Sony Responds to Linux lawsuits

[Staticneuron]

The attorneys representing Sony Computer Entertainment America have responded to a class action complaint filed against the company for removing the other 'Other OS' feature from the PlayStation 3.

Sony removed the feature in April due to potential security issues as part of PS3 firmware update v3.21. Seven total class action lawsuits were filed against the company soon after, and in July, a judge ruled to consolidate all the lawsuits into one complaint.

Last week, however, Sony's attorneys filed a motion for the court to strike the class allegations and to dismiss the case.

Sony contends the plaintiffs' claims that the company advertised the Other OS feature the later removed it - depriving PS3 users of software features - is contradicted by the explicit terms stated in SCEA's written express warranty, the System Software License Agreement and the PSN Terms of Service.

"These contracts specifically provide PS3 purchasers with a license, not an ownership interest, in the software and in the use of the PSN, and provide that SCEA has the right to disable or alter software features or terminate or limit access to the PSN, including by issuing firmware updates," the motion reads. "Plaintiffs therefore cannot succeed in any of their claims because SCEA's alleged alteration/disablement of PS3 features including the Other OS, was entirely proper and authorized."

Sony's motion also said the complaint fails to provide any mass media advertising campaign, statements by SCEA, or PS3 packaging that referenced the 'Other OS' feature.

"Instead, it includes a mix of quotes drawn from obscure articles and unrelated third party publications, and a smattering of out of context and incomplete references to a few pages of SCEA's website and user manual," Sony said.

Sony went on to list several reasons why the court should strike the class allegations from the complaint and pointed to the fact all plaintiffs did not use the Other OS feature in the same manner, if at all.

"One plaintiff never installed Linux during the more than two years he owned his PS3; two plaintiffs used the Other OS feature only to do things equally available through the PS3 native operating system; one plaintiff supposedly also played Linux-specific games; and the last plaintiff used Linux extensively, including for electronic mail, word processing, spreadsheet software, and other 'productivity applications.'"

Sony later referenced various message board postings from PS3 owners admitting they had "no idea that the PS3 even had an Other OS function or Linux functionality."

The company also cited numerous postings from owners who stated they "did not purchase the PS3 because of the Other OS feature and did not use it" and others saying they downloaded the update because "they did not care about the Other OS feature."

Both parties will be heard before a judge on November 4, 2010. The plaintiffs, meanwhile, have requested that Sony turn over internal documents regarding the decision to remove the 'Other OS' feature.

"We are in the process of reviewing Sony's Motions to Dismiss and to Strike," a representative from the interim co-lead counsel for the plaintiffs told IGN. "These types of motions are fairly common at this stage of the litigation and we believe we have strong arguments for why they should be denied."

"We plan on vigorously opposing these motions and we hope to have them decided in November. In the meantime, we have requested that Sony turn over its internal documents about why the 'Other OS' feature was removed and we look forward to reviewing those materials."

A copy of both motions to strike and dismiss can be viewed in PDF form here and here.


http://ps3.ign.com/articles/112/1121709p1.html

This is exactly how I imagined they would respond.

[F34R]

I doubt the case will be just thrown out/dismissed.

[Staticneuron]

We'll see. I doubt sony would have responded that way if they thought that their request wouldn't stand.

[F34R]

lol. Yeah, they would. Of course they are going to send a motion to dismiss. There are certain formality process that even a substandard lawyer would present.

[Yuuichi]

Did sony ever advertise the PS3 as being able to run other os? I mean if they didnt case should be thrown out.

[F34R]

Some say it was advertised, others say it wasn't.

[Yuuichi]

I can say from working at best buy and target that the sony rep, noone I worked with, nor any guest ever mentioned anything about it. Honestly unless someone can find it in writing from Sony cant say this will go far. I know its cheaper to settle than fight, but sony may go for it.

[TDbank24]

Sony just needs to say the Ps3 was meant for gaming. Case dismissed. I don't know anyone who bought their Ps3 to run as a PC.

[Staticneuron]

I can say from working at best buy and target that the sony rep, noone I worked with, nor any guest ever mentioned anything about it. Honestly unless someone can find it in writing from Sony cant say this will go far. I know its cheaper to settle than fight, but sony may go for it.

That lies at the heart of the discussion. I myself pointed out months ago, the same thing sony has done. People try to dig up info, from anything including off quotes from third party publications and manuals (people also forget that third party content is shown and advertised on sony's website as well). But as they said in their counter, OtherOS was not advertised in a mass media campaign nor was it on the box. To say that something is not as advertised means that it is.... advertised. The digging and offhand quotes wouldn't be necessary if Sony really did advertise it. They didn't. I pointed that out.... quite some time ago.

problem with this is that according to this

http://ia331218.us.archive.org/2/ite...226894.1.0.pdf

The nature of the case (very first page) does infact revolve around advertised features. Also under the operative facts they list how sony supposedly "marketed" the features for the PS3.



The PS3's DID have this feature, and it worked, for more than 3 years basically. So the argument about it being a deceptive practice for the sake of gaining a sale is false. If you want to use the term "representing" as a loophole, the problem is, that the feature was actually there when it was represented.

Added to that since, agreements are signed and the wording has been clear ever since, there was never any agreement put forth that otherOS was always going to be apart of the console. Or that you would never have to make this choice.

What they want out of this is some sort of compensation, which then again as I stated before, is a figure that is pulled out of the air because there is no value assigned to functions not listed as a feature upon sale.

In the end, this is still a case about how Sony handles their proprietary OS and Service. Because the terms were there from the start and users have always had the chance to read it and decline it and take the issue up with sony.

You remember seebs? He never signed on to the PSN because of the wording of the EULA. He thought it was too lose and didn't want to risk it. That is a perfect example of responsibility on the part of the consumer.

and

An advertisement is an attempt to sell consumers on something an any form. It doesn't have to be paid. It doesn't have to include profit, Promotional materials for military recruiters are also advertisements, but the main thing it does is try to promote a consumer/interested party to do something.


Again, support materials or anything for consumers that have "already" purchased a device is not advertising. Things given in informative context (except for infomercials and even public product comparisons) also are not advertisements.

It is not about the information, it is about how it is used and who it is directed at.
take for instance press release during launch

http://www2.prnewswire.com/cgi-bin/s...4455640&EDATE=

If that had mention of otheros for the PS3, that would have been more valid than anything they presented there.

If they mentioned it in a press release, it would be the black eye that would be needed to fight this case. Other than that it is waste of time.



Which is why these people took it to court, and why so many people think that they are in the right. but even the FTC doesn't absolve the consumer from responsibility. If you hunted down info about a device that was not PRESENTED to you, then it is not going to hold sway as advertisement.

Take for instance you read that sony has some new NM process for thier chips and/or boards. You go out and buy a PS3, open it up, then get mad because it is not the current spec. You cannot take them to court for advertising that hardware feature. It doesn't matter if they talking about it in a tech review or anything of that nature. You purchased what they offered to you.

Just two of the quotes from my many discussions out there. But as I researched before it really doesn't seem like that advertised feature attack is going to survive because sony really didn't advertise it in mass media, nor was it on the box. The consumer is not supposed to "assume" anything they are only responsible for making sound purchase decisions off of information provided.

But again, that is just my view on the situation and I am sure we will find out eventually.

[acryllicaltair]

we'll see what happens. but i never envisioned Sony going any other way. by their own claims, they say that there was info on this on their site. might be interesting especially seeing that Sony is using other consumers views from their message boards to try and justify the decision.

[bachlab99]

We'll see. I doubt sony would have responded that way if they thought that their request wouldn't stand.

lol, don't be so naive.

[Lethal_NFS]

Did the instruction booklet mention anything about installing another OS? I would assume that would justify as some sort of promoting?

[Kydosan]

**** em.

Anyone they locked out of PSN for wanting to retain a feature has no reason not to hack their PS3 - a hack which very easily might not have existed if not for the otheros nonsense.

They got what they deserved, however the rest of this fiasco plays out in the courts... That's good enough for me

[Sufi]

They got what they deserved, however the rest of this fiasco plays out in the courts... That's good enough for me

What did they get? I didn't read the article.

[gameplaya96]

Without particularly wishing to become embroiled in what actually constitutes an advertisement, Sony will have to wriggle hard to get out of 'the spirit' of what they boasted for the PS3 before removing Other OS.

http://www.theinquirer.net/inquirer/...disk-run-linux


and




Either way, I don't really care if they win or lose, but I would be very interested to read Sony's 'internal documents about why the 'Other OS' feature was removed'. Can they refuse to make these available? If they can't, perhaps they might settle out of court to prevent them from coming to light?

[mikeghtmare]

I said it from the beginning, these lawsuits will go nowhere, even if not thrown out Sony can surely muscle out a few people... they probably can even muscle out some companies.

Anyway, I don't think it was advertised; remember how we used to complain that Sony adds didn't really convey the message or explained ALL the features it had... heck, they didn't even advertise the free WiFi properly (or at all).

[crosspjc]

The plaintiffs, meanwhile, have requested that Sony turn over internal documents regarding the decision to remove the 'Other OS' feature.

Good news for the people who work in Sony's shredder department. Loads of overtime!

[Minnzy]

My biggest issue with this is if SONY detects a chance of having this get out too much with what they did to the general consumer they'll settle and those doing it will happily take it, it's my only reason for hating the whole thing, I doubt they'll stick to it and actually try to punish SONY for doing something they simply should not have done to Linux users...

[Kydosan]

What did they get? I didn't read the article.

A hack that doesn't work on new FW, and a ****load of people who didn't upgrade

[Sufi]

A hack that doesn't work on new FW, and a ****load of people who didn't upgrade

What are you going to do with a hack that limits the console in some other way lol.

And how does that affect them other than a few lost sales?

By ****load, you mean, 10,000 that actually cared and 2,000 out of them that will be stubborn.

Does it really matter in the end? it seems like they didn't buy the console for gaming in the first place...they prioritize the OS more.

Oh yea Sony, how about those people that only bought the PS3 for Netflix and Blu-ray movies, YEA TAKE THAT SONY!

[Bostonmess]

My number one reason for buying a PS3 was for gaming. To this day I've bought maybe a hundred games and about half as many blurays, PSN games and DLC.

Although gaming was my primary reason for purchase I was very influenced when I read something from Sony saying that the PS3 was also intended to be used as a personal computer and it had the ability to have Linux installed on it.

Ok, maybe I'm a bit sad, I'd never dabbled in Linux, but the thought of having a computer on the TV as well as a games player, movies, music and all the other wonderful things it does/did really pushed me towards a purchase.

It was only when I got it home and discovered the reality of installing Linux on it and the fact that it (at least the distro I got) ran like **** did I realise that Sony were pretty much just bigging it up to get the sales.

I unistalled it and decided I'd wait until someone with some know how released a distro that worked better.

Unfortunately, as we all know, that was never to be as the OtherOS function was removed in a firmware "upgrade." Maybe it would have never happened anyway, who knows.

But I still think Sony were in the wrong to remove it.

Just like I'd think they were in the wrong if they removed the Wifi function if that got hacked. I mean I'm cabled up so it wouldn't affect me.

I know people don't care 'cos Linux users are few in number and hey, **** the minorities I'm all right Jack.

Plenty of things aren't advertised. Advertised as in paid for advertisement but that doesn't give them the right, imo, to remove them.

That said, features are constantly being added and even some others have been removed without a fuss, so who's to say what's right and what's wrong anyway.

Although we all try, no one's really got a clue.

[xBSGeorge]

I love where the article points out that a few of the people who put in a lawsuit never even used the feature.

[Kydosan]

What are you going to do with a hack that limits the console in some other way lol.

I'm not sure what you mean, people who didn't upgrade since the Linux nonsense were already on old firmware with no PSN access, I didn't lose anything by running the hack on that console, quite the opposite.

Sony waged war to try to stop the hack getting into our hands, but for people like me (who if OtherOS was still around would be happily playing one of his bought games online on 3.50 right now) they took away every reason we had *not* to use it. I won't JB my xbox because I can't, but because I value the online service, but if MS decided to chuck me off their service then screw what the ToS says - if that box sitting under my TV can be made more useful easily enough, why not do it?

[wetfbbqchiken]

^ not sure what you mean... you didnt want to lose the other os feature so you used some "hack" to get psn back with the old firmware?

anyway as i said at the time sony can do what they want with their software

"These contracts specifically provide PS3 purchasers with a license, not an ownership interest, in the software and in the use of the PSN, and provide that SCEA has the right to disable or alter software features or terminate or limit access to the PSN, including by issuing firmware updates,"

and i guess they think so too

[Kydosan]

^ not sure what you mean... you didnt want to lose the other os feature so you used some "hack" to get psn back with the old firmware?

umm... no, not really

I didn't update when 3.21 came out because I wanted to keep using Linux, I figured "screw it, I'll play new games on the xbox or pc" and refused to install what I saw as a huge downgrade for a very capable system. with the release of 3.21 I lost PSN access, PSN was over one way or the other for me, so I didn't really lose anything by running the hack.

Well except Linux, lol, but you can be gauranteed that will be back (in a much more potent form) on hacked systems soon enough.

anyway as i said at the time sony can do what they want with their software

"These contracts specifically provide PS3 purchasers with a license, not an ownership interest, in the software and in the use of the PSN, and provide that SCEA has the right to disable or alter software features or terminate or limit access to the PSN, including by issuing firmware updates,"

and i guess they think so too

That's fair enough, I don't intend to use this system on psn ever again, as far as they're concerned I could just as well have thrown my ps3 in the bin on April 1st.