20110413_Settlement-hotz.pdf

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Case3:11-cv-00167-SI Document127
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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
San Francisco, CA 94111
Telephone: (415) 576-0200
Facsimile: (415) 576-0300
Email: jgilllandcækilpatricktownsend.com
tcahncækilpatricktownsend .com
mboroumandcækilpatricktownsend .com
hgaudreaucækilpatricktownsend .com
rbrickercæ kilpatricktownsend .com
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Attorneys for Plaintiff
SONY COMPUTER ENTERTAINMENT AMERICA LLC
UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF CALIFORNIA
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,
Plaintiff,
v.
FINAL JUDGMENT UPON CONSENT
AND PERMANENT INJUNCTION
Judge: Hon. Susan IIlston
GEORGE HOTZ; HECTOR MARTIN
CANTERO; SVEN PETER; and DOES
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
Case3:11-cv-00167-SI Document127
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I. STIPULATED FACTS
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
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. §
1030, et seq., the California Comprehensive Computer Data Access and Fraud Act, CaL.
Penal Code § 502, et seq., induced copyright infringement and engaged in breach of
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
referred to collectively herein as lithe Parties."
On January 27, 2011, the Court entered a temporary restraining order against
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
so, and trafficking in circumvention devices. (Docket Nos. 50 and 51) On February 28,
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
Improper Venue (Docket No. 57), which has yet to be decided.
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On March 31,2011, Hotz met with SCEA representatives and the Parties entered
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
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
bear its own fees and costs in connection with this action. The Parties further agree that
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.
II. STIPULATED DEFINITIONS
1. For purposes of the Order below, SCEA AFFILIATES shall mean Sony
FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION
CASE NO.
11-cv-000167 SI
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Case3:11-cv-00167-SI Document127
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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
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
Affiliate but is not listed in this definition and does not have Sony in its name, SCEA wil
provide Hotz with notice of the name of that company.
2. For purposes of the Order below, SONY PRODUCT shall mean any product
or service of SCEA or SCEA AFFILIATES that bears the Sony, PlayStation or PlayStation
Network ("PSN") name, mark or brand. SONY PRODUCT does not include those products
or services created or sold by companies which have been acquired by SCEA or SCEA
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
company rebrands the product or service with the Sony, PlayStation or PSN name, mark
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
Sony products or services that do not bear the Sony, PlayStation or PSN name, mark or
brand and that SCEA wishes to be treated as a Sony Product for purposes of this
Permanent Injunction and Consent Judgment, SCEA wil specifically identify those
products or services and provide notice to Hotz.
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,
remove, deactivate, or impair, regardless of the alleged purpose of the Circumvention.
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4. For purposes of the Order below, TECHNOLOGICAL PROTECTION
MEASURES or TPMs shall mean anything whatsoever, including but not limited to any
code, device, information, encryption or key that prevents access to, downloading of,
distributing, or copying of any confidential or proprietary information or any softare code
or other copyrighted materiaL.
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III
FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION
CASE NO.11-cv~000167 SI
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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
components or parts thereof that circumvents any of the TPMs or security in any SONY
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PRODUCT.
6. For purposes of the Order below, TRAFFICKING shall mean any means of
distributing or sharing, including but not limited to offering to the public, posting online or
on or in any media accessible by anyone, marketing, advertising, promoting, installing,
distributing or otherwise providing to anyone. TRAFFICKING shall also include knowingly
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
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,
marketing, directly advertising or promoting, installing, importing, exporting, offering to the
public, distributing, posting or otherwise providing any CIRCUMVENTION DEVICE.
II. ORDER
IT IS HEREBY ORDERED AND ADJUDGED by consent of the Parties that Hotz,
whether as an individual or as a principal, officer, director or employee of any business
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
this Judgment, shall be and hereby are permanently enjoined and restrained from:
A. Engaging in any unauthorized access to any SONY PRODUCT under the
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law;
B. Engaging in any unauthorized access to any SONY PRODUCT under the
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terms of any SCEA or SCEA AFFILIATES' license agreement or terms of use
applicable to that SONY PRODUCT, whether or not Hotz has accepted such
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agreement or terms of use, including without limitation:
(i) reverse engineering, decompiling, or disassembling any portion of the
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FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION
CASE NO. 11-cv-000167 SI
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Sony Product;
(ii) using any tools to bypass, disable, or circumvent any encryption,
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security, or authentication mechanism in the Sony Product;
(iii) using any hardware or softare to cause the Sony Product to accept
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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.
If any term of such SCEA or SCEA Affilates' license agreement or terms of
use applicable to that Sony Product shall be determined by Congress or by a
court of law in a final non-appealable decision in an action to which SCEA or
an SCEA Affiliate is a party to be illegal and unenforceable, then such term
shall not be binding on Hotz.
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C. CIRCUMVENTING any of the TPMs or security in any SONY PRODUCT;
D. TRAFFICKING in any technology, product, service, device, component, or
part thereof that, at the time of Hotz's trafficking, circumvents any of the
TPMs or security in any SONY PRODUCT, including but not limited to the
Ellptical Curve Signature Algorithm ("ECDSA") Keys, encryption andlor
decryption keys, dePKG firmware decrypter program, Signing Tools, 3.55
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
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;
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F. Knowingly assisting or inducing others to engage in any of the conduct set
forth in A-E above solely directed at any SONY PRODUCT or that otherwise
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constitutes contributory liabilty under the law.
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
CASE NO. 11-cv-000167 SI
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