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Sony Gets Sued

04/29/2010|Matt "Steerpike" Sakey|Editorials, News7
Home » Home » Editorials » Sony Gets Sued

I bet if corporations could feel fear, nothing would make them tremble quite like the phrase “Class Action.” Sony Computer Entertainment just heard it, though; Slashdot reports that a gamer in California (natch) has filed the first class-action suit against the company for removing the “Install Other OS” feature in its latest PS3 firmware revision. There’s been quite the hubbub about this feature subtraction here on the interwebs. But does Mr. California have a case?

separator_01 We’ll have to wait for input from Tap-Repeatedly Legal Advisors Ajax19 and Ernest to be sure, but my feeling is “no.” No, I don’t think there’s a case here. The hardware is proprietary to Sony; who says they’re required to provide an install other OS feature if they don’t want to?

I have a Slim PS3, which shipped with that feature removed, so I don’t care; I wouldn’t want another OS on there anyway. But some people care, so there you go. The case states that Sony violates terms of use by removing a function “that had been advertised as a feature.” But then, shouldn’t we get to sue Sony for removing hardware backward compatibility from PS3? Or for failing to replace it with a software emulator? That seems like a more crippling feature cut than the ability to install Linux.

Sony says it’s doing it to prevent piracy, and I doubt the company is lying. After all, to install another OS on a PS3, you need to have a PS3 in your possession – so it’s not like you haven’t already given Sony your money. The miniscule handful of people who want to run Jaunty Jackalope on their PS3s… more power to ’em. But it does open a doorway for piracy, and this sort of thing is the kind of DRM I don’t have a problem with.

The matter of bigger concern for me is a note in the EULA in this release. Originally caught by THINQ UK, the wording of the EULA states – and none too nebulously – that Sony has the right to update the firmware of its console whenever it wants to, and isn’t required to alert the user or ask permission:

From time to time, SCE may provide updates, upgrades or services to your PS3™ system to ensure it is functioning properly in accordance with SCE guidelines or provide you with new offerings.

Some services may be provided automatically without notice when you are online, and others may be available to you through SCE’s online network or authorized channels. Without limitation, services may include the provision of the latest update or download of new release that may include security patches, new technology or revised settings and features which may prevent access to unauthorized or pirated content, or use of unauthorized hardware or software in connection with the PS3™ system.

Additionally, you may not be able to view your own content if it includes or displays content that is protected by authentication technology. Some services may change your current settings, cause a loss of data or content, or cause some loss of functionality. It is recommended that you regularly back up any data on the hard disk that is of a type that can be backed up.

Everybody gets nervous when they read stuff like that, because though Sony is hardly the first and won’t be the last to prance into our homes and mess with our stuff without permission via the internet, any time a big company says “we can do stuff to your stuff without telling you,” people get antsy.

THINQ warns that it can’t find earlier EULAs and I’m too lazy to try, so it’s unclear whether this clause was in a previous license agreement or it’s new to this firmware update. But if you agree to the EULA without reading it (and we all do), you have to be aware that you’re signing away some rights.

People getting pissy about the Install Other OS feature being gone is, to my mind, pretty silly. If you want a Linux box, buy a god-damned $299 refurb and install Linux on it, for crying out loud. I highly doubt this class action will go anywhere. As for your feelings about the clause in the EULA, well, it’s take it or leave it. Me, I’ll take it. I don’t care if they update my PS3 without telling me. I suppose that kind of complacency is the first step on a short road toward Gestapo activities and government-sponsored torture, but me, I just want my games to work.

Email the author of this post at steerpike@tap-repeatedly.com.

06/29/2010 Matt "Steerpike" Sakey

About the author

Matt "Steerpike" Sakey

Tap-Repeatedly Overlord Steerpike is a games industry journalist and consultant. His earliest memories are of video games, and hopes his last memories will be of them as well. He’s a featured monthly columnist with the International Game Developers Association, and is internationally published in an assortment of dull e-Learning texts and less dull gaming publications. He also lectures on games at various universities.

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7 Responses to Sony Gets Sued

  • Ajax19 04/29/2010

    While I am not expert in this area of the law and haven’t read the complaint, based on the summary on Slashdot, it’s a class action alleging “unfair and deceptive business practices” and “breach of contract.”  That first category is pretty much catch all in many jursidictions, though there are often limitations to the types of actions it can apply to.

    I don’t know enough about the PS3 or how it was marketed or sold to know whether the ability to install other OS was a big selling point.  I can’t think it was.  Sony certainly was within its rights to upload the firmware and stop this from happening, it’s under no obligation to allow other OS to operate on its machines, but the whole deception angle is a bit odd.  It’s also hard to prove in a class action, because you have to show that everyone in the class was deceived some how.  It’s a tough standard.

    I don’t see this one having any legs, but I would need to read the complaint and know a little more about the PS3 before making any other prognostications.

  • Mat 04/29/2010

    Thinking back to the launch of the PS3, I can’t recall Sony putting much push behind the feature themselves, but in terms of the specialist press I remember quite alot of people being quite excited by the ability to install another OS, which along with the ability to custom fit your own hard drives of whatever size, set it apart from the competition in terms of functionality.

    I can write down what I know about law on the back of a matchbox, but to me it sounds like they could have a case here. Things like the removal of the backwards compatibility were never stripped from consoles via firmware updates. They simply removed the feature from future hardware revisions. Anyone who bought a launch 60gb PS3 can still play PS2 games today. Technically, this is abit different, I think. In terms of a feature being removed from hardware that somebody bought and paid for, I guess they could have a case? I would however assume that they would have to prove that they bought the Playstation 3 on the premise of using it for the other OS feature, and that that was a feature they were using for a good reason, for this to go anywhere.

    Still, I think it’s a totally ridiculous thing to moan about. I’d wager that a miniscule number of PS3 owners even know what the feature does nevermind actively use it. I think the decision to kill the threat of piracy is alot better for everyone’s interests, given that the install other OS feature can be used to pirate Blu-Rays aswell as the PS3 directly..

  • xtal 04/29/2010

    Wasn’t there a case within the past several years where David defended himself against the attacking Goliath by citing the universally unofficial but known fact that nobody ever reads EULAs, and it actually worked?

    Did I imagine that?

  • Lewis B 05/01/2010

    Why would anyone sue such a big company? It’s guarenteed to lose.  I’m sure afew have tried to sue Blizzard for silly things and they always get hammered!!

  • Matt "Steerpike" Sakey 05/01/2010

    Some people just want attention, I guess.

  • Hanamigi 05/02/2010

    It only does everything.

    …right?

  • The Last Bastion About to Fall? | Tap-Repeatedly 08/19/2010

    […] the last safe haven against such activities. There have been warning signs before, and Sony had to upset plenty of people to remedy them, but they always got the job done. As things stand right now, the PS3 remains safe […]

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