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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.

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Latest comments (15)

Terence Gage Freelance writer 9 years ago
I don't know the ins and outs of the legal standing, but it seems utterly absurd to try and sue Sony for $5 million because of the removal of an Operating System from a $300 piece of hardware. I would question what Anthony Ventura used his PS3 for, and how he possibly reached such a sum as compensation.
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Devante Adams designer 9 years ago
its a class action
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Luke Allman Character Artist / Level Designer 9 years ago
It's frivolous and asinine, is what it is. I feel this is a big ploy for some one to try and squeeze some money out of Sony. It seems as soon as Sony starts to get their legs back underneath them, something like this happen to try and hack them off at the knees. Yes the removal of the feature sucks, but if somebody needs to use linux so badly why can't they just install it on a real computer? Again I thinks this is just a childish grab for money.
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Show all comments (15)
Terence Gage Freelance writer 9 years ago
Yes, I see now. I was of the assumption this Anthony Ventura was sueing them on his own, as his is the only name mentioned.

Even so, I would be interested in seeing how many people are part of this class action.
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Joe Bassi Managing Director & Business Development, Mertech Data Systems9 years ago
What is clear to me is Sony is really getting very badly advised. They knew this Linux support removal would cause a commotion for the early PS3 customers. They just made public this removal in their Blog with few days in advance and despite 7,000+ comments over there Sony remained silent as a rock and pushed a polemic update that just removed the Linux feature, giving nothing in return.

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 PS3s 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

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Tyler Boshart freelance journalist 9 years ago
This is a man who's looking for a get-rich-quick method. I don't know Ventura's legal background, but I'm guessing he did a little digging and came up with these reasons, then brought them to a lawyer to see if he had a case. The lawyer, of course, said yes and the suit was on.

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.
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Christopher Hennen Designer 9 years ago
These things happen on an almost daily basis here in the States. Rarely do they go to trial, usually the point of the way these suits are written up is to try to get the large company (this round Sony) to settle out of court for an undisclosed sum, it is done by the company to save face, and also legal fees.
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.
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Andrew Jakobs Lead Programmer 9 years ago
@people saying: 'just install linux on a pc.' , there isn't a cell-enabled PC.. Installing linux, isn't mostly because of linux itself, but being able to harness the CELL yourself.. Also OtherOS doesn't mean Linux, it means you can install OtherOSses (also you can create your own OS)..

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...
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Frank Bowen Sr. Project Manager, THQ9 years ago
"it's still a group of consumers who bought the console knowing they could use OtherOS." If they bought it and the change only effects new purchasers how are the old purchasers hurt? They are not. It would only hurt new purchasers unaware that they pulled this out and they were expecting the feature to be in the machine.

POTO...

Edited 1 times. Last edit by Frank Bowen on 30th April 2010 7:03pm

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Jonathan Lindsay Creative Director, Playomic9 years ago
"If they bought it and the change only effects new purchasers how are the old purchasers hurt?" From what I have read, this change affects all PS3s, not simply new versions. So if that is the case, Andrew Jakobs makes a very valid point.
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Trae Fields9 years ago
Jose Antonio Bassi Fernandes your right they didn't even try to make it optional. they just force you to remove it and the firmware did nothing else but remove the OS
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David Spender Lead Programmer 9 years ago
Unfortunately lawsuits are the only way to get companies to listen these days. When things only affect a 'miniscule' portion of the total population, they don't care if its wrong or even illegal.

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.
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Robbie Kazandjian Director, SoundBoy Ltd9 years ago
The comment above from Tyler is madness.

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.
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Graham Finch Programming 9 years ago
Recently the US government bought a large number of PS3's to perform password cracking at border security. The US air force has bought quantities before,

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.
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Andreas Kannegiesser Project Manager, Enzyme Testing Labs9 years ago
I'm with Andrew Jacobs. Removal of the OtherOS feature only affected the early adopters, the ones who spend 600 US$/Can$ /Eur on their console as the feature was already removed for the PS3Slim. What if the hackers would now find a fault in the PS2 emulation for cracking the PS3? Would everyone accept it to be removed as Sony's own survey shows there's only a minority using it to play PS2 games? I had Linux on my PS3, and even though the performance wasn't really that good and the catalog of programs wasn't that big, it was still a value for the ones paying the high price for the big PS3s.
@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

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