Tuesday, December 20th 2011

Sony's Anti-Class Action ToS Attracts Class Action Lawsuit!

In perhaps one of the more ironic legal moves to be seen recently, Sony's clause in its Terms of Service preventing PlayStation 3 owners from filing class action lawsuits has itself attracted a class action lawsuit! The lawsuit was filed in Northern California in November, by a man on behalf of PS3 owners who signed up for the PlayStation Network before September, when the ToS were updated and this anti-class action clause added.

The killer clause is buried deep into the contract and is very hard to spot, requiring the contract to be read all the way through with a fine toothcomb - if the reader can rise to the challenge of reading the complicated and dry legalese it's written in. Compounding the problem is that the agreement isn't even readily available online for anyone to study – it can only be viewed on the PS3 itself (so the console is already used before you can even see the agreement – hardly fair?) and appears near the bottom of the 21-page form. Previous agreements had been posted online for anyone to inspect. On top of that, the only way of opting out of it, is to mail a physical letter to Sony within 30 days of agreeing to the ToS – very inconvenient and likely to be forgotten by the average person. The main thrust of the lawsuit are allegations of unfair business practices, since PS3 owners are forced to choose between forfeiting their rights or access to the PSN. Note that since Sony introduced this clause, Electronic Arts and Microsoft have both introduced similar clauses, which doesn't put them in a very good light either and potentially at the receiving end of a lawsuit themselves.

In its defence, Sony points to a previous Supreme Court ruling, which allowed it to do something like this. In it, the court ruled that AT&T was legally allowed to include clauses in employees' contracts preventing them from taking part in class action lawsuits against the company. We'll see if that ruling applies to this case and hopefully this effort won't be a complete flop for PS3 owners like the OtherOS lawsuit recently.
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11 Comments on Sony's Anti-Class Action ToS Attracts Class Action Lawsuit!

#1
garyinhere
Good article... contract difference is PS3 owners are not employee's and I'm sure AT&T employees were able to see the "contract" better than PS3 owners... sony is grasping at straws imo... Down with the network! lol
Posted on Reply
#2
qubit
Overclocked quantum bit
by: garyinhere
Good article... contract difference is PS3 owners are not employee's and I'm sure AT&T employees were able to see the "contract" better than PS3 owners... sony is grasping at straws imo... Down with the network! lol
Thanks. :) Looks like a touch of Anonymous would help here. ;)

Posted on Reply
#3
cadaveca
My name is Dave
Gary said it all. I'll be interested to see how this works out. Will take years though.
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#4
AphexDreamer
I bought all these games to play online and now I can't play them online cause I have to agree to the new TOS.

Count me in.
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#5
Completely Bonkers
Well I hope SONY fails on this one and is severely fined.

Contracts between two parties should be clear, transparent and agreed in advance. And should not allow one party overt power to prohibit the other party from redress.

It certainly shouldn't be allowed that one party can significantly change or switch the terms after agreement/purchase UNLESS the other party explicitly and knowingly agrees and it is not a one-sided uncompensated event.

If the seller want to "force" a change, and if the buyer does not agree to this "forced change" then the buyer should have the right to claim the product can no longer be used in the way intended when purchased and can therefore claim refund by returning the item.

I fully disagree with "you buy the proprietary hardware" but only "license the proprietary software" and we can take that away from you. No. Because the proprietary hardware is useless without the software. In which case the seller should be obliged to buy back the hardware.

All rather complicated. Keep us updated with news.
Posted on Reply
#6
theJesus
by: garyinhere
Good article... contract difference is PS3 owners are not employee's and I'm sure AT&T employees were able to see the "contract" better than PS3 owners... sony is grasping at straws imo... Down with the network! lol
Pretty much exactly what I was gonna say lol
Posted on Reply
#8
qubit
Overclocked quantum bit
by: Completely Bonkers
Well I hope SONY fails on this one and is severely fined.

Contracts between two parties should be clear, transparent and agreed in advance. And should not allow one party overt power to prohibit the other party from redress.

It certainly shouldn't be allowed that one party can significantly change or switch the terms after agreement/purchase UNLESS the other party explicitly and knowingly agrees and it is not a one-sided uncompensated event.

If the seller want to "force" a change, and if the buyer does not agree to this "forced change" then the buyer should have the right to claim the product can no longer be used in the way intended when purchased and can therefore claim refund by returning the item.

I fully disagree with "you buy the proprietary hardware" but only "license the proprietary software" and we can take that away from you. No. Because the proprietary hardware is useless without the software. In which case the seller should be obliged to buy back the hardware.


All rather complicated. Keep us updated with news.
Yes, I absolutely agree. It's only one sided like this, because it's a big corp against the little guy. The bold bit especially, is a really good point - Sony can trash the whole product just by a little tiny software change, so why shouldn't they be liable for the whole thing which the customer paid a lot of hard cash for?

by: DannibusX
It'll stand.
Why do I have the horrible feeling that you're right. :(
Posted on Reply
#9
DannibusX
Because the precedent is there, unfortunately. It was decided by the SCOTUS already.
Posted on Reply
#10
HossHuge
I feel like we have been talking about legal/illegal/patents…etc stuff way to much recently.

It's sad and takes the fun out of the video game/computer hardware hobby.
Posted on Reply
#11
Static~Charge
by: DannibusX
Because the precedent is there, unfortunately. It was decided by the SCOTUS already.
One minor detail here: this lawsuit is on behalf of those people who used the PlayStation Network before the ToS change. The Supreme Court case that you sited would apply to new users. Completely Bonkers has a valid point about a forced change that prevents you from using it the way you previously had. We can only hope that the judge sees it that way, too.
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