Morning Discussion

By Xav de Matos, Feb 21, 2011 5:00am PST Happy President's Day to you Americans and Family Day to you Canadians (and whatever holiday any other nation might have today). What this means is a time of reflection. Reflecting on things like, "How many games do I have in my collection that I have yet to finish?" Sadly, the number in my library just continues to grow.

Rather than finish the titles I have, I add more and more to it. It's starting to get out of control. I really need to sit back and finish some of this. Well, I suppose today is a good opportunity for that!

Alice is going to be your host today, as Garnett and myself have the day off. Steve will probably be around too bringing you whatever news the industry attempts to release on a holiday. If there is any.

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    This is in a hearing from the class action lawsuit filed against Sony for removing the OtherOS function from the PS3.

    H. Computer Fraud and Abuse Act (“CFAA”)

    Plaintiffs contend that Sony violated the CFAA by “knowingly cauing] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cauing] damage without authorization, to a protected computer.” 18 U.S.C. § 1030(a)(5)(A)(i). Sony argues that it did not act “without authorization” either because the terms of the software license permitted it to take the actions it did, or because plaintiffs’ “voluntarily” downloaded Update 3.21, knowing the effect it would have. 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. Accordingly, this prong of the motion will be denied, without prejudice to Sony’s ability to challenge any CFAA claim in an amended complaint, based on the same or expanded arguments.

    I. Motion to strike

    Sony urges the Court to conclude at this juncture that plaintiffs’ class allegations are untenable, rather that awaiting class certification proceedings. Under the circumstances here, Sony has not persuasively shown that the relevant issues are more appropriately addressed at the pleading stage, or even that the appropriateness of class certification necessarily could be determined based solely on the allegations of the complaint. Accordingly, the motion to strike will be denied.]i