Judge Says OtherOS Removal Was A Bad Business Decision But Not Illegal
from the otherOS?-what-otherOS? dept
Last year, Sony removed the ability for all PS3 owners to install other operating systems onto its PS3 console. This came as a result of console modders attempting to use it as an avenue to jailbreak the console. As a result of the move, Sony received a lot of outrage from upset gamers. Part of this outrage was a class action suit brought on behalf of PS3 owners who felt they were cheated when they were forced to lose the OtherOS feature or lose the ability to access Sony’s Playstation Network and the ability to play future games that require a connection and the latest firmware. Many gamers reacted as if this was little more than the gamer’s version of ‘Sophie’s Choice’.
We now learn, via IGN, the presiding judge has dismissed the case against Sony. Back in February of this year, Judge Seeborg had dismissed all but one claim leaving the option for an amended complaint to be filed.
While it cannot be concluded as a matter of law at this juncture that Sony could, without legal consequence, force its customers to choose either to forego installing the software update or to lose access to the other OS feature, the present allegations of the complaint largely fail to state a claim. Accordingly, with the exception of one count, the motion to dismiss will be granted, with leave to amend.
The judge wasn’t convinced by the latest amended complaint and has completely dismissed the case stating that the PS3 owners failed to convince him that they were entitled to the OtherOS feature or access to PSN outside the PS3’s warranty period. That is an interesting point. Had the PS3’s been within the warranty period, would this case have gone the other way? That is certainly something to consider. After all, the OtherOS feature was part of the whole PS3. However, even outside the warranty period, are we really to just accept it when a manufacturer deliberately disables a function?
Perhaps responding to just such concerns, Seeborg stated:
The dismay and frustration at least some PS3 owners likely experienced when Sony made the decision to limit access to the PSN service to those who were willing to disable the Other OS feature on their machines was no doubt genuine and understandable. As a matter of providing customer satisfaction and building loyalty, it may have been questionable.
A questionable move indeed. Sony may have dodged a legal bullet here, but the bullet of continued frustration that Sony customers have with this addition to many many questionable business decisions has hit it between the eyes. How much longer will Sony customers put up with this kind of abuse? What features will it cut next? While we don’t know the answer to that, we do know one thing. Sony removed this functionality in order to prevent PS3 owners from jailbreaking it. However, if the EFF has its way this year, this dismissal will be moot.
Comments on “Judge Says OtherOS Removal Was A Bad Business Decision But Not Illegal”
Years after the rookit debacle...
…anyone who is foolish enough to buy ANY Sony product deserves no sympathy, no help, no nothing. Let them burn. Maybe it will teach these idiots the lesson that they failed so miserably to learn the first time around.
Re: Years after the rookit debacle...
I haven’t bought a single Sony product since the rootkit scandal. Suits me just fine. Indeed, let them burn. I wouldn’t pee on them if the company was on fire.
Re: Years after the rookit debacle...
Honestly, they could switch off the console’s ability to play games now and point to this case as precedent.
Re: Re: Years after the rookit debacle...
Yea I was going to say…if this case is correct logically, where is the threshold? I mean, can’t they completely brick a device you paid for? If not, then where is the line? How much functionality do you disable before you are illegally damaging a product that somebody paid for? And presumably this only works for the manufacturer? Can a hacker push an “update”?
Also, Sophie’s choice? WTF. That just makes gamers look like a bunch of idiots (perhaps rightfully so). I would dismiss the case solely on that statement.
Re: Re: Years after the rookit debacle...
They did.
There are titles that required you to take the update removing OtherOS from the console before they would run, and IIRC there was no warning on the outside of the package and yeah no one lets you return opened games.
Re: Years after the rookit debacle...
I was at the store looking for a DSLR camera bag for my wife for Christmas. The Sony one looked perfect but there was no way I was going to buy a Sony product.
Re: Re: Years after the rookit debacle...
Better read the EULA before buying anything from Sony. It’s likely the “remove camera bag shoulder strap” clause could be instituted at any time after the warranty period was up, causing your DSLR in the bag to hit the sidewalk.
Sony’s new TOS clearly states, “You should have known better, it’s your own damn fault, you bought (licensed) a genuine SONY product.”
Re: Re: Re: Years after the rookit debacle...
I’d rather build my own PS3 and bootleg the OS than buy from Sony again.
Especially after hte recent announcement that the PS Vita will only have an account if you have both the M2 card AND the PSV linked.
I’m sure Microsoft and Nintendo will welcome the influx of pissed off gamers that don’t want to do business with Sony any longer.
Re: Re:
Talk about damned if you do… 🙂
Re: Re:
Speaking of Microsoft: they apparently bricked quite a few systems with their latest software update:
http://consumerist.com/2011/12/mandatory-xbox-360-update-breaks-some-consoles-microsoft-claims-coincidence.html
I suppose they were too busy writing the no-lawsuit clause to actually QA the software.
Re: Re: Re:
Maybe they took a page out of the PS3 playbook, seeing as how a firmware update took out the older PS3’s ability to read discs and Sony wanted to charge $150 to fix the problem they created.
I would bet Sony even has a “Patented Business Method” on this too:
1. Cause older [i.e.: out-of-warranty] PS3 to partially fail with firmware update.
2. Deny firmware had anything to do with problem.
3. Rake in profit with $150 “fix”.
So, Microsoft should prepare to be sued in (secret) court soon.
Love this precedent...
So when your 5.0L v8 Mustang runs out of warranty, Ford can disable 4 of the cylinders? Awesome!
Re: Love this precedent...
You do not need those cylinders to access the highway system.
Re: Love this precedent...
“Designed obsolescence”++ with a “legal” contract now
< pessimistic POV>
That is all this is going to turn into 🙁
< optimistic POV>
Hopefully this will lead to more adoption of OSS 🙂
< realistic POV>
We’re all boned 🙁
Re: Re: Love this precedent...
Most won’t care & will sill buy the stuff.
Re: Love this precedent...
at least with chevy it only disables cylinders for….. increased frame rate?????
I don't get the outrage...
Maybe it’s just me, but I don’t understand all the outrage over Sony disabling the OtherOS feature. What percentage of PS3 owners actually used the feature at all? In my own experience (yes, I know it’s anecdotal), the vast majority of gamers don’t really care about installing Linux on their PS3s.
As for access to PSN, it’s a network service and you agree to their terms and conditions when you connect to it. If that includes disabling the OtherOS feature via an update, then it is what it is. If you want OtherOS, then don’t connect to Sony’s online service. I just find it hard to build up outrage over this when people rant and rave about OtherOS like it was the only feature that PS3 had and it was taken from them. Was it critical to operating the PS3? Nope.
On a side note, I’m wondering if the fact that PSN is free had any influence on this decision at all. If you had to pay an annual fee like XBox Live and the company refused to let you access a service you pay for, would the case have gone differently? I’m not a legal expert by any means but it’s an interesting thought.
Re: I don't get the outrage...
What would it matter if it was just 1 person in the entire world that used that feature? The real outcry here is that a feature of a product you bought was taken away from you after the purchase. Somehow that is legal? Yet somehow it is illegal to add it back?
So whether you used the feature or not, you should be very worried about the precedent this sets. Its basically the same as a contract you signed being altered after the fact and without your approval.
Re: Re: I don't get the outrage...
I think this is the problem the judge in this case has. The part of the contract that protects your rights as a consumer, the warranty, has expired. So Sony are no longer obliged to support the other OS feature.
Unfortunately for gamers wishing to re-enable it, the part of the contract that protects Sony lasts a lot longer than the warranty. Which does suck muchly. It would seem this contract is very one sided and unbalanced.
At the end of the day however GNU/Linux can be run on other commodity PC hardware. It can be run on low end hardware and high end hardware. People don’t need Sony to access GNU/Linux and the PS3 doesn’t need GNU/Linux to fulfil it’s intended primary function. If Sony had some sort of monopoly on the market then the case might have been stronger. But they don’t.
Re: Re: Re: I don't get the outrage...
It used to be once the warranty was up and your device died, you were out of luck unless you paid to get it fixed (normal and fair process as things naturally wear out). Now it seems, based on this ruling, once your device is out of warranty, the manufacture can subjectively lobotomize still functional features at will, and you have no recourse but to spit into the wind, or piss into it (thank goodness at least we will still have a choice).
Prepare for many other “devices” that are “out of warranty” to suddenly “lose” features all in the name of “security” (or some other “good reason”, i.e. M-O-N-E-Y), and the only recourse you will have is to buy the newest, latest (read:”more expensive”) model to fix your problem, that you didn’t even know you had in the first place.
Re: I don't get the outrage...
“In my own experience (yes, I know it’s anecdotal), the vast majority of gamers don’t really care about installing Linux on their PS3s.”
Irrelevant.
Sony advertised the feature. Some people bought a PS3 instead of other consoles or devices due to this advertised feature. Customers who did this included the US military, so it’s not just a couple of consoles affected.
It doesn’t matter whether 100 or 100,000 people actually did this, they were deceived into buying a product for a feature that was later removed with no prior warning.
“Was it critical to operating the PS3? Nope.”
Depends on how you define “operating the PS3”. To operate it as a Blu-Ray device or games console? No. To operate it as a Linux machine as people who used the OtherOS functionality would have done? Absolutely. It should be down to the paying customer to decide how they use the machine they own, not Sony, and certainly not after the sale has been made in direct contradiction to how it was sold.
“If you had to pay an annual fee like XBox Live and the company refused to let you access a service you pay for, would the case have gone differently?”
Interesting point. I’d be tempted to say this might have swayed things, but since the OtherOS feature and online play are not directly connected, maybe not.
Re: Re: I don't get the outrage...
I’m sorry but the PS3 is a gaming console FIRST and whatever else Sony decides to market it as SECOND.
As much as I hate saying this … Sony built the product, they designed the networking services. THEY decide if they wish to continue to market their GAMING CONSOLE as anything else.
With few exceptions, the Sony products I have bought in the past have always done what they were designed to do – nothing more and nothing less. This is exactly as I expect. A product which has a primary function and (optional) secondary functions should never have that primary capacity damaged or hindered.
I liken this to the “progress” of Cellphones into “smart”(stupid)phones.
The purpose of a Cellular Phone is …. to make phone calls! All else is just shiny bells and whistles.
If every carrier decided to shut down all other services except basic calls tomorrow …. I’d STILL use my phone! Why? It still does what it was primarily made to do!
Re: Re: Re: I don't get the outrage...
Wow, this is a pretty wrong-headed attitude. You’re entitled to your opinion, but really? You’re OK with every other feature from any device you buy being removed at a whim so long as whatever you consider the “primary” function is intact? You don’t mind the GPS, stereo, hands free kit and power steering being disabled on your car because the “primary function” of being able to drive is intact, even though you spend a couple of grand extra to have those features?
“THEY decide if they wish to continue to market their GAMING CONSOLE as anything else.”
Yes they do. They don’t, however, get to retroactively decide that the features they did advertise are no longer relevant. They want to release a new version of the console that can no longer play Blu Ray movies? Fine. They don’t get to remove my ability to play those discs on the console I bought when it was advertised with that feature. Get it?
“The purpose of a Cellular Phone is …. to make phone calls! All else is just shiny bells and whistles.”
To you. not to me. I use my phone for numerous different functions including text messaging, taking photographs and note taking. These functions are what I PAID for when i bought the phone. I spent the extra hundreds of pounds on a smartphone for these functions. If these weren’t available, I’d have picked up a bargain basement Nokia for ?20 instead.
If you bought a smartphone instead of buying a much cheaper phone when you don’t want or need the extra functions, that makes you a fool. Those of us who did our research and bought the more expensive phone for its extra functions PAID for those functions. It’s down to you to decide I can’t use them without me demanding my money back.
Re: I don't get the outrage...
Maybe it’s just me, but I don’t understand all the outrage over Sony disabling the OtherOS feature. What percentage of PS3 owners actually used the feature at all?
Maybe not a big percentage – but some universities use the other OS feature to give students some experience of console programming there will be a few students who find that they can no-longer use their personal console for the coursework. Since these people are potential developers for Sony Games houses in future this is not pissing of a tiny proportion of customers – rather it is pissing of a significant portion of future employees.
Re: Re: I don't get the outrage...
“rather it is pissing of a significant portion of future employees.”
They took care of that with GeoHot.
They attacked the poster child of tinkerers on these consoles, and tried to destroy him.
Why would anyone want to remotely touch anything of Sony’s when if they dislike anything you do they will sue you for a kajillion dollars?
Re: I don't get the outrage...
Maybe it’s just me, but I don’t understand all the outrage over Sony disabling the OtherOS feature.
It’s the precedent that it sets, that it’s perfectly legal for a company to alter a product after you buy it.
Imagine if you bought a new stove and six months later, a rep from the company drops by and removes two of the burners, making sure to pull the wiring so that you can’t replace them.
Or how about if you buy a new car and a year later, someone from the factory shows up to strip the paint off it and then tells you that you’re not allowed to repaint it? After all, you don’t need the paint for the car to function.
Or how about if you buy a new computer with a Blu-Ray burner and then a few months later the company remotely disables the burning function, turning the drive into just a reader?
When you buy a product, the features listed on the box are supposed to be what you get. They’re not supposed to have a footnote which says “This list subject to change at the whim of the company.”
Re: Re: I don't get the outrage...
“It’s the precedent that it sets, that it’s perfectly legal for a company to alter a product after you buy it.”
Incorrect.
What Sony did was improve security, removing a method that some assholes had used to corrupt online game play (which is the big money end for Sony in this deal), hurting the customer experience of honest users all over the world.
The Other OS feature was nice, but it was only a software feature – and one you could retain by NOT upgrading the firmware, and giving up your right to play online. There is no way to secure the device otherwise, and the needs to the many far outweigh the needs of the few.
It doesn’t mean companies can randomly change devices remotely just for fun. Sony had a very compelling reason to do what they did, and the courts agreed.
Further, let’s take it the other way – are you pissed off when your smart phone gets a firmware upgrade and adds new features? Do you think that companies should also be blocked from improving functionality? Should your purchased device remain the same, never fixed? Think about it next to you apply a software patch.
Re: Re: Re: I don't get the outrage...
“one you could retain by NOT upgrading the firmware, and giving up your right to play online.”
…which is exactly the problem. People who may have paid up to $800 for a device suddenly have to choose which of the 2 major functions they bought it for they would prefer to lose. Would you like your DVD burner to play back discs or burn them? Your drive manufacturer have decided you can’t do both.
Sony may have had a relatively reasonable motive for doing this, but it’s a crappy business move that pissed off a lot of people. As the company found out to their cost when people decided to exploit out their many other security problems as a direct result, even if the courts didn’t decide to punish them.
“There is no way to secure the device otherwise, and the needs to the many far outweigh the needs of the few.”
Oh sorry, this must be the glorious corporate white knighting AC. As a customer would you actually just accept that? “Sorry we screwed your $800 device so that you can’t use it for what you purchased it for” would be acceptable to you if other people didn’t care? “We can’t be bothered to fix security holes in one of the functions you use, so live without it” is OK?
Would it actually hurt you to look at things from the customer point of view for a change, instead of supporting every bad corporate decision?
“Further, let’s take it the other way – are you pissed off when your smart phone gets a firmware upgrade and adds new features?”
No. But, I’ve never owned one that *removes* functions I use, and certainly none that force you to do so or lose the ability to connect to the phone network. You’re damn right I’d be pissed off if one of them tried it.
Re: Re: Re: I don't get the outrage...
“and one you could retain by NOT upgrading the firmware, and giving up your right to play online.”
When the device was purchased there was a reasonable expectation that the operating system would be supported along with the regular firmware updates and the ability to play online games. What goes with that reasonable expectation is the reasonable expectation that Sony will expend any additional effort necessary keep their systems secure even with the operating system, even if doing so with the operating system requires some additional effort. It was an advertised feature.
and if you really think that disabling this feature does much to improve security then you are technically naive. People who would put the effort into hacking the device before the update could just as easily put effort into hacking the device after the update. Sony should spend time fixing its security vulnerabilities instead of disabling operating system and wasting resources going after those who then jailbreak the operating systems in court. Given the jailbreaks, clearly they didn’t improve security any since people can access the operating systems anyways and hence benefit from any security vulnerabilities that having such an operating system allegedly imposes (none, it’s likely much easier to find security problems within how the console normally operates than to emulate the console within a separate operating system that runs within the console, which would likely require a lot more work. A hacker willing to do that is not a good one and given the ability to jailbreak the device, it’s likely a lot easier to just use the vulnerability that was used to jailbreak the device to just reprogram how the device normally works instead of going through the insane trouble of installing a separate OS, creating an emulation on that OS, and then writing vulnerabilities in the emulation. That’s ridiculous).
Re: Re: Re:2 I don't get the outrage...
http://www.techdirt.com/articles/20110317/03415613526/judge-lets-sony-go-after-ps3-jailbreakers-paypal-account.shtml#c1342
(start with
“I don’t think Sony did it for security reasons. IIRC, I remember reading earlier posts of people saying they think it had something to do with them later not wanting people to use it as an OS because they’re selling it as a loss and if too many people end up using it as an OS (kinda like how the govt did) and didn’t buy games for it (which is how they plan to make back their money), they will lose money.”
)
Re: Re: Re: I don't get the outrage...
I think the frustration is that the problems you describe as arising from hacking the OtherOS function is that those problems could have been fixed while leaving the OtherOS function in place.
Sony had a very compelling reason to do what they did, and the courts agreed.
Not exactly. The Judge ruled that the plaintiffs could not provide a compelling case that Sony’s action was illegal. That is different than siding with Sony.
Further, let’s take it the other way – are you pissed off when your smart phone gets a firmware upgrade and adds new features? Do you think that companies should also be blocked from improving functionality? Should your purchased device remain the same, never fixed? Think about it next to you apply a software patch.
That is an interesting scenario you place there. I personally have no problem with adding functionality. What I have a problem with is removing functionality for undisclosed “security reasons” especially when such security reasons could be addressed while leaving said functionality in place.
Re: Re: Re: I don't get the outrage...
The Other OS feature was nice, but it was only a software feature – and one you could retain by NOT upgrading the firmware, and giving up your right to play online.
and all and any games that you already own or could buy in the future that require on-line connectivity to play.
There is no way to secure the device otherwise, and the needs to the many far outweigh the needs of the few.
and the needs to the MONEY far outweigh the needs of the CUSTOMER.
It doesn’t mean companies can randomly change devices remotely just for fun. Sony had a very compelling reason to do what they did, and the courts agreed.
MONEY is the “rootkit” of all evil.
Further, let’s take it the other way – are you pissed off when your smart phone gets a firmware upgrade and adds new features?
No, I only get pissed off when the updates take away features that I paid for in the first place.
Do you think that companies should also be blocked from improving functionality?
If bricking parts or all of the device I paid for “improves functionality”, I’d sure hate to be on the receiving end of an attempt to break the device.
Should your purchased device remain the same, never fixed?
It wasn’t broke in the first place.
Think about it next to you apply a software patch.
and then have to revert back to the previous version because the “new” and “updated” fix, broke nearly everything.
Sony must be run by old school Battlestar Galactia Cylons, because they so remind me of this scene (Replace IMPERIOUS LEADER with SONY, and BALTAR with CUSTOMERS OF SONY):
IMPERIOUS LEADER
Welcome, Baltar. I have grave news. A handful of Colonials prevail, but we will soon find them.
BALTAR
What of our bargain? My colony was to be spared!
IMPERIOUS LEADER
I now alter the bargain.
BALTAR
How can you change one side of a bargain?
IMPERIOUS LEADER
When there is no other side. You have missed the entire point of the war.
BALTAR
But I have no ambitions against you!
IMPERIOUS LEADER
Could you think me so foolish as to trust a man who would see his own race destroyed?
BALTAR
Not destroyed, subjugated, under me.
IMPERIOUS LEADER
There can be no survivors. So long as one human remains alive, the Alliance is threatened.
BALTAR
Surely you don’t mean me?
IMPERIOUS LEADER
We thank you for your help, Baltar. Your time is at an end.
BALTAR
No! You can’t! You still need meAAAAAAARRRRGHHH! [a Cylon slits Baltar’s throat]
Re: Re: Re:2 I don't get the outrage...
BALTAR
No! You can’t! You still need meAAAAAAARRRRGHHH! [a Cylon slits Baltar’s throat]*
*Unfortunately retconned for the series so that Baltar lives.
Re: Re: Re:3 I don't get the outrage...
Maybe we were only meant to believe that original BSG human Baltar wasn’t killed, but he was in actuality replaced by a organic-type Cylon. At least that’s how I now accept the conflicting original movie vs. original series.
All of this has happened before, and all of this will happen again.
Governments will become totalitarian in their application of new and old laws, and the people will eventually have enough of them and kick them off the proverbial cliff, as demonstrated here.
Re: Re: Re: I don't get the outrage...
This is not true. Sony just removed the otherOS function using the excuse that Geohot had managed to dump the hypervisor through it. They were looking for an excuse to do it, and this was the perfect one.
You could refrain from updating and keep otherOS but then newer games won’t work, you can’t connect to PSN and newer blu-rays won’t play. So it’s a Hobson’s choice – whatever you choose, you lose functionality that was advertised.
That this has been ruled legal in the US (it’s already been ruled legal in other countries) indicates that you need better consumer protection laws.
Re: Re: Re: I don't get the outrage...
Further, let’s take it the other way – are you pissed off when your smart phone gets a firmware upgrade and adds new features? Do you think that companies should also be blocked from improving functionality? Should your purchased device remain the same, never fixed? Think about it next to you apply a software patch.
I don’t have a smart phone, however there are several pieces of software that I have intentionally not updated either because the newer versions have bugs that the older versions don’t, or they just generally perform worse than the older versions.
Re: Re: Re: I don't get the outrage...
Further, let’s take it the other way – are you pissed off when your smart phone gets a firmware upgrade and adds new features
Adding features that were not advertised is nothing like removing features that were advertised.
Re: Re: Re: I don't get the outrage...
“What Sony did was improve security”
*blink blink blink*
I’m sorry you attempted to use Sony and Security in the same sentence. You have rendered everything else you said irrelevant.
Confused?
Ask the Googles to mashup LulzSec and Sony for you.
Re: I don't get the outrage...
I don’t care how YOU want to use it. I care how *I* want to use it. I PAID for it. I should be able to use it as I see fit. The percentages do not matter.
Re: I don't get the outrage...
To quote myself,
“First they came for Other OS. And I did not speak up, because I did not use Other OS…”
Judge may be right
IF the judge is right (and I’ll assume that he is, since I’m not a lawyer), Then… the law needs to change.
The issue isn’t PSN vs OtherOS, it is “update” vs OtherOS.
If it is not illegal to prevent security/stability updates without screwing your customers… then it SHOULD BE.
Now “feature” updates… I don’t know about how to handle those, plus… Corporations (an aside, which are not human beings) would just change “updates” to be pay-for services and stop offering free patches/etc… or something else that I haven’t though of, that would end up screwing the consumer more in the end 🙁
Re: Judge may be right
I can’t agree with that. I understand your point and it’s not unreasonable but then automatic updates and the like for software would go out the door. There are security patches and the like created all the time that break other software, because that software no longer complies. (note: I’m not comparing the OtherOS situation here) I’d much rather have my OS secure than not get a security patch because some legacy software will break if that patch is applied.
On the flip side, you can run WindowsXP with no patches or service packs and still run IE6 and no one is going to stop you (until the viruses and malware kill the system).
But as I understand it, and I could be wrong, the PS3 users could still use OtherOS, but they then could not connect to PSN, right? Maybe I’m missing some details but if that’s the case then the Military and Universities would still be able to continue using OtherOS as they would be highly unlikely to be connecting to PSN anyway. It would primarily affect those users who ‘dual-booted’.
I’m not suggesting that Sony did right, but if their TOS for PSN stated they could do this, then they could do it, even if it was a dumb thing to do.
Re: Re: Judge may be right
I’m not suggesting that Sony did right, but if their TOS for PSN stated they could do this, then they could do it, even if it was a dumb thing to do.
Sony’s TOS also says it can force firmware updates on your PS3 without asking, which could lead to damage of your hardware, and then expect you to shell out $150 to fix a problem they caused. Still OK with that TOS?
Re: Re: Re: Judge may be right
I never have been, that’s why I refuse to buy a PS3. You bet there are some games on there I’d love to play but I refuse to deal with a company like Sony that is known for doing things like this.
Again, I’m not saying it’s ‘right’ but at the same time it’s Sony. When dealing with the devil do you have much to complain about when he fucks you?
Re: Re: Re:2 Judge may be right
Again, I’m not saying it’s ‘right’ but at the same time it’s Sony. When dealing with the devil do you have much to complain about when he fucks you?
In a fair and just system, no. But in a one-sided “all for company interest at the expense of the customers” ruling, we can complain and hope to get our voices heard about the injustice of it all. When those voices aren’t heeded and Sony complains about “too much piracy goin’ on”, they shouldn’t be surprised when the consumers give them the middle finger and take their business elsewhere.
A prime example can be found here in this transcript as to what “Fony” thinks of it’s customers:
Here it is, a snip from the transcript, and let’s see how SCEA views us if we use Linux:
THE COURT: So give me an example of what you would find that would be relevant to either the merits or class certification on one of the named plaintiffs’ PS3 hard drive beyond that which would be revealed by their proposal.
MS. SACKS: Well, certainly one thing we might find is whether or not any of them are engaged in the hacking that we now know was a widespread effort.
Obviously, the people in this class are the people who downloaded, or claim they downloaded the Linux operating system onto their other OS. It is beyond dispute now that there in is an ongoing effort to hack the PS3. In fact, most recently, there was an effort to hack around for update 3.21.
And these people, as members of the class, are engaged in activity that is not only prohibited under Sony’s agreements, but is illegal. So if, in fact, some of these very sophisticated users, who are included in the five named plaintiffs, are engaged in the hacking, we certainly have the opportunity to find that out.
THE COURT: What’s the legal implication if you were to find that?
MS. SACKS: I’m sorry?
THE COURT: What the legal implication to this lawsuit?
MS. SACKS: Oh. First of all, certainly, someone who is engaged in a violation of the terms of service and the licensing agreement would not be an adequate class representative. Also, someone who is engaging in activity that is injurious to Sony COmputer that is literally invading its intellectual property rights would not be common with the rest of the class.
Is everyone going to be damned by the defense that might be applicable to one of the individuals because of hacking?
THE COURT: Is that a substantive defense?
MS. SACKS: Is that a substantive defense: Yes, Your Honor, it is a substantive defense because the terms of service and the license agreement specificaly allow Sony to take action when someone has engaged in improper activity with regard to its intellectual property.
THE COURT: But how is it a substantive defense if the challenges to the overall decision, not an individualized decision, but an overall decision to implement — update 3.21, how is it a defense?
Does it mean if they actually prevail on a class basis, then an individual would be barred from participating in any class settlement because they hacked? What’s the nexus? I’m not sure I understand.
MS. SACKS: Well, part of the nexus is how can you come in and ask for damages for a property that you have basically violated? You don’t have an ownership right in the software that Sony Computer allows you to use. That’s it the whole point of the license agreement, it’s not an ownership interest, it is a privilege that Sony conveys on them. And if these people violate the terms of that licensing agreement, they have no entitlement to continued use of a software.
Plaintiffs also claim, for instance, that they can no longer get their prepaid Netflix subscriptions, they can no longer participate in the Playstation network games. Well if, in fact, someone has used this most recent hack, which allows you to circumvent 3.21, how would we know that without an examination of their hard drive? And if, in fact, they have circumvented update 3.21, how are they damaged? Because they are still running Linux.
Get the picture, all you sophisticated Linux users? I take her words to mean that SCEA despises us, and it thinks we just might be dirty rotten hackers, violating their Most Holy IP. Or most holey.
Here we have plaintiffs upset because they lost functionality they paid for, and Sony’s response is not to fix the problem but to demonize the plaintiffs, insult them, and ask a judge to let them paw through their personal stuff, to try to see if they are criminal hackers.
I find this comment on that same transcript about Sony sums it up nicely:
SCEA Catch 22
Authored by: HockeyPuck on Monday, April 04 2011 @ 03:19 PM EDT
Ok let me get this straight. I buy a PS3 for the reason of having 3 machines in one. One computer (OtherOS), one DVD/Blue Ray player and one game console. All in one machine. So I load it up, put personal data on the machine and then they kill it off with an update.
Now they tell the court that I MIGHT be a bad guy because of loading Linux, so let us do a fishing trip on their personal machines in a hope that I should not be granted anything from the class action. What they fail to tell the court that there are no other OSes that are as flexible as Linux and that *nix OSes are the only systems I can use on PS3. More importantly whether I hacked the box or not will not sway the court on the outcome of SCEA’s actions. Only on the remedies.
Why should the court allow discovery for an entirely different case? SCEA prejudices against class action people as criminals and the courts allow discovery without one single piece of proof they did anything wrong. Further more; it makes more sense to say “The reason they are in class action is because we are not tech savvy and CANNOT break in”. If we could; why do we need a class action to get the feature back? The crackers are already in.
Next item; what if the court finds that what SCEA did was in fact actionable and demands they restore the feature? I wouldn’t have broken any laws if SCEA didn’t break the law in the first place. I know legally this doesn’t hold water. But I may be able to make a case that I had no choice because I need critical data and there was no other way but to break in. If SCEA did not offer a remedy for such a contingency; what the cracker did was by necessity, not choice.
Re: Re: Re:3 Judge may be right
“Here we have plaintiffs upset because they lost functionality they paid for, and Sony’s response is not to fix the problem but to demonize the plaintiffs, insult them, and ask a judge to let them paw through their personal stuff, to try to see if they are criminal hackers.”
It’s common in an abusive relationship for the abuser to blame the victim and make them out as the wrong doer to distract or exonerate themselves from scrutiny and the consequences of their actions.
This is basically, “Look at what we did? Look what they did in response!”
Re: Re: Re: Judge may be right
Someone made an interesting post on Slashdot that I’ll re-post here.
“That’s the beauty of software these days. You purchased the hardware, which you have in your possession. You didn’t purchase the software. You purchased a “license” to the software. Sony is still providing you with software, albeit in updated form. They fixed a bunch of bugs, and added new “features.” What’s not to like?
This is the fundamental problem with software “sales” as they currently exist. They’re a hybrid sale/license, such that the laws associated with sales and licenses don’t really apply well. The software industry hops to the side that benefits them the most. Oh, you want to sell your copy of SuperMetalHaloBrothers ? Sorry, you *licensed* the software, and the license is non-transferrable. Oh, your kid munged your CD for SuperMetalHaloBrothers and, since it’s licensed, you’d like to just get replacement media? Sorry, you *purchased* the item and you’ll need to re-purchase it because the original item was destroyed.”
http://linux.slashdot.org/comments.pl?sid=2572668&cid=38363364
Posted by Migraineman (632203)
I already re-posted it below.
http://www.techdirt.com/articles/20111214/14365117087/if-you-dislike-sopa-youll-dislike-this-case-too.shtml#c54
Basically, the corporations get the best of both worlds while the consumers get the worst of both worlds. As consumers, I think this sort of legal abuse is unacceptable. We should not tolerate the most anti-consumer combination of laws possible.
Re: Re: Re:2 Judge may be right
(combination of laws and rulings *)
Re: Re: Re:2 Judge may be right
This is the problem with all digital content today. They want it treated like IP when it suits them (i.e. you licensed it, you don’t own it). Then they want it treated like real property when it suits them (i.e. you stole it, you didn’t copy it).
Re: Re: Re: Judge may be right
“Sony’s TOS also says it can force firmware updates on your PS3 without asking”
Mine didn’t say that. They changed it to say that after I purchased mine. I said I don’t agree with the change and I lost access to PSN, the store, online games, and updates. Oddly, I also lost access to the Blu-Ray drive. Right after I told them to screw off, the drive stopped reading everything; BR, DVD, CD, everything.
The U.S. has practically no pro-consumer laws and rulings. At least when other countries adopt anti-free market capitalistic laws they are sometimes designed to be pro-consumer. The U.S. adopts so many anti-free consumer, anti-free market capitalistic laws without adopting any of the pro-consumer, anti-free market capitalistic laws.
http://www.techdirt.com/articles/20111215/08060117098/ccia-slams-congressional-representatives-who-unfairly-attack-us-companies-speaking-up-against-sopa.shtml#c330
The government does practically nothing for the public and almost everything that it does do goes against the public interest in favor of industry interests. When it comes to passing laws favoring the public it claims ‘that would violate free market capitalistic principles’ yet it’s more than glad to pass anti-competitive, anti-free market capitalistic laws only when it helps industry. Industry gets the best of both worlds, they get free market capitalism when it favors them, they get anti-competitive, anti free-market capitalistic laws when it favors them. It’s unacceptable and we should not tolerate this abuse!!!
Re: Re:
and, despite the fact that our legal system ruled that Sony did nothing illegal with its false advertising, our legal system positions itself against consumers that wish to jailbreak the Playstation to restore an advertised feature. Our legal system is about as anti-consumer as can be.
http://www.techdirt.com/articles/20110207/23320513000/sony-demanding-identity-anyone-who-saw-ps3-jailbreak-video-youtube.shtml
http://www.techdirt.com/articles/20110217/00210313145/sony-continues-to-attack-ps3-jailbreakers-threatens-to-cut-them-off-playstation-network.shtml (yet this is OK with our legal system).
http://www.techdirt.com/articles/20110127/17101112863/sony-ps3-hacker-gagged.shtml
Sony should be legally slapped for bothering the court with these requests, it shouldn’t be receiving orders to silence jailbreak information. Free market capitalism only when it helps industry, otherwise plutocracy. It’s not acceptable, our legal system needs to stop being so anti-consumer.
I no longer buy Sony products. I use to buy their stuff exclusively.
Re: Re:
There isnt a single Sony product in my home any longer. I had a PS2 for a long time but now that’s gone too.
Oh damn, i have a few Sony movies still. Shit.
Why focus on PSN?
I don’t understand why they focused on PSN. Wouldn’t it be better to say that the update forced them to choose between Other OS and new games? There is no service contract for new games like there is for PSN.
Re: Why focus on PSN?
That’s the next logical step, I guess.
…anyone who is foolish enough to buy ANY Sony product deserves no sympathy, no help, no nothing. Let them burn. Maybe it will teach these idiots the lesson that they failed so miserably to learn the first time around.
and the Second
and the third
and the fourth
…..
“This came as a result of console modders attempting to use it as an avenue to jailbreak the console.”
I don’t really understand this statement.. The whole point of jail breaking is to run your own code on the system when you aren’t allowed to. When we were allowed to run a custom OS (ie, our own code), there was no jail to break.
“are we really to just accept it when a manufacturer deliberately disables a function? “
The answer is apparently yes. If someone lies to us in order to get our money, there is no recourse. If we are dealing with Sony, maybe they have to worry about the long term, customer loyalty, or whatever, but your average scammer doing this sort of fraud sure won’t care about that stuff.
Re: Re:
I will admit up front I don’t recall the tech details but within the ‘other OS’ setup you are still running within a jail that modders etc want to get out of to access all of the hardware’s capabilities.
What gamers *should* do...
…is break the cycle.
(I’m not a gamer, by the way, just not interested.) It should be abundantly clear at this point that the major vendors are willing to inflict draconian ToS on their victims…errr…I mean customers, they’re willing to take away purchased functionality, they’re willing to sell user’s personal data (or just fail to protect), they’re willing to use DRM, they’re willing to punish people for criticizing them…in short, they’re complete assholes.
So instead of continuing to give money to Sony and Microsoft and EA, why not pool it and fund independent hardware and software developers (including some of the ones already in the field) who are willing to create gaming systems that don’t come with all these headaches?
It might not work very well…but it couldn’t possibly be any worse than the current state of affairs.
Things like this...
Things like this make me loose all respect for copyright and their so-called “intellectual property”, which is a bullshit word they made up to semantically strengthen their claims through moral relativistic appeals to public opinion (by public opinion, I mean politicians).
I feel no sympathy when I hear such and such media is being pirated X number of times on The Pirate Bay or devices are being hacked to do things they don’t have a revenue stream in place for. They brought this on themselves, they should live with the consequences.
The omission that the author of this story, the majority of commenters, and the class action lawsuit did not focus on is the WORST part of this update does not focus on PSN at all.
This update firmware update made all FUTURE games require that firmware or later. Forget PSN, forget online play. You literally cannot play a single player game that came out ~3 months after OtherOS removal, without moving to a firmware sans OtherOS.
Screw PSN, screw online play. There’s all sorts of loopholes that allows companies (and rightly so) to force you to have the most up-to-date version of their software to connect to their services. This is will always stand-up in courts.
The ‘Sophie’s Choice’ was really the decision to never play newly released game on the PS3 (IE Portal 2, Uncharted 3, BF 3, Skyrim, on and on) OR lose otherOS.
It’s the equivalent of them removing the software that allows the PS3 to play blu-rays, *even though they sold it as a blu-ray player*.
It’s also the equivalent of Apple selling you a smartphone that has a phone, internet, and camera. Then discovering a security hole in the camera API that is unable to be patched, and FORCING consumers who already have an iPhone to pick either phone and internet, or neither and keep their camera.
The only reason this hasn’t really gone anywhere, is that it’s pretty obscure. If the above smartphone example were to occur, I’d be willing to bet this would have really gone somewhere.
Sony removed this functionality in order to prevent PS3 owners from jailbreaking it. However, if the EFF has its way this year, this dismissal will be moot.
Never going to happen.
Phones are something that almost everyone uses. The ability to use them on the network of your choice requires jailbreaking them. That’s the only reason that exemption exists. If jailbreaking only allowed you to install un-approved apps, the exemption never would have been granted.
Likewise an exemption that allows people to run their own software on a luxury, entertainment device is never going to get granted. Especially if such actions can be used for pirating games.