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Judge guts suit against Sony for killing Linux in PS3

Tells console owners to try again

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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. ®

SANS - Survey on application security programs

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