Sony Sued Over PSN 'No Suing' Provision

An anonymous reader writes with this excerpt from the Examiner: "In a grand dose of irony today, Sony was sued over a term in the PlayStation Network's End User Agreement that states that users cannot sue Sony. These terms were added in September, after a long string of Sony hacks (the official count is that Sony got broken into 17 times in a space of about 2 months), which included a massive outage of the PlayStation Network itself. The suit that was filed today is a class action suit for all of those who bought a PS3 and signed up for the PSN before the September update to the EULA. The suit also claims that this is a unfair Business practice on Sony's part, and requires users to forgo their rights in order to use the device that they purchased."

Comments

EULAs

[bonch]

"The suit also claims that this is a unfair Business practice on Sony's part, and requires users to forgo their rights in order to use the device that they purchased."

I don't know about the rest (avoiding legal culpability isn't exactly uncommon in EULAs), but this part is untrue. You don't have to use PSN to use a PS3, and you are also free to return the PS3 if you don't like the EULA for its online component.

Anti-Sony stories are one of Slashdot's most common page-view drawing tactics, so I'm always a little suspicious of any stories Slashdot posts. Not to automatically dismiss this one, but lawsuits are filed literally every day for every reason imaginable, and this one is only getting reported because it's "ironic" and it's a well-known company that Slashdotters love to hate. Strangely, Nintendo gets a lot of love even though it has a history of being even more evil than Sony.

No doubt there will be comments about the evils of EULAs following mine (assuming I'm not modbombed into oblivion), but I should mention that EULAs are no different from free software licenses--they are contracts you agree to the terms of in using the software. The majority of U.S. courts have upheld the enforceability of EULAs.

Re:EULAs

[XanC]

No EULA is required to use free software. DISTRIBUTING software is a different matter. It's an important difference.

Re:EULAs

[InsightIn140Bytes]

In this specific case Sony also allowed you to opt-out from that specific provision and still accept the rest and use PSN, you only had to give them written notice about it. So if you want to bash Sony, it would be good to at least stay in truth.

Re:EULAs

[dan828]

A EULA, like any other contract, is only enforceable if it's provisions don't break the law. A company can put whatever they want into them, but that doesn't mean it has legal standing. Companies don't get to arbitrarily make laws. They could add a provision that you'll give them your first born son, but I'm pretty sure that wouldn't stand if challenged in court.

Re:EULAs

[NoobixCube]

I'd like to see my local EB Games accept my PS3 return now, after the EULA updates, even though I bought it years ago...

Re:EULAs

[InsightIn140Bytes]

If this EULA update worries you, then just give them a written notice that you don't accept that clause. They allow it as long as you notice Sony, and they still let you accept rest of the EULA and use PSN. It's even written there right next to the clause. Read it.

Re:EULAs

[jazzmans]

PSN is required to use Netflix, So, yes, it is required to 'use' the PS3.

I don't game, and didn't buy the ps3 to game. I bought it to act as a media viewer. Not being able to watch netflix on my bigscreen is a huge problem. I had to agree to the new TOS or the netflx app wouldn't connect.

I'd sign onto this class action, you bet.

  I'll never buy a sony product again.

jaz

Re:EULAs

[Anonymous Coward]

A EULA, like any other contract, is only enforceable if it's provisions don't break the law. A company can put whatever they want into them, but that doesn't mean it has legal standing. Companies don't get to arbitrarily make laws. They could add a provision that you'll give them your first born son, but I'm pretty sure that wouldn't stand if challenged in court.

You clearly don't live in the USA.

Re:EULAs

[Anonymous Coward]

No.

Sony gave 30 days written response from the time the EULA was accepted..

Outside of that time, Sony considered the EULA to be accepted in full by the user.
 

Re:EULAs

[AngryDeuce]

The game console was marketed as a media box, just like it's linux capabilities were. You can't fault someone for buying a product to do a job that they were told the product did.

In all honesty, I don't know anyone that bought a PS3 for the games. Most people I know bought it for the Bluray player, since the good ones were going for more than a PS3 was at launch, as well as the streaming capabilities (whether local or via Netflix, which I don't think even had streaming service at that time).

Besides, putting together a decent HTPC that could push 1080p wasn't nearly as cheap back in 2005 (or was it 2006?) as it is today.

Re:EULAs

[Synerg1y]

A blu-ray player and a ps3 for the longest time were very comparable in price, where you'd have to be stupid to buy the former when the latter was available with 10x more functionality.

Re:EULAs

[causality]

And, IIRC, didn't the Supreme Court recently rule that an AT&T provision in their contracts did not violate the law? If you are an AT&T customer, your lack of right to sue them (for any reason, no less) has apparently been upheld by the courts. Your sole method of redress is binding arbitration with, as I recall, some sort of liability cap.

What's the good, compelling reason that anyone is allowed to forfeit (or demand another party forfeit) what is otherwise a legal right? What was the justification given for considering this a legitimate part of contract law? Especially in one-sided, non-negotiable contracts of adhesion?

If there are any lawyers who can answer that, I'd really like to know. It seems like one of those incredibly short-sighted ideas that does more harm than good.

Re:EULAs

[AngryDeuce]

What's the good, compelling reason

What on earth makes you think there was one of those involved?

Re:EULAs

[causality]

If this EULA update worries you, then just give them a written notice that you don't accept that clause. They allow it as long as you notice Sony, and they still let you accept rest of the EULA and use PSN. It's even written there right next to the clause. Read it.

Marketer says: if my decision to automatically sign you up for our endless reams of junk mail err I mean special promotions, adding your name to every advertising database we maintain, and spamming you err I mean keeping you posted about interesting new offers worries you, just waste your time by opting-out of them!

This is a little like mail-in rebates. The company is counting on the fact that most people are lazy, are not diligent, and won't follow through. The number of customers who would say they dislike this clause if asked directly is far higher than the number who actually read through the EULA of their own initiative and used their limited time to follow up on each provision they disliked. Sony knows this.

If you think a business practice that depends solely on laziness and lack of due diligence is perfectly legitimate and deserves to be successful ... well, that's where we would disagree. If we are going to have that sort of free-for-all marketplace then I also want all warning labels removed from all products, all drugs to be legal and unrestricted (you still go to a doctor because it's a good idea, if you are too stupid to realize that then you take your chances), all other victimless-crime laws to be repealed, and all scams to be legal since the targets should have known better anyway.

In some ways, I would like that because laziness and stupidity would become much, much more painful to the point of become rarities. People would learn that no one cares about their own interests more than they do. They'd also learn how to perform basic research when in doubt about something important. However, I'm not really so sure that replacing lazy, fat, stupid people with smart, fit, evil assholes would be an improvement. At any rate, some time ago we decided that "consumer" protection was a good idea and shady business practices don't deserve to be rewarded. All I'm asking for is a little consistency.

Re:EULAs

[Anonymous Coward]

And some people might be willing to sign themselves up for slavery. Doesn't mean it should be allowed.

That said, how many people actually read EULAs? There are simply too many, and they are always long and filled with legalese.

Re:EULAs

[Fieryphoenix]

Having a PS3 without being able to play online is kinda like having a TV that you can only watch VHS tapes on. Yeah, technically it's using it, but without the TV stations its value is greatly diminished.

Re:EULAs

[causality]

IANAL, but the logical reasoning (yeah, that doesn't usually any similarity with the law...) is: That some users may be willing to give up a legal right in exchange for something that they wouldn't otherwise be able to get (or not at that price)?

I understand why it could be tempting. But there are lots of tempting things the law does not allow (eh use your imagination if you like).

What makes this one special? Especially considering the nature of a contract of adhesion and the tendency for all companies in a given market to use extremely similar agreements? It's just a bad idea. I see no benefit to it being allowed by law. That's especially true in the USA which is founded on the concept of natural inalienable rights. It would be more understandable in a country where rights are considered something granted by law.

Re:EULAs

[exomondo]

Wrong--in the case of a free software license, the user agreeing to the license is the developer who uses the code.

Which is why he said no EULA is required to use free software. I can take linux and use it all i want, modify it, re-compile, not release my changes, remove all copyright and legal notices, etc... and that's fine. It's only if I want to distribute it that the license terms will have to be considered.

Re:EULAs

[PopeRatzo]

I still don't go out to buy screwdriver when I want to hit nails to a wall.

You're on such a shill roll, I hate to interrupt your flow, but you do realize that Sony marketed the PS3 as a media box, don't you?

And you do realize that they advertised it as a media box on which you could install an "OtherOS", right?

Then, after you shelled out your cash and bought their product, they decide that "Well, no, we really didn't mean that, so we're going to take those capabilities away from you even though you paid for them".

It would be like a a car company saying, after you bought that car, that no, you can no longer put groceries in the trunk because someone might put contraband in their trunk so they're going to remotely lock all trunks so they cannot be used. No, you didn't buy the car just to use it as storage, you bought it as transportation, but the manufacturer just took away a very useful feature of a product. A feature for which they gladly took your money when you bought the product.

"InsightIn140Bytes", I'm trying to figure out why, in the nearly 300 comments you've posted on Slashdot in the three weeks since you signed up for an account here, that so many of them are posts fiercely defending Sony (at least when you're not fiercely defending Microsoft). I'm curious, is it because you just can't stand the injustice of people picking on poor, weak corporations who only want to give their customers great products and make them happy, or is it because you work for one of the "New Media Strategies" type companies and defending these corporations is your job? Because honestly, I can't wrap my head around anyone suggesting that Sony has been anything but hostile to their customers, using the worst kind of bullying and sleazy legal maneuvers (like a 30 day period for sending a written, notarized opt-out via certified mail or else you are considered to have accepted their brand new EULA for a product you may have paid for years ago, or else you won't be able to use many of its features and fuck you if you don't like it).

So tell us, please: What's your story?

Re:EULAs

[ILongForDarkness]

Not to mention it seems like my PS3 every other time I turn it on wants to either update its OS or update the game I'm currently running before letting me use it. It is like the Windows box from hell (KB 1010283 ready to install don't do anything and don't shut me off while I spin for 20min installing another .00.01 release of a feature you don't use). It isn't just a matter of reading the EULA, I think I did when I opened my box. It is the biweekly OS updates since this problem, each with an EULA warning, which may are may not be different from the original one (and if it is the same is a complete waste of time to read again) but which I'm not willing to spend the 20 minutes I was planning on spending playing a game reading it instead. I'm not sure couldn't they just have sort of a release note? Ie. "all previous rights and terms as before except ... you can't sue us". Would save a heck of a lot of reading/might actually get read/might actually fit on one screen.

Re:EULAs

[arth1]

Sony used Audio CDs to install rootkits on hundreds of thousands of computers.

Show me what Nintendo did that was more evil than that.

Easy. "But our princess is in another castle!"

FFFfffffffuuuuuu.....

Re:EULAs

[labnet]

In Australia (and most commonwealth countries) Common Law always trumps contractual agreements.

Even so, my business partner always reads every line of a contract (I'm talking genuine contacts, like trade accounts, NDA's, BtoB agreements, not software EULA's).
The notorious ones are courier companies that have clauses like, 'You make available your personal assets for compensation in case we have an accident while carrying your goods'. We send back those contracts with the stupid clauses crossed out. If they don't like it, we don't complete the contract.

Re:EULAs

[AK Marc]

You don't have to use PSN to use a PS3, and you are also free to return the PS3 if you don't like the EULA for its online component.

You must use PSN to use some integral features or games/content. Play TV will fail eventually if you never sign in. And you *can't* return it if the EULA changes and you don't agree. Walk in to Best Buy returns and try to take back a 3-year old PS3 with or without receipt and see how it goes. You claim it to be untrue, but it seems explicitly true to me.

Re:EULAs

[PopeRatzo]

If Sony is so bad, why do you need to resort to lies to attack them? If they were so bad shouldn't you be able to make them look bad even without lies?

Son, if it's not notarized and not sent via certified mail, that EULA opt-out that Sony requires in writing is not worth a damn.

I would guarantee that if you send them the written opt-out statement and it's not notarized and not sent via certified mail, and Sony comes after you for a violation of their EULA, their lawyers are immediately going to demand to see the certified receipt for a notarized written statement or else they'll just say they never got it.

And by the way, why don't they ask for your agreement to their EULA in writing? Why just the opt-out?

You're not very good at this, "InsightIn140Bytes". If you're going to defend Sony, you're going to have to start bringing your A-game.

Re:EULAs

[similar_name]

So how is a 12 year old held to contract law?

Re:EULAs

[Anonymous Coward]

In this specific case Sony also allowed you to opt-out from that specific provision and still accept the rest and use PSN, you only had to give them written notice about it. So if you want to bash Sony, it would be good to at least stay in truth.

You obviously didn't read it carefully, as if you send this in, your PSN account is immediately closed and you forfeit any money you have in your PSN wallet.

Re:EULAs

[ILongForDarkness]

Exactly. My thinking is: there should have to be a very good reason to amend an agreement, it shouldn't be a monthly thing. Heck they shouldn't have to have you accept another agreement every time they do a patch, they could just have "same terms as the last time" (Ok Cancel). The burying you in legalize on a regular basis and then calling it your fault if you don't send them a letter within 30 days to keep your original rights is ridiculous.

Re:EULAs

[Riceballsan]

Some companies yes.. people have sued over frying their poodle in a microwave when attempting to dry it off etc... Sony has been sued over removing features after the fact (other OS), and for PSN going down and the comprimise of all of their users data and possibly credit card numbers... that isn't a little thing.

Re:EULAs

[pete6677]

If anyone could be absolved of all legal liability just by getting the other party to sign a waiver, then why does nearly every business in existence have a general liability insurance policy?

Why do doctors pay a ton of money for malpractice insurance when they could instead make their patients sign a waiver?

Drafting a liability release form is one thing - having it hold up in court is quite another.

Re:EULAs

[Sollord]

a 12 year old cant have a valid PSN account

Re:EULAs

[hawkinspeter]

I'm a PS3 FAT owner (not the first model, but the one with only 2 USB ports and no Emotion chip) and used to use the OtherOS. It was a big consideration when buying the PS3 as I intended on installing Ubuntu and setting it up as a media box.

When Sony stole that feature away from me, I had to backup my PS3, format it to remove the Ubuntu partition and then restore the games partition.

I don't care how many other people wanted to use OtherOS - I paid money for it, used it and then had it stolen from me.

Never will I buy from Sony again.

Rights, in Canada

[Teunis]

One is not allowed to sign rights away in Canada, from what I heard (from lawyers, although I'm most definitely not one)
Mind, EULAs aren't normally considered binding either.

Consumer Law

[EEPROMS]

I can't speak for the rest of the world but here in Australia it is illegal to infer in a contract that a consumers "legislated" rights have been waved, from memory it's $10,000 per infringement.

Re:Consumer Law

[mattack2]

Australia it is illegal to infer in a contract that a consumers "legislated" rights have been waved

Good bye, rights. [hand waving] Byebye.

Re:Consumer Law

[Jackdaw Rookery]

It's unlawful here in Canada too. Seems like they can only apply this in the USA.

Re:Consumer Law

[jd]

I still think that plaintiffs should be able to feed CEOs of malignant companies to the salt water crocodiles. The TV coverage would be so much better than most of the regular programming and it shouldn't require that many before corporate practices clean right up.

Re:Consumer Law

[Taelron]

In California no clause is valid that restricts your rights to sue.

Ask IBM about this. In the early 2000's they went through and laid off a large group of workers. Many of the employees felt they unfairly were fired or forced to retire early. Many of these people had families and no other source of income. IBM offered severances to these employees but required them each to sign a waiver signing away their rights to sue the company.

Some of these employees had no choice and signed the agreement and took the meager pittance offered by IBM.

Now for the fun part, someone figured out that in California the law protects people from having their rights revoked. Those same employees joined together and sued IBM. The case lasted a couple of years. IBM even petitioned for dismissal on the grounds the former disgruntled employees signed waivers and received concessions (far below what that deserved). The California courts rejected IBM's petition and ordered them to pay up to a much higher level for all former employees. Those that had received the lower payouts received the difference.

What Sony is trying to do would be non-binding in California.

Bought a Sony product?

[Ossifer]

Too bad, you got screwed... Now, do you plan on buying their products again?

Re:Bought a Sony product?

[future assassin]

>Now, do you plan on buying their products again?

Have you looked at the world lately? Some or really a lot of people will look the other way for what the stand for if it means a new shiny to show off to their friends.

My wife gave me a weird look when she said she was going to get the daughter a Sony eBook reader and I told her that there will be no Sony products in this house , ever.

Re:Bought a Sony product?

[geekoid]

That's too bad, Sony makes some great products. So tell me, what bastion of perfection do you buy your goods from?

Is this US only?

[Nick Ives]

I looked in the PSN agreement last time I updated a couple of days ago and couldn't see it; I live in the UK though. This sounds like it would be totally unlawful here.

Re:Is this US only?

[msobkow]

It's illegal in Canada, too.

Only Americans, once the land of the free protected by their constitutional rights, are now willing slaves to corporatism. The rest of the world does not suffer CEO's who get paid 800% of what their employees do. The rest of the world does not allow EULAs and such to override constitutional rights.

Sorry, but the US is screwed. Big time. Your nation has gone so far off it's ideals and once shining examples that it's literally scary to the rest of the world, because you're trying to shove your fucked up legal approaches on the rest of us.

We won't have it. Screw the american system -- you DO NOT rule the world.

Common Nonsense

[WarpedCore]

I agree it's an unfair act to strangle customers with new provisions to older purchases. I don't believe I have a working system that could log onto PSN currently to accept those provisions but I'm considering sending an opt-out to Sony's legal department just in case because I have a lot of older digital purchases from the Playstation Network dating from 2006-2009. If a lawsuit does happen over the EULA and it works in the favor of people that are entitled to class action ability (or even the ability to launch a lawsuit on my own), I want to be a part of it.

You can't get a refund for anything on the Playstation Network. Trust me, I tried. After SCEA turned the keys over to SNEA (or whatever abbreviation Sony's using for their digital networking division) and the hacking that bought PSN down for a month, I wrote a letter to Sony explaining that I've lost faith in their digital service and their ability to secure vital financial and personal information and could no longer A) Be their customer B) Agree to their new terms because it's not the service I signed up for in November of 2006 (and it might have never been with the way EULAs are crafted). I can either have to forfeit your ability to log in or accept the new terms.

EULAs have become this living contract that only favors the company and totally, unconditionally screws the customer. Period. Sony is a case example of excessive abuse of EULAs because of their management and business shortcomings and have a total disconnect with their customers.

Re:Common Nonsense

[mattack2]

Yup, which is why A) I despise the concept of a "Living Constitution," and B) I feel those who support constant re-writing of what I once agreed to can go piss up a rope.

Yeah, 3/5 of a person forevermore, right?

The Supremes already ruled on this

[artor3]

The Supremes already ruled on this, and unsuprisingly we got a 5-4 ruling that corporations are better than people. Until the conservative stranglehold on the SCOTUS is broken, Americans won't be allowed to sue any company they've entered into a contract with. Now, maybe EULAs don't count for this. But given the court's corporatist bent, I wouldn't count on it.

Re:The Supremes already ruled on this

[artor3]

Corporations can, at will, strip any human of their constitutional rights, simply by inserting a clause in a contract. They can give unlimited, anonymous bribes to politicians. They pay little to no taxes. They can never be sentenced to prison. If by some miracle you do manage to sue them, they can give you the legal run around for decades -- they don't have a biological clock ticking away.

If you could be granted the legal rights of a corporation instead of those of a human, wouldn't you spring for the chance? In the eyes of modern American law, they are better than us in every way.

There's the legality of EULAs

[jd]

That is something the courts have been hesitant to rule on but I believe that the US courts have ruled things like First Sale Doctorine, etc, take precedent over any such agreement. (ie: the EULA can't violate the law or otherwise impose a system contrary to the law.) Not being able to sue Sony in the event of Sony violating civil law - ie: denial of access to any system that can give relief - is usurping the courts entirely. This might not go down too well with judges, since if it's allowed, any product could have such a provision. If they allow one company to exempt itself from the legal system, they create a precedent (something judges are VERY loath to do) and case-law which would essentially state that any company could stipulate that a purchaser can't sue.

The civil court system depends heavily on people being able to sue each other. If the civil court system were to allow one party to opt-out, those judges and lawyers dependent on the lawsuits for work would be out of business. I just can't see the judges voluntarily writing themselves pink slips.

Personally, I think there's way too much litigation in the US, but this isn't the right way to reduce it. Especially in Sony's case, when fewer rootkits and more security admins might have been cheaper and have produced better results than hiring lawyers.

GameStation EULA collects 7,500 souls

[oaksey]

I liked what GameStation did last year :)

GameStation EULA collects 7,500 souls from unsuspecting customers
http://www.geek.com/articles/games/gamestation-eula-collects-7500-souls-from-unsuspecting-customers-20100416