PS3 Owner Gets Partial Refund for Lack of "Other OS" Option

[bridgerbot]

As stated in all the documents that come with the console and in many other companies terms of use.

Sony have the right to change or otherwise modify the console without prior notice

That wasn't a direct quote bu that is along the lines of what it says. Sony are well within their rights here to remove the option.

Clearly you are under the impression that Sony's EULA overrides Federal Trade Laws.

Let me clear up that misconception for you, EULA's DO NOT override Federal Laws.

All Americans are protected by what Sony did by the following FEDERAL LAW.

FTC Sec. 238.4 Switch after sale.

 

[bridgerbot]

The main problem is that these laws are all based around the point of delivery, the point where the product comes into the consumer's posession. There aren't any solid laws considering post-delivery alterations.

Post delivery really doesn't matter. Sony "unsold" my advertised Install Other OS PS3, and sold me a non-Install Other OS PS3 in its stead.

Notice the quotes around "unselling" in the Federal Trade Law below.

Sec. 238.4 Switch after sale.

No practice should be pursued by an advertiser, in the event of sale of the advertised product, of "unselling" with the intent and purpose of selling other merchandise in its stead. Among acts or practices which will be considered in determining if the initial sale was in good faith, and not a stratagem to sell other merchandise, are:

(a) Accepting a deposit for the advertised product, then switching the purchaser to a higher-priced product,

(b) Failure to make delivery of the advertised product within a reasonable time or to make a refund,

(c) Disparagement by acts or words of the advertised product, or the disparagement of the guarantee, credit terms, availability of service, repairs, or in any other respect, in connection with it,

(d) The delivery of the advertised product which is defective, unusable or impractical for the purpose represented or implied in the advertisement. [Guide 4]

 

[Crops]

Post delivery really doesn't matter. Sony "unsold" my advertised Install Other OS PS3, and sold me a non-Install Other OS PS3 in its stead.

Notice the quotes around "unselling" in the Federal Trade Law below.

Sec. 238.4 Switch after sale.

No practice should be pursued by an advertiser, in the event of sale of the advertised product, of "unselling" with the intent and purpose of selling other merchandise in its stead. Among acts or practices which will be considered in determining if the initial sale was in good faith, and not a stratagem to sell other merchandise, are:

(a) Accepting a deposit for the advertised product, then switching the purchaser to a higher-priced product,

(b) Failure to make delivery of the advertised product within a reasonable time or to make a refund,

(c) Disparagement by acts or words of the advertised product, or the disparagement of the guarantee, credit terms, availability of service, repairs, or in any other respect, in connection with it,

(d) The delivery of the advertised product which is defective, unusable or impractical for the purpose represented or implied in the advertisement. [Guide 4]

Delivery, as I stated it, does not refer to postal service per se. Delivery is the point where the bought product comes into your posession, including you taking it home from the store.
The law you've quoted ends at the point of delivery. It does not apply to the alteration of the product after it came into your posession.

Now, if you've recently bought a PS3 that was advertised to be able to run Other OS.
But upon opening the box and turning on the console you realise that the recent update has already been installed and your console is unable to run Other OS.
In that case these laws would apply, and you'd be entitled to a full refund or a replacement considering the product delivered was different from the product advertised.

No one sold you a "non-install Other OS PS3" while telling you it was capable of running Other OS. They gave you an update that removed the possibility to use it, and you voluntarily installed that update after agreeing to terms stating that updates may result in partial loss of functionality of the product.
This might seem unfair or illegal, but there are no actual laws considering the exact situation, hence my previous reference to a legally 'grey' area.

 

[bridgerbot]

No practice should be pursued by an advertiser, in the event of sale of the advertised product, of "unselling" with the intent and purpose of selling other merchandise in its stead. Among...

The law you've quoted ends at the point of delivery.

The word "Delivery" was NOWHERE in that sentance. So no, that law DOES NOT END at the point of delivery, NOR does it contain any time restrictions.

Sure,"Delivery" shows up in later sentances, all of which are preceeded by the word "Among". Do you understand the definition of the word "Among"? It doesn't say "we require the following", it says "Among".

They gave you an update that removed the possibility to use it

I think you need to see that sentance again.

No practice should be pursued by an advertiser, in the event of sale of the advertised product, of "unselling" with the intent and purpose of selling other merchandise in its stead. Among...

The 1 instance where they can remove an out of box advertised feature like that, is where they make the update undoable (but it's not undoable).

and you voluntarily installed that update after agreeing to terms stating that updates may result in partial loss of functionality of the product.

1) EULA's and ToS DO NOT OVERRIDE FEDERAL LAWS, it doesn't matter if I agree to it or not

2) The amount of weight Contracts of Adhesion, aka Shrink Wrap Contracts, actually hold isn't actually agreed upon. Some courts have completely upheld them, others have treated them as being totally irrelevant, since the buyer often can't see them until well after purchase.

Any competent lawyer will make sure he winds up in a court where EULA's are treated as being irrelevant.

but there are no actual laws considering the exact situation

You can't legitimately make that statement. Why? Because you are not intimately familiar with all Federal Trade Laws, all State Trade Laws, and all Trade Laws from EVERY country.... which is what you'd have to be in order to make that statement.

 

[Crops]

No practice should be pursued by an advertiser, in the event of sale of the advertised product, of "unselling" with the intent and purpose of selling other merchandise in its stead.

This literally states that the law in question refers completely to the advertiser attempting to sell a different product than advertised in its stead. Meaning the law applies if you're sold a different product than advertised. It does not refer to any changes made after the point of delivery. Therefore, the law ends at the point of delivery.

The quoted law does not refer to post-purchase alterations having to be undoable for them to be legal. In fact, it doesnt refer to them at all.
The update in question is, however, undoable by backing up your system, which is actually referred to and advised by Sony in their terms of use.

1) EULA's and ToS DO NOT OVERRIDE FEDERAL LAWS, it doesn't matter if I agree to it or not

2) The amount of weight Contracts of Adhesion, aka Shrink Wrap Contracts, actually hold isn't actually agreed upon. Some courts have completely upheld them, others have treated them as being totally irrelevant, since the buyer often can't see them until well after purchase.

1) I never said they override law, I even stated the exact same in previous posts. However, anything that is in a EULA/ToS, and not covered in law, does apply.

2) Also true, which is why I referred to the subject at hand as 'legally grey'. You can take the issue to a judge, but the outcome will vary per country, and even per judge. My observation was simply that existing law points heavily in favor of the retailer here. (note that point in favor of doesn't mean they're right, it just means they have more legal backup than only the loss of a minor console function)
The buyer not able to see any contracts or terms before purchase is to blame on the buyer himself. Sony has all their legal articles available on their website. If you were to request them by mail in case you don't have internet, they would have to send you a copy.


Also, it's true that I'm not familiar with every single trade law from every single european country.
I am familiar with most Dutch trade laws (which are a lot more consumer-friendly than most) due to locality and working with them quite regularly. I've looked up specific laws from the UK, Germany and France, which can be considered the 3 most influential countries in the EU. And I've read consumer-related EU law before actually referring to them.

Looking at those laws, all are quite similar considering the matter at hand. They might not be 100% accurate in reflecting every european trade law, but it creates a good image.
Also, Considering the fact that a lot of EU-countries were forced to apply the EU trade laws for consumer protection, a lot of countries were off a lot worse before the enforcement and now uphold the EU standard.

I'll rephrase; I haven't been able to find any actual laws considering the exact situation, but if there are any, they'd be extremely localized and probably won't apply to anyone outside that locale.


It's not too surprising that it's hard to find any laws applying to this. Don't forget that most laws are pretty ancient, and videogame consoles with updateable software didn't even exist a few years ago.