Judge Dismisses 'Other OS' Class-Action Suit Against Sony

An anonymous reader writes "You may recall that in early 2010, Sony decided to roll out an update that would remove the ability for PlayStation 3 owners to install a different operating system on the console, citing security concerns as the reason. Geeks and Linux enthusiasts were outraged at the move, particular since the "Other OS" functionality had been advertised as a feature of the PS3. A class-action lawsuit was soon brought against Sony. Many of the initial claims were thrown out, and now, a federal judge in California has granted Sony's motion to dismissed the lawsuit, saying, 'As a matter of providing customer satisfaction and building loyalty, it may have been questionable. As a legal matter, however, plaintiffs have failed to allege facts or articulate a theory on which Sony may be held liable.' Here's the full text of the order (PDF)."

And the USAF

[eldavojohn]

Geeks and Linux enthusiasts were outraged at the move ...

And the United States Air Force [joystiq.com].

Re:And the USAF

[Anonymous Coward]

They didn't care too much, Sony rolled out a firmware just for them anyway.

This didn't pass in Finland

[Picardo85]

In Finland Sony lost this battle and were judged to pay damages to everyone with the 1st gen PS3s that were affected.

New EULA - void rights to class-action lawsuits

[RichMan]

You have to love the new EULA Sony put in place.

http://legaldoc.dl.playstation.net/ps3-eula/psn/u/u_tosua_en.html

Class Action Waiver. .... ((sorry had to remove the text I pasted -- stupid slashdot filter says I am using to many caps. I copied the original text verbatim))

Re:New EULA - void rights to class-action lawsuits

[eddy]

Just so you know, Microsoft is following in their footsteps [giantbomb.com].

Re:Car analogy

[Caerdwyn]

If you RTFPDF, an automotive analogy is, in fact, cited in the case. Here, let me get that for you...

• "With the exception of the “Unjust Enrichment” claim discussed further below, all of the counts are based on plaintiffs’ fundamental contention that it was wrongful for Sony to disable the Other OS feature, or, more precisely, to put PS3 owners to the “Hobson’s choice” of either permitting the Other OS feature to be disabled or forgoing their access to the PSN and any other benefits available through installing Firmware Update 3.21. Plaintiffs offer an analogy: “if Toyota disabled the battery feature in its hybrids and forced owners to use only gasoline, it would not matter whether the auto’s warranties had expired.” Opposition at 1:8-9. In plaintiffs’ view, it should be self evident that, “A manufacturer cannot unilaterally take away a fundamental feature of a product after that product has been sold to a consumer – regardless of whether the warranty is still in effect.” Id. at 1:9-11."2

But the judge said it's a flawed analogy (as most automotive analogies are):

• The flaw in plaintiffs’ analogy is that they are claiming rights not only with respect to the features of the PS3 product, but also to have ongoing access to an internet service offered by Sony, the PSN. A somewhat fanciful, but more apt, analogy would be if Toyota sold hybrid vehicles with an advertisement campaign touting that Toyota owners would have access to a recreational driving facility, a no-speed limit amusement park for cars. Then, at some time thereafter, Toyota instituted a rule that its hybrids would not be permitted in the park unless the owners allowed the battery feature to be disabled. In those circumstances, Toyota hybrid owners who declined to authorize disabling of the battery feature would still have fully-functional hybrid vehicles, capable of running on an electric motor or a gasoline engine, as appropriate under the conditions. Similarly, PS3 owners who declined to install Firmware Update 3.21 still have fully-functioning devices, capable of either being used as game consoles to play games on optical disks, or as computers, with the Other OS feature.

So, what the judge is saying is that this isn't really about Other OS. It's about access to PSN, and that linking access to PSN to disabling Other OS is legal. That doesn't make it ethical, but this is a court not a church. He has to rule on matters of law not emotion.

For what it's worth, I think that Sony was slime for doing what it did (as they are for many other things that they have done... rootkits, not giving a damn about customer security, etc.), and it will be a cold day in hell before I buy a Sony product or fail to advise others to not buy any Sony product, but IN THIS CASE they didn't run afoul of the law. I also think that it's vastly preferable that judges wield their powers objectively rather than emotionally, because otherwise a racist or homophobic or nationalist or otherwise reprehensible judge would be completely able to get away with imposing their emotion as law.

I also hope that some of the shrill voices here are never allowed to sit on a jury, because if they are, they would surely decide the case based upon who they liked and hated rather than on the facts and guilt-or-innocence. Mob-think is not a suitable substitute for law or rationality.

Re:And the USAF

[poetmatt]

methinks you forgot the reality of your statement: they rely on having linux on them (which, no, just having custom firmware will not fix because the removal of otherOS also means it's not legal to flash custom firmware), but also because they rely on PS3's having linux on them for hardware replacement. [techdirt.com]

From the air force on this exact issue, and why you, sir are the one who is not at all bright:

"We will have to continue to use the systems we already have in hand," the lab told Ars, but "this will make it difficult to replace systems that break or fail. The refurbished PS3s also have the problem that when they come back from Sony, they have the firmware (gameOS) and it will not allow Other OS, which seems wrong. We are aware of class-action lawsuits against Sony for taking away this option on systems that use to have it."

Re:Huh?

[Anonymous Coward]

Read the ruling. What it boils down to is that, even though PSN + Other OS were both advertised features, there is no guarantee that PSN will exist indefinitely. And, the court acknowledges that it is at Sony's discretion. Because you have the choice of installing firmware 3.21, or not, Sony hasn't violated their original agreement to provide Other OS functionality.

It's not very complicated, in fact it's downright easy to read, and fairly well articulated at that..

If Sony had disabled Other OS without a user's choice, they would be paying some large settlement costs right now. As it is, they only pay their lawyers to defend against an obviously weak case.

Sorry, that's just how it is.

Re:wow

[Anonymous Coward]

That seems similar to what happened with my first gen iPod touch:
You must download the latest version of this app to continue using it.
You must download the latest version of iOS in order to update this app.
You cannot update to the latest version of iOS because your iPod is too old.

My solution: I bought an android phone.

Incorrect

[abigsmurf]

That isn't really true. The Finnish Consumer Complaints board investigated and came to the conclusion that they feel Sony should pay €100 in compensation for removing the feature.

They are not a court body and their 'judgements' have no legal power. They are simply a consumer rights lobby group.

Re:And the USAF

[Anonymous Coward]

Yeah, uh, you do realize that the techdirt article you linked to is from May 2010, RIGHT? The quote from the USAF is even older than that. A cursory search shows plenty of info indicating that the USAF is in fact running clustered PS3s/linux - and is getting special treatment from Sony. Here's a link (out of many) with more recent information on the matter:

http://www.itworld.com/hardware/141994/air-force-launches-supercomputer-made-ps3s

Re:judge's logic

[Anonymous Coward]

Of course nobody expects PSN to be operational in 100 years, but neither does anyone expect PSN to be permanently shut down one hour after they buy their PlayStation.

Unfortunately (or fortunately, depending on the circumstances), expectations are not part of legal contracts. While it would be nice if everyone fulfilled any contracts to the satisfaction of both parties, it would also make having those contracts pretty pointless. Since Sony does not advertise or guarantee access to PSN unconditionally, they are within their rights to cut off access to the PSN. It doesn't make the move any less unethical, but legislating ethics (particularly from a judicial bench) has always been shown to cause more problems than it solves.

On the other hand, it does seem like anyone who updated their firmware without being aware of the change to Other OS status might have a reasonable claim against Sony, assuming that they were not warned ahead of time. I don't have a Playstation, so I don't know how the update process works, but most systems that I have seen tend to say "You need to install this update!" and only give a changelog after you have installed it. IANAL, but I imagine that Sony should have to advertise any changes to the capacity of your playstation, such as "your playstation can't use OtherOS," before they actually take away functionality.

Re:Service

[Totenglocke]

No, corruption or bribery couldn't possibly have to do with him stating that Sony did nothing wrong by advertising a feature of a product, selling you said product with that feature, then coming back later and removing it. Again, this double standard with software companies NEEDS TO STOP. If Ford decided to disable your navigation system (that was sold to you as part of the car) when you took your car in for maintenance, you'd be able to sue them to hell and back. But when a software company does it, it's just peachy.

To win, plaintiffs would have had to show they had a legal entitlement to continued access to the network. They didn't, so the judge tossed the case.

You mean like paying for the console (advertised as having access to PSN and other OS) and not providing any reason to be banned, such as using hacks to cheat in games?