Why you should support the "Other OS" Lawsuits.

[powell86]

dude. read properly, entitlement of refund is true, but whether u get it or not through practical means is another. If u want to talk legal obligations, you need to be clear. the thing is EULA is NOT illegal becuz you did not get your refund even though you are suppose to get it.

And I believe it is not the retail store that refunds you, if i'm correct you need to get your refund from Sony directly.

 

[Mark Kennard]

dude. read properly, entitlement of refund is true, but whether u get it or not through practical means is another.

I can relate. When I got my graphics card, I bought two of them and intended to Crossfire them. I paid for them both and the guy said it will arrive in a few days. It took nearly a month of waiting for them to arrive before I got so pissed off at him and went down to the shop and asked for a refund only for him to say 'I have one of them here now, and you will get the next one when I'm ready'. I ask for a refund and the guy says that he won't give me one, despite him breaking a verbal contract that the cards would arrive in a few days. I had to hire a lawyer to write up a legal letter telling him if he doesn't give me a refund then he will be reported to the commerce commision.

The point I'm trying to make is you can get some really shady people out there who won't give you a refund even if you ask, and require legal action before you get anywhere, and as I said earlier: not many people will actually bring back their console because they see in it 'we are entitled to make changes to the product whenever we like'.

 

[shadow skill]

dude. read properly, entitlement of refund is true, but whether u get it or not through practical means is another.

I can relate. When I got my graphics card, I bought two of them and intended to Crossfire them. I paid for them both and the guy said it will arrive in a few days. It took nearly a month of waiting for them to arrive before I got so pissed off at him and went down to the shop and asked for a refund only for him to say 'I have one of them here now, and you will get the next one when I'm ready'. I ask for a refund and the guy says that he won't give me one, despite him breaking a verbal contract that the cards would arrive in a few days. I had to hire a lawyer to write up a legal letter telling him if he doesn't give me a refund then he will be reported to the commerce commision.

The point I'm trying to make is you can get some really shady people out there who won't give you a refund even if you ask, and require legal action before you get anywhere, and as I said earlier: not many people will actually bring back their console because they see in it 'we are entitled to make changes to the product whenever we like'.

Good point. I have to wonder how exactly someone could prove that someone actually clicked agree. In the case of traditional computers it is not that difficult to trigger buttons and the like programmatically especially in a web browser. With a paper you have to sign or stamp it is much easier to prove that you did in fact agree, or if you have been hoodwinked. With a piece of electronic equipment like a game console it is entirely possible and probably very common that the individuals hammering their way through the EULA screen are in fact children. How does one prove that they didn't click agree and conversely how does one prove that a specific individual did click agree?

 

[Mark Kennard]

dude. read properly, entitlement of refund is true, but whether u get it or not through practical means is another.

I can relate. When I got my graphics card, I bought two of them and intended to Crossfire them. I paid for them both and the guy said it will arrive in a few days. It took nearly a month of waiting for them to arrive before I got so pissed off at him and went down to the shop and asked for a refund only for him to say 'I have one of them here now, and you will get the next one when I'm ready'. I ask for a refund and the guy says that he won't give me one, despite him breaking a verbal contract that the cards would arrive in a few days. I had to hire a lawyer to write up a legal letter telling him if he doesn't give me a refund then he will be reported to the commerce commision.

The point I'm trying to make is you can get some really shady people out there who won't give you a refund even if you ask, and require legal action before you get anywhere, and as I said earlier: not many people will actually bring back their console because they see in it 'we are entitled to make changes to the product whenever we like'.

Good point. I have to wonder how exactly someone could prove that someone actually clicked agree. In the case of traditional computers it is not that difficult to trigger buttons and the like programmatically especially in a web browser. With a paper you have to sign or stamp it is much easier to prove that you did in fact agree, or if you have been hoodwinked. With a piece of electronic equipment like a game console it is entirely possible and probably very common that the individuals hammering their way through the EULA screen are in fact children. How does one prove that they didn't click agree and conversely how does one prove that a specific individual did click agree?

Well I suppose they can say 'you used it therefore you must have agreed', but the point about children skimming through it actually made me think of something: kids can't enter into a legal agreement. If a kid got a PS3 for christmas or something and it said on the box that it features Linux, the EULA will mean nothing as the child agreed to it but kids can't sign contracts and it is therefore null and void. There's probably a huge amount of people out there under the legal contract age who accepted the EULA meaning all those people don't have to abide by the conditions.

Of course I'm probably wrong on that.

 

[omega 616]

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."

That hardly seems like a legal matter though, it's not exactly a great practice and it's a little under handed but the user entered into it. To me it's like those things when you install a game on a pc, you know were you always accept without actually reading the terms and conditions, you have no idea what that says but you still accept them.

Thanks for explaining the other things though.

 

[powell86]

Well I suppose they can say 'you used it therefore you must have agreed', but the point about children skimming through it actually made me think of something: kids can't enter into a legal agreement. If a kid got a PS3 for christmas or something and it said on the box that it features Linux, the EULA will mean nothing as the child agreed to it but kids can't sign contracts and it is therefore null and void. There's probably a huge amount of people out there under the legal contract age who accepted the EULA meaning all those people don't have to abide by the conditions.

Of course I'm probably wrong on that.

i think that is a very interesting point, from where i'm from anybody under 18 cannot have contractual liabilities. However if you wanna go strictly, then I would say the EULA is binding to the person purchasing it, rather than the user. Hence we circumvent this whole contracts with minors issue. i believe that most kids would not have any economic capabilities of buying a PS3 by themselves. Hence actually I'm leaning to say that EULA and similar unilateral contracts (like ISP, Mobile services etc) are quite unfair for it is very easy for users and purchasers to be different persons.

And bear in mind, seriously, are kids going to care about whether they'll get linux support? parents certainly wouldn't care.

i wonder how come there is less fanfare abt microsoft stopping xbox live. i would expect more people to cry foul over it. and that represents a core functionality as oppose to linux support.

 

[SinisterGehe]

Honestly cant you guys just live with it? You need to sue for everything that happens in your little world behind the pond?
I haven't heard ANYONE in Finland whining about this. just /shrug and live with it.

You obviously didn't read the full OP.

It sets a dangerous precedent, it's not really about the feature itself, I don't even use the PS3

So you are steaming about something that doesn't touch your life... Ain't that a being Hypocrite? And beside if some big company really wants to do something. They will find a way to do it. And at the end. They are in control of their products, if they want them all to be shutdown. They can make that happen.
I'm not supporting this stupidity. A, It is not my fight. B, I could care less, C, Does that fucking linux need to be on everything, if it cant be but on something they most go and whine about it. D, I'm sure that Multi OS ad wont be in the new PS3 releases.

Just live with it. You don't need to sue for everything. Even you live behind the pond. I personally think this wont be going trough.

 

[Duffy13]

The point seems to be that this might be a case of False Advertising.

At the moment (as I haven't bothered looking for a specific precedent) SONY appears to have done everything required of them through contract law and advertising law. So long as the EULA is determined to be legally binding they are fine.

I would say SONY doing this violates the spirit of the law if not the word of law. At this point their is no clear result and it will probably all depend on the judge in question.

Oh it's definitely not a case that is predetermined, this sort of corporate law can get so effing complicated, I wouldn't be surprised if this case takes a very long time.

But I would like to point out that EULA's barely ever have relevance in court for two reasons:

1.) You see the EULA AFTER you buy the console, so it's too late to make a decision not to get it after you see the EULA.

2.) If Sony didn't break the law here, than they don't need the EULA, if they did break the law, than that overrides the EULA, a contract cannot violate the law, so either way, the result is not going to change based on the EULA, so it's irrelevant.

If I recall correctly, the EULA is important here. If the EULA as a whole document is found to fail a contract law litmus test (even if the parts concerning advertising and functionality changes is valid and covers false advertising) that should open the way for false advertising arguments that would be previously blocked by a valid EULA.

I think it's essentially two steps:

#1 Is the EULA itself Valid? (this includes checking parts concerning our main complaint)
->If Yes, argument over.
->If No, then:

#2 Does the EULA and/or SONY's other actions violate false advertising? (This might be implicit, it might not)
-> If Yes, complaint wins.
-> If No, SONY wins.

Additionally, EULAs have been found in numerous forms to be valid and invalid, it's essentially a case by case determination.

For example your argument that you don't see the EULA until you open it is (generally) invalid since a proper "shrink wrap" EULA must have recourse to return the product if you discover you disagree with the EULA after you purchase the item. Usually a time limit is associated.

As far as I have seen in the released info there is no obvious faults, only the case can tell us when they get down to the specifics.

 

[shadow skill]

Well I suppose they can say 'you used it therefore you must have agreed', but the point about children skimming through it actually made me think of something: kids can't enter into a legal agreement. If a kid got a PS3 for christmas or something and it said on the box that it features Linux, the EULA will mean nothing as the child agreed to it but kids can't sign contracts and it is therefore null and void. There's probably a huge amount of people out there under the legal contract age who accepted the EULA meaning all those people don't have to abide by the conditions.

Of course I'm probably wrong on that.

i think that is a very interesting point, from where i'm from anybody under 18 cannot have contractual liabilities. However if you wanna go strictly, then I would say the EULA is binding to the person purchasing it, rather than the user. Hence we circumvent this whole contracts with minors issue. i believe that most kids would not have any economic capabilities of buying a PS3 by themselves. Hence actually I'm leaning to say that EULA and similar unilateral contracts (like ISP, Mobile services etc) are quite unfair for it is very easy for users and purchasers to be different persons.

And bear in mind, seriously, are kids going to care about whether they'll get linux support? parents certainly wouldn't care.

i wonder how come there is less fanfare abt microsoft stopping xbox live. i would expect more people to cry foul over it. and that represents a core functionality as oppose to linux support.

Xbox live is a service not a feature of the console. Whether you care about a given functionality or not is irrelevant.

Honestly cant you guys just live with it? You need to sue for everything that happens in your little world behind the pond?
I haven't heard ANYONE in Finland whining about this. just /shrug and live with it.

You obviously didn't read the full OP.

It sets a dangerous precedent, it's not really about the feature itself, I don't even use the PS3

So you are steaming about something that doesn't touch your life... Ain't that a being Hypocrite? And beside if some big company really wants to do something. They will find a way to do it. And at the end. They are in control of their products, if they want them all to be shutdown. They can make that happen.
I'm not supporting this stupidity. A, It is not my fight. B, I could care less, C, Does that fucking linux need to be on everything, if it cant be but on something they most go and whine about it. D, I'm sure that Multi OS ad wont be in the new PS3 releases.

Just live with it. You don't need to sue for everything. Even you live behind the pond. I personally think this wont be going trough.

Umm dude are you seriously arguing that something has to directly affect someone before they are allowed to care about it? I guess some white people caring about the enslavement of non-whites where hypocrites since they were never the target of slavery in the era in which they lived. Oh and heaven forbid able-bodied people caring about whether a disabled person has access to a public building...

 

[Danpascooch]

Honestly cant you guys just live with it? You need to sue for everything that happens in your little world behind the pond?
I haven't heard ANYONE in Finland whining about this. just /shrug and live with it.

You obviously didn't read the full OP.

It sets a dangerous precedent, it's not really about the feature itself, I don't even use the PS3

So you are steaming about something that doesn't touch your life... Ain't that a being Hypocrite? And beside if some big company really wants to do something. They will find a way to do it. And at the end. They are in control of their products, if they want them all to be shutdown. They can make that happen.
I'm not supporting this stupidity. A, It is not my fight. B, I could care less, C, Does that fucking linux need to be on everything, if it cant be but on something they most go and whine about it. D, I'm sure that Multi OS ad wont be in the new PS3 releases.

Just live with it. You don't need to sue for everything. Even you live behind the pond. I personally think this wont be going trough.

How am I being a Hypocrite? That makes no sense.

And no they can't just forcibly shut down something they sold you, that's basically stealing, did you put any thought into what you just said at all?

I don't even use the PS3, so I have no problem "living" with the lack of Linux support, I am concerned with the premise, and that hardly constitutes "suing for everything"

Also, just note, A and B are pretty much the same point.

It's not about the fact that I can't live without it, I never even used the feature, it's the fact that Sony assumes they have the power to take away something you paid for.

 

[Mark Kennard]

i think that is a very interesting point, from where i'm from anybody under 18 cannot have contractual liabilities. However if you wanna go strictly, then I would say the EULA is binding to the person purchasing it, rather than the user. Hence we circumvent this whole contracts with minors issue. i believe that most kids would not have any economic capabilities of buying a PS3 by themselves. Hence actually I'm leaning to say that EULA and similar unilateral contracts (like ISP, Mobile services etc) are quite unfair for it is very easy for users and purchasers to be different persons.

And bear in mind, seriously, are kids going to care about whether they'll get linux support? parents certainly wouldn't care.

Well to me (again probably wrong on this) it would be like a kid signing a lease on an apartment. Even if dad pays the rent the kid signed the contract, but you may be right on that.

One thing is that while kids may not care about Linux, I know a few people who bought a PS3 when they were 16 or 17 with a job or something and they do care about Linux now.

 

[powell86]

Xbox live is a service not a feature of the console. Whether you care about a given functionality or not is irrelevant.

nope disagree on that one. when u buy something services can actually be part of the agreed package.

 

[grayjo]

To the people who say this is a frivolous lawsuit... would you be so cavalier if Sony decided having Bluray playback was a security risk and removed that too?

Just because you personally might not have valued the Other OS feature doesn't mean that others didn't. And like bluray, Other OS was definitely one of Sony's advertised selling points.

 

[Seldon2639]

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.

The EULA argument is a false flag anyway (since the question will be decided on whether the "promise" made in the advertisements constitutes an enforceable contract, whether it was breached, and what damages befell those it was breached against), but my point, which was parenthetical at best, was probably wrongly stated.

The point of the ProCD case, though, is that so-called "shrink-wrap contracts" can be valid, and the way to reject the contract established by an EULA would be to return the product and receive a refund. Given that the EULA does show up when you start the system for the first time, and in documentation in the packaging, it's far closer to the fact pattern of ProCD than of Specht. But, as I said, it an irrelevant debate to the questions at hand, and is only really thrown in by the OP by way of trying to throw us off the tracks of his inability to show any actual damages under civil law.

 

[shadow skill]

Xbox live is a service not a feature of the console. Whether you care about a given functionality or not is irrelevant.

nope disagree on that one. when u buy something services can actually be part of the agreed package.

That doesn't mean the two things are the same, or need to be governed by the same rules. When you buy a computer it may or may not contain the ability to connect to the internet. That functionality exists whether or not you have internet access or not because it is a feature of the computer. If your ISP terminates your internet connection they have in no way changed the properties of any devices you use to connect to the internet. Conversely the fact that your computer's display shows images utilizing pixels is a property of the machine itself. The monitor manufacturer does not continuously provide you with anything that facilitates this. If they went out of business tomorrow your monitor would still function as if nothing happened to the manufacturer.

 

[Seldon2639]

[~Snip~

Hey, OP, I'm still waiting on your legal citations and demonstrations of damages... And for you to recognize that there's no charge in civil court for "false advertising", and that there's no punitive damages in a contracts case.

But, hey, you said you'd get back to me on that stuff, with your research and evidence, didn't you?

 

[Seldon2639]

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!!!

Your claim is valid under American contracts law, assuming it can be proven. Here's the issue:

Under American contract law, you can only show damages in a breach of contract or promissory estoppel claim if you can show what's called 'adverse reliance'; you have to have taken them at their word and been harmed by it. In this case, the best you could claim would be the full cost of the system. You could, essentially, get a refund (and return the system lest you be sued for unjust enrichment).

But, that would kind of be a lie. You'd have to claim that you would not have bought the system at all were it not for Linux capability; speaking as a member of the class in question, it's not true for me, nor many people I know.

The problem is that even if you can show the existence and breach of a contract, you get screwed on damages. Especially since a contract reward can only make you "whole" in the context of the contract. No exemplary damages are awarded without (usually) some tort involvement.

 

[Seldon2639]

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."

At that point, if the EULA was unacceptable, they could easily have returned the item, and gotten a refund (directly from SCEA if necessary). Shrink-wrap contracts are valid if there's an option to return the product. See above ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir., 1996)

 

[grayjo]

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!!!

Your claim is valid under American contracts law, assuming it can be proven. Here's the issue:

Under American contract law, you can only show damages in a breach of contract or promissory estoppel claim if you can show what's called 'adverse reliance'; you have to have taken them at their word and been harmed by it. In this case, the best you could claim would be the full cost of the system. You could, essentially, get a refund (and return the system lest you be sued for unjust enrichment).

But, that would kind of be a lie. You'd have to claim that you would not have bought the system at all were it not for Linux capability; speaking as a member of the class in question, it's not true for me, nor many people I know.

The problem is that even if you can show the existence and breach of a contract, you get screwed on damages. Especially since a contract reward can only make you "whole" in the context of the contract. No exemplary damages are awarded without (usually) some tort involvement.

Considering one of the excuses Sony used for cutting Other OS out of the Slim was cost cutting, you should be able to claim that "saving" as damages shouldn't you? Because Sony put a value on that feature, then took it away from people that had paid for it.

 

[shadow skill]

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.

The EULA argument is a false flag anyway (since the question will be decided on whether the "promise" made in the advertisements constitutes an enforceable contract, whether it was breached, and what damages befell those it was breached against), but my point, which was parenthetical at best, was probably wrongly stated.

The point of the ProCD case, though, is that so-called "shrink-wrap contracts" can be valid, and the way to reject the contract established by an EULA would be to return the product and receive a refund. Given that the EULA does show up when you start the system for the first time, and in documentation in the packaging, it's far closer to the fact pattern of ProCD than of Specht. But, as I said, it an irrelevant debate to the questions at hand, and is only really thrown in by the OP by way of trying to throw us off the tracks of his inability to show any actual damages under civil law.

How is it a false flag to question the validity of provisions in the contract? The EULA is going to be one of Sony's principle defenses. It's rather odd that Sony would include a clause that says that continued access to or use of the system software constitutes agreement to the terms. There is also a section in the EULA that says that they can push out updates automatically:

From time to time, SCE may provide updates, upgrades or services to your PS3? system to ensure it is functioning properly in accordance with SCE guidelines or provide you with new offerings.

Some services may be provided automatically without notice when you are online, and others may be available to you through SCE's online network or authorized channels. Without limitation, services may include the provision of the latest update or download of new release that may include security patches, new technology or revised settings and features which may prevent access to unauthorized or pirated content, or use of unauthorized hardware or software in connection with the PS3? system.

Additionally, you may not be able to view your own content if it includes or displays content that is protected by authentication technology. Some services may change your current settings, cause a loss of data or content, or cause some loss of functionality. It is recommended that you regularly back up any data on the hard disk that is of a type that can be backed up.

Unless I'm reading that wrong, this section implies that they can automatically update the system if they so choose. Which would basically mean that they can update the system without your knowledge and then say that you implicitly agreed to any EULA changes they have made. Furthermore the update is entirely unnecessary since they can change the terms at any time they feel like and turn around and claim that you agreed to the new terms by continuing to use the product.