It strikes me that removing a feature of a console without owner consent (note: given drawbacks of not updating, this does not constitute owner consent) ought to be illegal. For those arguing that PS3 never said the feature would last forever: perhaps not, but there's no legitimate reason for thinking that it wouldn't. I feel that you'd be rather annoyed if after owning a washer/dryer for a few months, the manufacturer decided that it only wanted you to own a washer, and disabled drying functions, might be similar, and similarly illegal.
Sony Sued Over "Other OS" Option
- Thread starter Andy Chalk
- Start date
TORT REFORM!
Second, look at the theme of the first two paragraphs I quoted. Big companies are unwilling to take more risks. Define risk in financial terms. Well, then you get into inherent and incidental risks. General risk in the video game industry is that your game won't make as much as it cost to develop, or won't make enough to warrant more game production. An inherent risk is that people won't like the game you make, or that they don't have the console on which to play it. The incidental risks -- which are ALWAYS more considerable for an entertainment-based industry -- are all based on user behavior...and the biggest one right now is piracy. Companies don't want to take risks because it is almost GUARANTEED that they could lose 20%-50% profit on their games directly due to piracy. Yes, piracy issues with VHS back in the 80's; I remember them. It's why a brand-spanking new copy of Return of the Jedi went for $80.00; the movie was being pirated so much that the only way it could turn a profit was if it's retail price were raised to exorbitant levels. We will see the same thing happen with games in the near future if video game piracy continues unabated; not only will the price go up, the quality will go down, as the companies involved can't bear to take the risk of long development and quality assurance. That is a slippery slope argument, as well.
Which brings me to my last point. Slippery Slope arguments are potentially a problem because ANYONE can make them for ANY side of ANY issue, and they don't need to rely heavily on facts; they only need to rely on the orator's/writer's ability to galvanize the listener with fear. It is a VERY long way to go to say that a verdict for Sony in this case brings us a full step closer to informational totalitarianism, as it is just not true. There is so much legislation that would have to occur for what you're talking about it would take a decade in actual court-time-hours to produce that result.If Sony has to pay millions in a class action suit, that will hurt them and their ability to make quality firmware updates, PSN releases, and game titles/new IP RIGHT NOW. That will in turn hurt other second and third party development houses...if they are required to put back into effect an operable security risk on their platform, then say hello to the era of "95% of the games out are shitty, WTF!?" Remember that the reason the Wii went region-specific was due to rampant piracy...it is also the reason that there are eleven Mario Party games out: Mothers BUY them because they and their children are not savvy/old enough [respectively] to know how to PIRATE them. Thusly, THE GAME SELLS, and MAKES THE COMPANY A PROFIT. Piracy denies the developers the main thing they need to produce better games more frequently: moola.
Again, people, pirate music and movies if you must, but DO NOT PIRATE VIDEO GAMES. There is no single act that is as deleterious to the industry as that. And that IS a main issue of the lawsuit, seeing as the only reason the OOS was taken out was due to piracy concerns. Never support any decision that makes it easier for piracy to occur on your system. If you own a 360, PC, DS, or a Wii, it's too late for you. Sorry.
First, please don't use the quote function and then physically type something that I didn't say. That makes me look like an ass when it is unwarranted, and I am perfectly capable of soundly inserting my own foot into my own mouth, thank you very much.flying_whimsy said:
Second, look at the theme of the first two paragraphs I quoted. Big companies are unwilling to take more risks. Define risk in financial terms. Well, then you get into inherent and incidental risks. General risk in the video game industry is that your game won't make as much as it cost to develop, or won't make enough to warrant more game production. An inherent risk is that people won't like the game you make, or that they don't have the console on which to play it. The incidental risks -- which are ALWAYS more considerable for an entertainment-based industry -- are all based on user behavior...and the biggest one right now is piracy. Companies don't want to take risks because it is almost GUARANTEED that they could lose 20%-50% profit on their games directly due to piracy. Yes, piracy issues with VHS back in the 80's; I remember them. It's why a brand-spanking new copy of Return of the Jedi went for $80.00; the movie was being pirated so much that the only way it could turn a profit was if it's retail price were raised to exorbitant levels. We will see the same thing happen with games in the near future if video game piracy continues unabated; not only will the price go up, the quality will go down, as the companies involved can't bear to take the risk of long development and quality assurance. That is a slippery slope argument, as well.
Which brings me to my last point. Slippery Slope arguments are potentially a problem because ANYONE can make them for ANY side of ANY issue, and they don't need to rely heavily on facts; they only need to rely on the orator's/writer's ability to galvanize the listener with fear. It is a VERY long way to go to say that a verdict for Sony in this case brings us a full step closer to informational totalitarianism, as it is just not true. There is so much legislation that would have to occur for what you're talking about it would take a decade in actual court-time-hours to produce that result.If Sony has to pay millions in a class action suit, that will hurt them and their ability to make quality firmware updates, PSN releases, and game titles/new IP RIGHT NOW. That will in turn hurt other second and third party development houses...if they are required to put back into effect an operable security risk on their platform, then say hello to the era of "95% of the games out are shitty, WTF!?" Remember that the reason the Wii went region-specific was due to rampant piracy...it is also the reason that there are eleven Mario Party games out: Mothers BUY them because they and their children are not savvy/old enough [respectively] to know how to PIRATE them. Thusly, THE GAME SELLS, and MAKES THE COMPANY A PROFIT. Piracy denies the developers the main thing they need to produce better games more frequently: moola.
Again, people, pirate music and movies if you must, but DO NOT PIRATE VIDEO GAMES. There is no single act that is as deleterious to the industry as that. And that IS a main issue of the lawsuit, seeing as the only reason the OOS was taken out was due to piracy concerns. Never support any decision that makes it easier for piracy to occur on your system. If you own a 360, PC, DS, or a Wii, it's too late for you. Sorry.
Bringing up California law means nothing to a company based in Japan, if anything that law might apply to the retailer. Also while it's entirely bullshit, I can see Sony getting snagged on a technicality.
EULA's that run counter to laws are not legal. The trouble is most EULA's aren't challanged in court. Hopefully the US Supreme Court will one day make a ruling that actually benefits consumers and slaps down unreasonable EULA's (ya, right).
And, while I don't even have a PS3, I hope this guy wins. Companies that sells you a product shouldn't have the right to alter it in a way that harms the owners of that product. And yes, when you buy something it's yours and not the manufacturers (screw Sony/Apple and anyone else who bricks products on purpose just because the owner does something with it that the manufacturer doesn't like). If a company doesn't want you to do something with a product they make, then let them lease that product out instead of selling it.
And, while I don't even have a PS3, I hope this guy wins. Companies that sells you a product shouldn't have the right to alter it in a way that harms the owners of that product. And yes, when you buy something it's yours and not the manufacturers (screw Sony/Apple and anyone else who bricks products on purpose just because the owner does something with it that the manufacturer doesn't like). If a company doesn't want you to do something with a product they make, then let them lease that product out instead of selling it.
Because once the first exploit has been successful, it's an uphill battle to keep on top of firmware updates that will counter new exploits while also maintaining compatibility with older games [that is, if the developers aren't going to patch their own games, which they WON'T...at least not on a weekly/monthly basis]. That is, of course, assuming that exploitation of the system garnered through an alternate operating system could be translated to the proprietary operating system...stinkychops said:
If you already run strictly off of another OS, then firmware won't do jack...firmware only update the proprietary OS.
Not to mention that system update are still voluntary, even if not installing them reduces functionality of your machine...there's no way to guarantee that those who would exploit security weaknesses would then go and willingly download the updates that patch the holes in the fence.
Like all of us, I don't know for a fact if this is legal or not, but I do think it's a bad move. The debate is interesting though. How many of those advertised features had a tiny asterisk with legalese at the bottom of the screen or page 5 pixels high, I don't know.
1. The number of people effected is irrelevant. You can't commit fraud, (or any other crime,) if you only do it to a few people. If you claim you can, I'd like to know how many people have to be screwed until it becomes illegal, and how you arrived at that number.
2. If you buy a product, only advertisements, (i.e. claims,) made prior to your purchase are relevant. Ads made after you purchased it are irrelevant.
3. Whether or not Linux is NEEDED is irrelevant if it was an advertised feature. I don't "need" anything more than mono sound to play a video game. That doesn't mean Sony can disable 5.1 surround sound support.
4. Removing a feature from previously sold PS3's is entirely different than making and selling a new model PS3 with different features.
5. "But it's a security risk, so it's ok." Really? Consumer rights don't matter if company profits are at stake?
6. PSN is a service, but blu-ray movies sometimes NEED updates in order to play the latest movies. (Some of you may have heard the PS3 also plays blu-ray movies.) I read a lot of people weren't able to watch their brand new copy of Avatar until they updated their firmware. I'm talking about BD players in general, not just PS3's. Granted, there probably is some legal asterisk made by Sony here, and it is technically possible to download the firmware update on a PC, burn it, and get the update to your player on a disc, but that's a lot more technical than just dragging the file to the disc. It has to be burned a special way with a special setting selected in the burning software. Even some tech savvy people have to look up instructions on how to do it properly. Bottom line is one big selling point was it was a BD player that could go online and was very easy to update.
7. Some BD movies support online only features/content. To fully use the PS3 as a BD player, it has to be able to go online. (But that's ok, because you don't "need" that extra content. You only want the movie. Right?) In the 1st generation of BD players, the PS3 was the only one that could go online. It was a huge selling point.
8. Are people really judging the guy suing as greedy and pathetic from this one little article, or did they actually read his full claim somewhere and actually have enough information to make such a sweeping judgement? Way to get worked up before you even know all the relevant information.
9. For those of you saying "I don't care. I don't use Linux, so it's a stupid law suit," I'm near speechless that anyone could be so arrogant as to think their views are not just right, but the law. Eh, it's probably more likely you just type before bothering to think.
1. The number of people effected is irrelevant. You can't commit fraud, (or any other crime,) if you only do it to a few people. If you claim you can, I'd like to know how many people have to be screwed until it becomes illegal, and how you arrived at that number.
2. If you buy a product, only advertisements, (i.e. claims,) made prior to your purchase are relevant. Ads made after you purchased it are irrelevant.
3. Whether or not Linux is NEEDED is irrelevant if it was an advertised feature. I don't "need" anything more than mono sound to play a video game. That doesn't mean Sony can disable 5.1 surround sound support.
4. Removing a feature from previously sold PS3's is entirely different than making and selling a new model PS3 with different features.
5. "But it's a security risk, so it's ok." Really? Consumer rights don't matter if company profits are at stake?
6. PSN is a service, but blu-ray movies sometimes NEED updates in order to play the latest movies. (Some of you may have heard the PS3 also plays blu-ray movies.) I read a lot of people weren't able to watch their brand new copy of Avatar until they updated their firmware. I'm talking about BD players in general, not just PS3's. Granted, there probably is some legal asterisk made by Sony here, and it is technically possible to download the firmware update on a PC, burn it, and get the update to your player on a disc, but that's a lot more technical than just dragging the file to the disc. It has to be burned a special way with a special setting selected in the burning software. Even some tech savvy people have to look up instructions on how to do it properly. Bottom line is one big selling point was it was a BD player that could go online and was very easy to update.
7. Some BD movies support online only features/content. To fully use the PS3 as a BD player, it has to be able to go online. (But that's ok, because you don't "need" that extra content. You only want the movie. Right?) In the 1st generation of BD players, the PS3 was the only one that could go online. It was a huge selling point.
8. Are people really judging the guy suing as greedy and pathetic from this one little article, or did they actually read his full claim somewhere and actually have enough information to make such a sweeping judgement? Way to get worked up before you even know all the relevant information.
9. For those of you saying "I don't care. I don't use Linux, so it's a stupid law suit," I'm near speechless that anyone could be so arrogant as to think their views are not just right, but the law. Eh, it's probably more likely you just type before bothering to think.
I don't understand how they allowed this to happen? They shouldn't be able to remove functions once a user has bought the product.
The point is: In what way has the customer been HARMED? What monies have they lost? What business is no longer theirs? What physical ailment has occurred? What medical treatment must they now seek to mitigate the effects of the removal of the Other OS option? How has the financial status of their bank accounts been affected?mogamer said:
Oh, that's right...their delicate sensibilities have been harmed. They should definitely get paid for that.
Here is what you ALL are forgetting; the truth that proves this is a frivolous lawsuit:
Sony is going to settle. They will settle out of court, if the suit even makes it all the way TO court, because they can't afford to take the chance that they draw the one asshole judge who will rule against them, thus setting a precedent for ANY hardware OR software manufacturer to not have the right to alter their product for security reasons. No more security fixes or stability fixes for your PC OS, no more firmware updates for your TVs or iPods, no GPS functionality on your smart phones, etc., etc., etc. NO manufacturer can take the chance on that ruling, so Sony will settle to avoid the ruling...and the little ***** will take the money and run, because it's NOT about the principle to HIM, as it is to the people having this discussion, it's about the MONEY. It's the very reason the lawsuit was brought forward to begin with, to manipulate legislative fear in a seek-suit society. It's total bullshit, and everyone here is wasting their time and effort because of it.
The customer has been harmed because that customer loses the abiltity to control a product that was legally purchased. As long as the law isn't being broken (real laws and not made up by EULA's law) it's nobody's business what a person does with a product they own.
You say that this update isn't forced upon you. But you can't play on PSN (a real advertised feature) without it and what happens if you buy a game or Blu-Ray disc that requires the update to work?
And updates that improve a product won't be stopped. As a matter of fact a company would probably be held liable if they didn't release security or improvement updates.
You're right that Sony will probably settle out of court. Nobody will take the chance that the god-like abilities of EULA's be revoked.
You say that this update isn't forced upon you. But you can't play on PSN (a real advertised feature) without it and what happens if you buy a game or Blu-Ray disc that requires the update to work?
And updates that improve a product won't be stopped. As a matter of fact a company would probably be held liable if they didn't release security or improvement updates.
You're right that Sony will probably settle out of court. Nobody will take the chance that the god-like abilities of EULA's be revoked.
Okay, in an effort to eliminate rampant stupidity, I just went and called my lawyer to discuss this issue. Here is what he has to say:
Section 301 of the Trade Act of 1974 is the principal U.S. statute for identifying foreign trade barriers due to inadequate intellectual property protection. The 1988 Omnibus Trade and Competitiveness Act strengthened Section 301 by creating Special 301 provisions, which require the U.S. Trade Representative (USTR) to conduct an annual review of foreign countries? intellectual property policies and practices.
Why and how this is relevant:
Special 301 provisions are the only accepted INTERNATIONAL regulations governing how software is legally protected. What they currently assert is that the consumer DOES NOT OWN THE SOFTWARE THEY PURCHASE. What they own is the right to USE the software, and the distribution of that right is what they have purchased. This is why it is illegal to back up copies of your software and distribute them for free/profit, seeing as the developer of the software still owns said software and thus are the only ones who retain the right to do that. You ARE allowed to back up the software for your own personal use, as not being able to do so would restrict your right as a consumer to use what you have purchased. Some developers go further and state how many times you can back up your product, and some go even further and physically limit the number of times the data on an optical media can be altered or copied. For an ingenious example of this, Starbucks does this with their SBUX CDs that they play in their stores by putting a little line of code in the disc that is an expiration date; after the certain date, which is verified on the internal clock of the proprietary player, the disc will no longer play, even though the format of the disc cannot be played in consumer-level disc readers.
Therefore it is legal for any developer to change their software in any way at any time with or without notice as they still own the software, and the consumers continued use of it is an implied contract in perpetuity of that understanding. Further,
a software developer in no event shall be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of software, documents, provision of or failure to provide services or information, updates to any software or services, or information available from the services.
That's the straight legalese that most developers quote directly in their terms of use contracts. This is international law, not local or national. What all that means is that not only can Sony do exactly what they did, but they are specifically protected from any recourse because of it.
WHAT IS ILLEGAL ARE THE FOLLOWING:
As far as false advertising, the two branches that this issue may fall under are considered "Manipulation of Standards," [in defining what OS may be used for PS3 operation] or "Undefined Terms." [Regarding the longevity of availability of alternate OS] The Federal Trade Commission has two things to say:
The definition of false advertising is "means of advertisement other than labeling, which is misleading in a material respect; and in determining whether an advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual."
And that advertising after the fact can only be considered false if "there is a change in a product or service and there is no corresponding change to any representation made by statement, word, design, device, sound, or any combination thereof, and there exists a current marketing device, whether statement, word, design, device, sound, or any combination thereof that attempts to sell aforementioned product or service under the negated terms due to said change in product or service."
So, unless Sony is actively advertising that the PS3 can still have another OS and is using it as a selling point, it is not false advertising. Furthermore, it is the sole responsibility of the retail outlet to make sure that their advertisement material is current, not the maker of the product or service, and the maker of said product or service are not liable in any way if they don't. [That's why AMAZON partially refunded that dude's money, and not Sony]
What is also illegal is the developer making changes to the HARDWARE under any circumstances other than permissory. This change that Sony has made makes no changes to HARDWARE, only SOFTWARE. If a firmware update caused a green light to turn blue, that would be a hardware change; of the PS3, the only part of it you actually own is the nuts and bolts itself, same with any PC or phone, or what have you...thus it is the only part of the product that you can claim any kind of legal protection for. If the PS3 overheated due to defect and set your house on fire, Sony could be liable for that...but not if the software made it happen, only if some part of the hardware itself was defunct.
There. Boom. Done.
Whether it is all MORAL is an entirely different question. If you don't like it, stop deceiving yourself into thinking the only power you have in corporate society is in your wallet, seeing as theirs are much bigger than yours. The only power you have is in the vote...of representatives who will adequately voice your concerns at assembly when legislation is made, and in first-person voting when the legislative opportunities come to your community. And guess what? If more people vote the other way than yours, the other way will be what is adopted; that's the point of a democratic government. You can't have sour grapes just because more people disagree than agree with your moral philosophy...just make it a point to educate them to make better decisions.
Section 301 of the Trade Act of 1974 is the principal U.S. statute for identifying foreign trade barriers due to inadequate intellectual property protection. The 1988 Omnibus Trade and Competitiveness Act strengthened Section 301 by creating Special 301 provisions, which require the U.S. Trade Representative (USTR) to conduct an annual review of foreign countries? intellectual property policies and practices.
Why and how this is relevant:
Special 301 provisions are the only accepted INTERNATIONAL regulations governing how software is legally protected. What they currently assert is that the consumer DOES NOT OWN THE SOFTWARE THEY PURCHASE. What they own is the right to USE the software, and the distribution of that right is what they have purchased. This is why it is illegal to back up copies of your software and distribute them for free/profit, seeing as the developer of the software still owns said software and thus are the only ones who retain the right to do that. You ARE allowed to back up the software for your own personal use, as not being able to do so would restrict your right as a consumer to use what you have purchased. Some developers go further and state how many times you can back up your product, and some go even further and physically limit the number of times the data on an optical media can be altered or copied. For an ingenious example of this, Starbucks does this with their SBUX CDs that they play in their stores by putting a little line of code in the disc that is an expiration date; after the certain date, which is verified on the internal clock of the proprietary player, the disc will no longer play, even though the format of the disc cannot be played in consumer-level disc readers.
Therefore it is legal for any developer to change their software in any way at any time with or without notice as they still own the software, and the consumers continued use of it is an implied contract in perpetuity of that understanding. Further,
a software developer in no event shall be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of software, documents, provision of or failure to provide services or information, updates to any software or services, or information available from the services.
That's the straight legalese that most developers quote directly in their terms of use contracts. This is international law, not local or national. What all that means is that not only can Sony do exactly what they did, but they are specifically protected from any recourse because of it.
WHAT IS ILLEGAL ARE THE FOLLOWING:
As far as false advertising, the two branches that this issue may fall under are considered "Manipulation of Standards," [in defining what OS may be used for PS3 operation] or "Undefined Terms." [Regarding the longevity of availability of alternate OS] The Federal Trade Commission has two things to say:
The definition of false advertising is "means of advertisement other than labeling, which is misleading in a material respect; and in determining whether an advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual."
And that advertising after the fact can only be considered false if "there is a change in a product or service and there is no corresponding change to any representation made by statement, word, design, device, sound, or any combination thereof, and there exists a current marketing device, whether statement, word, design, device, sound, or any combination thereof that attempts to sell aforementioned product or service under the negated terms due to said change in product or service."
So, unless Sony is actively advertising that the PS3 can still have another OS and is using it as a selling point, it is not false advertising. Furthermore, it is the sole responsibility of the retail outlet to make sure that their advertisement material is current, not the maker of the product or service, and the maker of said product or service are not liable in any way if they don't. [That's why AMAZON partially refunded that dude's money, and not Sony]
What is also illegal is the developer making changes to the HARDWARE under any circumstances other than permissory. This change that Sony has made makes no changes to HARDWARE, only SOFTWARE. If a firmware update caused a green light to turn blue, that would be a hardware change; of the PS3, the only part of it you actually own is the nuts and bolts itself, same with any PC or phone, or what have you...thus it is the only part of the product that you can claim any kind of legal protection for. If the PS3 overheated due to defect and set your house on fire, Sony could be liable for that...but not if the software made it happen, only if some part of the hardware itself was defunct.
There. Boom. Done.
Whether it is all MORAL is an entirely different question. If you don't like it, stop deceiving yourself into thinking the only power you have in corporate society is in your wallet, seeing as theirs are much bigger than yours. The only power you have is in the vote...of representatives who will adequately voice your concerns at assembly when legislation is made, and in first-person voting when the legislative opportunities come to your community. And guess what? If more people vote the other way than yours, the other way will be what is adopted; that's the point of a democratic government. You can't have sour grapes just because more people disagree than agree with your moral philosophy...just make it a point to educate them to make better decisions.
in the eu yes, but i dont live in the eu so excuse my not knowing the laws over there forwards and backwards.Orekoya said:
HOWEVER, this lawsuit is in the us, not the eu, and here in the us the eula is a legally binding contract (technically), and because of that and the fact that sony reserves the right to modify their software this suit has no bearing unless sony advertises the other os option after the fact.
you havent heard of all the other frivolous lawsuits this same guy has brought forth, are you?goldenheart323 said:
Not really "defending" them, per se, I just don't really care much for this whole "issue" to begin with.Woe Is You said:
From what I've been lead to believe, the "Install Other OS" option basically just made the PS3 a slightly worse computer. You could install Linux and maybe watch some videos online, but that's about all I could gather with what this feature would be used for.
Also, what "law"? The EULA you sign says they have the right to change anything without prior notice and whatnot. If they want to remove a feature that poses a security risk (okay, "supposedly" poses a risk, giving some leverage here) then fine, nothing I can really do about it. If they removed online capabilities, okay then, I'll just go over to the 360 or finally start playing my Wii after months of neglect.
....no, it doesn't? I really have no idea what you tried to accomplish with that example, inviting someone that comes in and vandalizes my possessions is comparable to a software update that removes a (supposedly) security risk?stinkychops said:
Please come up with a better example, 'cause you were just trying to employ "shock n' awe" on that example.
I like how that hot coffee thing is the poster boy for lawsuits, the funny thing is, in that case, suing over that coffee was 100% justified, I would have done the same thing.Donnyp said:
If you would have researched the example you're using, you'd know that that coffee was outrageously and dangerously too high of a temperature, that 79 year old lady got horrifying third degree burns over 16% of her body (That's a lot more than it sounds when we are talking about the most severe burn classification there is on a frail elderly woman)
So actually, if I got a large portion of my skin absolutely destroyed by being served a cup of coffee hotter than the fucking sun, I would have sued too.
For what happened, Mcdonalds lost two days of coffee revenues, OH POOR MCDONALDS!
Your arguments here don't really apply, because I am not viewing this or arguing for it from a motive standpoint (IE, why they did it, or how much they used the feature), I am analyzing it completely from a legal standpoint.VZLANemesis said:
I believe they are legally justified, and you can't possibly know how many people used it, or to what extent.
