Judge guts suit against Sony for killing Linux in PS3
Tells console owners to try again
A federal judge has dismissed all but one of the claims leveled against Sony for dropping Linux support from its PlayStation 3 game console, but gave the plaintiffs permission to refile an amended complaint that fixes the deficiencies.
A complaint seeking class-action status on behalf of all PS3 owners was filed in April and claimed that the disabling of the so-called OtherOS violated a raft of civil laws, including those for breach of warranty, unfair competition and computer fraud. Sony had touted the feature, which allowed users to run Linux and other software on their consoles, in interviews and presentations, but later dropped it after a well-known hacker figured out how to exploit OtherOS to jailbreak the PS3.
In court documents Sony attorneys said those statements didn't constitute promises and that even if they did, the written warranty and the software license agreement that accompany the PS3 system gave the company every right to disable OtherOS. The change, they reasoned, was effected only when users upgraded the system's firmware, which the users were free to accept or reject.
Last week, the federal judge hearing the case largely agreed.
“While it cannot be concluded as a matter of law at this juncture that Sony could, without legal consequence, force its customers to choose either to forego installing the software update or to lose access to the other OS feature, the present allegations of the complaint largely fail to state a claim,” federal Judge Richard Seeborg of the District of Northern California wrote.
The sole remaining claim is the allegation that Sony's move violated the Computer Fraud and Abuse Act, which as Groklaw points out just happens to be one of the key claims Sony is pursuing against jailbreaker George Hotz, aka, GeoHot, in the very same court district. The law makes it unlawful to make unauthorized changes to a computer system.
Seeborg also denied Sony's request to strike down allegations the case should be treated as a class action.
James Quadra, an attorney at Calvo Fisher and Jacob who is representing PS3 owner Anthony Ventura in the matter, told The Register in an email: “Plaintiffs will be amending per the Court's directions and believe that the claims we amend will go forward. We are pleased that the Court is allowing the Computer Fraud and Abuse Act claim to proceed and that the Court denied [Sony's] motion to strike our class allegations.”
Attorneys for the PS3 owners argued that Sony had long held up OtherOS as a feature that distinguished the console from Microsoft's Xbox and Nintendo's Wii. Among other things, the plaintiffs pointed to comments from officials that the PS3 “is clearly a computer” and allows users to “play games, watch films, browse the web, and use other computer functions.”
Seeborg said such statements can't reasonably be construed as a “promise,” an “affirmation of fact” or a “description of the goods,” and therefore failed to meet requirements spelled out under breach of warranty statutes.
The judge also appeared to be swayed by Sony's arguments that even if the plaintiffs were able to prevail on their warranty claims, they couldn't prove that the promise of an OS feature was ongoing.
“Plaintiffs must therefore either allege that Sony made some express representations as to the continued availability of that feature, or they will have to show both that there were implied representations as to continued availability and that an express warranty claim may legally proceed even where it is based in part on such implied representations.”
The judge went on to reject Sony's argument that the PS3 warranty liability for disabling OtherOS would in any event expire a year after purchase.
“Contrary to Sony's contention, however, it would not be irrational to apply a different rule to a manufacturer's deliberate disabling of a product feature on machines that were otherwise still functioning as originally marketed and sold,” Seeborg wrote.
Plaintiffs have three weeks to amend their case. ®
Re: the ten
I don't own a PS3, but from this (hopefully reasonably objective) point of view it seems rather unfair.
You're right in that nobody forced them to take the update, but either decision resulted in the loss of some feature of the PS3 - stick with the old firmware and it's bye bye PSN, get the new firmware and its bye bye OtherOS, either option resulting the loss of a feature of the console.
As for "The ToS said we could do it", would you still think it fair if the ToS had said that the ability of the console to play games could be disabled at Sony's discretion, which they had then done?
Regarding "it was removed because of hacking" - IANAL, but Sony do not have any kind of legal responsibility to prevent people from hacking, but they do have a responsibility to ensure that their products are fit for purpose.
Looking back at the article, unless otherwise stated the implication is that a feature (particularly one which does not require the expenditure or loss of time, effort or money by anybody but the user) should be available in perpetuity. Its like my DVD player suddenly being unable to play music CDs - it's not the main aim of the device, but it was an advertised feature which isn't dependent on continued support or gratuity from the manufacturer so why wouldn't I expect it to be able to play CDs for as long as the device is working.
Its not about linux, its about creating a judicial president
Sony advertised the PS3 to be able to perform a certain amount of functions:
- blueray player
- running another operating system. (turning it into a 'real' computer).
- media player.
They even made commercials advertising it as such. So if you buy such a product, it should perform as advertised. And it should continue to perform as advertised.
I have a PS3 and I never even bothered to install linux, because thats not why I bought it, but I can understand if you bought it 'partly' for that, and that function is now denied to you as a consumer you would feel cheated.
If this stands, then what is to keep sony from disabling the ps3 from being a media player? (and yes I do use it for that, next to gaming).
You can say that you dont have to agree with the eula, but that is not really an option, because they advertised the ps3 to be a multipurpose machine, and if you don't sign the aggreement you can't go online anymore, disabling another purpose: Being online and doing online gaming.
So Sony basically offer you the choice of chopping of your hands, or your feet.. Doesn't sound like a nice choice you offer people who are supposed to be your customers.
@AC 23:39 "the ten"
The Sony shills are hard at work again I see...
I agree it coul be better. It was hamstringed by :
1) Lack of ram (ok, a serious lack of ram),
2) hypervisor restricted
3) Limited storage options (One could say very limited and very slow).
All in all yes, not exactly right for a noob linux box.
BUT.... at its prime, for that money got you was a hobbyist's dream.
A non x86 architecture, which was not too strange (after all the machine code was almost pretty much PPC 970 compatible) and then completely weird at the same time (the SPE's).
Unwieldy yes, but pretty cool. Sure you got to pare the linux down, get rid of bloat, but it was runnable, the same way linux initially was on early x86's. If you ran ubuntu on it (what I would consider bloatware) of course, without paring it down, you're gonna have trouble.
It is a beautifully engineered piece of kit.
That's why I bought one. Not for the games.
And then Sony had to spoil the fun. I don't blame the hackers, by the way, with hardware like this, WHO in the right mind with the right skill set would not want to hack it?
But I am voting with my feet. I will not buy or condone any Sony or related products now.
No evil sony Icon, so evil jobs. Same difference.
Not what I paid for
As an owner of a 3.15 FW PS3, I do feel kind of cheated. Not because I upgraded (because I didn't), but because I cannot access PSN or run any of the latest games because I decided not to upgrade.
It's inconceivable that something you bought for an outrageous sum of money no longer works as intended because you'd rather not have one of the features taken away from you.