Less than a month after Sony dropped Linux support from its PlayStation 3 gaming console, a disgruntled customer has filed a lawsuit, charging that the move was a deceptive business practice. He’s seeking class-action status.
Sony Computer Entertainment America’s disablement of the “Install Other OS” feature was “not only a breach of the sales contract between Sony and its customers and a breach of the covenant of good faith and fair dealing,” but also “an unfair and deceptive business practice perpetrated on millions of unsuspecting customers,” according to the suit, filed Tuesday by Anthony Ventura of California.
Filed on behalf of users nationwide in the U.S. District Court for the Northern District of California, the suit seeks damages of more than US$5 million, including compensatory damages, restitution, injunctive relief, attorneys’ fees and the cost of the suit.
‘An Inferior Product’
When the PlayStation3 was launched in North America in late 2006, Sony used the “Install Other OS” feature to distinguish the relatively expensive device from competitors, the suit charges, citing numerous statements by company executives and on the PlayStation website to that effect.
The feature, which was eliminated in newer PS3 “slim” models, allowed users to install Linux or other compatible operating systems on the console, effectively transforming it into a PC.
Ventura himself “chose to purchase a PS3, as opposed to an Xbox or a Wii, because it offered the Other OS feature,” the filings note.
While Sony said security concerns prompted its move, Ventura disputes that assertion. Rather, the filings charge, it “reflected Sony’s concerns that the Other OS feature might be used by ‘hackers’ to copy and/or steal gaming or other content.”
In short, “Sony is effectively downgrading PS3s already sold,” the suit asserts. “After April 1, it is an inferior product.”
BBB, FTC Complaints
Ventura also filed complaints with the Better Business Bureau and the Federal Trade Commission; the BBB has since forwarded the case to Sony for response.
Sony, for its part, declined to provide comment at this point.
“We do not discuss pending litigation,” Julie Han, a spokesperson for Sony Computer Entertainment America, told LinuxInsider.
Refunds and Workarounds
Shortly after Sony disabled the Other OS feature, reports emerged that Amazon gave at least one European consumer a 20 percent refund on a PS3 without requiring that the device be returned.
Not long afterwards, however, Sony said it would not sanction such refunds.
Notable hacker George Hotz, meanwhile — blamed by many for Sony’s decision to disable the feature in the first place — has promised to develop custom firmware that gets around the problem.
Sony’s EULA
“We all knew that a class-action suit was going to happen,” Pietro Macchiarella, a research analyst with Parks Associates, told LinuxInsider. “I am sure that Sony knew as well, and I think that they took it into account when removing Linux.”
In fact, “the cost of litigation and, potentially, damage compensation might still be lower than the cost of increased piracy, allegedly made possible by Linux functionalities,” Macchiarella suggested. “I guess that the net benefit will depend on how effective removing Linux is in fighting piracy on the PS3. Some people have expressed doubts that this will stop hackers from finding their way into the PS3.”
Sony’s end-user license agreement (EULA) does state that “‘(…) automatic updates or upgrades (…) may change your current operating system, cause a loss of data or content or cause a loss of functionalities or utilities,'” he pointed out. “I guess that removing Linux would count as a loss of functionality. On the other hand, I wonder how strong a EULA is from a legal point of view, since it is accepted by users only after purchase.”
Potentially Widespread Consequences
Either way, “it will be interesting to see who prevails in this lawsuit,” Macchiarella concluded.
Considering the growing numbers of connected devices in homes today, “this lawsuit might have consequences beyond this specific case,” he added. “Blu-ray players, TVs, etc., will increasingly have regular firmware upgrades over the Internet. Cases like this might happen again for other types of devices.”
Gamers as a group “don’t like their mojo interrupted, especially gamers that love open source,” Raymond Van Dyke, a technology lawyer in Washington, D.C., told LinuxInsider. “Sony’s great PS3 system, having considerable horsepower, also has a lot of bells and whistles to accommodate their tech-savvy customer base.”
‘Questions of Damages and Actual Harm’
Still, “protection of the underlying code is a grave concern to a high-end gaming company, and walling off an avenue of intruder entry seems a logical course of action,” Van Dyke noted. “Companies are allowed to update their products and work to prevent harm to consumers, as well as the company’s good name.”
They do, however, also “need to be mindful that some customers will become irate if desired product functionalities are removed from their purchased system,” he added.
Looking ahead, “it is unclear if the class action will be instituted,” Van Dyke concluded. “Questions of damages and actual harm will predominate at the court arguments to come.”
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"In fact, "the cost of litigation and, potentially, damage compensation might still be lower than the cost of increased piracy," That "cost of piracy" has been multiplied by orders of magnitude over real world costs. Some company that loses a few hundred thousand in sales to piracy gets a free pass to estimate losses in the trillions of dollars. A company that fails can always blame piracy. Phhht. And, lawmakers eat this kind of crap up.