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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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