New Sony PSN ToS: Class Action Waiver Included

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New Sony PSN ToS: Class Action Waiver Included

Posted by timothy on Thursday September 15, 2011 @04:34AM from the furthermore-and-hereuntoagain-be-it-resolved dept.

rwven writes "Yesterday Sony sent an email to PlayStation Network members regarding a change in the Terms of Service for PSN. When agreeing to this new terms of service, you must waive your rights to a class action suit against Sony. I, for one, will not be agreeing to any such thing. You can view section 15 of the new ToS here (PDF)."

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Time to go for a class action suit. by joaommp · 2011-09-15 04:37 · Score: 5, Insightful

Time to go for a class action lawsuit for trying to make us waive our right to a class action lawsuit. Sony can burn in hell.

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Onda Technology Institute
1. Re:Time to go for a class action suit. by Moryath · 2011-09-15 04:41 · Score: 4, Insightful
  
  All it takes is one good judge to declare that crap unconscionable and unenforcable. ESPECIALLY since it's blatantly a try to protect their asses after setting off multiple class-action suits that are already on the books in which the only possible outcome is Sony getting their asses handed to them in court.
2. Re:Time to go for a class action suit. by sexconker · 2011-09-15 04:56 · Score: 5, Informative
  
  All it takes is one good judge to declare that crap unconscionable and unenforcable. ESPECIALLY since it's blatantly a try to protect their asses after setting off multiple class-action suits that are already on the books in which the only possible outcome is Sony getting their asses handed to them in court.
  One good judge? Nope, it'll take 5 of them. And they'll have to sit on the Supreme Court.
  Because on April 27th 2011, five trolls on that bench decided that contractual clauses saying you won't join a class action lawsuit trump your rights, even if your state specifically says that such rights can't be tossed aside by some corporate fuck.
3. Re:Time to go for a class action suit. by Hatta · 2011-09-15 05:06 · Score: 5, Insightful
  
  Where are you going to find a good judge?
  
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  Give me Classic Slashdot or give me death!
4. Re:Time to go for a class action suit. by meerling · 2011-09-15 05:15 · Score: 4, Informative
  
  Last time I checked, judges all used to be lawyers before moving up, so... ummm... I'm kind of making your point, aren't I.
5. Re:Time to go for a class action suit. by Caerdwyn · 2011-09-15 05:42 · Score: 3, Funny
  
  Where are you going to find a good judge?
  Depends. How much are you willing to spend?
  
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  Everybody gets what the majority deserves.
6. Re:Time to go for a class action suit. by alva_edison · 2011-09-15 06:12 · Score: 4, Informative
  
  There's a paragraph which most people will miss which states that if you give them notice in writing to a specific address within 30 days of agreeing to the contract, you can opt out of arbitration and retain your right to class action:
  
  RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 15, YOU MUST NOTIFY SNEI IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 6080 CENTER DRIVE, 10TH FLOOR, LOS ANGELES, CA 90045, ATTN: LEGAL DEPARTMENT/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR PSN ACCOUNT NUMBER, IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ANY SONY ENTITY THROUGH ARBITRATION.
  
  --
  He effected a bored affect.
7. Re:Time to go for a class action suit. by Anonymous Coward · 2011-09-15 07:24 · Score: 3, Funny
  
  I am German. And a lawyer. Only not your lawyer. German courts have declared that sex slavery and toilet slavery is legal with certain conditions. If you kidnap a girl, tie her up in your bathroom and make her eat poo, it is not legal. If girl agrees to be your toilet slave, it is legal contract, subject to contract laws and regulations.
  
  Too bad I can't mod this "astounding".
so let me get this right... by Tastecicles · 2011-09-15 04:38 · Score: 4, Interesting

in order for you to enjoy gaming on PSN, you must first agree to a EULA which automatically waives your right to enjoin a Class Action against Sony should their network be compromised again!?
Are they expecting their network to be compromised again??
Is this legal??
Sony, you are a bunch of deluded fuckheads.

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Operation Guillotine is in effect.
1. Re:so let me get this right... by tysonedwards · 2011-09-15 04:43 · Score: 5, Insightful
  
  It is surprising how a company that used to be regarded as the highest quality whatever-it-was-trying-to-sell can now have the level of respect usually afforded used car salesmen.
  
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  Thirty four characters live here.
2. Re:so let me get this right... by Anonymous Coward · 2011-09-15 05:06 · Score: 4, Interesting
  
  It it legal for a minor to enter such a contract?
3. Re:so let me get this right... by Hatta · 2011-09-15 05:09 · Score: 5, Insightful
  
  Of course you can. If you hire enough lawyers almost anything is legal. Notice how no one at Sony has gone to jail for hacking thousands of computers with their rootkit. However, if I just hacked one Sony computer, what do you expect would happen?
  The US government plainly does not care about the law, or its citizens. All they care about is pleasing powerful corporations and well connected individuals.
  
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  Give me Classic Slashdot or give me death!
4. Re:so let me get this right... by gstoddart · 2011-09-15 05:11 · Score: 3, Insightful
  
  It's not legal, you can't put terms in a contract like that, there's no way that would ever stand up in court.
  Sadly, I don't think there's enough established case-law and precedent to make that a guaranteed thing.
  For example, SCOTUS has ruled that they can force you to arbitration ... so as long as SCOTUS figures the rights of companies trump yours, I fear what you say might not be true.
  
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  Lost at C:>. Found at C.
5. Re:so let me get this right... by Anonymous Coward · 2011-09-15 05:14 · Score: 4, Funny
  
  True. I never bought a used car with a rootkit.
Waiving your rights... by girlintraining · 2011-09-15 04:41 · Score: 4, Interesting

Okay, sooo... who's up for a mass individual filing of, oh, say, 20,000 lawsuits? we'll see how well that works when the courts choke to death on paperwork and reconsider that whole "class action" thing being allowed to be thrown out.

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1. Re:Waiving your rights... by Kohath · 2011-09-15 05:00 · Score: 5, Funny
  
  Okay, sooo... who's up for a mass individual filing of, oh, say, 20,000 lawsuits?
  
  About 12 people.
I am not a contract lawyer... by BaronHethorSamedi · 2011-09-15 04:45 · Score: 3, Interesting

Maybe there's one floating around here that could comment on whether this might be deemed unconscionable?

Seems to me Sony is spontanteously forcing users to renegotiate their use contract in a decidedly one-sided fashion. Yes, yes, all EULAs fall into that category, but this seems more like an ongoing service agreement--you've been using PSN for some time, Sony steps in and says, "Hey, if you want to keep using our network, you need to surrender an important right." Just the sort of important right that could put an individual consumer on more even footing with a multinational corporation in asserting his/her entitlements under contract.
1. Re:I am not a contract lawyer... by Anonymous Coward · 2011-09-15 05:13 · Score: 5, Informative
  
  Arbitration provisions are generally enforceable. Unconscionability is a matter of contract law, which varies by state. In New York, to be unenforcable due to unconscionability, the provision must reflect both "procedural" and "substantive" unconscionability at the time it is made. In other words, one party must have used its superior bargaining position to somehow trick or "surprise" the other party into accepting a term which was unexpected or out of the ordinary, and the term itself must be unreasonably oppressive to the party that was tricked or surprised into accepting it. An example of an unreasonably oppressive arbitration provision would be a requirement to use a particular arbitration body that required a $1000 fee for all parties involved in the arbitration, where the customers in question were only complaining of goods worth $500.
  I fairly doubt Sony's term would be held unenforceable, at least in NY. They warn you about the new arbitration clause in big red bold underlined text on the first page of the EULA. That would seem to dispense with any "procedural unconscionability" objections. Additionally, if you win the arbitration, Sony covers your legal costs, and Sony even provides in the EULA that if you wind up having to engage in arbitration outside your home county, against your preference, they'll pay the additional costs you incur by having to arbitrate out of state.
  This is to say nothing of the provision that actually allows you to OPT OUT of the arbitration provision, making this even more of a non-story. All told, I'd say this will be enforced if anyone ever tests it in the courts.
  —Legal.Troll (only allowed to post once per day because Slashdot fucktards mostly have an irrational hatred of the law and lawyers)
Denmark by JavaBear · 2011-09-15 04:48 · Score: 5, Informative

The law in Denmark is a bit funny on this, which may be why I haven't seen this mail yet.
Basically you can not waiver your law given rights in a contract, if the contract (ToS) contains such demands, it pretty much invalidates the entire contract...
You have the ability to opt out by ThinkWeak · 2011-09-15 04:50 · Score: 5, Informative

FTFToS:

RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 15, YOU MUST NOTIFY SNEI IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 6080 CENTER DRIVE, 10 TH FLOOR, LOS ANGELES, CA 90045, ATTN: LEGAL DEPARTMENT/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR PSN ACCOUNT NUMBER, IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ANY SONY ENTITY THROUGH ARBITRATION.

You just have to go through the pain-staking task of writing them via snail mail and don't forget to keep a copy of your tracking receipt.
1. Re:You have the ability to opt out by v1 · 2011-09-15 05:26 · Score: 3, Insightful
  
  The problem is, if only say 2% of the people that click Agree actually send that mail, (and that'd be a very optimistic number) then those 2% are the only ones that can engage in a class action suit. And with such small numbers, getting class status will be impossible. And Sony knows this. So there's no point to it, sending that letter is a waste of time unless you are trying to opt out of arbitration instead of class action, and intend to hire a lawyer.
  
  --
  I work for the Department of Redundancy Department.
Thank you Ontario! by rveldpau · 2011-09-15 04:56 · Score: 5, Informative

Ontario, Quebec and Alberta actually have legislation that prevents such a clause, which renders Section 15 invalid. This is mentioned in an article about a BC consumer filing a lawsuit against Telus, see this. I haven't tried to track down the actual legislation that prevents these clauses, but CBC tends to be fairly reliable.

Disclaimer: I am not a lawyer, this is not legal advice.
Re:Cool story, bro by Anrego · 2011-09-15 05:01 · Score: 3, Insightful

The fact that you can agree to it by clicking a button, but waiving it involves letters and stamps and writing is very telling.
Obviously this is on purpose. They could very easily have an extra button (or website somewhere) to opt out, but by requiring users to mail in a letter... they are banking on the fact that most people won't bother (and they are probably right).
Re:Opt-out by sexconker · 2011-09-15 05:19 · Score: 4, Informative

well, you don't actually HAVE to do that, because a clause like this is illegal in the first place. you can't waive your legal rights. this will never hold up in court.
The Supreme Court of the United States on April 27th, 2011, said it was legal in a 5-4 decision.
Re:So... by John+Courtland · 2011-09-15 05:20 · Score: 5, Informative

It became legal rather recently:

http://en.wikipedia.org/wiki/AT%26T_Mobility_v._Concepcion

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Re:South Park "CentiPad" anyone? by ProfMobius · 2011-09-15 05:46 · Score: 3, Insightful

You did a great job at talking about everything NOT relevant in the episode, beside the relevant part (and the central one). Namely, putting weird clauses in EULA that people do not read but remove some of their basic rights.

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EULA : By reading the above message, you agree that I now own your soul.
Blame the Federal Arbitration Act by Quila · 2011-09-15 06:00 · Score: 4, Interesting

It's the one that promotes arbitration over lawsuits, it's the one that preempts state laws on the issue.
This interpretation isn't really new either, since it was held to preempt in Southland Corp. v. Keating. That was a 7-2 decision.

Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration
That was in 1984. The law needs to be changed.
Class action suits are a lawyer scam by tgibbs · 2011-09-15 09:25 · Score: 3, Interesting

Class action suits over consumer products are a lawyer scam. It doesn't much matter whether the alleged product flaw is real or not. The lawyer makes a lot of noise in the media and sues for a ridiculous amount of money, then offers to settle for less than it would cost the company to defend itself in court. The company settles--after all, defending itself in court would just generate more news reports and extend the bad publicity for months, and even if they won, would end up cost them more money than the settlement. All the "members of the class" get a piddly settlement, like a gift certificate for more of the company's products, that is barely even decent compensation for the time it took them to fill out the paperwork. But the lawyer gets a slice of all of those piddly settlements which add up to a nice chunk of change--all for no work other than giving a few press conferences and sending a few letters.
So? Fuck the class action suit. by Khyber · 2011-09-15 10:19 · Score: 3, Insightful

You'll get more money (and they'll lose more) in small claims court.

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Still waiting on Serviscope_minor to wake up to fucking reality and realize that Jessica Price isn't going to fuck him.