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Judge Dismisses PlayStation 3 'Other OS' Removal Class Action Suit
Judge Dismisses PlayStation 3 'Other OS' Removal Class Action Suit
December 12, 2011 | By Eric Caoili

A federal judge has dismissed all of the counts brought against Sony in a class action suit over the disabling of PlayStation 3's "Other OS" feature last year.

The feature was primarily used to install versions of the open source Linux operating system on the console, allowing home users to tap into the PlayStation 3 for homemade applications.

In April 2010, Sony released a PS3 firmware upgrade removing the console's Other OS functions as a response to hacker exploits enabling users to run unauthorized software and pirated games by using the feature.

California resident Anthony Ventura filed a class action suit against Sony Computer Entertainment America several weeks later over what he said was an "intentional disablement of the valuable functionalities originally advertised as available" alongside other critical features with the PS3.

The filing read: "The disablement is not only a breach of the sales contract between Sony and its customers and a breach of the covenant of good faith and fair dealing, but it is also an unfair and deceptive business practice perpetrated on millions of unsuspecting consumers."

Ventura's class action included eight different claims, alleging breach of express warranty, breach of implied warranty, violation of the Magnuson-Moss Warranty Act, unjust enrichment, violation of the Unfair Competition Law, conversion, and violation of the Computer Fraud and Abuse Act.

SCEA submitted a motion to dismiss the case in September 2010, denying the claims and arguing that the PS3's System Software License agreement and PlayStation Network Terms of Service afforded the company the right to alter the firmware however it sees fit.

"These contracts specifically provide PS3 purchasers with a license, not an ownership interest, in the software and in the use of the PSN, and provide that SCEA has the right to disable or alter software features or terminate or limit access to the PSN, including by issuing firmware updates," the company commented.

U.S. District judge Richard Seeborg dismissed all but one of the counts -- violation of the Computer Fraud and Abuse Act (CFAA) -- brought against SCEA in February 2011, and said the plaintiffs had not sufficiently stated their claim.

He let the CFAA claim, which argued SCEA "intentionally caused damage without authorization, to a protected computer" stand, finding the company had not "conclusively established that disabling a PS3 capability of the nature of the Other OS feature is within the scope of the license agreement provisions on which it relies."

Seeborg added that Sony had not "shown that those plaintiffs who downloaded the Update thereby necessarily 'authorized' the removal of the feature within the meaning of the statute." For the dismissed counts, he allowed the plaintiffs a leave to amend their claims, which they did soon after.

According to Courthouse News Service, though, the judge said last week that the plaintiffs failed to cure "the previously identified deficiencies" in their amendments. He stated, "Because the facts alleged do not show wrongdoing even under the CFAA, the motion [to dismiss] will be granted."

Seeborg did not give the plaintiffs the option to amend their claims again: "In light of the prior amendment, and the fundamental shortcomings in plaintiffs' basic theory that it was wrongful for Sony to release the software update in dispute, leave to amend will be denied."

"[Almost] 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 [force PS3 owners to decide between] permitting the Other OS feature to be disabled or forgoing their access to the PSN and any other benefits available through installing" the firmware.

Continuing his statement on SCEA's perceived obligations, he added, "The flaw in plaintiffs' [argument] 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."

The judge argued that Other OS continues to work unless users choose to disable it with the firmware upgrade, and PS3 owners who decided not to install the update still have fully-functioning devices that can play games and take advantage of Other OS features.

Seeborg concluded, "The dismay and frustration at least some PS3 owners likely experienced when Sony made the decision to limit access to the PSN service to those who were willing to disable the Other OS feature on their machines was no doubt genuine and understandable."

"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 to articulate a theory on which Sony may be held liable." Seeborg will issue a separate judgment at a later date.

SCEA recently moved to stymie future class action lawsuits with a controversial update to its PSN terms of service, which has a "Binding Individual Arbitration" prohibiting users from filing or entering class action suits regarding its online services without Sony's approval.

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Greg Wilcox
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Good for Sony. As for the whole class action deal, may I suggest anyone interested in learning more about this to track down the excellent 2011 documentary, Hot Coffee (no, it's NOT about GTA San Andreas):

You'll see that this nonsense has been in the works for YEARS and Sony is only the latest in a LONG line of corporations to enact these awful rules.

Martain Chandler
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Progress continues to march on... in a backwards direction.

Glenn Sturgeon
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To me it was simple, if you wanted to keep the other OS option then you skipped out on using your ps3 online so there was no "forcefull" update needed. Still i don't see it as a fair choice and alot (i'd bet most) that do are people who never had a ps3 early enough to have the other OS option.

Its realy not good business practice to take options away from hardware people already own.

I still have the option on my 60 gig ps3. why? "Becouse its mine & not thiers to decide to take it away".

Adam Bishop
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I don't know enough about the relevant law(s) to comment on the decision itself. What I can say is that if companies really are legally permitted to remove advertised functionality from a device on a whim, then that's a very bad omen for consumers of electronic products.

Evan Combs
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It takes an expert to twist the laws to make it legal for Sony to do that, it doesn't take much to know that Sony can't legally do that. They can remove the feature from new yet to be sold PS3's, but not already sold PS3's.

Tom Baird
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If you were unable to modify products not yet sold, you'd be pretty hamstrung as a company.

Apple is not legally obligated to put Airplay on all future iPads, just like Sony is not legally obligated to Other OS on future PS3s. They have provided methods to retain Other OS on existing devices up to the change and changed the spec for future devices(which seems pretty reasonable as it's their product). In my opinion they covered their bases in a reasonable way, although it is not the best PR when you remove features, they should not be legally bound on what their future products must contain based on what previous products had.

Bisse Mayrakoira
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Tom, the issue is not that Sony has cut Other OS from future PS3s. The issue is that Sony forces people who have already bought a PS3 to give up one of the functionalities for which it was advertised. Either you do not upgrade firmware, and you lose the ability to play games and be connected to PSN, or you upgrade and lose OtherOS. A restaurant that has sold you "bacon and eggs" can't go and retroactively force you to choose just one of those to eat.

Adam Bishop
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@ Tom

If Sony had simply removed the functionality from future consoles, like they did with backwards functionality, I would have no issue. But taking functionality away from products that have already been sold is completely unethical. A purchase is a contract between two parties; if I uphold my end of the contract by giving them my money, I expect them to uphold their end of the contract by providing the functionality that I have paid for.

Tom Baird
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I was replying with regards to Evan Combs' comment, which talked specifically about removing from unsold PS3s

I do agree that the Either/Or option of update PSN or use Other OS is a nasty one. I think it's more of an issue of 'their ass is covered' rather than 'they were well within their rights' on that part. But until someone successfully challenges EULAs and TOSs specifically, we are licensors of the software, not owners.

I'm interested to know if the judge knew the implications of not updating (it's not just a loss of their online features but a loss of all newly released games), as he only mentions online features and not the reliance of boxed games on OS versions.

matt landi
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"The judge argued that Other OS continues to work unless users choose to disable it with the firmware upgrade, and PS3 owners who decided not to install the update still have fully-functioning devices that can play games and take advantage of Other OS features."

Well, those who chose not to upgrade their firmware won't be able to play any new games that require that firmware to run. Sony has a TRC that states that after a certain date games must use firmware version x. If the user buys a new game and has an old firmware they will be prompted to install the firmware from the disc in order to play the game. Legally, the judge's argument is probably correct. From a gamer's standpoint it sucks for the small percentage who actually use OtherOS.

Lyon Medina
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I am litteraly done with this subject matter, vote with your money is all I have to say. Not by buying another product mind you.

Mark Ludlow
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While I don't have a problem with Sony having the right to alter a service they provide to you as they see fit, as long as they have provided sufficient forewarning that they have the right to modify their service at any time, this case may set an interesting precedent. Currently, Apple, Google, Microsoft and Nintendo, all have the ability to terminate and disable any App or demo that you have purchased and/or downloaded. (Heck, the Siri app for older iPhone models was disabled with the release of the 4s)

In the case of the first three, the fundamental agreement is that the application will only be terminated and removed if it presents a threat to the user (eg. Spyware, or trojans or the likes). In the case of Nintendo, it's not so clear cut and is just a case of time-bombed content.

Still, with the ability for most companies to remotely deactivate features and content you "own" (I am using this term loosely in the context of the Sony case), lawsuits like this may become more commonplace. It will be interesting to see if they are more successful.

Jeremy Glazman
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If the judge agrees with Sony that "SCEA has the right to disable or alter software features" essentially at will, then what is stopping Sony from (for an extreme but perfectly valid example) disabling the disc-reading capability of the PS3 and forcing all users to only use PSN? How is that legal? Sounds like classic bait-and-switch.

Jacob Pederson
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@Anthony Taylor

There is a slippery slope fallacy, but there is also a legal precedent. Surely, no company will disabling its blu-ray player by firmware update . . . but other companies will be looking at this legal precedent and rubbing their hands together devilishly.

Don't forget that the ability to transfer fully compatible purchased games from the DSI to the 3DS, very nearly did not make it in as a "feature". I fully expect that this precedent will be used to take advantage of customers in the future.

E Zachary Knight
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Perhaps this is a more apt comparison. It is still a fairly extreme case, but it is in the realm of possibilities.

Rumors have it that Sony is working on Downloadable PS2 games in much the same way it offers PS1 games. Let's say they actually release such a service. In an effort to get everyone to buy into this new service, the PSN update disables PS2 playability on those consoles that have it.

Not saying it is likely as all PS3 still have PS1 play back capabilities, but it is just as likely as the removal of Other OS. Very few people still use the PS3 to play PS2 games.

Geoffrey Mackey
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I have no interest to use Linux on my Ps3, but the primary reason they removed the feature was to protect the PS3 from piracy. Now that piracy exists on the PS3 without the other os function, what is the benefit of having it disabled. I realize especially at this point sony will never reverse it since there was a lawsuit that questioned it, but it seems kind of pointless now.

Scott Massar
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And in related news GM announced that all car owners need to update their engines to only run Chevy Fuel. GM said no worries you "don't have to get a new engine", the car will still start up if you don't upgrade, you just can't drive it on any roads anymore. But you still will be allowed to drive it around your lawn.

Ujn Hunter
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"The judge argued that Other OS continues to work unless users choose to disable it with the firmware upgrade, and PS3 owners who decided not to install the update still have fully-functioning devices that can play games and take advantage of Other OS features." That's not true. Games force you to update your firmware before you can play them.

Jeffrey Crenshaw
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Exactly. Based on the premise that some consumers bought early model PS3s for the advertised features of being able to purchase new games for the duration of the console's life (if not explicitly stated, certainly a fair assumption based on the history of consoles), connect to the PSN service for free (a point explicitly used in advertising to counter Xbox Live and justify the cost difference between the 360 and PS3), AND simultaneously install other operating systems (also advertised), this does not strike me as a harmless case. These features were driving factors in helping consumers decide to purchase the system despite its high price, and to take them away (even if you have the "choice" of which feature to lose) is unjustifiable bait-and-switch. Disappointing conclusion by the judge, and I fear the precedence this sets. What's next, local ISPs, funded by Microsoft, can legally disable your internet connection if you don't have a Windows OS installed? I do not look forward to a future where I never really "own" anything that I've "bought".