Sony Can Update PS3 Firmware Without Permission

Stoobalou writes "Sony's latest firmware update comes with a revised End User License Agreement which allows the company to change any part of the console's operating system without notification or permission. You might think you own the console you paid for, but Sony has a very different idea."

Comments

Huh?

[Locke2005]

Shouldn't the EULA that I agreed to when I bought the hardware apply, not a revised one released after the fact? What are the consequences of refusing this firmware update?

Re:Huh?

[wickedskaman]

Does that EULA state that they can change the terms of the EULA itself without permission or notification?

Re:Huh?

[tepples]

One consequence is that you are blocked from PlayStation Network, which means no online play, no buying downloadable games or mods, and no renting movies. Another is that a lot of games won't run on any firmware older than the firmware update package on the disc.

Re:Huh?

[ArundelCastle]

Both of your questions are answered by staying offline. (Eventually new game discs will have a mandatory firmware update included as well.)
You agree to the EULA of the firmware version that you are using. There is no EULA for the hardware.
It's not much different than refusing a policy update from a web service like PayPal. The condition (or "price" if you prefer) of using a service is compliance with its rules.

You can do whatever you want with the hardware you bought. But you can't do it in Sony's yard.

Re:Huh?

[wastedlife]

I find it strange that the maligned Microsoft (and for good reason), keeps taking steps to improve the 360 both in features and extending the warranty to take care of a common issue, while Sony, who started off with a decent system has been systematically removing features with little to no return.

What has been lost on the PS3:
- Emotion Engine (hardware)
- SACD playback (software)
- USB 2.0 ports (hardware)
- Full PS2 backwards compatibility (software)
- Other OS Linux (software): retroactively disabled on older hardware as well now with the new update
- SD and CF slots (hardware)

What has been gained:
- Media bar in-game
- Trophies
- Divx
- Anything else?

Re:Huh?

[FatdogHaiku]

That's pretty much boiler plate for any EULA or TOS. Here is Slashdot's version:
Geeknet reserves the right, at Geeknet's sole discretion, to change, modify, add or remove portions of these Terms periodically.
And that's in the first section of the TOS.

Re:Huh?

[icebraining]

If I agreed to an EULA with a clause to remove my right of a 2 year warranty (I live in the EU), I would still have that right after I bought the thing.

EULAs can say a lot of things, but not all are legal. That's why I asked.

Re:Huh?

[Fnkmaster]

In general, no, you can't agree to a contract that says you will agree in the future to anything that one side proposes. A binding contract (which a EULA may or may not even be in the first place) certainly can't say you agree to anything the writer might propose in the future.

For starters, it violates the principle of Meeting of the Minds - you can't have agreed to a principle in a contract that you haven't seen yet simply by having generally agreed to a term saying you will agree to whatever they say in the future.

Furthermore, it is on the face of it unconscionable, in any form of contract (adhesion, license or traditional contract) to agree to something that you aren't told at the time and that may be unilaterally changed to anything else in the future. As it is, many jurisdictions hold many EULA terms to be unconscionable - even the most egregiously pro-EULA jurisdictions won't enforce a term like this.

I'm not a lawyer, but I don't know what kind of idiot lawyer would tell somebody to put stuff like this in a contract when he knows it's unenforceable. The problem is that even though it's entirely unenforceable, it's not actually illegal to sneak anything you want into a contract. It would be nice if there were some sort of penalties to discourage this kind of thing. Unfortunately, bad PR doesn't work because nobody outside of Slashdot geeks and IP lawyers cares about this sort of thing, so stories about EULA hijinks go nowhere in the mainstream press.

Re:Huh?

[tsm_sf]

I'd like to see an "unreasonable burden" approach to fighting certain EULAs. Anything beyond, let's say, two pages of 12 point text should fall into this category. Thirty pages of dense legalese inside an installer window will never be read by any consumer, and should be seen as negotiating in bad faith.

The worst part of these abusive EULAs is that they erode respect for the rule of law. You are consistently lying in a legal document every time you click the "I have read and agree" checkbox, and the presentation of the document does everything to promote this.

Re:Huh?

[hairyfeet]

The problem with that theory is it is NOT "optional" in the least bit. You see most folks bought the PS3 to actually play games and none of the newer games will work without the updated firmware. So that is like saying "your new machine won't actually work unless you take this ass raping, but of course you are free to refuse the ass raping and use it for a doorstop".

I would think any court of law would throw this out in a heartbeat, and I'm personally waiting on the class action lawsuit. This isn't like some firmware which may or may not brick a machine, this is taking away functionality no matter which way you go. Either you take the firmware and lose other OS and anything else they want to take away from you at a later date, or you don't and lose the ability to play games. either way you lose.

I'm just glad I decided to stick with PC gaming. Between the RRoD on the MSFT side and Sony being their usual douchebag selves there really isn't a good console for those that don't want to play kiddie games. At least with PC there is steam, GOG, and plenty of other places willing to take my money without royally boning my machine, plus it makes a good media center when I'm not playing games. Ohh...and I get work done occasionally on it too ;-)

Re:Huh?

[Moryath]

Conspiracy theories?

That a company that KNOWINGLY PUT ROOTKITS IN THEIR PRODUCT would try to recode their "update" software to be as difficult to firewall out as possible?

We have a word for entities like you - we call them "sheeple."

Re:Huh?

[spazdor]

Your approach is silly and untenable, and tech vendors bank on that fact.

Imagine how sales would soar if EB refused to sell you a product until you'd had the EULA explained to you in the store. If every customer actually practiced the "common sense" you're espousing, they would either spend all their time reading, or they would have to abstain from most of the tech market on principle.

Re:Huh?

[timeOday]

Let's have a close look at these claims of yours...

...

Summary: all the claims were true.

New Overlords

[nomaan]

All your PS3s are belong to SONY

Sony . . . ? Rootkit . . . ?

[PolygamousRanchKid]

Kinda sorta sounds familiar . . . but I dunno . . .

Would a company like Sony rootkit their customers . . .?

They can apply it retroactively

[Mouldy]

EULAs aren't the most legally bind 'agreements' at the best of times. But one that applies retroactively is ridiculous even by EULA standards.

Re:So what?

[jvillain]

If I paid money based on the device having a certain functionality and the company takes that functionality away that is fraud. If I sold you an MP3 player and 60 days later it would no longer play MP3s would you say so what?

Re:1984

[Anonymous Coward]

What a fucking moron you are. I doubt you've ever even seen a copy of 1984, nevermind understanding anything within. This has nothing to do with 1984, you fucking idiotic dipshit retard.

Big deal

[Itninja]

EULAs say all kinds of crazy stuff that never actually get done. I seen ones that border on 'signing' away Constitutional rights. But I've ever heard of a single case of a legitimate, license-holding, console-owning user being forced to do something awful because of EULA verbage. Like buying a house. All real estate loans since forever ago allow the bank to 'call' the entire loan amount at any time for any reason. But they never actually do. They just was you to know they can.

If Sony releases a firmware update that pisses off more than a tiny percentage of users, they will undoubtedly reverse it. And if that tiny percentage of modders/cheaters/hobbyists or whatever else are really hacked off by the update, then they should sell their PS3's on Ebay for 80% of what you paid for it and move on with their lives for God's sake.

Re:Big deal

[Itninja]

That would be a valid argument...if cars came with EULAs. But of interest, your car insurance kind of does. My policy states that I may lose my insurance (and with it, the privilege of legally driving), if I 'engage in unlawful or overtly reckless behavior' while driving.

Sony is forcing PS3 owners towards hacking/modding

[_bug_]

I know these recent steps by Sony are done with the aim to prevent modding of PS3s, but these moves will actually drive more PS3 owners to mod or hack their PS3s.

Sony's response to complaints about last update

[chaim79]

I haven't updated to the 3.21 firmware (the one that disables Other OS), and I suspect many others have ignored the update as well. I'm betting Sony sees this and in response has decided the best way to go is to force future updates down our throat, not giving us the option.

Re:1984

[abigor]

+1

Dumbest thread topic I have seen in a long time, and an insult to those who live/have lived under true totalitarian regimes. Waah, my video game system automatically updates! I'm so oppressed!

this is very common

[YesIAmAScript]

Not sure why Sony is taking the heat for it more than others. Maybe it's because the good guys like Valve wouldn't pull this crap on us!

http://store.steampowered.com/subscriber_agreement/

2.A. License Terms.

Steam and your Subscription(s) require the automatic download and installation of software and other content and updates onto your computer ("Steam Software"). You may not use Steam Software for any purpose other than the permitted access to Steam and your Subscriptions. You understand that for reasons that include, without limitation, system security, stability, and multiplayer interoperability, Steam may need to automatically update, pre-load, create new versions or otherwise enhance the Steam Software and accordingly, the system requirements to use the Steam Software may change over time. You understand that neither this Agreement nor the terms associated with a particular Subscription entitles you to future updates, new versions or other enhancements of the Steam Software associated with a particular Subscription although Valve may choose to provide such updates, etc. in its sole discretion.

Face it, all EULAs are designed so that the seller (ha, I mean licensor of course!) can screw you all they want. You just have to hope they don't do it.

Re:So what?

[The End Of Days]

But that's not what is happening here.

You are free to continue using your PS3 as it was bought, you just have no right to continued free support from the manufacturer. Sony has changed the conditions of that free support, which you are totally able to reject.

So it's a choice - get something from Sony in exchange for agreeing to let them modify your firmware, or keep full control of the machine yourself and lose out on official Sony support from here on forward.

They aren't taking anything away, they just aren't giving you anything anymore. Only on Slashdot could the two possibly be confused by people who call themselves intelligent.

Re:Still Disappointed

[The End Of Days]

Sony forced you to access their network? Did they use a gun or threats against your family or something?

Oh, right, they enticed you with features you want. Force had nothing to do with it at all.

Re:1984

[mcgrew]

The law is not catching up quickly enough.

What good is the law when it's not enforced? If you root Sony's computers, you'll go to prison. Nobody went to prison when Sony rooted me and lots of other people. It didn't even cost them much money.

Why haven't those in charge of the mining company that killed all those miners two weeks ago after being cited time after time for safety violations, including their methane detectors and ventilation systems not working properly, been charged with negligent homicide? If you negligently killed two dozen people how long would you be free?

More laws are not the answer until they start enforcing the ones already on the books. A law that isn't being enforced is hardly a law at all, and a law that is selectively enforced is just plain evil.

You own the hardware, you license the software.

[jshannon00]

I decided to read the entirety of the new EULA before the update yesterday, after the whole "Other OS" situation, and the bottom line is that you, as a user of the PS3, are only licensing the software on the system.

You own the plastic and the metal of the console, and can do anything you want with it. You do not own the system software on the machine. This means no reverse engineering the system software, no editing the software, no reselling or redistribution of the software. This includes editing the software to circumvent encryption or DRM on any medium you play on the console, or editing it in any way to use the system software as a gateway to installing another OS or apps. The Other OS hack that is currently out now is in direct violation of the user's licensing agreement.

You can turn your PS3 into a doorstop, or you can run any OS or apps you want on it, AS LONG AS YOU DO NOT MESS WITH THE INCLUDED SYSTEM SOFTWARE. If you can code an entirely new system software to run the PS3 WITHOUT using any preexisting code from the system software included with the PS3, you are welcome to do so, and I encourage someone with the skills to do so to attempt this.

If you have ever pressed "Accept" while updating your system software, then you have agreed to play by Sony's rules, which is just fine for me and the other 95% of the people using the PS3 to play games and watch movies.

Re:So what?

[karmatic]

They marketed the PS2 as a system that could:

1) Play PS3 games, including games with online functionality.
2) Use linux, and other OSes.

It is a Playstation 3. As such, one has a realistic expectation that "Playstation 3 compatible" software will run on it. Unlike the PC, Sony controls the hardware and licenses the software specifically to ensure such compatibility.

It had Other OS support. It was marketed as supporting it. People (in some cases) bought it specifically as a result of such support.

Here's the crux of the problem: They have made it impossible to actually use the device as it was marketed.

I have games that boast they have online support. Sony says they are PS3-compatible, and support networking (subject to the terms of the Playstation Network). They then use the PSN to force an upgrade which would disable the very functionality they sold me.

So,
"Buy this PS3, get games, online functionality, and linux"
"Lose linux, or lose online functionality"

With forced firmware updates, it can get even worse. Newer PS3 games can require certain firmware versions to run.
"Buy this PS3 to get games, online functionality, and linux"
"Lose linux, or lose games, and online functionality"

Even if you accept the Playstation Network TOS changes, and feel that "it's their network, they can set whatever terms they want" - the PS3 was marketed as a dual-purpose device, and forced firmware changes would literally force you to choose between the two. That would be fine if it was sold that way, but it was not.

Re:1984

[PitaBred]

More laws are not the answer until they start enforcing the ones already on the books. A law that isn't being enforced is hardly a law at all, and a law that is selectively enforced is just plain evil.

It's not selectively enforced. It's quite logical. The company has more money than you do, so they don't get punished. See how easy that was?

Re:GEOHOT!

[LateArthurDent]

Geohot is the one who caused this goddamn mess in the first place. If he hadn't decided to poke his nose where it didn't belong we wouldn't be having these problems.

Although I am pissed off that his actions are causing me problems, I don't blame him, I blame Sony. Geohot was doing something with his console, which he acquired legally. It's his right to do whatever he likes with his property, whether or not Sony approves of it.

Which is really the crux of this problem. I don't care what their EULA says, the PS3 promised the ability to both install an alternate OS and play games / connect to their network. Now they want to remove this functionality and make people choose which they want to do, and now they apparently want to avoid people holding back on the updates by automatically updating without asking the user first. They're clearly the ones to be angry at.

Like you would know

[Burz]

People who have lived under totalitarian governments are speaking up about how parts of the West (esp. the English-speaking parts) have more surveillance than the Eastern Block ever had, and how saddened they are that the War On Drugs and War On Terrorism are being used to promote a cycle of maximum incarceration.

Oh, BTW, welcome to the War On Piracy.

Re:So what?

[SwordsmanLuke]

Fine, so in software, they disable the switch that enables the heated seats/AC. You still can't use the feature you paid for.

Re:So what?

[Anonymous Coward]

Here is the flaw in your logic.

You took your car in for a free service, completely by choice, and before any work was done you signed paperwork that said "Yes, I agree to have my heated seats replaced with regular seats." You agreed to this because you wanted to continue to get free services in the future. You could have said "No thanks" and left. Your car wouldn't get any worse, it just would never get any better, and you'd no longer have access to future free services.

When you said "Yes, I agree" you agreed to everything. You don't get to pick and choose which parts of the deal you agreed to. Don't like it? You should have said "No thanks" then.

There's no way anyone can claim Other OS was removed from their systems without their knowing or acknowledgment. Sony went out of their way to make sure people understood what they were agreeing to before applying any updates. I typically update my PS3 using the "Auto Update, then shutdown"method, but with this upgrade an additional confirmation screen was added, and the auto-upgrade did not take place until the second confirmation screen was acknowledged. There were also warnings about backing up any Other OS data because it would no longer be accessible. This was not fine print buried in an EULA. These were individual warning screens.