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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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