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Sony Moves to Dismiss Other OS Class-Action Lawsuit

Sony has filed a motion to dismiss the class-action lawsuit, which was filed back in April against Sony over the removal of "Other OS" support on...

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Sony has filed a motion to dismiss the class-action lawsuit, which was filed back in April against Sony over the removal of "Other OS" support on the PlayStation 3, reports IGN.

Citing the language in the PlayStation 3 warranty, System Software License Agreement, and the PSN Terms of Service, Sony explains that you actually don't own the software on your PlayStation 3.

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. 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.

This line of thinking was recently upheld by the Ninth Circuit court in a case between a man who attempted to re-sell four copies of AutoDesk's AutoCAD software. Autodesk argued that the software was licensed by the original buyer and that buyer does not have the right to sell it without AutoDesk's permission.

Sony also claims that none of the major marketing materials focused on the Other OS functionality and claims that most people either were not aware of the functionality or did not purchase the console to use Other OS. The United States Air Force might disagree, however, as the branch had been using PS3 consoles for cluster-based computing in research projects.

A judge will hear both sides of the case on November 4. "We plan on vigorously opposing these motions and we hope to have them decided in November," a representative of plaintiffs told IGN. "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."

From The Chatty

  • reply
    September 20, 2010 1:28 PM

    That line of thinking is completely different than the AutoCAD case. You're taking a hardware product that was sold with specific features vs. a purely software license. Clearly we don't license the PS3 itself from sony, but they've made it impossible to use all the advertised features. Either you use Other OS and can't update, thus preventing you from actually using it to play new games or use the other advertised features, or you drop the Other OS support.

    • reply
      September 20, 2010 1:37 PM

      What they are arguing is that you only have a license to the software on the hardware you bought, making it sort of similar to the AutoCAD case (to my non-lawyer brain).

      • reply
        September 20, 2010 2:01 PM

        Very telling is the use of the term "firmware". Ie. Not quite hardware, but not quite software. If "firmware" is considered closer to to the physical machine, then it might fall more under the property/goods and less software/service aspect.

        While one could argue it's just semantics (a cute term for a specific type of software), the distinction was made, and remains in use, for a reason.

      • reply
        September 20, 2010 2:02 PM

        I don't think the court would find in their favor on that; purchasing the hardware is clearly a sale, not a license, and the software is fundamentally required to use it. If they would still allow you to do core things (play new games, etc) with the other OS functionality, that might work, but as is I doubt it.

        • reply
          September 20, 2010 5:00 PM

          An operating system is also required to use a computer you buy at a store, but it still comes with a software license.

          I dunno, as I said, I'm not a lawyer or anything, but to me it sounds like Sony might have a point here. But we'll see.

          • reply
            September 21, 2010 11:21 AM

            Ah, but you can put any OS you like on the computer, as long as it's compatible.

            Sony just removed that option, after supporting it for years and using it in their marketing. They have made themselves the monopoly supplier of OS for that hardware, which they sold as a "computer" specifically to avoid certain regulations in other countries.

            Apple is allowed to get away with such behavior because they have a minuscule market share and their monopolistic behavior isn't considered a threat to the rest of the market. Sony might not have such an excuse.

    • reply
      September 20, 2010 2:41 PM

      Sony specifically mentions that it is licensing the "software".
      Also, Firmware is going to fall under "software" here as it doesn't require something physical to update.

      • reply
        September 20, 2010 3:22 PM

        Sony can specifically mention it all they want, the court has routinely held a "if it looks like a duck and quacks like a duck" test on that sort of thing, and buying a PS3 is definitely going to fall on the "sale" side of it rather than license. The use of their network, sure, would fall under licensing, but for core functionality like gameplay, if people bought the PS3 after seeing the other OS feature advertised, I think they have a legitimate case.

        • reply
          September 20, 2010 4:21 PM

          The problem with that argument is that the firmware update isn't mandatory. Sony is also contending that they never really advertised the feature, though it was known that it had the capability.

          It's "mandatory" if you want to keep connecting to PSN or use Move, but as far as I know, there have been no PS3 updates that are required to play regular PS3 games offline (might be wrong as I always update).

          The text of the update that removed Other OS probably had some nice legal language to get around this.

          • reply
            September 20, 2010 4:44 PM

            Well, I suppose we'll see at trial, eh?

            • reply
              September 20, 2010 5:56 PM

              Just for the fact that they didn't advertise it I would think they might be able to win this, but in all truth if there supplying tools in there console they should make it a point to say "this feature could be terminated at any known time with out any warning". I would think they have something along the lines as this on the box or in the instruction booklet but lets face it is probably grouped with so much words that no one would ever notice it with out looking for it. Either way its stuff like this that always make you feel like your going to be cheated down the road.

          • reply
            September 21, 2010 3:04 AM

            I see reports over the net that F1 2010 will not start without firmware 3.42. I'm very worried that GT5 will be the same.
            Also, I remember an early PS3 game (Ridge Racer 7 I think) that had the 1st update on the disc itself, and refusing to use an older one. While that was then a "welcome", today it will not be.

            I bought a PS3 (before Slim model appeared) because of 3 reasons: Gran Turismo, OtherOS, Blu-ray. If I have to choose between the 1st 2, Sony will NOT see any more money from me (for those who don't know, all PS3-game prices include a licensing fee to Sony, which is the reason they are higher than the PC variant).

            It's annoying that Sony sais it lost money with those who bought PS3s just for computing (as no game purchase was made), but they are screwing those who buy it to play AND experiment. Those could be their future developers.....