Why you should support the "Other OS" Lawsuits.
- Thread starter Danpascooch
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Those damages would be brought under an unjust enrichment claim. But, that has its own issues.grayjo said:
In unjust enrichment, you're claiming a breach of a contract, but that some portion of the contract (on both sides) was already fulfilled. In this case, you can claim that Sony was unjustly enriched by charging the full price for a PS3 which would then have more limited capabilities.
But, those damages would only amount to whatever the difference is between the price paid, and the fair market value of the object. But, how do you show that a PS3 without Linux is worth less than the full retail price, and by how much? At best, you'd get some small portion of the cost back. Again, contract suits can only make you whole, without a tort in there somewhere (and I'd bet the tort claims here get dismissed), you get only compensatory damages.
Because these suits will be decided on whether the advertisements constituted a promise by SCEA to maintain such features/not to remove or to limit them. The EULA, while a possible defense, is unnecessary in the broader sense. Even if we accept the EULA as invalid in and of itself, SCEA's actual liability is limited first by the fact that the plaintiffs need to show both that they had a reasonable expectation of the continued support for Linux/PSN/anything else, and that they adversely relied on such expectation to their economic detriment. Affirmative defenses only have to be invoked once the plaintiff has met his burden of proof. Since this case will fail before then, we're putting the cart before the horse.shadow skill said:
But, even so, again: shrink-wrap contracts are valid insofar as the person must accept them before using the product (the first time you boot a PS3, as far as I know, you get to accept or decline the EULA) and if you can return the product if you deem the agreement to be deficient in any way.
If they substantially change the terms of the EULA, they would have to re-release it to the public (probably in the form of a new EULA you have to agree to when you boot the system).shadow skill said:
But, you're confusing "changing the EULA" with "changing system features/functions". The EULA gives them the authority to change the system even without ones knowledge or permission. That does not grant them the authority to change the EULA without reconfirming consent. Using the system assents to any EULA which existed to the knowledge of the consumer (even if it's just part of the packaging) at the time of purchase and initial use. Any changes therein would require making the consumer aware of a new EULA.
What would be interesting, of course, is that technically any new EULA would also require the ability to return the system to SCEA, based on the ProCD ruling... That would be intriguing.
i agree with that one. but for your examples, there are multiple suppliers for the services (ISP, monitors wad not). But for an xbox owner can only enter into xbox live which is catered also by microsoft. Hence it is arguably possible that someone can buy an xbox FOR xbox live becuz it is exclusive content. But whether the court will rule in the favour is anybody's guess. I'm not saying it MUST be this way. All i'm saying is it COULD. If ever there's a case, then it'll set precedence.shadow skill said:
I believe what I said was "I'm sick of looping with an idiot" but however you want to interpret that is fine.Seldon2639 said:
The last thing I did was address some of your concerns that I didn't answer before, if you want to continue, I want you to do the same, go through our posts and find each of the points you didn't counter and address them, then we can continue.
If you want to continue a futile loop, then I will hold you to the same standards you hold me to, until I have that list and your replies to each of the things you ignored (don't say there are none, there are plenty, if you pretend there are none I'm not going to continue, because it's impossible to debate with someone who lies for their benefit) We have no more to talk about.
I also want your legal citation saying that you can return something you have already bought if you don't agree to the EULA, because if you can't, then it is a contract after purchase, I would also like to see where you claim you can view the EULA online, and keep in mind, if it's not viewable online BY SONY and not just some blogger, then it's not a legal defense for them.
You don't think you should own something you bought? What are you paying for then?SinisterGehe said:
Because if you DO think you should own it, then I point you to the definition of "own":
OWN: to acknowledge as one's own; recognize as having full claim, authority, power and dominion. - dictionary.com
When Sony removes things you paid for at your discretion, that means you don't have full authority over the PS3 that you own. When you purchase something you own it, it's not a rental, or a subscription, it's a purchase, yet you don't own the PS3 under the definition.
You think it's fair that people payed $600 for something that they are now figuring out they don't own?
Given that I already explained why this is not a loop (and, again, we need not devolve to personal epithets, I think), I was hoping you could rise above sheer repetition and instead follow the same standard you'd asked I follow; to wit: to provide legal citations for my statements. Given that I have done this, I assume your corresponding research and statement of legal authorities will be coming soondanpascooch said:
To be fair, when I have made that charge of you, I have enumerated which points I believed you did not respond to. If you would be so kind as to actually cite what you believe has gone uncontested (as I have done for you), I am happy to responddanpascooch said:
As I said before, simply calling it a "futile loop" is both inaccurate, and misleading. The fact that you continue to return to the same points (that it is "false advertising" and, quite bizarrely, that "this is punitive damages") does not mean that my continuing to add new information and evidence to the debate is rendered null and void.danpascooch said:
I would ask, then, that you reference for me the myriad claims I have yet to respond to, and I shall respond to them in turn. If I must do your work for you and both find the arguments you believe I've yet to respond to, and my work of responding to them, that would be quite a one-sided effort. But, I respectfully request that you not lie either, and admit that your repeated claims that this is a "loop" is in error, and that (at the very least) I have followed through on my commitment to provide legal evidence and further citation for my arguments.
At least you're only trying to argue ethics now. Perhaps you've recognized that your legal arguments were bunk, and have thus shifted to debate you can more likely prevail on. That I can appreciate.danpascooch said:
Still, when you bought the product, you bought it with knowledge that Sony could alter the fundamental system at any time (and since the EULA would be valid is a shrink-wrap contract (see the citations from my discussion with Shadow Skill above), you can hardly claim otherwise). If I buy a car, with an agreement that the dealership can service it at any time, and remove whatever they like, I have given them the authority to do so.
Am I stupid for agreeing to that contract? Absolutely. Does that make it wrong? Maybe. Does it mean I don't "own" the product? Maybe. When we start blaming entities for making contracts which only a foolish person would agree to if they cared about the possible adverse provisions therein, we're being a bit unfair. We cannot be charged with protecting people from being stupid.
This, by the way, for the record, was your last post to me prior to today's. You offered a promise that you would respond to my numbered list (in its entirety) if I cited legal code. As I have cited legal code, you must follow through on your statement to fulfill your end of that agreement (my posting legal code can be viewed as assent to the offer you made).danpascooch said:
If you don't, you become rather hypocritical to complain about someone breaking promises, no?
I have no idea about these kinds of laws, I don't have a PS3 and I never want one, and yet I have read more or less this entire thread...
Now that you know where I come from:
If Sony wins this the legal precedence will mean jack shit. Why would everyone and their grandma start removing stuff like this? Cutting costs? Yeah, they will be able to cut costs when half of their customers starts to hate them. Not much money flowing in then. So I don't see this as a problem at all.
And removing the Other OS option due to a security breach seems like the right thing to do. Why should they spend months trying to patch the breach when they can shut it a lot faster by disabling the cause of the breach in the first place? That doesn't make sense.
I have also never ever heard of this Other OS stuff, so doesn't seem like they advertised it that heavily.
Furthermore, Seldon2639 seems to know what he is talking about. He also haven't talked down to anyone as far as I have seen, and he doesn't even seem biased.
The OP however has called at least a few people names, and doesn't seem so friendly...
Which furthermore leaves me to... kinda hope Sony wins this. I'm going to follow this thread, and see how the discussion pans out.
Now that you know where I come from:
If Sony wins this the legal precedence will mean jack shit. Why would everyone and their grandma start removing stuff like this? Cutting costs? Yeah, they will be able to cut costs when half of their customers starts to hate them. Not much money flowing in then. So I don't see this as a problem at all.
And removing the Other OS option due to a security breach seems like the right thing to do. Why should they spend months trying to patch the breach when they can shut it a lot faster by disabling the cause of the breach in the first place? That doesn't make sense.
I have also never ever heard of this Other OS stuff, so doesn't seem like they advertised it that heavily.
Furthermore, Seldon2639 seems to know what he is talking about. He also haven't talked down to anyone as far as I have seen, and he doesn't even seem biased.
The OP however has called at least a few people names, and doesn't seem so friendly...
Which furthermore leaves me to... kinda hope Sony wins this. I'm going to follow this thread, and see how the discussion pans out.
http://www.west.net/~smith/damages-content.htmSeldon2639 said:
Number 1 was not legal code, number 2 was Wikipedia, and number three was some website not affiliated with the government, with links to CALIFORNIA law.
Find some applicable FEDERAL law, then we'll talk.
You consider Shrink Wrap contracts legal due to the ProCD case, but their legality is in dispute in the US, here's another case that finds them UNENFORCEABLE as opposed to the ProCD case:Seldon2639 said:
http://en.wikipedia.org/wiki/Specht_v._Netscape_Communications_Corp.
It could go either way.
I don't want to continue this with you, I believe it to be a futile loop whether you do or not, your reason it wasn't was because we didn't fully address eachother's points, now that I did, it follows that you need to also, or else we go back to the loop.Seldon2639 said:
I won't be making a list like you did, because you want to continue this and I don't. Out of respect I will continue the argument if you provide me something new to continue with (an address of the points you didn't address before) but you can't expect me to put in that kind of work to continue an argument I don't even want to continue anyway.
The point is, if you want to continue, you can find and address those points, and I'll continue, but I'd be happy to just leave it where it is since I think we're at an impasse, so don't expect me to make an effort to keep something going that I want to let end.
Sorry, I tried to find things which would be a bit easier to understand. Though, I assume (being the brilliant legal scholar you are) that you know that cases in federal circuit court are actually decided based on the laws of the state in which they originate, right? See, the only reason these cases are in federal court is because the value of the suit exceeds the subject matter jurisdiction of the state courts.danpascooch said:
It doesn't change the underlying law.
In addition, the cases cited (which was the real point of the link) are based on circuit decisions (that's federal law, for the laymen), and the Restatement (second) of Contracts, which is a legal authority in both state and federal courts.
Oh. And the UCC (Uniform Commercial Code) as cited is federal statute.
So. I found some applicable federal law. Want to chat?
Legal analysis depends on fact pattern similarity. The differences between the Specht and this EULA are far greater than the differences between the ProCD case and this EULA. In the Specht case (if you bother to read it), the decision hinged on the fact that the EULA is not presented as something to be considered before download, is not displayed before download, and is something the user must go out of his way to find.danpascooch said:
In this case, however, the EULA is (as far as I know) displayed the first time you boot the machine up (as in ProCD) as well as being obvious in the packaging. So, yes, it could go either way, but if one reads the applicable case law, it is unlikely that the courts will adopt an analysis based on the Specht ruling.
I did read it, and that's true, but you are forgetting that there was another factor in the ProCD case:Seldon2639 said:
"it may be worth noting that the user in the Zeidenberg case had purchased and opened the packages of multiple copies of the product, and therefore could not easily prove he remained ignorant of the contract/license; whereas in many cases, the so-called shrink-wrap "license" agreement has not been reviewed at the time of purchase"
I wonder if the court verdict would have been the same if he had only purchased one instead of continuing to purchase them after seeing the contract multiple times, we'll never know.
There is no official US stance on Shrink Wrap Contracts, there are two opposing cases that both make their decisions not based solely on the fact that the contract was shown after the purchase, it really could go either way in my opinion.
You refused to respond to my points save for me finding applicable case law. Having done so, you gave your word that you would respond in kind. The onus is on you to follow your obligation as created by your statements advertising an intent to respond.danpascooch said:
Your inability to admit that you were simply inaccurate vis-a-vis the legal realities of the case is charming. And I suppose if you're unwilling to show even the barest respect and decorum due a legitimate discussion, you're well within your rights to stop responding. But, in the same breath, it would be best if you then ceased to misrepresent the law as it exists.danpascooch said:
So, as you've said, you're willing to let me do your work for you? If you cannot muster the courage and intellect to enumerate your positions I have not responded to, or respond to my points as listed a few pages back (to which you have yet to respond), one can only reasonably assume that you must admit those points as valid. If you do not accept my points as valid (given that I have met my burden of proof to provide citations), you must then yield to them.danpascooch said:
Thus, you accept that there is little if any damage stemming from this supposed violation, and even if there is liability, the actual harm and recompense from it is negligible at most. The impasse here is your inability to come up with a valid rejoinder to my arguments and evidence. If you cannot simply do that, I'm going to hope that you cease any attempt to claim any expertise in this area (or, really, any area of law) and cease to playact at being a legal scholar.
You've also broken your promise to provide evidence of damages, or any citation of legal authority which would have any jurisdiction on that issue. That makes you a liar and a cheat, and hence a hypocrite.
It's tough to be held to the same standard as those you accuse, isn't it?
True, but irrelevant in this case. That speaks to the ability to prove ignorance, rather than the validity of the contract if the consumer is cognizant of it. Given that the EULA is displayed the first time the system is used (as far as I know, and correct me if I'm wrong), there is no refuge to be found in ignorance of the EULA.danpascooch said:
If no ignorance existed, then the consumer was aware of the EULA upon use of the product. Given that it could be returned if the consumer disagreed with the EULA and refused to follow it, they assented to the EULA when they did not return it.
I appreciate what you're doing, and you make several good points, but seriously, the PS3 has had sooooooooooooooooooooooooooooo *continues for three days* ooooooo many jokes made about how it doesn't have any games and how it was only made to do this and that. Now Sony obliges by making the Ps3 more of a gaming system, and people complain more. It's part of my "Whiners complain about Sony no matter what" theory.
Linux support isn't really something that directly helps us play games, so I'm afraid I couldn't care.
Though I'm probably gonna be verbally castigated for missing some "vital" point in your argument, so I have my flame shield up.
Linux support isn't really something that directly helps us play games, so I'm afraid I couldn't care.
Though I'm probably gonna be verbally castigated for missing some "vital" point in your argument, so I have my flame shield up.
Funny, I don't ever recall calling myself a "legal scholar" I simply stated the source of my basic knowledge when I was asked.Seldon2639 said:
As a general rule, the objective of contract damages is to insure that the aggrieved or injured party should receive what he or she expected from the bargain. To the extent that an award of money can do so, the aggrieved party should be placed in the same position as though the contract had been fully performed. This is what is known as protecting the expectation interest of the parties. (Rest.2d §344(a); UCC 1-106.)
Also, according to the California Civil code section 1549:
CIVIL CODE
SECTION 1549-1550
1549. A contract is an agreement to do or not to do a certain
thing.
Sounds to me like under Californian law, their advertisements that they include Linux would be tantamount to a contract.
If that is the case, then Sony has TWO OPPOSING CONTRACTS out there.