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?

[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?

[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?

[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?

[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.

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.

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.

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: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.