Why you should support the "Other OS" Lawsuits.

[Danpascooch]

~Snip~

I don't think anyone is arguing whether the advertising existed, and (indeed) I have offered to accept for the sake of argument that there is a contract created by the advertisements, independent of the EULA, and even that SCEA breached it.

Now, finish the process for us. SCEA isn't being charged with violating state or federal law (which would be suit brought by the government itself, or at least an executive agency), it is being sued in civil court by private citizens under contract law. In order to get some recompense, then, you must meet the elements of a breach of contract claim.

For simplicity's sake, I'll list the most basic elements:

1. A contract must be shown to have existed
2. That contract must be shown to have been relied upon and fulfilled by the party bringing suit. If the plaintiff has also breached the contract, he cannot sue for breach of contract.
3. The contract must be shown to have been breached by the defendant
4. The plaintiff must show damages resulting from his adverse reliance on the contractual provisions.

I've granted you the first element, even though I disagree. I've granted you the second and third under similar understanding. But you still must show the damages. As I have said, it is not sufficient to prove (under civil contract law) that a breach occurred, you must show damages.

What damages exist here? The loss of functionality? Maybe, but those damages would amount to the difference in value between the original cost and current functionality of the Playstation 3 console. The cost of the original purchase? Maybe, but then you'd have to show that those in the class bringing action would not have purchased the PS3 save for their reliance on promises to support Linux.

I'll grant everything for the sake of argument save for your proof of damages. Show me those.

You accuse me of not citing legal code, I'm going to ask you to do the same, then I'll address that numbered list you pulled out of your ass.

 

[Seldon2639]

Don't give me this crap, there are a whole host of points of mine you haven't responded too either.

I don't have to show any of that if they go for PUNITIVE and not compensatory damages, if it were punitive, all they would need to show is that they violated their ownership of the console by stealing away a feature that they purchased.

You... Have no idea how punitive damages work, I take it?

Punitive damages don't exist in a vacuum. They stem from the compensatory damages, and inflate them, but cannot exist as entities unto themselves (the reason why those in the legal professions refer to them as treble damages, rather than punitive). They literally "triple" (treble) the actual damages stemming from provable harm.

Also, exemplary damages are almost never awarded in contract claims, which (as I have said) these are. Contracts are not torts, they're completely separate areas of law.

1.) This is a requirement when going for compensatory damages, not punitive[/qupte]
This is factually incorrect, I urge you to google "exemplary damages"

2.) This is totally irrelevant, worth is an opinion, if they didn't give you a system with features they advertised it with, then that's false advertising, they're not immune to that because you say "it's still worth it without those features"

Um... You as a plaintiff have to prove the damages, it is not up to the defense to show that damages don't exist. This statement, therefore lacks factual basis. Also, please stop talking about false advertising, as it isn't a claim that exists in contract law, nor is any claim similar to it being brought in these suits. They're contract claims. Contract claims. Contract claims.

3.) Damage them? That's effortless to prove, all they would need to do is show they have a partition that was using it, that would prove that the update damaged them by taking away a capability of the console that they used.

Nope. That's not how damages work. You have to show actual harm, not just "they did something I don't like". Unless you can show actual damage to the class from the loss of that partition neither compensatory nor exemplary damages would apply. I'm just gonna link the wikipedia page in the hopes that it will be more accessible than the caselaw I cited earlier.

http://en.wikipedia.org/wiki/Punitive_damages

And do you know what false advertising is? In layman's terms "they lied" is EXACTLY what it means. This is a thread, I made the OP with the impression of allowing ordinary people of reasonable intelligence read it regardless of legal knowledge, so yes, I had to simplify a bit.

So they lied. I've already granted you for the sake of argument that they did. I also granted that they breached the contract and broke their promises. That does not prove damages, and contract claims (rising not in tort, but in contract law) are not given exemplary damages.

Do the damned research, please.

 

[Low Key]

snip

No, I didn't read anything in the 16 pages because I wasn't arguing anything but the OP's OP. I'm not going to read through 16 pages to pick and choose to whom or what I respond to. That would take forever. So, take a fucking chill pill and address me with some civility that I can actually take seriously.

In any case, Seldon did me a solid and presented an excellent rebuttal on my behalf.

 

[Burgertime]

~Snip~

I don't think anyone is arguing whether the advertising existed, and (indeed) I have offered to accept for the sake of argument that there is a contract created by the advertisements, independent of the EULA, and even that SCEA breached it.

Now, finish the process for us. SCEA isn't being charged with violating state or federal law (which would be suit brought by the government itself, or at least an executive agency), it is being sued in civil court by private citizens under contract law. In order to get some recompense, then, you must meet the elements of a breach of contract claim.

For simplicity's sake, I'll list the most basic elements:

1. A contract must be shown to have existed
2. That contract must be shown to have been relied upon and fulfilled by the party bringing suit. If the plaintiff has also breached the contract, he cannot sue for breach of contract.
3. The contract must be shown to have been breached by the defendant
4. The plaintiff must show damages resulting from his adverse reliance on the contractual provisions.

I've granted you the first element, even though I disagree. I've granted you the second and third under similar understanding. But you still must show the damages. As I have said, it is not sufficient to prove (under civil contract law) that a breach occurred, you must show damages.

What damages exist here? The loss of functionality? Maybe, but those damages would amount to the difference in value between the original cost and current functionality of the Playstation 3 console. The cost of the original purchase? Maybe, but then you'd have to show that those in the class bringing action would not have purchased the PS3 save for their reliance on promises to support Linux.

I'll grant everything for the sake of argument save for your proof of damages. Show me those.

I take it that you haven't read the .pdf put out by the lawyer for the first lawsuit. In the lawsuit they clearly mention how the removal of the Other OS feature is in violation of bait and switch bylaws. Breaking the law is enough to file a lawsuit against them.

 

[Seldon2639]

You accuse me of not citing legal code, I'm going to ask you to do the same, then I'll address that numbered list you pulled out of your ass.

ABSOLUTELY!

First, here's the actual complaint from the most recent suit:

http://ps3movies.ign.com/ps3/document/article/109/1092140/SonySuit.pdf

Damages and necessity to prove damages in a contract, as well as the preclusion of exemplary damages for breach of contract:

http://www.west.net/~smith/damages.htm

Unjust Enrichment:

http://en.wikipedia.org/wiki/Unjust_enrichment

So... Show me those damages again?

 

[esperandote]

I didn't use to care about the other OS option since I wasn't planning on using it when I get a PS3 but you sir make a great point.

For what I understood if Sony wins this then other companies will have a precedent to break their own EULAs, advertisements and promises.

 

[Seldon2639]

I take it that you haven't read the .pdf put out by the lawyer for the first lawsuit. In the lawsuit they clearly mention how the removal of the Other OS feature is in violation of bait and switch bylaws. Breaking the law is enough to file a lawsuit against them.

I never said they couldn't bring suit. They have, and are within their rights to.

I've only said that they have no recourse, as there are no damages which sound in contracts, and their tort claims are insufficiently plead to withstand a motion for dismissal or summary judgment (especially since the Twombley case).

As I have said, the damages in this case would be compensatory, not exemplary, and thus would be tied directly to proof of economic damages. The reality is that I've yet to see anything which would indicate any kind of economic harm to the consumers.

Unless you can show that their adverse reliance caused them to buy the machines (which would entitle them to full recompense, but which seems ludicrous to claim), or show that the current machines are worth less than the original value paid (for the unjust enrichment), there are simply no damages here to take.

 

[omega 616]

A user agreement doesn't have priority over a state or federal law.

Surly, if the user agreement says that sony can remove stuff from the PS3 and if the user enters into the agreement, then it can stand up in state or federal law.

I have no legal knowledge but I figure that makes sense, it's like if you tell a child not do something and it does what you told it not to, it can't say you didn't warn it.

This thread has turned into nothing but a flame war, I am surprised it's not locked.

 

[Jumplion]

I just have one question;

[HEADING=1]What. Advertising?[/HEADING]

Every single time I hear this argument it's always "Sony advertised it, therefore it's false advertising!"

I have never seen a single god-damn advertisement for the "Install other OS" feature, so please explain to me how that can be "false advertisement"? Show me one TV commercial or banner ad or computer ad that shows "Instal other OS feature!" or some variation of that and it would DRAMATICALLY clear up whateverthehell it is that's being argued.

As for the EULA agreement, you signed the thing stating you agreed what the terms of service was or whatever they were. It's not exactly "above the law" if there is no "false advertising" to begin with.

It's in my OP, if you want to argue here, I suggest you read it, I gave a link to a site that lists all of the advertisements and promises Sony made that would lead a customer to know that PS3 comes with Linux.

It's at the bottom of the OP in an edit (and don't say it wasn't there when you looked at it, I made that edit hours ago)

Hurk-a-dur, missed that link, apologies, thought it would just link to some legal mumbo-jumbo as a lot of posts regarding this issue do.

But even after I read the link I hardly think that that would really be considered "advertising". That's just a post on a blog, that means nothing. A blog post is not a binding contract. (unless I completely missed the link again, in which case sorry...again!)

It's like if a scientist said "we'll have this technology out in stores in a month!" on a scientific journal and the project gets canceled and people sue him. There's nothing that he can really do about it now can he?

But eh, obviously since I'm not affected by this at all I have no stake in it. But I really do have to wonder what uses Linux really had for the PS3 aside from the pirating.

There are plenty of examples in there, remember, advertising doesn't necessarily have to be flashy or expensive, basically, if it's formally promised by the company to the consumers that it will have said feature before they buy it, it counts.

That's all advertising really is, and there is no distinction based on how flashy, expensive, or successful it was.

You know, this reminds me of the whole "Left 4 Dead 2" fiasco that happened with the boycotters. They said that VALVe had promised the L4D community with just as much updates and content for free as TF2 or Counterstrike, and they did, plenty of articles with interviews and such prove that.

Regardless I know absolutely no legal mumbo-jumbo, so I will leave this debate for the law-heavy nerds here ;P

 

[shadow skill]

You know I just want to reiterate that saying that the EULA was available elsewhere is a complete non argument. See:http://en.wikipedia.org/wiki/Specht_v._Netscape_Communications_Corp. as an example of such an argument not working.

 

[Mark Kennard]

The thing that people aren't understanding is what not installing 3.21 does. Not only does it mean no more Playstation Network, it means any new game is not playable (false advertising as the PS3 is advertised as being able to play PS3 games), apparently you can't watch Avatar (not a good movie so not that big of a deal) and probably more Bluray movies coming out probably will be unwatchable without an update (false advertising as the PS3 is advertised as being able to watch Blurays), Playstation Store is gone, browser functionality is reduced, anything good in new updates is not available, and any updates after 3.21 aren't 'optional'. You have to give up Linux support if you want to use your PS3 as a PS3, meaning it is false advertising that it supports Linux. You can't say it's optional, because it simply isn't.

 

[oktalist]

My only concern is if Sony crashes, will Microsoft monopolize the console market, and make an even worse console that costs more?

You seriously think there is the remotest possibility of these lawsuits causing Sony to "crash"?

Well I know the PS3's popular in Japan, but not so much in the UK/US. Furthermore they're losing out on each unit already, and if they're forced to give everybody their money back, it doesn't really look like all sunshine and dasies for them.

Of course, if it came to that, they would just fix the bug and reinstate other OS support overnight.

 

[Seldon2639]

You know I just want to reiterate that saying that the EULA was available elsewhere is a complete non argument. See:http://en.wikipedia.org/wiki/Specht_v._Netscape_Communications_Corp. as an example of such an argument not working.

For a more applicable case, see:

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir., 1996),

"So although the district judge was right to say that a contract can be, and often is, formed simply by paying the price and walking out of the store, the UCC permits contracts to be formed in other ways. ProCD proposed such a different way, and without protest Zeidenberg agreed. Ours is not a case in which a consumer opens a package to find an insert saying "you owe us an extra $10,000" and the seller files suit to collect. Any buyer finding such a demand can prevent formation of the contract by returning the package, as can any consumer who concludes that the terms of the license make the software worth less than the purchase price. Nothing in the UCC requires a seller to maximize the buyer's net gains."

So... Yeah, if the license was unacceptable, the user has the right to return it free and clear, and receive restitution. Continuing to use the product at that point constitutes an acceptance of the presented contractual obligations.

That said, even if we accept that the EULA is bunk, and there is a breach of contract:

Will someone for the love of god show me where you're proving any kind of compensatory damages, which are the only thing you can collect in a contracts case?

 

[oktalist]

I swear your avatar is getting more drunk with every post.

A user agreement doesn't have priority over a state or federal law.

Surly, if the user agreement says that sony can remove stuff from the PS3 and if the user enters into the agreement, then it can stand up in state or federal law.

Dude, seriously? Still? You're still going on about the EULA? How many times has that line of argument been shot down in this thread? There is no contract in the world that can make it OK to break the law. And the user has not entered into the agreement until after handing over the cash. If they didn't like the EULA, could they have returned the product and got their money back? The product was described as having the feature prior to purchase. No after-the-fact contract can take that away unless they at least offer a full refund.

If the EULA can change the advertised features of a thing then you might as well just spend your money on a big box with nothing but a question mark printed on the side of it, for all the consumer confidence it'll give you.

I have no legal knowledge but I figure that makes sense, it's like if you tell a child not do something and it does what you told it not to, it can't say you didn't warn it.

It is nothing like that. Plus that is kinda disturbing.

This thread has turned into nothing but a flame war, I am surprised it's not locked.

Yeah, and whose fault is that, eh?

 

[omega 616]

Dude, seriously? Still? You're still going on about the EULA? How many times has that line of argument been shot down in this thread? There is no contract in the world that can make it OK to break the law. And the user has not entered into the agreement until after handing over the cash. If they didn't like the EULA, could they have returned the product and got their money back? The product was described as having the feature prior to purchase. No after-the-fact contract can take that away unless they at least offer a full refund.

If the EULA can change the advertised features of a thing then you might as well just spend your money on a big box with nothing but a question mark printed on the side of it, for all the consumer confidence it'll give you.

I have no legal knowledge but I figure that makes sense, it's like if you tell a child not do something and it does what you told it not to, it can't say you didn't warn it.

It is nothing like that. Plus that is kinda disturbing.

This thread has turned into nothing but a flame war, I am surprised it's not locked.

Yeah, and whose fault is that, eh?

I have never mentioned any EULA, I don't even know what it is.

I only read posts that were aimed at me, so I have no idea how many it has been used.

Exactly, they handed over the cash so they entered into (what I assume to be) a contract that said sony could change it. I am just going off what the guy I quoted said here.

Sony haven't really broke the law if what the above paragraph is about is true, although I am not sure if it is or isn't, again I am just basing it on what the guy I quoted said.

It's the fault of people who have a short temper and result to insults, which I don't understand, I can post for days on end with the most annoying person and not reach the level some people have on here.

I think people who have some legal knowledge should take into consideration there knowledge is better in this area, aswell as people with no knowledge (like me) to admit they have no knowledge and not argue with the people who do. While some people know about law, they will be ignorant in other area's, like Steven Fry said "everybody is ignorant".

 

[oktalist]

I have never mentioned any EULA, I don't even know what it is.

End User License Agreement. You were talking about an agreement, and that's the only agreement that makes sense in this context.

Exactly, they handed over the cash so they entered into (what I assume to be) a contract that said sony could change it. I am just going off what the guy I quoted said here.

They only got to see the contract after they'd handed over the money. The contract and the money changing hands were two separate things; the money one came first. Only afterwards did they whip out the contact that said "oh BTW we reserve the right to disable any and all of your PS3's features."

Sony haven't really broke the law if what the above paragraph is about is true, although I am not sure if it is or isn't, again I am just basing it on what the guy I quoted said.

It's not clear to me what that guy was talking about so I'll just leave it at that.

 

[oktalist]

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir., 1996),

"So although the district judge was right to say that a contract can be, and often is, formed simply by paying the price and walking out of the store, the UCC permits contracts to be formed in other ways. ProCD proposed such a different way, and without protest Zeidenberg agreed. Ours is not a case in which a consumer opens a package to find an insert saying "you owe us an extra $10,000" and the seller files suit to collect. Any buyer finding such a demand can prevent formation of the contract by returning the package, as can any consumer who concludes that the terms of the license make the software worth less than the purchase price. Nothing in the UCC requires a seller to maximize the buyer's net gains."

So... Yeah, if the license was unacceptable, the user has the right to return it free and clear, and receive restitution. Continuing to use the product at that point constitutes an acceptance of the presented contractual obligations.

What's this? Someone arguing in support of Sony, making a reasonable point? It must be opposite day.

But seriously, it does look like you may have a point there. I guess there's case law on both sides of the EULA debate.

But even if it's decided that what Sony did is legal, I still think it shouldn't be.

 

[Readial]

I may be the third guy to say this:

I joined the escapist just because of this Thread, it is interesting and discusses a legal issue that got me back into Law again.

Now let me just say that I own a PS3 slim so anything i say negatively to this thread, danpaschooch can easily brush me off.

After reading the OP, I have a sense of why this is illegal and also ethically wrong. For those who bought the "fat" model, they should take this case a bit more seriously, not because we don't care and all, not because its to protect the business that Sony has built with the 3 machines they built, but its the right of the consumer. The fat model is advertised as a computer MEANT to support Linux, it was originally planned, built, and given to consumers this way. But taking this feature away means that Sony had broken its promise to the consumer. Its like you agree to a contract that legally binds both companies for X and Y. Lets just say X is Ps3 fat and Y is Money we give to sony, but change X, it bcomes X + 1 or somthing, but it becomes something else entirely different.

The point is, Sony is breaching a contract that states through advertising that the PS3 is meant to be applicable with linux, but taking that away changes the offer hence breaking the contract.

Btw, I've studied only English Law so I dunno if it applies here in the US. Apologies to those in advanced if anything is wrong.

I SUPPORT THE LAWSUIT!!! VIVA LA REVOLUTION!!!

 

[shadow skill]

You know I just want to reiterate that saying that the EULA was available elsewhere is a complete non argument. See:http://en.wikipedia.org/wiki/Specht_v._Netscape_Communications_Corp. as an example of such an argument not working.

For a more applicable case, see:

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir., 1996),

"So although the district judge was right to say that a contract can be, and often is, formed simply by paying the price and walking out of the store, the UCC permits contracts to be formed in other ways. ProCD proposed such a different way, and without protest Zeidenberg agreed. Ours is not a case in which a consumer opens a package to find an insert saying "you owe us an extra $10,000" and the seller files suit to collect. Any buyer finding such a demand can prevent formation of the contract by returning the package, as can any consumer who concludes that the terms of the license make the software worth less than the purchase price. Nothing in the UCC requires a seller to maximize the buyer's net gains."

So... Yeah, if the license was unacceptable, the user has the right to return it free and clear, and receive restitution. Continuing to use the product at that point constitutes an acceptance of the presented contractual obligations.

That said, even if we accept that the EULA is bunk, and there is a breach of contract:

Will someone for the love of god show me where you're proving any kind of compensatory damages, which are the only thing you can collect in a contracts case?

That is all well and good, but I would kindly ask you to show me where exactly Zeidenberg was not presented with the contract? If you read what I said, you would understand that merely having the contract available elsewhere was damn sure not enough for Netscape since it was entirely possible to never see the license at all. Secondly Zeidenberg purchased more than one copy of the software before the legal action took place. It would be extremely unlikely for him to not have seen the contract all of those times.

Furthermore the judge is pretty much saying that it is possible to implicitly agree to terms that one has not necessarily seen. He's an idiot. Not that this new ground, some of these judges seriously believe that corporations should be considered people.