SONY HAS FAILED TO DEMONSTRATE LIKELIHOOD OF SUCCESS ON
THE MERITS BECAUSE SONY’S PLAYSTATION 3 IS NOT MERELY A
DEVICE FOR PLAYING COPY-PROTECTED VIDEO GAMES BUT
FUNCTIONS AS A MULTIMEDIA PERSONAL COMPUTER.
Sony, through its marketing of the Playstation computer has touted its versatile ability to
do more than play video games. And yet, this is the crux of Sony’s argument as to why the
system cannot be treated like the computer that it is. The Playstation computer has the ability to
play films on BluRay discs and other media and it has the ability to access the internet and play
music and a myriad of other features. All of these additional features can be enhanced by an
end user’s ability to install and run third party software on the Playstation computer. Instead of
pointing out the possibilities in innovation and enhancement to the Playstation, Sony has instead
chosen to quote internet chat boards and other unauthenticated hearsay sources to demonstrate
the “truth” of the matter asserted: that “jailbreaking” the Playstation computer has no use other
than to play pirated, copyright-protected, video games. Unlike a physical modchip which
doesn’t permit end users to install noninfringing software and features to the Playstation
computer, the technique and device alleged to have been utilized by Mr. Hotz enables users to
enhance the noninfringing aspects of the Playstation computer and treat the apparatus as it is, a
computer.
Yet with all the noninfringing possibilities of Mr. Hotz’s alleged “jailbreak,” Sony offers
nothing more than internet-based quotes and declarations of Sony employees to determine the plausibility of noninfringing uses of a “jailbroken” Playstation computer.
