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PS3 'Other OS' suit faces setbacks, still has footing

updated 07:10 pm EST, Mon February 21, 2011

PS3 OS suit has most dismissed but still clear

Attempts by PS3 owners to sue Sony for pulling OS support were both set back and validated with a dismissal order (PDF). A San Francisco court tossed claims of breach of warranty, conversion, unfair competition, and other charges but kept one accusing Sony Computer Entertainment of America of violating the Computer Fraud and Abuse Act. The company was honoring the terms of the one-year warranty, which didn't owe support for the Other OS feature, but couldn't prove that users had truly authorized disabling support for installing Linux or other platforms.

"At this juncture, Sony has not conclusively established that disabling a PS3 capability of the nature of the Other OS feature is within the scope of the license agreement provisions on which it relies, nor has it shown that those plaintiffs who downloaded the Update thereby necessarily 'authorized' the removal of the feature within the meaning of the statute," the court said.

The plaintiffs in the case likened it to a "Hobson's choice," where the user really doesn't have any choice but to accept terms against their will. Sony in hearings insisted that gamers could choose not to install the update but still keep Other OS, but this was seen as disingenuous. Sony itself acknowledged that users couldn't use the PlayStation Network or play any games that need 3.21 or later. The plaintiffs further alleged that Sony misled gamers by claiming that the update was about security when it was actually about blocking perceived pirates, masking what would happen when 3.21 came onboard.

Several contradictions were also discovered in Sony's complaint relative to its anti-jailbreaking lawsuit and to its own statements in the Other OS case. The company's maintainer for Other OS support, Geoffrey Levand, had explicitly promised that Sony was "committed to continue" allowing the software and wouldn't disable it in future releases, leaving Sony in possible breach of a promise made outside of the warranty.

The plaintiffs have about 20 days to resubmit the complaints that were tossed out but won't have to make changes for the Computer Fraud and Abuse Act claim. They will also have rights to pursue the lawsuit as a class action that covers all US PS3 owners after the court denied a Sony motion to split the case into individual lawsuits.

If successful, the lawsuit could have major ramifications for feature support in computers and electronics. A legal precedent would exist that would require companies to either leave features in when installed from the start or else make clear how much they promise. [via Groklaw]

by MacNN Staff



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