Legal expert says law "untested" on PS3 OS removal
Retail obligations and manufacturer liabilities at heart of new class action, says lawyer
The recent class action against Sony and the removal of the Install Other OS feature from the PlayStation 3 highlights a "relatively untested" area of UK and European law, Jas Purewal, a lawyer at Olswang LLP and writer of GamerLaw, has told GamesIndustry.biz.
Purewal's comments were made following the revelation yesterday that Sony faces a class action lawsuit over the removal of the "Other OS" features commonly used to install the Linux operating system on the console.
Sony removed the feature in a firmware update after hackers exploited the option to gain read/write access to the PlayStation 3.
"This case raises questions about whether console manufacturers or retailers should be liable over the removal of features which were marketed to consumers at the point of sale but are removed subsequently," said Purewal.
Amazon UK has reportedly already issued a partial refund after a customer complaint, with the law in Europe placing the onus of liability on retailers.
"This issue is relatively untested in the UK and Europe. Consumer protection is an important part of UK/EU law, which imposes certain minimum legal obligations on retailers regarding the sale of goods to consumers: for example, goods must be of satisfactory quality and must be fit for purpose," said Purewal.
"Consumers could argue that changes to console functionality are a breach of those obligations," he added. "On the other hand, there is an argument that manufacturers should have leeway if the console needs to be modified for genuine reasons, such as security or anti-piracy."
The class action was filed in a North District of California court and so the role of the retailer in the issue is not likely to be a key focus.
"Clearly this matter raises quite complex issues and, if it was litigated in Europe, it would be interesting to see where the courts' sympathy would lie," said Purewal.
Even so, I would be interested in seeing how many people are part of this class action.
By the time the PS3 was created there was a distinction made by Sony itself stating Gaming is one thing and Computing is other one very distinguished. In an interview on Japan's PC Watch (http://www.edge-online.com/news/kutaragi... Ken Kutaragi pushed the PS3 as a computer, not as a game console.
"Speaking about the PS3, we never said we will release a game console, (...) It is radically different from the previous PlayStation. It is clearly a computer. Indeed, with a game console, you need to take out any unnecessary elements inside the console in order to decrease its cost. ... This will of course apply to the PS3 as well."
"The HDD is not the only element which gives the PS3 its computer nature. Everything has been planned and designed so it will become a computer. The previous PlayStation had a memory slot as its unique interface. In contrast, the PS3 features PC standard interfaces. Because they are standard, they are open."
"We put up no restrictions. Because it is a computer, it can interact with anything, freely. If someone is familiar with PC building, he or she can upgrade easily PS3’s HDD."
"After all, we don't say it's a game console PS3 is clearly a computer unlike PSs of so far. "
As many of you should know, Ken Kutaragi is the former Chairman and chief executive officer of Sony Computer Entertainment (SCEI), the video game division of Sony Corporation. He is known as "The Father of the PlayStation".
I would say thousands of users bought the old PS3 model knowing they were getting the Linux support. All these customers – using Linux or not - just felt deluded by Sony.
This lack of diplomacy will cost money to Sony and will stain its reputation.
Edited 1 times. Last edit by Joe Bassi on 30th April 2010 3:22pm
Whatever the case may be, I seriously doubt the courts will rule in Ventura's favor. Sony's lawyers are, no doubt, way more informed than this guy and can prepare a defense against pretty much anything that he has claim against. And let's not forget that the government is all for security and against piracy so if Sony really did strip the Other OS option for those reasons, they were perfectly in the right to protect their property by doing so.
Sony even made a statement that the number of PS3 owners who actually use the Other OS option are likely very limited. Even if all 7,000+ comments on the Playstation Blog entry about this were from different users, 7,000 people using Linux on the PS3 compared to millions of PS3 owners is a small percentage. Sony is looking out for the majority, which is always how businesses have to run.
I will be very surprised if this suit actually rules in Ventura's favor. Even if Sony is in the wrong, they will likely settle out of court instead of letting this farce go on.
Sometimes the companies fight it, but fiscally it almost always makes sense to settle out of court, even if the large company could easily win.
The first option that Sony will pursue will probably be to find some grounds to ask the court to throw the case out.
Even if it's a relative small group of people who use it, it's still a group of consumers who bought the console knowing they could use OtherOS. One of the reasons I bought the PS3 was because of being able to program/toy with the CELL proc through OtherOS, bluray was even a bigger reason, and being able to play games was a lesser reason. If the PS3 didn't have OtherOS, I wouldn't have bought the PS3 at that time, so it was the reason that made me decide to buy the PS3.. Otherwise I would have waited until the price was even lower as it is now and for a new revision which uses even less of power.. OR I would have just bought myself a normal bluray player..
Also Sony must ofcourse show the real need for removing the OtherOS option. As at this point it wasn't necessary to remove it as there still wasn't anything possible with it, and also the hack used for even getting to that point is so cumbersome that it won't affect anything.. They could also have waited until there was a real reason like it actually being hacked and being able to do stuff with it like real homebrew through XMB or being able to play iso's.. Also there was an official statement they wouldn't remove the option from the older models, even though back then people where already moaning when the rumor of removal was spreading through the internet.. No they waited 2 day before the release of that specific firmware (which only removes the option, and doesn't add anything new), just to make sure there wasn't enough time to complain..
Instead of just trying to fix the holes, they just removed a complete feature.. what if through JavaBD it would be possible to hack the PS3, will they remove the BD option althougether? Also the removal of OtherOS on the Slim is a sign Sony already had plans of removing the option even before some hacker had some succes (as it's already known that the lack of OtherOS isn't due to technical-reasons as Sony claimed themselves)..
I hope the Sony looses the lawsuit, as it should be clear it's just not done to remove complete features after the sale. I'd rather hope the outcome would be the return of OtherOS... But I guess we'll have to wait for being able to use that again on some hackers...
POTO...
Edited 1 times. Last edit by Frank Bowen on 30th April 2010 7:03pm
That's the standard company line recently when DRM breaks everything or when an update goes bad. "Oh, we apologize, but it only affected .01% of all users" as if that suddenly makes everything acceptable. Doing something only .01% illegal is still illegal. It should be 20 million.
He acts as though upsetting at least 7000 consumers is nothing. Just the cost of those customers PS3s added together is significant cash.
The fact that companies (any company) think they can change usability of advertised features AFTER release with no liability is crazy. Of course they should be liable. The court should decide to what extent.
Its not uncommon for universities and science labs to buy a cluster of PS3's and build a cheap super computer (up to 32 can be networked together without much trouble), I have been involved in one such project myself.
The removal of other OS support is a blow, IBM will sell you a cell chip on a card, but its about 10-20 times the price.
I think Sony should provide some method for this academic use to continue, maybe you would need to register first, before unlocking it , but I would not see that as a problem.
@Graham Finch: I've heard about these clusters set up with PS3s too, but I guess these PS3s will not get the latest firmware updates as they will not be used to connect to PSN ;) But who knows... if the hackers can bring back OtherOS even to the PS3Slim, maybe there will be a lot more hardware sold for clusters.
After a while you start thinking that not all hackers are bad, some just try to keep their rights as a user, buyer and consumer which were i.e. crippled by the companies in the beginning.
Edited 1 times. Last edit by Andreas Kannegiesser on 8th May 2010 1:43am