Sony is immune to class-action suits? One PS3 owner begs to differ

By on December 21, 2011, 7:24 AM

Sony's had a tough year. After a series of humiliating security breaches, the Japanese firm stood as a punching bag for the tech community, disproving the old adage that any publicity is good publicity. The company reportedly spent $171 million to resolve the fiasco, it's facing a class-action lawsuit and its share price tumbled throughout the year.

Hoping to prevent further retaliation, the company issued a mandatory PlayStation 3 update in September forbidding customers from pursing joint litigation. The patch contained a new End User Agreement clause ("Binding Individual Arbitration" -- PDF) that prevented users from joining a class-action suit, forcing them to sue individually.

It was only a matter of time before someone challenged Sony's move and one Northern Californian man has stepped up to the plate, according to GameSpot. In a fitting stroke of irony, the unnamed individual filed suit on behalf of everyone who purchased a PlayStation 3 before the recent change -- a class-action suit disputing a "no class-action" clause.

We haven't seen the complaint, but GameSpot says it accuses Sony of unfair business practices by forcing consumers to choose the lesser of two evils: either they waive their right to a class-action suit or they lose access to the online gaming network they essentially paid for when they purchased the console. A lose-lose for PlayStation users.

The allegations go a step further, claiming Sony tried to hide the changes by burying them in 21 pages of legalese. It's also noted that Sony failed to post an easily accessible version of the form online, despite doing so with previous user agreement updates, and the company made it needlessly difficult for users to opt out of the new class-action provision.

To escape the stipulation, customers were required to notify Sony about their disapproval within 30 days and it had to be in written form -- no phone calls, emails, Web forms or any other easy outs. Even if you hastily penned and mailed a letter, one could speculate whether Sony would even record its receipt, forcing you to pay for extra delivery services.

Unfortunately, Sony isn't alone in trying to thwart class-action cases. A few weeks after the new PSN agreement was introduced, EA added similar language to Origin's ToS. When you sign up for the service, you "expressly waive the right to a trial by jury or to participate in a class action," instead agreeing to resolve disputes through a neutral arbitrator.

Microsoft mirrored those guidelines earlier this month when it rolled out the latest version of the Xbox 360 dashboard, adding two sub-sections (18.1.4 and 18.1.6) that have you surrender your right to legal remedies -- class-action or otherwise. Blizzard goes to similar lengths, dedicating a wall of text to binding arbitration and class-action restrictions.

As a side note, the latest filing follows only a week after a judge dismissed the "Other OS" case against Sony. The company was sued in April 2010 after releasing a patch that retracted the PlayStation 3's support for Linux -- a feature proudly advertised before its removal. GameSpot offers a full write-up on the court's decision in that case if you're interested.

User Comments: 22

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Burty117 Burty117, TechSpot Chancellor, said:

How can a judge dismiss the "Other OS" option? I know not loads of people used it but that's not the the point!

The point was the fact they advertised the console running linux OS's, they advertised it as a Computer more than a games console. Whats worse is that i remember quite clearly them advertising the other OS option even after the update!

Sony, you really do suck...

slh28 slh28, TechSpot Paladin, said:

"a class-action suit disputing a "no class-action" clause"

Haha, that's classic.

MilwaukeeMike said:

I don't see how this guy's lawsuit can hold any water. He's suing because Sony changed the ToS, so does that mean anyone can sue anytime a company changes their ToS in a way we don't like? So an MMO changes their monthly fee, we can sue to go back to the way it was before? that's laughable.

Is the ability to sue via a class action a constitutional right? If it is, it might only be on matters that affect our health or well-being, like a safety issue in a car or chemicals in baby bottles. Sony's online gaming is entertainment, and not important.

let's be honest about class actions too... they're usually means for laywers to fund a Lexus, and they're great for the rest of us because maybe we'll get a check in the mail someday for some free money. I got one the other day... for $.30, no joke. A $.30 check.

Guest said:

The only real way to get past any of this is to not buy Sony Playstations and simply stop using them altogether. If enough people did that things may change however I'm sure not enough people will do that, so they will continue to complain but get nothing by it. The other option is to simply accept this as part of doing business with Sony (or any large company) and enjoy your gaming.

fimbles fimbles said:

How to alienate customers, promote piracy, and kill your company.

Paperback available soon

Wendig0 Wendig0, TechSpot Paladin, said:

milwaukeemike said:

I don't see how this guy's lawsuit can hold any water. He's suing because Sony changed the ToS, so does that mean anyone can sue anytime a company changes their ToS in a way we don't like?

No, the suit is accusing Sony of unfair business practices, and violating consumer protection laws, which Sony has been doing, and getting away with, for years.

matrix86 matrix86 said:

Before you know it, companies will have you sign a statement that says "by accepting employment at this establishment, I waive my right to enter into any lawsuit against this company, its employees and employers, or its affiliates." And when customers walk into retail stores, there will be a sign saying "by entering this establishment, you waive the right to enter into any lawsuit against this store, its associates, or its affiliates."

So now, when you get screwed over, you'll just have to suck it up and deal with it! Gotta love big business

Ranger1st Ranger1st said:

If no one gets up to fight this tide of ' waived rights' sections in EULA's then more companies are going to start using them and as is the way with corporate greed, more companies will push the limits in what their ELUA requires.. do you think these companies will then do their best to make a solid product after that? with no fear of reprisals. ha. Games for the PC are already a joke with beta games shipping at full price only to have the 'updates' ship over the period of the next year. Seagate and maxtor have downgraded their warranty by a year. What to say the next Xbox won't be have a life span built in or something worse then the ever present RROD..

These EULA's need to be challenged, even if they don't have a chance in hell at some point one may win.. then it's pen season on the rest of the companies.

Guest said:

Please drive this dirty corporation out of business.

Guest said:

you guys are all cry babies... if you DON"T LIKE not being able to sue them, move along... buy something else and stop crying already gezzz

Guest said:

I already know you are misinformed. Make sure you don't buy any Xbox's too because there ToS is the SAME thing. Which one is worse.....a service that is free and you can't sue them (ps3) or a service that you pay for and you can't sue them (Xbox)?

Guest said:

Playstation blows anyways, mine collects piles of dust since my xbox does everything much better. Only thing I use PS3 for nowadays is Blu rays and I was forced to get the update just to watch my movies. Last Sony console Ive ever have in my house.

Guest said:

what does xbox do much better? A system that has no exclusives and next year it looks even worse for xbox owners.

Next year exclusives for Xbox.....

Halo 4

Kinect garbage

Next Year exclusives for PS3....

Last of US

Twisted Metal

Star Hawk

Last Guardian

Ni No Kuni

If you're a real gamer you would be on your ps3

Guest said:

Sorry but if you were a real gamer you would be using a PC.

thewind said:

Guest said:

Sorry but if you were a real gamer you would be using a PC.

I agree 110%! PC gaming rules! I just bought Batman Arkham City for $25 on steam! and the game is AWESOME! Also take Skyrim and mod it and it looks 100000000x better on pc. PC is the best! Also I can still play all my older games I like, like Max Pane 1 & 2, Starcraft, ect... Most people have a pcie slot in there computer so all they need is a good graphix card. Get a gtx 570 for $300 same as a councle and with the cheaper games you end up saving money. (Hook your PC up to your TV and have a wireless keyboard and mouse and your all set! or you can even have a xbox controller hooked up to! Theres games like Blur and Kane and Lynch that you can play in split screen using xbox controllers!)

DokkRokken said:

Guest said:

Sorry but if you were a real gamer you would be using a PC.

Playing Farmville, of course!

dgoodchild dgoodchild said:

I Think Sony May Be Overlooking Something...

A lot of the people who would have seen and accepted the new EULA would be below the age of consent. In other words, they can't legally enter into an agreement like that in the first place. Of course once the update's in older users may have used the console but wouldn't have to agree to the updated terms in order to do so.

Renrew Renrew said:

If you don't want to sign the agreement these companies should be forced to refund the full purchase price. Instead you're stuck with a $300.00 paperweight.

Guest said:

I hate to say it (as a long time Sony Loyalist-AKA fanboy), but Sony is is a sh*tty company. Their PR has dropped off a cliff... It is almost comical. My guess is that the PS3 and associated problems (such as combating hacking, getting destroyed by MS and Nintendo, etc) put them so far behind the ball that they are in danger of having SCE spun off or shut down, and now they just dont care about being a "good guy" alternative.

MS can handle billions in losses year after year to gain market share... I would guess that PS4 is the last Sony game machine we see unless it dominates the market. You can see the shift towards dropping it in how they handle customers.

Bottom line, pending litigation makes getting rid of these SBUs much more expensive.

Guest said:

You guys make me laugh. Why do you want to run other os on your PS3 anyway, to pirate and hack? It still has an internet browser and can stream from the PC and play amazing games with 3D capabilities. Microtheft advertised a console that didn't even work!

Guest said:

EULA = signing a contract AFTER you bought the product. In most countries, once the box is open, you can't return it if you don't agree with the EULA.

Completely unfair, but wait I can always pirate them isnt ?

LOL and a big **** YOU to sony and friends !

Guest said:

if i can't sue them...i'll simply hack them.



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