Court orders seizure of Ge0H0t's hacker's computers

[iamawesomewicked]

This part tells me you are probably not a real lawyer and say that for internet points

For you from the PS3 System Software EULA.

The EULA is not legally binding.

[Memphis]

The EULA is not legally binding.

I don't think you understand what you just read. Plus, in one courts interpretation that Duke posted it has been interpreted that violating the EULA is the same as for fitting your license to use the program, in essence, making you in direct violation of the DMCA.

[DukeEsquire]

This part tells me you are probably not a real lawyer and say that for internet points

For you from the PS3 System Software EULA.

Haha.

Right.

By reading this post, you agree to give me $1 million.

^Oh snap! Now you owe me $1 million!

That little clause is called, in technical terms, a "cover my ass" clause. Some clauses in a contract are put in just because it costs nothing to put in a sentence and there is a 0.000001% chance that maybe a judge would enforce it.

Think about it for just a split second. If Geohot's brother read the EULA and hit "I Agree", Geohot therefore would have never read that statement and you obviously can't agree to something that you never read.

It is called a "meeting of the minds." http://en.wikipedia.org/wiki/Meeting_of_the_minds

Another example of "cover my ass" clause are consent forms where you agree to all kinds of crazy things. Most of that will not be enforceable, but doesn't mean they can't try to stick it in. http://www.lawlawlandblog.com/2010/06/covering_your_jackass_lessons.html

It costs nothing and at a minimum, if someone tries to sue, your lawyer can write a nasty letter that says, "Well you agreed to X, Y and Z so too bad." If the guy isn't well informed, he'll just go away instead of trying to fight it.

The EULA is not legally binding.

EULA is generally binding. Why wouldn't it be? It's like any other contract. It is as binding as your credit card agreement is.

[Memphis]

Haha.

Right.

^Oh snap! Now you owe me $1 million!

That little clause is called, in technical terms, a "cover my ass" clause. Some clauses in a contract are put in just because it costs nothing to put in a sentence and there is a 0.000001% chance that maybe a judge would enforce it.

Think about it for just a split second. If Geohot's brother read the EULA and hit "I Agree", Geohot therefore would have never read that statement and you obviously can't agree to something that you never read.

It is called a "meeting of the minds." http://en.wikipedia.org/wiki/Meeting_of_the_minds

Another example of "cover my ass" clause are consent forms where you agree to all kinds of crazy things. Most of that will not be enforceable, but doesn't mean they can't try to stick it in. http://www.lawlawlandblog.com/2010/06/covering_your_jackass_lessons.html

It costs nothing and at a minimum, if someone tries to sue, your lawyer can write a nasty letter that says, "Well you agreed to X, Y and Z so too bad." If the guy isn't well informed, he'll just go away instead of trying to fight it.

EULA is generally binding. Why wouldn't it be? It's like any other contract. It is as binding as your credit card agreement is.

Are you making an argument to call all EULA's containing this phrase invalid under the law? Back this one up, your going to need to. Their is not a signal copyrighted programs EULA that does not contain this phrase. You have made zero attempt to validate this.

By installing, copying, or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install or use the SOFTWARE PRODUCT.

Many idiots on the internet propagate this lunacy. The very use of software is an agreement to be bound by the EULA. Their is not a single EULA without this wording that I have read. Again, are you saying this phrase is invalid and that therefore all EULA's are invalid and that you are smarter than the lawyers that wrote said EULA's? Cite a precedent case or show with sources how this section of an EULA is illegal.

[DukeEsquire]

Are you making an argument to call all EULA's containing this phrase invalid under the law? Back this one up, your going to need to. Their is not a signal copyrighted programs EULA that does not contain this phrase. You have made zero attempt to validate this.

If you bothered to read my post, I said there was a tiny chance a judge could enforce it. I'm not saying a judge or jury won't enforce it. I'm saying the chances are very slight.

Many idiots on the internet propagate this lunacy. The very use of software is an agreement to be bound by the EULA. Their is not a single EULA without this wording that I have read. Again, are you saying this phrase is invalid and that therefore all EULA's are invalid and that you are smarter than the lawyers that wrote said EULA's? Cite a precedent case or show with sources how this section of an EULA is illegal.

You are only bound by use if you read it. If you don't read that you are bound by use, then how can you ever agree?

There is precedent that mere action does not automatically lead to agreement to the EULA. For example, in Specht v. Netscape Communications Corp, the plaintiff argued that since their EULA stated that downloading the software meant the user agreed to the EULA. The court said merely downloading, in this case, did not constitute agreement because the notice regarding the EULA was not obvious.

Just to humor you, I did a Lexis search for any cases involving the EULA that has the words "use only", "enforc!", "agree" and found no a single case where use alone constituted agreement. The only cases I could find were cases where the defendant both USED and READ the EULA or had notice there was an EULA.

Thus, like I said before, if Geohot's brother had hit "I Agree", then Geohot may have never seen the EULA agreement and therefore one could argue that he is not bound by the EULA that he never saw.

More evidence?

Where's my $1 million? You read my earlier post, right? So where is my $1 million?

BTW, not to toot my own horn too much, but yeah, I think I'm smarter than whoever drafted the EULA language. I graduated from Duke University School of Law and I was an editor on my law journal. I work for a large firm and I am a M&A attorney. You think Sony actually pays a lot of money to get boilerplate EULA language? Heck no. They outsource stuff like that.

untitled.bmp

[DukeEsquire]

If you need further proof that lawyers will send threatening letter even if they know that they would never win the case in court, there is an article in the NYT discussing this very issue with respect to copyright law.

http://freakonomics.blogs.nytimes.com/2011/02/17/what-can-the-jeff-koons-lawsuit-teach-us-about-copyright-law-a-guest-post/

But thats the law on paper. The real world is different. As a result of lobbying by Hollywood and the recording industry, the law allows copyright owners at least those who have registered their works with the Copyright Office to win huge damages for successful copyright lawsuits. As a result, copyright owners have tremendous leverage to coerce potential defendants to stop engaging in conduct that may be perfectly legal. The cost of a lawsuit even a lawsuit that seems unlikely to succeed is just too great, unless the defendant is very, very sure they will win.

As it turned out, Park Life was very, very sure, and so they defeated Koons. But that is a rare story. And as a result, copyright often exerts a chilling effect on legitimate conduct that some copyright owners may decide they dont like. The result is an uncomfortably large number of frivolous copyright claims, like Koonss. Some of the best i.e., the worst examples of this can be found at an aptly-named website chillingeffects.org. Here, for example, is the firm that owns rights in the infamous Barney childrens television character threatening a website which uses images of Barney as part of a parody which is recognized as fair use. Threatening letters like this may fail before a judge. But if they succeed in making the defendant afraid to fight, theyve unfortunately done their job.

Like I said, lawyers put all kinds of scary stuff in agreements--especially boilerplate agreements that people don't tend to read--and even if it might not be enforcible in court, it allows the lawyers to write a scary letter that hopefully will end the discussion before anyone goes to court.

It's all about leverage. Geohot has less leverage than Sony because Sony has more money. He can't afford to go to court. So, when Sony puts scary language in the EULA, even if it's ultimately not enforcible in court, it gives them the opportunity to send scary letters that hopefully will make people think twice.

[s1k3sT]

This conversation has been about semantics for a while now >__>

GeoHot broke a law. Period.

I think the real question is if you think this law is just, but people often make the mistake of thinking that when a big, nasty corporation does something they dislike, it must be illegal.

The REAL question, imho, is "does that law apply to him?"...

[Stingray]

BTW, not to toot my own horn too much, but yeah, I think I'm smarter than whoever drafted the EULA language. I graduated from Duke University School of Law and I was an editor on my law journal. I work for a large firm and I am a M&A attorney. You think Sony actually pays a lot of money to get boilerplate EULA language? Heck no. They outsource stuff like that.

Not smart enough not to post a BMP on the interweb. You could have saved people 800% of the bandwith. Welcome to 1997.

[DukeEsquire]

Not smart enough not to post a BMP on the interweb. You could have saved people 800% of the bandwith. Welcome to 1997.

Oh noes! Not a BMP! Unless you still use AOL dialup, no one cares.

By the way, back in 1997, we spell it "bandwidth", not "bandwith".

Oh look, I can nitpick too! :blink:

[Memphis]

If you bothered to read my post, I said there was a tiny chance a judge could enforce it. I'm not saying a judge or jury won't enforce it. I'm saying the chances are very slight.

You are only bound by use if you read it. If you don't read that you are bound by use, then how can you ever agree?

There is precedent that mere action does not automatically lead to agreement to the EULA. For example, in Specht v. Netscape Communications Corp, the plaintiff argued that since their EULA stated that downloading the software meant the user agreed to the EULA. The court said merely downloading, in this case, did not constitute agreement because the notice regarding the EULA was not obvious.

Just to humor you, I did a Lexis search for any cases involving the EULA that has the words "use only", "enforc!", "agree" and found no a single case where use alone constituted agreement. The only cases I could find were cases where the defendant both USED and READ the EULA or had notice there was an EULA.

Thus, like I said before, if Geohot's brother had hit "I Agree", then Geohot may have never seen the EULA agreement and therefore one could argue that he is not bound by the EULA that he never saw.

More evidence?

Where's my $1 million? You read my earlier post, right? So where is my $1 million?

BTW, not to toot my own horn too much, but yeah, I think I'm smarter than whoever drafted the EULA language. I graduated from Duke University School of Law and I was an editor on my law journal. I work for a large firm and I am a M&A attorney. You think Sony actually pays a lot of money to get boilerplate EULA language? Heck no. They outsource stuff like that.

The case you cited showed no use or installation of the software so you wouldn't even be bound to the EULA by the clauses in the EULA. mere ownership of software does not bind you. And again, you haven't posted any information were a judge found this wording in an EULA to be invalid. Again I ask, show me a case were the judge ruled that this part of an EULA could not be enforced. If you cannot you haven't shown much of anything yet. Must EULA's use a shrink wrap license now so you know. Sony does as well, and ProCD, Inc. v. Zeidenberg, ruled shrinkwrap contracts enforceable. Oh and not to toot my own horn, but I am an armchair lawyer :laugh:.

[DukeEsquire]

The case you cited showed no use or installation of the software so you wouldn't even be bound to the EULA by the clauses in the EULA. mere ownership of software does not bind you. And again, you haven't posted any information were a judge found this wording in an EULA to be invalid. Again I ask, show me a case were the judge ruled that this part of an EULA could not be enforced. If you cannot you haven't shown much of anything yet. Must EULA's use a shrink wrap license now so you know. Sony does as well, and ProCD, Inc. v. Zeidenberg, ruled shrinkwrap contracts enforceable. Oh and not to toot my own horn, but I am an armchair lawyer :laugh:.

Oh, that's what you wanted? I thought you wanted something more specific.

In Bragg v. Linden Research, Inc., the Court held that the arbitration clause in Second Life's TOS was not enforcible because it was substantively unconscionable.

"Here, a number of the TOSs elements lead the Court to conclude that Bragg has demonstrated that the TOS are substantively unconscionable."

Thus, that portion of the TOS was ruled unenforcible.

Here is the text of the case: http://www.paed.uscourts.gov/documents/opinions/07d0658p.pdf

[Memphis]

A TOS is a vastly different document although it can include liscense terms. And in that case, a shrink wrap liscense was not what was ruled substantially unconsiable. you have yet to show me were a shrink wrap liscense has been shown to be unenforcable, while i proved that the seventh circuit upheld their use.

[HawkMan]

A TOS is a vastly different document although it can include liscense terms. And in that case, a shrink wrap liscense was not what was ruled substantially unconsiable. you have yet to show me were a shrink wrap liscense has been shown to be unenforcable, while i proved that the seventh circuit upheld their use.

you seem to change topic everyo time you can't answer though. you still haven't responded to the fact that another person usign the device cannot answer to a license he hasnot seen or agreed to but someone else accepted. the same woudl apply to shrink wrap.

besides, over in europe, or part of europe anyway, neither EULA's or Shrink wrap licenses are accepted binding documents/licenses and considered unenforcable.

[Emn1ty]

you seem to change topic everyo time you can't answer though. you still haven't responded to the fact that another person usign the device cannot answer to a license he hasnot seen or agreed to but someone else accepted. the same woudl apply to shrink wrap.

besides, over in europe, or part of europe anyway, neither EULA's or Shrink wrap licenses are accepted binding documents/licenses and considered unenforcable.

Exactly. Depending on the court, state, country you are in there are different rulings on EULA's and Shrink Wrap licenses. Furthermore, you can still use what you own even if you don't agree to the EULA regardless of how hard it is to do without accepting the terms (although, as said above just having someone else agree to it and install the software for you is enough to bypass any EULA).

[presence06]

Oh noes! Not a BMP! Unless you still use AOL dialup, no one cares.

By the way, back in 1997, we spell it "bandwidth", not "bandwith".

Oh look, I can nitpick too! :blink:

:p

I did it!

[Memphis]

you seem to change topic everyo time you can't answer though. you still haven't responded to the fact that another person usign the device cannot answer to a license he hasnot seen or agreed to but someone else accepted. the same woudl apply to shrink wrap.

besides, over in europe, or part of europe anyway, neither EULA's or Shrink wrap licenses are accepted binding documents/licenses and considered unenforcable.

Geohot is in the United States, if you want to discuss Europe that is another ball game. I haven't changed the subject at all. And I have answered this question. A shrink wrap license has been considered enforceable in the United States by the seventh circuit court. A shrink wrap license specifics that using a product or software automatically binds you. Therefore since they are considered enforceable here that means accessing a ps3 at all binds you.

[DukeEsquire]

Geohot is in the United States, if you want to discuss Europe that is another ball game. I haven't changed the subject at all. And I have answered this question. A shrink wrap license has been considered enforceable in the United States by the seventh circuit court. A shrink wrap license specifics that using a product or software automatically binds you. Therefore since they are considered enforceable here that means accessing a ps3 at all binds you.

Ok at this point, I feel like you're trolling so I'm just going to let you carry on. TOS and EULA are ultimately just contracts and evaluated in the same manner. It is absurd for you to say, "Oh that was a TOS, not a EULA, so it doesn't apply!" They are just contracts and you use traditional contract analysis to determine whether or not the terms are enforcible.

The fact that the courts invalidated these contracts based on traditional contractual concepts re-emphasizes that clickwrap agreements have become an accepted form of contracting that do not require special analysis. In each of these cases the specific terms were invalidated because the courts found them to be unenforceable on traditional contract grounds. The individual clauses invalidated were either contrary to public policy because they went against state consumer protection clauses (in Washington and California) or because the contract was unconscionable.

http://www.lctjournal.washington.edu/Vol3/a011Cormier.html

In order for the EULA or TOS to be enforcible, they must be both procedurally and substantively fair.

If you can't accept that, then I hope one day you agree to an EULA that says in small print, "By agreeing to this EULA, you agree to give us $1 million."

Let's see if your tune changes.

[crazytech]

Sony could pull a US Government and sieze 85,000 other peoples computers in the process. :p

[Memphis]

Ok at this point, I feel like you're trolling so I'm just going to let you carry on. TOS and EULA are ultimately just contracts and evaluated in the same manner. It is absurd for you to say, "Oh that was a TOS, not a EULA, so it doesn't apply!" They are just contracts and you use traditional contract analysis to determine whether or not the terms are enforcible.

http://www.lctjournal.washington.edu/Vol3/a011Cormier.html

In order for the EULA or TOS to be enforcible, they must be both procedurally and substantively fair.

If you can't accept that, then I hope one day you agree to an EULA that says in small print, "By agreeing to this EULA, you agree to give us $1 million."

Let's see if your tune changes.

Ok lets play along as if the TOS and EULA were the same. The case you cited did not decide that shrink wrap licenses were unenforceable, so their is still no point. Again find a case that shows shrink wrap licenses are unenforceable. If you do not believe that shrink wrap licenses are procedurally and substantively fair, are you suggesting that the seventh circuit is wrong?

[norseman]

many are "old school", many others have 0 $$ - so they are usually running several mediocre systems... at least thats what my vast sarcasm knowledge of 1337 tells me with my 2 haX0r friends - LOL

I have to agree with your statement. Not all hackers have $$$. I think some of the posters here have watched too many glorified hacker movies... :p

[DukeEsquire]

Ok lets play along as if the TOS and EULA were the same. The case you cited did not decide that shrink wrap licenses were unenforceable, so their is still no point. Again find a case that shows shrink wrap licenses are unenforceable. If you do not believe that shrink wrap licenses are procedurally and substantively fair, are you suggesting that the seventh circuit is wrong?

What if Sony's EULA said, "By clicking agree, you will pay us $1 million"?

Do you now owe $1 million?

If you bothered to read the Seventh Circuit case, you would know the answer:

Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are unconscionable).

http://caselaw.findlaw.com/us-7th-circuit/1405266.html

It's in the second paragraph. You don't evaluate a EULA as 100% unenforceable or 100% unenforceable. You go clause by clause. So certain portions may be enforceable and certain portions are not. I think that is your fundamental misunderstanding.

[Memphis]

What if Sony's EULA said, "By clicking agree, you will pay us $1 million"?

Do you now owe $1 million?

If you bothered to read the Seventh Circuit case, you would know the answer:

http://caselaw.findlaw.com/us-7th-circuit/1405266.html

It's in the second paragraph. You don't evaluate a EULA as 100% unenforceable or 100% unenforceable. You go clause by clause. So certain portions may be enforceable and certain portions are not. I think that is your fundamental misunderstanding.

Now your changing the subject. I am fully aware it goes by clauses. I am asking you to find a single case of a shrink wrap license being found unenforceable because the person did not click the I Agree in the EULA. You keep stalling, lets see it.

[CentralDogma]

Ok lets play along as if the TOS and EULA were the same. The case you cited did not decide that shrink wrap licenses were unenforceable, so their is still no point. Again find a case that shows shrink wrap licenses are unenforceable. If you do not believe that shrink wrap licenses are procedurally and substantively fair, are you suggesting that the seventh circuit is wrong?

Klocek v. Gateway, Inc.

I'll also direct you to a previous post I made on EULAs:

EULA's are a grey area, they depend on the circumstances of the case and State in which the case is held. There is no definitive law on them. I'm assuming you did not go to that wikipedia link, so, I'll just post the court cases here. Cases in which EULAs were not upheld:

• Step-Saver Data Systems, Inc. v. Wyse Technology (939 F.2d 91)
  
• Vault Corp. v. Quaid Software Ltd. (at harvard.edu)
  
• Rich, Mass Market Software and the Shrinkwrap License (23 Colo. Law 1321.17)
  

Cases in which EULAs were upheld:

• ProCD, Inc. v. Zeidenberg (at findlaw.com)
  
• Microsoft v. Harmony Computers (846 F. Supp. 208, 212, E.D.N.Y. 1994),
  
• Novell v. Network Trade Center (at harvard.edu)
  
• Arizona Cartridge Remanufacturers Association Inc. v. Lexmark International Inc.
  

Basically, it depends on what court you're in and what the circumstances are.

And if they declare it enforceable, like DukeEsquire said, it would be treated like a normal contract (i.e. a contract that put you into slavery would be thrown out as slavery is against the law).

[speedstr3789]

Right or wrong he will have his day in court.

As flawed as our system is. As corrupt as it is. We STILL need a sense of order.

[Subject Delta]

Anyone defending this criminal is just some kid that dreams of playing PS3 games for free. Not many will admit it, but that is how it is. They will claim that Sony deserves it because they chose to quit supporting something that just wasn't used that much.

This criminal will end up in Jail, hopefully for the rest of his life.

lol, you corporate apologists never fail to make me laugh. Lifetime in jail, for jailbreaking a device. Pathetic. I'd hate to live in a society run by you, if you think he deserves a lifetime sentence for that you need to get a grip.