Sony calls for dismissal of PS3 Other OS lawsuit

Claims that firmware is licensed, not sold, and can be changed at any time

SCEA has moved to dismiss the class action lawsuit brought against it in America which claims that the company deceived its customers by advertising Other OS support on PlayStation 3 and then removing it.

Sony claims that the firmware on a PS3 remains its property and is only licensed to consumers - meaning that software capabilities for the machine can be changed by firmware updates as and when the company wishes.

The case was taken to court by David Verner, to represent anyone who bought a PlayStation 3 between the system's release date and that of the announcement of the 3.21 firmware update who has not since sold the system.

Verner claims that Sony had repeatedly advertised the PS3 as a machine capable of running different operating systems, primarily Linux, which would enhance and expand the capability of the machine as a home computer. Sony's removal of that capacity, ostensibly for security reason, was, he says, unlawful - forcing users to choose between the advertised features of Other OS use and the use of PSN and future game compatibility.

"(The)Plaintiff chose to purchase a PS3, as opposed to an Xbox or Wii, because it offered the Other OS feature... despite the fact that the PS3 was substantially more expensive than other gaming consoles," the filing stated.

"On information and belief, contrary to Sony's statement, the 'security concerns' did not involve a threat to PS3 users, but rather reflected Sony's concerns that the Other OS feature might be used by 'hackers' to copy and/or steal gaming and other content."

However, in a filing lodged last week and obtained by IGN, Sony has claimed that there are no grounds for the requested "restitution and disgorgement of all profits unjustly retained by Sony", as the firmware on any PS3 system is covered by a system software licence which entitles Sony to add or remove software functionality as it sees fit.

In fact, the counter-filing references the warranty which accompanies all PS3s, and which is implicitly accepted by users:

"You understand and acknowledge that any time SCEA services your PS3 system (either within the Warranty Period or under a separate service arrangement), it may become necessary for SCEA to provide certain services to your PS3 system to ensure it is functioning properly in accordance with SCEA guidelines. Such services may include the installation of the latest software or firmware updates, or service or replacement of the PS3 hard disk or the PS3 system with a new or refurbished product. You acknowledge and agree that some services may change your current settings, cause a removal of cosmetic stickers or system skins, cause a loss of data or content, or cause some loss of functionality."

The console's system software licence agreement also makes clear that "You do not have any ownership rights or interests in the System Software".

Sony additionally argued that the case has no evidence of any mass marketing campaign which focuses on the Other OS feature, claiming instead that the case pulls various quotations and snippets of information from various non-official sources, as well as some out-of-context fragments from Sony's website and the PS3 manual.

However, the backers of the class action remain hopeful that the case has grounds. Speaking to IGN, a representative said the group was: "in the process of reviewing Sony's Motions to Dismiss and to Strike," and that "these types of motions are fairly common at this stage of the litigation and we believe we have strong arguments for why they should be denied."

"In the meantime, we have requested that Sony turn over its internal documents about why the 'Other OS' feature was removed and we look forward to reviewing those materials."

The case has never been considered too seriously in the US, but was considered briefly to be gaining some legal grounding in Europe, where consumer laws enabled some buyers to obtain partial refunds for their PS3s without having to return them.

The case will be seen in the US on November 4, 2010.

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Latest comments (9)

Miguel Melo Principal Software Engineer/Product Manager 9 years ago
"Sony claims that the firmware on a PS3 remains its property and is only licensed to consumers - meaning that software capabilities for the machine can be changed by firmware updates as and when the company wishes. "

Unbelievable. So, if they decide to release a firmware that bricks everyone's PS3 it's ok, because they didn't do so by going into people's homes and physically hacking the machine with an axe?

When you buy a product, you do so for their overall functionality. It shouldn't matter if it's the hardware or the software part that does it. In fact, most buyers don't care (or even know) what software and hardware means.
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gi biz ;, 9 years ago
@Miguel: Reading the article I thought the exact same thing as you.
I think that in the light of the new technologies, allowing frequent updates and substantial changes, laws need a thourough restyling. I can't deny that the more the time passes, the more I see pirates as the "goods" and big brands as the "evils".
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Richard Alpagot9 years ago
It's their property at the end of the day and they can do what they like with it. It pains me to say that but it's true. If their are copyright issues then of course they will protect their business. By the way I don't actually own a PS3 although I have nothing against them.

What Sony should do is find out why these users want to run another OS. They should ask users what is missing from their platform that these users want (Student developer environments, open office, etc?) and see what they can do to cater for these needs in a controlled manner.

Thus a compromise and also the possibility of a better product with extra selling benefits.
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Show all comments (9)
Antony Cain Lecturer, Teesside University9 years ago
It just seems like they read about that AutoCAD case and thought "Oh yeah, we put that in our EULA too, score!"
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Kevin Clark-Patterson Lecturer in Games Development, Lancaster and Morecambe College9 years ago
If people actually bothered reading the EULA...

Nothing new being brought to the table, just companies now [trying] to exert their 'control'
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James Prendergast Research Chemist 9 years ago
So basically there's no point in buying anything anymore since what we're actually paying for is a license to use the product, features and all...

@ Jason, the worryingly logical extreme of the "functionality" argument is that they could take any number of features from the console as long as it still plays games. They could even remove DVD and Bluray movie playback by this standard - the console would still be functional.
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Miguel Melo Principal Software Engineer/Product Manager 9 years ago
@Jason: You're right that most people who don't know the difference probably wouldn't be using this particular feature. The problem is the precedent that making a statement like this opens and, as James rightly pointed out, it could lead to abuse on more mundane things.

The fact of the matter is that, nowadays, the divide between what is software and what is hardware in consumer products is very thin. You can turn just about any tech product into a doorstop just via software.

This new state of affairs means that I agree with Michele: license vs purchase and acceptable-use laws need to be re-assessed and unified to apply to a purchased device as a whole, as a single "body of work". Otherwise we'll constantly end up with these Kafkian segmentation problems.
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Andrew Jakobs Lead Programmer 9 years ago
Well, as miguel says you buy a complete package as it is advertised and with the functions it has at the time of buying.. It's not like autocad can change itself from a cad-program to just a paintpackage with an update, I guess people would sue the hell out of the makers of autocad as it doesn't do what it did when you bought the package.. If it's in the EULA doesn't make it legal..

@James: Well, they cannot remove the DVD/bluray movies as the console is advertised not only as a games console, but also as a mediaplayer.. That's something some people tend to forget, they only see the console as a gameconsole and therefore think it only is a gameconsole with some extra functions, but it isn't put into the market as a gamesconsole itself, remember their slogan: 'It can do everything'.. Well stupid them for using that slogan, as implies that it certainly does more than games itself.. Hell a smart lawyer can propably even use that in his 'defense'.

Also one of the problems is, you cannot go back to a lower firmware.. So if you made a mistake you cannot undo it (like accidently load a newer firmware)..

I've been at FW 3.15 ever since but I already own certain games which are not playable on it, the package itself doesn't mention anything about not running on a specific firmware.. So IMHO Sony is at least obligate to mention on the package which FW it at least needs, they tell me I have to make a choice, so they must let me know which games do and don't work on my PS3.
But then again, I'm going to update to 3.41 and Jailbreak it so I can do whatever I want with it and still run OtherOS, I haven't been able to get on PSN anyway since 3.21 so with upgrading and jailbreaking I can finally do again with the PS3 for what I bought it, and propably enjoy it even more as I won't be dependant on Sony for any additions to the PS3.. I haven't seen any real addition since I bought my PS3 (FW 2.x), I've only seen stuff removed (I don't care about stupid Facebook integration/photogalery/vidzone/what's new in store and some other pathetic additions)..

But what really bugs me is their claim that they never advertised the OtherOS as a feature.. because we all know they definitly have said at shows it would be able to run other operationsystems..
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James Prendergast Research Chemist 9 years ago
@ Andrew - Definitely, they specifically advertised the PS3 as a linux environment where people would be able to learn how to use the Cell processor.

I agree with a lot of what you're saying.... the big problem is that every company and his dog is claiming that they control everything they put out - no right of first sale, complete license agreement despite there being no meeting of two minds and an actual paper contract written out and signed by both parties. We're either moving into a dark period of social history whereby we effectively return to the old serfdom of the middle ages, paying constant tribute and rent to our lords (companies) or we're heading to a huge legal shake-up the likes of which hasn't been seen since the 1800's with regards to personal rights and freedoms.

Worrying times ahead.
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