Feeds

Sony's PS3 firmware update shows how retailers can be exposed

No compensation from manufacturers

Gartner critical capabilities for enterprise endpoint backup

Retailers face payouts to consumers that they will not be able to reclaim from manufacturers when software updates disable products' functions, an expert has warned.

Consumer law protects the buyers of goods if their functions change, but retailers generally cannot pass those claims on to the device makers who made the change, according to Richard Parkinson, a technology lawyer with Pinsent Masons, the law firm behind OUT-LAW.COM.

Sony has said that it will not compensate retailers who refund customers because of a firmware update to its PlayStation3. The change prevents the machine from using alternative operating systems, which it was previously able to do. Some owners installed the Linux operating system, allowing them to use their consoles as desktop computers as well as games machines.

Press reports indicate that one consumer received a refund for his console from online retailer Amazon. Sony itself has said that it will not reimburse retailers who do so. The company told reporters that the machine's main function was as a gaming console, and that an ability to run the Linux operating system is not explicitly mentioned on its packaging. Others have claimed, though, that a feature called "Install Other OS" was listed in Sony's promotional material.

The ability of a manufacturer to alter products over the internet is relatively new and not covered by the Act.

"If Sony is essentially changing the product after it was delivered and disabling some of its promoted functionality, it is no longer as described and fit for purpose," he said. "The legislation was certainly not designed for upgrades being carried out remotely that affect the product after delivery."

Parkinson believes that the law is in the consumer's favour, though. "The Sale Of Goods Act says that if you sell something by description it's got to match that description and it's got to be fit for purpose," he said. "If the box or promotional material says it does something, that has got to be one of the fit for purpose elements."

Parkinson said the Unfair Terms in Consumer Contracts Regulations 1999 could also apply if Sony seek to rely on the clause within its licence terms which allows it to vary the software. "If Sony is changing the terms of the services it bundles with the hardware to the detriment of consumers, this could be seen as an unfair term under these Regulations that would render that term void," he said.

The Regulations list examples of terms likely to be considered as unfair. These include "enabling the seller or supplier to alter unilaterally without a valid reason any characteristic of the product or service to be provided".

Retailers, then, will have to pay out full or partial refunds, depending on how long a consumer has had a product. But they are unlikely to be able to force the makers of the goods whose software update caused the problem to compensate them.

"The retailer has a contract with its supplier, the distributor of the product or the overall manufacturer, so he has to look at that contract" said Parkinson. "Because this is a business to business contract you are able to exclude warranties for fitness of purpose or description, so these are very often excluded and warranties and remedies are limited."

"In any event you would have to query how many retailers will go up against a supplier with the might of someone like Sony when they are likely to be reliant on its goodwill in the future," said Parkinson.

Next gen security for virtualised datacentres

More from The Register

next story
Reg man looks through a Glass, darkly: Google's toy ploy or killer tech specs?
Tip: Put the shades on and you'll look less of a spanner
So, Apple won't sell cheap kit? Prepare the iOS garden wall WRECKING BALL
It can throw the low cost race if it looks to the cloud
Apple promises to lift Curse of the Drained iPhone 5 Battery
Have you tried turning it off and...? Never mind, here's a replacement
Now that's FIRE WIRE: HP recalls 6 MILLION burn-risk laptop cables
Right in the middle of Burning Mains Man week
Apple's iWatch? They cannae do it ... they don't have the POWER
Analyst predicts fanbois will have to wait until next year
HUGE iPAD? Maybe. HUGE ADVERTS? That's for SURE
Noo! Hand not big enough! Don't look at meee!
Samsung Gear S: Quick, LAUNCH IT – before Apple straps on iWatch
Full specs for wrist-mounted device here ... but who'll buy it?
AMD unveils 'single purpose' graphics card for PC gamers and NO ONE else
Chip maker claims the Radeon R9 285 is 'best in its class'
One step closer to ROBOT BUTLERS: Dyson flashes vid of VACUUM SUCKER bot
Latest cleaner available for world+dog in September
prev story

Whitepapers

Best practices for enterprise data
Discussing how technology providers have innovated in order to solve new challenges, creating a new framework for enterprise data.
Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Advanced data protection for your virtualized environments
Find a natural fit for optimizing protection for the often resource-constrained data protection process found in virtual environments.
How modern custom applications can spur business growth
Learn how to create, deploy and manage custom applications without consuming or expanding the need for scarce, expensive IT resources.
High Performance for All
While HPC is not new, it has traditionally been seen as a specialist area – is it now geared up to meet more mainstream requirements?