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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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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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 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.
  
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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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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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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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4. 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.
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.
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: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.
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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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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.