 SI

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liabilty company,

FINAL JUDGMENT UPON CONSENT
AND PERMANENT INJUNCTION

Plaintiff,

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Judge: Hon. Susan IIlston

v.

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GEORGE HOTZ; HECTOR MARTIN
CANTERO; SVEN PETER; and DOES

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1 through 100,

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Defendants.

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FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION

CASE NO. 11-cv-000167 SI

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I. STIPULATED FACTS

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On January 11, 2011, Plaintiff Sony Computer Entertainment America LLC

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("SCEA") filed its Complaint against Defendant George Hotz ("Hotz") and others. SCEA

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alleges that Hotz and others have violated the Digital Millennium Copyright Act ("DMCA"),

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17 U.S.C. § 1201, et seq., the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. §

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1030, et seq., the California Comprehensive Computer Data Access and Fraud Act, CaL.

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Penal Code § 502, et seq., induced copyright infringement and engaged in breach of

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contract, tortious interference with contractual relations, common law misappropriation

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and trespass. (Docket No.1) Hotz denies these allegations. Hotz and SCEA are

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referred to collectively herein as lithe Parties."

On January 27, 2011, the Court entered a temporary restraining order against

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Hotz enjoining him from circumventing the technological protection measures ("TPMs") in

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the PlayStation~3 computer entertainment system ("PS3 System"), inducing others to do

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so, and trafficking in circumvention devices. (Docket Nos. 50 and 51) On February 28,

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2011, the Court entered a preliminary injunction. (Docket No. 87)
Hotz has disputed personal jurisdiction by this Court over him in this action and on

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February 2,2011, filed a Motion to Dismiss for Lack of Personal Jurisdiction and

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Improper Venue (Docket No. 57), which has yet to be decided.

On March 31,2011, Hotz met with SCEA representatives and the Parties entered

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a confidential Memorandum of Understanding, agreeing to settle the dispute between

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them. As a part of that settlement, SCEA and Hotz have agreed to the entry of this Final

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Judgment Upon Consent and Permanent Injunction ("Judgment" upon the stipulated

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facts. Each party has waived the right to appeal from this Judgment. Each party wil

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bear its own fees and costs in connection with this action. The Parties further agree that

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any violation of this Judgment by Hotz would cause irreparable harm to SCEA and, if

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such a violation occurs, SCEA wil be entitled to immediate relief.

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II. STIPULATED DEFINITIONS
1. For purposes of the Order below, SCEA AFFILIATES shall mean Sony

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FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION
11-cv-000167 SI

CASE NO.

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Corporation and all companies owned or controlled by Sony Corporation or SCEA,

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including but not limited to, Sony Corporation of America, Sony Electronics Inc., Sony

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Computer Entertainment Inc., Sony Computer Entertainment Europe, Sony Network

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Entertainment America, and Sony Ericsson. To the extent that a company is an SCEA

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Affiliate but is not listed in this definition and does not have Sony in its name, SCEA wil

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provide Hotz with notice of the name of that company.

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2. For purposes of the Order below, SONY PRODUCT shall mean any product

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or service of SCEA or SCEA AFFILIATES that bears the Sony, PlayStation or PlayStation

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Network ("PSN") name, mark or brand. SONY PRODUCT does not include those products

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or services created or sold by companies which have been acquired by SCEA or SCEA

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AFFILIATES, which products or services were on the market prior to acquisition by SCEA

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or SCEA AFFILIATES. However, once SCEA, SCEA AFFILIATES or the acquired

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company rebrands the product or service with the Sony, PlayStation or PSN name, mark

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or brand, then the product or service that bears the Sony, PlayStation or PSN name, mark

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or brand shall thereafter constitute a SONY PRODUCT. To the extent that there are any

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Sony products or services that do not bear the Sony, PlayStation or PSN name, mark or

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brand and that SCEA wishes to be treated as a Sony Product for purposes of this

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Permanent Injunction and Consent Judgment, SCEA wil specifically identify those

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products or services and provide notice to Hotz.

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3. For purposes of the Order below, CIRCUMVENTING or CIRCUMVENT shall

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mean using any means whatsoever to descramble, decrypt, or otherwise avoid, bypass,

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remove, deactivate, or impair, regardless of the alleged purpose of the Circumvention.

4. For purposes of the Order below, TECHNOLOGICAL PROTECTION

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code, device, information, encryption or key that prevents access to, downloading of,

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distributing, or copying of any confidential or proprietary information or any softare code

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or other copyrighted materiaL.

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MEASURES or TPMs shall mean anything whatsoever, including but not limited to any

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FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION
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5. For purposes of the Order below CIRCUMVENTION DEVICE shall mean any

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circumvention technology, product, service, method, softare, tool, device, or any

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components or parts thereof that circumvents any of the TPMs or security in any SONY

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PRODUCT.

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6. For purposes of the Order below, TRAFFICKING shall mean any means of

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distributing or sharing, including but not limited to offering to the public, posting online or

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on or in any media accessible by anyone, marketing, advertising, promoting, installing,

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distributing or otherwise providing to anyone. TRAFFICKING shall also include knowingly

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providing links from any website to any other webpage, specific location or listing that Hotz

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knows or reasonably should know is selling, offering for sale, marketing, directly

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advertising or promoting, installing, importing, exporting, offering to the public, distributing,

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posting or otherwise providing any CIRCUMVENTION DEVICE or to any website that Hotz

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knows or reasonably should know is predominantly focused on sellng, offering for sale,

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marketing, directly advertising or promoting, installing, importing, exporting, offering to the

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public, distributing, posting or otherwise providing any CIRCUMVENTION DEVICE.

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II. ORDER

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IT IS HEREBY ORDERED AND ADJUDGED by consent of the Parties that Hotz,

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whether as an individual or as a principal, officer, director or employee of any business

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entity, and his agents, servants, employees, distributors, suppliers, representatives and all

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other persons or entities acting in concert or participation with Hotz who receive notice of

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this Judgment, shall be and hereby are permanently enjoined and restrained from:

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A. Engaging in any unauthorized access to any SONY PRODUCT under the

law;
B. Engaging in any unauthorized access to any SONY PRODUCT under the

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applicable to that SONY PRODUCT, whether or not Hotz has accepted such

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agreement or terms of use, including without limitation:

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terms of any SCEA or SCEA AFFILIATES' license agreement or terms of use

(i) reverse engineering, decompiling, or disassembling any portion of the

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Sony Product;
(ii) using any tools to bypass, disable, or circumvent any encryption,

security, or authentication mechanism in the Sony Product;
(iii) using any hardware or softare to cause the Sony Product to accept

or use unauthorized, illegal or pirated softare or hardware; and
(iv) exploiting any Sony Product to design, develop, update or distribute

unauthorized softare or hardware for use with the Sony Product.

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If any term of such SCEA or SCEA Affilates' license agreement or terms of

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use applicable to that Sony Product shall be determined by Congress or by a

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court of law in a final non-appealable decision in an action to which SCEA or

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an SCEA Affiliate is a party to be illegal and unenforceable, then such term

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shall not be binding on Hotz.

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C. CIRCUMVENTING any of the TPMs or security in any SONY PRODUCT;

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D. TRAFFICKING in any technology, product, service, device, component, or

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part thereof that, at the time of Hotz's trafficking, circumvents any of the

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TPMs or security in any SONY PRODUCT, including but not limited to the

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Ellptical Curve Signature Algorithm ("ECDSA") Keys, encryption andlor

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decryption keys, dePKG firmware decrypter program, Signing Tools, 3.55

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Firmware Jailbreak, andlor any other technologies that enable unauthorized

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access to andlor copying of the PS3 System andlor enable compatibility of

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unauthorized copies of other copyrighted works with the PS3 System.

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E. Distributing or posting any SCEA or SCEA Affiliates' confidential or
proprietary information relating to any SONY PRODUCT;

F. Knowingly assisting or inducing others to engage in any of the conduct set

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forth in A-E above solely directed at any SONY PRODUCT or that otherwise

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constitutes contributory liabilty under the law.

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IT IS FURTHER ORDERED AND ADJUDGED that any violation of this Injunction
and Order by Hotz shall result in his payment of stipulated liquidated damages in the
FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION
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amount of ten thousand dollars ($10,000) per violation at the election of SCEA or SCEA's

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Affiliates. In the event that the violation involves distribution or TRAFFICKING by Hotz of

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softare, hardware, or any CIRCUMVENTION DEVICE, or knowingly assisting the same,

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each distribution of said softare (including downloads via the Internet), hardware, or

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CIRCUMVENTION DEVICE shall.constitute an independent violation, up to a cap of two

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hundred and fifty thousand dollars ($250,000). Such liquidated damages shall be an

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optional alternative to demonstrating actual or, if relevant, statutory damages.

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IT IS FURTHER ORDERED AND ADJUDGED that any action or proceeding (other

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than a declaratory judgment action) that may be brought by SCEA or SCEA Affilates

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against Hotz arising out of, in connection with or by reason of the Parties' Settlement

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Agreement or this Judgment or to enforce the terms and conditions of the Parties'

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Settlement Agreement or this Judgment, shall be brought in the United States District

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Court for the Northern District of California. The Parties further agree that any action or

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proceeding (other than a declaratory judgment action) that may be brought by Hotz against

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SCEA arising out of, in connection with or by reason of the Parties' Settlement Agreement

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or this Judgment or to enforce the terms and conditions of the Parties' Settlement

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Agreement or this Judgment, shall be brought in the United States District Court for the

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District of New Jersey or the state in the United States of Hotz's current permanent

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residence. The Parties agree to waive any venue or jurisdictional challenges consistent

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with this paragraph. The Parties further agree that the laws of the state of California shall

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govern to the exclusion of the law of any other forum in any action or proceeding brought

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by any party arising out of, in connection with or by reason of the Parties' Settlement

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Agreement or this Judgment or to enforce the terms and conditions of the Parties'

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Settlement Agreement or this Judgment.

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IT IS FURTHER ORDERED AND ADJUDGED that entry of this Judgment shall

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conclude this action to the prejudice of any and all claims or cross-claims deemed merged

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and barred in accordance with the law.

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The undersigned hereby stipulate to the above facts and conclusions and consent
FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION

CASE NO. 11-cv-000167 SI

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04/09/2011 01: 06 FAX [phone]

Legal

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to the entry of this Judgment, which may be signed in counterparts. Signatures can be

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obtained and exchanged by facsimile.

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IT IS SO STIPULATED.

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Respectfully submitted,

DATED: April 9, 2011

SONY COMPUTER ENTERTAINMENT AMERICA LLC

DATED: April 9, 2011

KILPATRICK TOWNSEND & STOCKTON LLP

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B; ZJ~QJ
'RI~SELL \"

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By:

JAMES G. GILLILAND, JR.

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Attorneys for Plaintiff
SONY COMPUTER ENTERTAINMENT AMERICA LLC

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DATED: April '9,2011

By:

GEORGE HOTZ

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E-ttorney at Law™

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DATED: April

9, 2011

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STEWART R. KELLAR

Attorney for Defendant

GEORGE HOTZ

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By:

IT IS SO ORDERED.

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DATED:

HON. SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE

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FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION
CASE NO. 11-cv-000167 SI

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Apr 09 11 12:49a

5102327060

Jim Gilliland

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to the entry of this Judgment, which may be signed in counterparts. Signatures can be

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obtained and exchanged by facsimile.

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IT IS SO STIPULATED.

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Respectully submitted,

DATED: April 9, 2011

SONY COMPUTER ENTERTAINMENT AMERICA LLC

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By:

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RILEY R. RUSSELL

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DATED: April 9,2011

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By: .~f1

KiL~ & STOCKTON LLP
J MES G. L LAND, JR.

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Attorneys for Plaintiff
SONY COMPUTER ENTERTAINMENT AMERICA LLC

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DATED: April 9, 2011

By:

GEORGE HOTZ

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E-ttorney at Law™

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DATED: April 9,2011

STEWART R. KELLAR

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Attorney for Defendant

GEORGE HOTZ

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By:

IT IS SO ORDERED.

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DATED:
HON. SUSAN I LLSTON

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UNITED STATES DISTRICT JUDGE

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FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION

CAE NO. 11-cv-000167 51

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to the entry of this Judgment, which may be signed in counterparts. Signatures can be

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obtained and exchanged by facsimile.

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IT IS SO STIPULATED.

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Respectfully submitted,

DATED: April 9, 2011

SONY COMPUTER ENTERTAINMENT AMERICA LLC

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By:

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RILEY R. RUSSELL

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DATED: April 9, 2011

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KILPATRICK TOWNSEND & STOCKTON LLP
By:

JAMES G. GILLILAND, JR.

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Attorneys for Plaintiff
SONY COMPUTER ENTERTAINMENT AMERICA LLC

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DATED: April 9, 2011

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0/1 /7'
BY:~~
GEORG~~"
E-ttorneyat Law™

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DATED: April

9, 2011

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STEWART R. KELLAR

Attorney for Defendant
GEORGE HOTZ

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By:

IT IS SO ORDERED.

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DATED: tf¡ter~~!(
(

HON. SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE

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FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION
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