Legal Issues

by Karl Bode


Filed Under:
class action, firmware, linux, playstation 3, ps3, settlement

Companies:
sony



Sony Settlement Gives PS3 Owners $9 After Company Made Console Less Useful Via Firmware Update

from the just-renting dept

We've noted countless times how in the modern computing era, you don't really own what you think you own. You don't really own the music or books that can arbitrarily disappear on your devices, and you no longer really own a wide variety of hardware that can be dramatically changed (often for the worse) via firmware update months or years after purchase. If you're extra lucky, you'll shell out $300 for a piece of hardware that one year later simply won't work at all. With intelligent automobiles and the rise of the internet-of-not-so-smart things, that's more true now than ever.

Case in point: back in 2010 we noted how Sony issued several firmware updates for its Playstation 3 gaming console that effectively made the console less useful. One specifically (PS3 software update 3.21) removed the console owner's ability to load alternative operating systems like Linux. But tinkerers being tinkerers, some users found ways to use the feature to expand the console's functionality in all kinds of creative ways. Fearing a loss of control and potential spike in piracy, Sony decided to make the console significantly less useful.

Sony was ultimately sued via class action for the decision. After six years of litigation, Sony has agreed to settle the dispute by doling out a whopping $9 to each console owner that bought a PS3 based on Sony's promises to provide "Other OS" functionality, and $55 to each PS3 user that managed to get Linux running on the console. Like most class actions it's the attorneys who'll reap the most benefits, Sony doling out $2.25 million in attorneys' fees for the lawyers who brought suit (though it's worth noting even this wouldn't be possible today thanks to TOS mouse print banning class actions and requiring binding arbitration).

Sony's lawyers at several points tried to claim that the update was "voluntary," refusing to acknowledge that users that refused to install the firmware couldn't actually use it for much of anything:
"...Sony said the update was voluntary. However, without updating, console owners couldn't connect to the PlayStation Network, play any games online, play any games or Blu-ray movies that required the new firmware, play any files kept on a media server, or download any future updates. Before the settlement, Sony argued that its terms of service allowed it to remove the Other OS feature and that the functionality wasn't that big of a deal for most console owners."
Part of the settlement requires that PS3 owners show "some proof of their use of the Other OS functionality" -- which after six years may not be all that easy for impacted users. While it's nice to see PS3 owners get a little something after six years of litigation, the overall trend in technology remains one where consumers can't tinker with the hardware they "own," can't be sure the hardware will adhere to day one marketing promises, have no guarantees that the gear will even work even one year down the line, and can't sue if what they own is intentionally downgraded or crippled by the manufacturer. Progress!

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  • icon
    PaulT (profile), 23 Jun 2016 @ 6:52am

    So, Sony made plenty of money from people who would literally not have bought a console otherwise, or for whom the feature was the reason they was PS3 instead of 360. Now, they only have to return a small proportion of the purchase fee - and even then only if customers jump through hoops that may be impossible to prove. Most won't bother with or won't be able to jump through those hoops, so Sony gets to keep most of the money anyway.

    This is why this crap will keep happening. Even the successful court cases leave the bad actors in profit. It's also why other activity will take place (such as the Sony hacks that happened in response to this move), as it's only that kind of thing that appears to get the corporations to take any notice.

    reply to this | link to this | view in chronology ]

    • icon
      klaus (profile), 23 Jun 2016 @ 7:37am

      Re:

      The only reason I can think of why Sony did this is that some genius there thought that PS3s with alternate O/S's put them in competition with their own PC/Vaio products. But since they quit that business in Feb 2014, you can't really accuse them of forward thinking.

      And now, anyone in the market for a console and considering Sony as an option will be able to note this ill-will towards the company and decide accordingly.

      reply to this | link to this | view in chronology ]

    • identicon
      Ken Ashe, 23 Jun 2016 @ 7:58am

      Re:

      I wouldn't even bother filling out the paperwork for $9.

      reply to this | link to this | view in chronology ]

      • identicon
        Rekrul, 23 Jun 2016 @ 8:32am

        Re: Re:

        I agree that $9 is a pitiful amount for compensation of a removed feature, but...

        The reason to claim the small award isn't so much about compensating you (even though it should be), it's to punish Sony.

        If nobody claims their $9, Sony pays nothing. If a million people all claim the $9, that's $9 million that Sony has to pay out.

        Of course the idea is that having to pay out all that money is supposed to make the company afraid of such judgements in the future, so maybe they'll think twice before doing things that will get them sued. Unfortunately, thanks to the idiots on the supreme court (it no longer deserves to be capitalized), Sony can shield themselves from any future lawsuits.

        reply to this | link to this | view in chronology ]

      • icon
        OldMugwump (profile), 23 Jun 2016 @ 8:47am

        Re: Re: filling out the paperwork for $9.

        Totally agree.

        In class-action cases like this, the court should turn the award into a sort of lottery.

        Instead of paying $9 to everyone, the court should chose 1 in 1000 litigants at random, and pay them $9000 each.

        This would waste a whole lot less time for everyone.

        reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 23 Jun 2016 @ 8:11am

      Re:

      yep, this is me actually. I bought the console specifically because of the Other O.S. feature, but they announced this "update" before I had a chance to use it, so I decided not to since I still wanted the other advertised features as well.

      You can keep your 9$. Sony scammed me, lesson learned.

      reply to this | link to this | view in chronology ]

  • icon
    Chronno S. Trigger (profile), 23 Jun 2016 @ 6:59am

    I wonder if still being able to boot to Yellow Dog Linux on my PS3 is enough for them to give me my $55. Hay, Steam Summer Sale is suppose to start today, that $55 could get me like 10 games. Assuming, of course, this isn't just for a $55 voucher for Sony's online currency.

    reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 23 Jun 2016 @ 8:14am

      Re:

      I would think that should be pretty much as good of a proof as they will ever get. There isn't going to be many people who have a picture of their PS3 running yellow dog from before the update that includes a visible serial number and a receipt for the same serial number :)

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 23 Jun 2016 @ 8:26am

        Re: Re:

        Yeah, like anyone has their receipt after all this time. I sure don't. Anywho, I ran Xubuntu 9.10 on my PS3 for a couple years before finally updating to be able to play newer BDs. That was the MAIN way Sony forced you to update - you couldn't hardly play anything without a newer firmware. These days, I have custom firmware 4.55 on it so I can at least run homebrew.

        This is going to be one of those cases where the payments to CUSTOMERS will be tiny as no one will be able to claim anything. I can't prove I even own the thing, much less that I ran Xubuntu on it.

        reply to this | link to this | view in chronology ]

  • identicon
    Whatever(Parody), 23 Jun 2016 @ 7:02am

    but I'm sure it was in Sony's EULA someplace that they can do whatever they want. Even though they didn't let you read the 200+ page EULA before purchasing the device you agreed to it upon purchase. You didn't actually buy the technology you bought a license to use the technology and since it's their technology they can do whatever they want with it even if that means disabling it after the fact. Though I didn't even read the EULA or bother to see how long it is I'm sure it's right there someplace. You should read the EULA, that's unavailable to you to read, before buying your product. The device belongs to the proprietary holder and they can do as they please with it.

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 23 Jun 2016 @ 7:32am

      Re:

      In that case, they need to stop committing fraud and describe it "for rent or hire" instead of "for sale."

      reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 23 Jun 2016 @ 7:32am

      Re:

      In that case, they need to stop committing fraud and describe it "for rent or hire" instead of "for sale."

      reply to this | link to this | view in chronology ]

    • icon
      magnafides (profile), 23 Jun 2016 @ 7:48am

      Re:

      Glad you have "parody" in your name because otherwise this is a totally believable, yet inane, rant.

      reply to this | link to this | view in chronology ]

    • identicon
      David, 23 Jun 2016 @ 8:17am

      Re:

      You should read the EULA, that's unavailable to you to read, before buying your product.

      You forgot the bit about them "updating" the EULA and if you don't agree to the update, you get locked out of all online stuff. If you are lucky.

      I swear the EULA writers have watched "The Four Yorkshiremen" one time too often.

      I sure hope that we'll be able to say one day "but you try to tell the young people of today that, they won't believe you." I just fear that it will be because they have it worse.

      reply to this | link to this | view in chronology ]

  • identicon
    kallethen, 23 Jun 2016 @ 7:03am

    I wonder how much Sony would owe the government through this. If I remember right, the Air Force had a cluster of hundreds of PS3s they were using as a super-computer because the Cell processor was actually pretty powerful.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jun 2016 @ 7:31am

    And just how much did the lawyers make, as it seems like they are the only one for which this was a worthwhile action.

    reply to this | link to this | view in chronology ]

    • identicon
      kallethen, 23 Jun 2016 @ 7:56am

      Re:

      It was in the article...

      "Like most class actions it's the attorneys who'll reap the most benefits, Sony doling out $2.25 million in attorneys' fees for the lawyers who brought suit..."

      reply to this | link to this | view in chronology ]

  • icon
    hij (profile), 23 Jun 2016 @ 8:04am

    Thanks - I needed to remember this

    I have been going back and forth with my daughter who wants a gaming console. We were talking about a PS4, and I had forgotten about this little bundle of fun. Scratch Sony off the list.

    (Unfortunately, that leaves.... well, I guess we get to save some money.)

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 23 Jun 2016 @ 8:34am

      Re: Thanks - I needed to remember this

      Go to NewEgg.com and look at the AMD APUs in the same class as the PS4/XBone. You can often put together a similar, but better, system for just a little more, and it'll be a lot more useful since it will be a complete PC capable of running linux or Windows.

      Not that I would run Windows 10. I have Windows 7 x64, and ONLY for gaming. I run Xubuntu 16.04 LTS for everything else.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jun 2016 @ 9:13am

    If you bought a Sony product...

    ...after the rootkit debacle, you're a moron, and you deserve suffer for it.

    But then again, as we all know: gamers are stupid. Gamers will continue handing over money to the companies that abuse them no matter WHAT they do. Sony could release a gaming console that kills 10% of its users and gamers would line up at midnight on the release day to buy it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jun 2016 @ 10:49am

      Re: If you bought a Sony product...

      "But then again, as we all know: gamers are stupid"

      This statement implies that you are stupid, but what do I know ... you could be Albert Fucking Einstein, but probably not.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jun 2016 @ 9:51am

    Get a group together and buy hundreds of units from retailers with good return policies. Open the packages and start the units. When it asks you to accept the EULA and disagree. Repackage and return for a refund. Repeat. Soon Sony will have many open packaged refurb units at a discount. Bottom line, Sony's margins go down..

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 23 Jun 2016 @ 10:09am

    Cost of doing business

    I hate to sound cynical, but I believe most large companies have a mitigation department that checks these decisions for liability. It goes something like this:

    CEO: Can we turn off the "choose an OS" feature?
    Mitigation: Let's run the numbers... okay, if someone brings a class-action suit, it may cost around $2.5 million. We might have to pay the customers an amount also.
    CEO: And how much is that?
    Mitigation: Let's estimate it at $9 per person, which could be up to $9 million
    CEO: Hmm... compared to our billions in revenue each year? Okay, let's do it and claim this as a cost of doing business.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jun 2016 @ 5:05pm

    Part of the settlement requires that PS3 owners show "some proof of their use of the Other OS functionality" -- which after six years may not be all that easy for impacted users.


    Another consideration is simply that it isn't cost effective to do so. $9 is less than 1 hour of minimum wage work, $55 is less than 6 hours. In many cases it will simply not be worth the time to gather convincing evidence of something you can no longer do....

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 23 Jun 2016 @ 5:58pm

      Re:

      I might be willing to do the work needed for the $55, but only if I didn't really have anything better to do. The $9 isn't worth any effort beyond perhaps filling out a form.

      reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 23 Jun 2016 @ 6:36pm

    Payout

    So let me guess: the payout is in the form of coupons that can be redeemed for new PS3 consoles. With a time limit, a "cannot be combined with other offers" restriction, and "participating retailers only."

    reply to this | link to this | view in chronology ]


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