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?

[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?

[girlintraining]

What are the consequences of refusing this firmware update?

After awhile, it'll cease to have any networking support. Even the browser will turn off. Who knows -- it's proprietary. They might even have a logic bomb in there that after a year, it erases all your savegames, stomps on it's own dick, and declares war on Panama in your name, all while throwing the reds in with the whites and focusing microwave energies into your freezer to make your ice cream all melty.

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?

[Locke2005]

You forgot the part about emailing your grandma all of your porn.

Re:Huh?

[mcgrew]

What are the consequences of refusing this firmware update?

You should have thought of the consequences of buying computer gear from a company who would put rootkits on music CDs before you bought it. Having XCP root my computer when my daughter ran the software on it, never dreaming that a big name like Sony would install malware, was the end of my Sony purchases. It's not a boycott, it's self-preservation. There's no way I'll ever trust them again, and neither will my daughter.

I have no sympathy for anybody who buys Sony, no matter how shoddily Sony treats them. Fool me once, shame on you; fool me twice, shame on me.

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?

[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?

[SpecBear]

That's the trojan that Sony is able to use.

Hey, at least Sony is considerate enough to use a trojan when fucking its customers.

Re:Huh?

[tb()ne]

- Anything else?

Under what has been lost: $300 in purchase price.

Under what has been gained: PS Home, PS Store video rental/purchase, & Netflix.

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?

[Khyber]

In California, several times - Unilateral contracts tend to go against the Consumer Protection laws we have here.

I kicked the shit out of EA by completely bypassing their EULA in court and making it a full property rights issue instead of a contractual one. I'm very sure the EXACT same methodology I used to break down EA can be used against Sony.

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?

[KDR_11k]

EULAs come with a clause that prevents an invalid claim from invalidating the entire EULA so they throw as much bullshit in there as they can to intimidate any non-lawyers.

Re:Huh?

[feepness]

EULAs come with a clause that prevents an invalid claim from invalidating the entire EULA so they throw as much bullshit in there as they can to intimidate any non-lawyers.

Mentioning that in a public forum is against the EULA.

Re:Huh?

[Khyber]

"How exactly did you bypass EA's EULA? Sounds very interesting."

Their claim was that there was enough mention in the EULA of DRM to prevent liability, however, I made the case that because of the insufficient disclosure as to the nature of the DRM, I was not properly informed to make a decision and that decision caused damages to my computer. I then argued that at that point and time, their negligence to properly inform me of the potentially harmful software put this into the realm of property damages instead of a matter of EULA.

And a class-action suit for property damages is not what any company wants as that usually leads to far stiffer penalties.

Do the same thing to Sony - this modification of the EULA/contract causes damage to my system by impairing functions I paid for. It goes out of the realm of contract law and starts hitting property rights.

Sony . . . ? Rootkit . . . ?

[PolygamousRanchKid]

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

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

Future of consoles

[jacks smirking reven]

Who else can see all consoles going this way? Part of the appeal to content producers and the console makers themselves is having consistent and complete control over the platform. It's things like this that will hopefully keep the PC relevant as a gaming and entertainment platform

There's More

[eldavojohn]

At the end of the EULA there's an agreement that you agree to an expanded EULA online that morphs and changes as Sony sees fit. I tracked down the extra bullet points:

• By agreeing to this you allow Sony to house and feed shocktroops as they pass through your city in your civilian houses and from your civilian food stocks.
• In the event that Sony finishes a year in the red, you agree to become liable to pay a portion of restitution such that the sum of all signees of this EULA pays Sony back to profitability.
• By signing this EULA you agree to name (or rename) your first born child "Sonny" or (in the absence of a 'Y' chromosome) "Sonya."
• After agreeing to this EULA, you will start all prayers and services -- regardless of denomination -- with "The Lord Our God Sony who Art in Playstation."
• By agreeing to this, you will be issued a Sony Playstation Network UID which will be tattooed on your forearm by a Sony representative and will be needed to activate the Playstation 3.
• In the next console war, should conscription take place your Sony PSN UID will determine your eligibility for the draft so please do not lose the aforementioned tattoo.

Sounds pretty reasonable. At least there's no mention of rootkits for now.

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:So what?

[xavierpayne]

So SONY in their latest ToS has basically admitted that they believe they have carte blanche over hardware you payed between $300-$600 dollars for. Not counting accessories and purchases. Yes. With 3.21 this only affected linux and it was optional (arguably). But from 3.30 forward SONYs stance is they can AUTOMATICALLY and WITHOUT YOUR PERMISSION update the console. The updates can add/remove features, capabilities, even content you have bought and paid for and you (in their eyes) can't do a thing about it. GeoHot was right. This isn't about Linux anymore. This is about who owns what you paid for.

Re:So what?

[Sperbels]

This seems like such a huge deal when you put it that way, but really... so what?

Let's see how you feel after Sony's monitoring programs see how good you are at Starfighter and recruit you in their real world war against the Ko-Dan Empire. Meanwhile, your android replacement will be sleeping with your wife.

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:New Overlords

[miggyb]

Seriously, why doesn't Sony just start leasing their consoles instead of selling them? Just pay $20 a month. If it breaks, you get a replacement at no charge. If you do anything they don't want you to do, they can argue that it was never *yours* to begin with. Kind of how I can't hack around with my cable modem because it's technically not mine.

Sony you are losing this customer

[wrightrocket]

When I decided to buy the PS3, it made that choice based on the fact that I could legally run Linux on it, as well as use it for a game console. What happened to the promise in the commercials that "It does everything?" I refuse to install any update that takes away this important functionality, and will continue to use the system as a computer. I have already filed a complaint against Sony with the Federal Trade Commission. I will never buy any more games for it, and I will never buy another Sony products again. Sony you can stick it to everyone else, but you've lost this customer, and any profit that you will ever gain from me again.

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?

[Genom]

This isn't about linux. It never was. This is about getting what you paid for, and keeping it.

Let's say you bought a fairly expensive item - like a car. Let's also, for the sake of simplicity, say you paid for it in full. You are the owner of the car.

Included in the price you paid, there are a bunch of features - some you'll use, others you won't. Regardless of whether you use them, you paid for them. Moonroof, heated seats, air conditioning, etc...

Let's say one of those features is free maintenance every 6 months, at the manufacturer's dealership. You bring in the car, and they change the oil, fill the fluids, check the air in your tires, replace the windshield wipers, etc...

Now, a year after you bought the car, you bring it in for service. When you get it back, the heated seats have been replaced with physically-identical un-heated seats.

This may not upset you too much if you never actually used the heated seats. However, was it right for the manufacturer to remove them?

The next time you bring it in for maintenance, you ask what they plan to do. In addition to the usual stuff, they tell you they intend to remove your air conditioner - not because there's a problem with it, but because the manufacturer has decided they don't want to support air conditioners anymore. You protest - you paid for the air conditioner, and it's something you use. You don't want to lose it. The dealership says "OK, take the car and leave then. We're not working on it unless you let us remove the air conditioner. Oh, and you won't be able to play any new CDs in your CD player until you let us remove the AC."

This is what Sony's already done. This is what folks are complaining about - and what they have a right and duty to complain about.

What Sony's doing now is equivalent to the dealership saying: "We can come in the middle of the night and remove your AC if we so choose, without telling you or giving you the right to refuse".

Who owns that car again?

Who owns your PS3?

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: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.

Re:Big deal

[dank zappingly]

IAL. I read, review and edit real estate loan documentation all day. I have never seen the term you are referring to, and would never allow a client to sign a document with that term in it. Generally it is considered bad practice to sign a document with terms you do not agree with and hope that the other party does not enforce them. Also, if they did not ever intend to enforce a term, why would anyone put it in?