Another update on the Sony issue

Yesterday we received a letter from Sony’s attourneys asking us to disable access to a list of projects hosted on gitorious.org. The letter claims that the repositories in question provide circumvention of effective protection mechanisms built into Sony’s PlayStation 3, which would be illegal according to Norwegian law. Furthermore, Gitorious would be subject to direct liability under Norwegian Copyright law if we were to provide access to content that is unlawful under Norwegian law. By not taking action when notified of content that may be in violation of the law, we could be charged with gross negligence – which would mean that we are no longer protected by “ehandelsloven”s regulations for service providers such as Gitorious.

This leaves us with no other options than to comply with Sony’s demands and take down the content.

We are by no means comfortable with the situation, and would love to see Sony’s claims tried in a Norwegian court; especially taking into account the fact that the Norwegian Consumer Council finds Sony’s removal of the “Other OS” feature from the PS 3 to be in violation of Norwegian consumer law. However this is not a fight we’re in a position to take.

In consequence, we have disabled access to the projects listed in Sony’s letter, and have notified the owners of these repositories of this. We replied to Sony’s attourneys with the following email:

Thank you for your email of February 22, 2011.

In order to not be subject to direct liability under the Norwegian Copyright Act, we have disabled access to the projects listed in your letter.

Due to your short notice, we have not been able to investigate the legality of the projects in question. We kindly ask that you provide more detailed information about how you feel the source code repositories violate the Norwegian Copyright Act.

Such information should include:
– the URL of any repository that is claimed to be unlawful

- file names and line numbers of files that are unlawful

- a description of how the algorithms/functions in the above mentioned files/line numbers circumvent effective technological protection measures

This information will give the users who have published the source code on gitorious.org the opportunity to change their source code so that it no longer violates Norwegian law.

Kind regards,

Marius Mathiesen, Gitorious AS

25 Comments

  1. G0l3m
    Posted February 24, 2011 at 7:31 pm | Permalink

    The more i read about sony lawers the more i could puke. Copyright was not invented to sue someone…

  2. Posted February 24, 2011 at 7:32 pm | Permalink

    This is unfortunate. I understand your position though, and I believe everyone appreciates your services so far.
    It’s however contradictory to the previous post you made about not complying to Sony until they actually prove that the code is unlawful and that they would need to provide specific files+lines of ‘infringement’. But I understand the liability issue and thank you for explaining it to us.
    I hope this is resolved soon though and that SCEA will understand that they cannot stop freedom of speech and that they cannot simply shut down any project that they don’t like using false claims.

    Thank you for the update.
    KaKaRoTo

  3. Wargio
    Posted February 24, 2011 at 7:42 pm | Permalink

    which line are illegal?
    ps3-sfo-editor and ps3-star are completely legals, the same for all my repos

  4. Lav0s
    Posted February 24, 2011 at 7:46 pm | Permalink

    remember that acording to law, after you ask for proof of violations, if that arent submitted in a time oy your choose gitorius, you are entitled to return access to the blocked content and also can press charges for the issue, so if already there is the issue of otheros, why not, press the charges and start a little fightback.

  5. Posted February 24, 2011 at 7:59 pm | Permalink

    Ah, something to note, the Norwegian law prohibits :
    “circumvent[ion of] effective technological protection measures that the right holder, or others he has given permission, employs to control the copying or making available to the public of a protected work.”
    But what they fail to mention is that there is no code there that circumvents a TPM that “controls the copying or making available to the public of a protected work”, the only thing it allows is the access to our legally owned PS3 computer. How is accessing your computer in any way related to “copying or making available to the public” any of their copyrighted work ?
    That Norwegian law is very specific to the decryption of DVDs or such, but it’s completely unrelated to the current case, the PS3 in itself has *absolutely NO* TPM that prevents the copying of games, and as such, there are no TPMs that are circumvented by any of those projects.
    The *only* protection the PS3 has is that it prevents you from running your own applications on the machine (homebrew), and that has absolutely nothing to do with “copying or making available to the public copyrighted work”.

    Agreed?
    KaKaRoTo

  6. wargio
    Posted February 24, 2011 at 8:10 pm | Permalink

    i agree with KaKaRoTo!

  7. Shadow
    Posted February 24, 2011 at 8:16 pm | Permalink

    There should be a time limit. If Sony doesn’t respond with valid legal claims, the projects should be reinstated with an apology letter and further requests from Sony should be ignored pending legitimate accusations and court documents.

    However, this is not a perfect world and Sony’s rather large reservoir of funds is more than capable of unethical bullying and harassment of innocent people through the courts, which they have proven themselves more than happy to do.

  8. wargio
    Posted February 24, 2011 at 8:29 pm | Permalink

    they are just trying to slow down us.. what they are doing is absurd..

  9. XwaitXwhatX
    Posted February 24, 2011 at 9:14 pm | Permalink

    It amazing how far Sony is going to try to stop something that is pretty much unstoppable especially with the files that graf_chokolo released yesterday and spread like wildfire.

  10. At0msk
    Posted February 24, 2011 at 9:22 pm | Permalink

    KaKaRoTo FTW!!!

  11. SnAkE
    Posted February 24, 2011 at 11:35 pm | Permalink

    Why is everyone getting all scared when Sony sends them DMCA they still have not proven what violates Norwegian law. So why do you guys keep cowarding to Sony and removing it with out them proving what it is that they are violating.

  12. Posted February 24, 2011 at 11:39 pm | Permalink

    @SnAkE:
    Because, as they explained :
    1 – The request was respective to Norwegian law, not about the DMCA.
    2 – They have to take action when they are *notified* of content that *may* be infringing.
    3 – It’s not their fight, why would they have to do anything more than they have already done ?

    Cut them some slack and thank them for their services so far.

    KaKaRoTo

  13. SnAkE
    Posted February 25, 2011 at 3:16 am | Permalink

    @KaKaRoTo

    Ya I understand its not there fight. Iam just glad we live in Canada. I dont think you need to worry at all about cops raiding you. Thanks for the explanation.

  14. Posted February 25, 2011 at 8:49 am | Permalink

    Guys, we totally understand that you’re frustrated. We’re every bit as uncomfortable with this situation as you are.

    We’re working on measures to better protect our users in the future. Stay tuned, we’ll post here whenever something relevant happens.

  15. Kirill
    Posted February 25, 2011 at 9:27 am | Permalink

    It’s good gitorious is careful in this situation. Disabling access and not nuking content is good.
    § 53a in the copyright act is not for computer programs – it’s for music, video, whatnot. For computer programs § 53c forbids sale or possession for gain. Gitorious’ users do not sell or possess this stuff for gain, do they?
    There’s also a prohibition in the criminal code 145b which might be applicable, although I haven’t considered it heavily.
    I’ve never owned a PS3 or other game console, so I don’t know what exactly the “hacks” do.
    Anyway, I feel Sony goes too far. But don’t quote me on that.

  16. Gert
    Posted February 27, 2011 at 3:43 am | Permalink

    Well, this is CLEARLY outside the scope of 53c – Even a pretty drunk third year law student can tell that at 04:20 in the morning. Are they even serious? I am starting to think they have used google translate and a half-witted intern to write these letters.

    Because there is simply NO WAY 53c could at all be relevant in this case, and any native speaking Norwegian would understand that simply by reading the pharagrah.

    Jailbreaking is not for the “sole purpose” of pirating games – Sony knows this very well, and any Norwegian lawyer would never think to even mention 53c in this case at all.

    I can’t believe “KILPATRICK TOWNSEND & STOCKTON LLP” are so extremely unprofessional – although they did not bother to reply at all the mail I sent them after their last DMCA-frenzy to warn them that they were in fact comitting perjury, and that they should seek third party techincal counselling, so I guess they are pretty fine lying to everyone. For the record, it was a formal mail with impeccable politeness. I hope from the bottom of my heart that they are shut down when Sony looses this game they are playing. This is not what the DMCA is for, and KILPATRICK TOWNSEND & STOCKTON LLP (Sorry for the caps, cant bother retyping their name instead of copypasting it) should know fully well that they are on thin ice, or indeed that they have crossed the line long ago.

    It is this blatant disregard for the law that makes the public have such a low opinions of lawyers – and who can blame them, when so many of them volunteers as not men of the law, bet mere henchmen and torpedoes, wreaking financial havoc instead of physical injury upon whomever displeases their paycheck-signee this week? It saddens a law student, I can tell you that, even though I’m (luckily) not going to ever practice in your stinking swamp of bought-and-paid-for common-law-system.

    Back to the matter at hand: While this case can be problematic in regards to § 53a, the paragraph does NOT concern any homebrew games, NOR ANY homebrew tools NOT related to signing or the playing of “backup games”.

    Ie. psl1ght toolchain, homebrew games etc, etc. are NOT illegal by any of the paragraphs Sony quotes.

    @kakaroto: The requirement of an app to be signed can in itself be viewed as a copyright protection instrument, because it DOES prevent third party apps to facilitate piracy on the concole.

    Now, I don’t say it IS illegal after Norwegian law, I just say it *might be*. As for the stuff mentioned above, there’s no question about it: They are NOT illegal by any of the paragraphs Sony claims they are infringing.

    While it is fun, in some bizarre way, to see such a big company like Sony make such an utterly legal joke of itself, I’m starting to have problems taking them serious at all. (There is a difference between being evil and being so useless its laughable.) This is just all too clearly a pitiful effort.

    Oh, and Gitorious, It’d be really nice of you to concider keeping hosting the repos until deemed illegal in court. As Sony so far has blatantly lied to you and not conformed to any of your guidelines for infringment claims, it’s not like you are (realisticly) risking anything. At least not until you get a letter from a Norwegian law firm with any clue at all about Norweigan law….

  17. Kirill
    Posted February 27, 2011 at 4:22 pm | Permalink

    Gert: § 53c governs protection of computer programs and depending on what the “hacks” do it might very well be applicable. So it’s not as clear as you say. Also, I think students may choose copyright as a study topic on their latest year, not third year.
    I’ve digged a bit and it seems that § 53c is just like § 53a, but for computer programs (like games are). In this PS3 case, users do not use the “hacks” to remove protections from the games, but rather open up the device itself. No copyright infringements here. Again, I don’t know the details about what the tools/SW in question do – for what I know, they may include SONY proprietary code and then they should not be distributed.
    But speaking about contributory infringement of copyright is to go too far. But again, it’s good Gitorious acts cautionally.

    • xPreatorianx
      Posted March 4, 2011 at 10:19 pm | Permalink

      Most of the projects do not contain Sony code. Which is why they are hosted as open source. People have rewritten everything from the ground up replicating tools they need. Same thing they did in the PS2 scene. Took the tools that were available, and then designed their own replicating the tools routines.

      • xPreatorianx
        Posted March 4, 2011 at 10:23 pm | Permalink

        So while the tools replicate what sony’s tools do they do not infringe copyright. But I could be wrong.

        But if I am then Opensource SDK’s like PSlight are infringing even though they are completely written from the ground up without sony code. They are merely replicating what the original does.

  18. Posted February 28, 2011 at 2:18 am | Permalink

    This is just plain ridiculous, Sony and these other monsters always trying to monopolize the industry with their absurd rules.

  19. Gert
    Posted February 28, 2011 at 3:40 pm | Permalink

    Kirill: § 53c is not applicable becausde it states that it is illegal to have or distribute “et hvilket som helst middel hvis *eneste formål* er å gjøre det lettere ulovlig å fjerne eller omgå tekniske innretninger til beskyttelse av et datamaskinprogram” Note “eneste formål”, (which means “sole purpose”, to you non-Norwegians.)

    It is quite clear that it is not the “sole purpose” of CFW or many of the other hacks is to circumvent copyright protection – this argument could ONLY be made against the backup managers.

    While I agree with your assesment of most PS3 hacks and tools not violating § 53a either, this paragraph does not contain the same wording (“sole purpose”) as § 53c, and thus I won’t simply state as a fact that it *couldn’t* be in violation of § 53a. I will state that as a fact when it comes to § 53c though, even if you are quite correct when you say copyright is a fourth year subject.

    Maybe I will even have time next week to look a buit more thoroughly into both § 53c and § 53a, even though I) don’t belive there are mucgh relevant verdicts there might be something in the pretexts (or whatever the english word for “forarbeider” is).

  20. Posted March 4, 2011 at 9:36 pm | Permalink

    @ Marius Mathiesen :
    So far, we haven’t seen any answer from Sony, how come they give you less than 24 hours to comply, but they fail to respond to you in a timely manner?
    If Sony does not reply and give you the proper proof of their alleged infringement, or at least, answer your request about which TPM is circumvented and which files/lines of code are affected by that, then I believe you are allowed to restore the git repositories after 14 days.

    Thank you,
    KaKaRoTo

  21. xPreatorianx
    Posted March 4, 2011 at 10:21 pm | Permalink

    @KaKaRoTo

    In all honesty I believe gitorious are just gonna comply. Even though Sony aren’t showing any proof besides the standard equivalent of a DMCA.

    So the repo’s should be put back in place, but they probably won’t.

  22. Kirill
    Posted March 21, 2011 at 7:25 pm | Permalink

    Any news here?

  23. Martijn
    Posted March 28, 2011 at 3:40 pm | Permalink

    I too am wondering when Gitorious will re-enable the affected repositories. Its fine if you disable a repo because is *may* be illegal but that doesn’t mean Sony doesn’t have to prove its claim.

    Might I suggest you use the following tactic to deal with situations like these in the future?

    1. Infringement claim received from the likes of Sony.

    2. Temporarily disable listed repos

    3. Respond to claimant (in this case Sony) that listed repos were disabled temporarily. Also give them 5 working days to respond with proof that legal action has been started against repo owners.

    4. If no proof of legal action has been given, re-enable the repo after the said 5 working days.

    5. If legal action has been started against repo owners by claimant, keep the repo disabled until outcome of court case.

    6. If the court case favors claimant (in this case Sony), remove repo permanently.

    7. If the court case favors repo owner, re-enable repo and inform claimant (in this case Sony) that repo has been re-enabled and won’t be disabled ever again unless repo owner has been convicted in a new court case.

    That way Gitorious would be covered, the procedure is clear to everyone involved and it is fair to both Sony as well as the repo owner.


One Trackback

  1. By » Why Sony is Evil @ badocelot's gloomy coffin on June 29, 2011 at 12:13 am

    [...] However, more recently Sony has been attempting to shut down efforts to jailbreak the PS3 by suing anybody distributing the newest hacks, which are based on Sony’s poor use of cryptography rather than a bizarre side-effect of sending an electrical pulse to the right node at the right time[1].  Gitorious, a site that hosts Free Software projects, was sent DMCA takedown notices regarding hosted copies of the PS3 hack, despite the fact that they are in Norway where the DMCA does not apply (Sony eventually corrected its insensitivity to international differences and submitted the appropriate complaints). [...]

Follow

Get every new post delivered to your Inbox.

Join 811 other followers

%d bloggers like this: