Sony sued over PSN "can't sue us" clause

http://www.geek.com/articles/games/sony-sued-over-psn-cant-sue-us-clause-20111220/

by ukdm • 15 years ago

174 70 15 years ago

Xbox 360's latest dashboard update has a revised TOS that includes a very similar clause.

I'm a big fan of the Xbox 360, but I wouldn't mind seeing Microsoft get hit by this as well.

As much as I like the Xbox 360 and Xbox Live products, I hate this increasing practice of revising the TOS as part of an update which, because of the design of the system, is essentially a required update unless you want to turn the product you already own into a brick (game updates often require the latest system updates to be present, playing games online require the latest game updates, basically you either have to update or the system quickly becomes totally useless, and you can't update without "agreeing" to the new terms).

bittermang• 15 years ago

Especially with no refund option. If I don't agree to the new software terms, I can't sent the console hardware back to Sony/Microsoft.

But I've always questioned the legality of waiving your legal rights in such a manner. It's always seemed paradoxical to me, at best. Using the systems provided by the courts against me to ensure I have no further recourse in using the courts against them.

Florin_Andrei2• 15 years ago

I see no paradox. Their legal funds are larger than yours, so they can do whatever they want.

dhimes2• 15 years ago

It especially pisses me off when one group (Apple) does it and I am also financially bound to AT&T so I can't even walk away. Those need to be decoupled: Apple changes their TOS, I refuse, and thus I am released from my AT&T contract. That, I believe, would at least slow down these changes for the coupled contracts.

danssig2• 15 years ago

Well, certain rights can't be signed away. I really suspect this is one of them. If you stand in front of a Jury and say "yes, I signed it. I couldn't use what I paid good money for if I didn't!" all 12 of them are going to feel your pain.

wvenable3• 15 years ago

It shouldn't even be legal to be able to give up your right to sue.

timwiseman• 15 years ago

I must respectfully disagree. It can be a significant and useful feature of a contract fully negotiated by parties of equal bargaining power and it comes up quite frequently as something desired by both sides in contracts between sophisticated entities like businesses.

I do however find clauses like this absolutely abhorrent in a take it or leave it contract where the bargaining power is grossly uneven. I find it even more disturbing when such contracts are essentially presented after the fact, such as when printed on the back of a ticket or...included as part of a mandatory update for a system you purchased long ago and can no longer return.

repiret• 15 years ago

This. I feel that the law should make a sharp distinction between "a contract fully negotiated by parties of equal bargaining power and it comes up quite frequently as something desired by both sides in contracts between sophisticated entities" and the sort of cookie-cutter fine-print contracts that consumers are presented with. One should be able to agree to very broad things in a fully negotiated contract. Consumer contracts, on the other hand, should be quite restricted both in power and in length.

st3fan• 15 years ago

It probably isn't. But that doesn't mean they can't put it in the terms. Now you have to fight two things. First the terms and then the thing you are actually suing for. How convenient. Most people give up at the thought of that.

Hopefully this will set a precedent.

A1kmm• 15 years ago

Not in advance of the dispute arising anyway.

Example of a law that makes arbitration clauses unenforceable against consumers in New Zealand unless they agree otherwise after the dispute arises:

http://www.legislation.govt.nz/act/public/1996/0099/latest/D...

peacemaker• 15 years ago

As far as I'm aware, this kind of clause can't be enforced in the EU so if you're in Europe, sue away!

rmc3• 15 years ago

Interesting, got a source?

viraptor• 15 years ago

There might be some cases where it makes sense. Think about stupidly extreme sports (SES) for example. If someone organises a SES event for you, it might be reasonable for you to have an agreement that says they checked everything they could and you were informed about everything you should. But you shouldn't be able to sue them when you get hurt, since you knew from the beginning the whole thing will be dangerous. It doesn't have to be SES to apply this logic to some extent however. Every time I go kayaking on an artificial course I sign some "I'm aware this is dangerous and I want to do it anyway" papers. I'm sure those papers would be the first thing presented in court if I wanted to sue the organisers for breaking some bones. It's not giving up my rights really, but has almost the same effect in a limited scope.

wvenable3• 15 years ago

> But you shouldn't be able to sue them when you get hurt, since you knew from the beginning the whole thing will be dangerous.

Why not? Just because you sue them doesn't mean you're going to win. Maybe stupidly extreme sports purposely made the event more dangerous to ensure your injuries (and subsequent ratings). Signing away your right to sue puts you in an almost infinitely dangerous position.

grecy• 15 years ago

In many countries, you can not give up your right to sue. For example in Australia, when you go skating and there is a sign "Skate at your own risk" it means nothing.

matwood• 15 years ago

A lawyer needs to chime in, but I believe those signs in the US may only help some in cases of accidents. Just putting up a sign that says 'do X at your own risk' does not suddenly free the liable party from being sued for something happening due to negligence.

LokiSnake2• 15 years ago

I know this is fine when everyone is being moral/rational. But what prevents someone from maliciously suing the skating (or something more dangerous, such as skydiving) place for something they weren't really responsible for?

Tsagadai• 15 years ago

IANAL but have you ever read an Open Source license? Or almost any other software license? If you cannot unload liabilities onto the consumer, you cannot have Open Source code. If you could sue for a defective "free" product we would be worse off. Or do you want to require all software to always, legally "work". At some point, customers should be held accountable for their choices.

fosk• 15 years ago

It is ridiculous that a company like Sony, can't guarantee the minimum effort into delivering a secure product to its customers. My opinion is that it's not important if the clause will stay or not, because the reputational damage for only trying to introduce it, it's a complete failure for them for one simple reason: it's dishonest.

Sony, Microsoft, EA, etc. stop abusing our patience and please deliver a great, secure, product like it's meant to be.

jamesbritt• 15 years ago

I wish the reputation damage was real but dispite past transgressions by Sony I see no decrease in fawning over whatever new cool product or movie they release. Even tech sites that should know better complain about Sony in one post while promoting their products in another.

vilya• 15 years ago

For what it's worth, I'm one customer they've driven away.

Their handling of the hacking attack was the final straw for me: it finally convinced me that continuing to buy things through PSN would be unwise. I bought an Apple TV as a replacement for online movie rentals and although I still buy PS3 games it's in-store now rather than online. So far it's working out great!

billybob• 15 years ago

I have a small fantasy of somehow forcing a company to agree to MY terms and conditions.

"By accepting this payment, you agree that..."

dhimes2• 15 years ago

LOL I have the same fantasy...a tiny written statement on the back of a check or inserted into a payment envelope...

jasonlotito• 15 years ago

They do this. If the terms they present don't match the terms you present, you can refuse to pay them.

Oh, I understand what you are saying. And in truth, you could propose this. You could contact them with a counter proposal, and they'd probably just turn you down.

What would be interesting is a service that defines your default conditions in an easy to parse manner. You could then provide it to the service, and it could tell you quickly whether it met your needs, etc.

Florin_Andrei2• 15 years ago

A better solution would be a political and legal reform, so crap like this from the heights of $$$ stops "trickling down" on everyone else.

te_platt• 15 years ago

It would be difficult but possible to organize a user's union that accepted/denied terms as a group. Something like a better business organization for software services. Hmmm -- the more I think about it the difficulties increase and the possibility decreases.

ja30278• 15 years ago

I wonder if a payment provider (Visa, Amex, etc) could insert consumer friendly terms into their merchant agreements.

saurik• 15 years ago

They do. This is why, even after you are shipped a product from a merchant, you can go to your credit card company, take the money back from the merchant and ding them an extra fee on top. Meanwhile, there doesn't seem to be a good way for merchants to cite customers for fraudulent usages of these mechanisms (you might win the chargeback, but honestly if that happens the customer's credit card should be put on hold or cancelled).

steve-howard• 15 years ago

Here's one that almost every small merchant ignores: http://www.mastercard.com/us/business/en/common/faq.html#211

"Q: Can a merchant charge me a fee to use my MasterCard card? Can a merchant require a minimum purchase amount to use my MasterCard card? A: The answer to the first question is almost never; the answer to the second question is not ever."

rograndom• 15 years ago

I had checks printed up that had that wording with a URL pointing to a page of T&C. It was the same language that was on my phone / cable bill. The checking account and the page are long gone, but it only had a couple of clauses. One was that this agreement overrides any other and that my ISP/web host was to notify me in writing via certified mail and allow a 2-week grace period before taking my account down for overages. They had a habit of preemptively taking down my site if I reached 85% of my bandwidth before the 15th of the month. And it was only down for the internet at large. Anyone on the ISP, including me, could still see it fine, which was very frustrating.

They always cashed the checks without complaint but I moved to a better hosting company about a year later and never got a chance to invoke the "agreement".

tibbon2• 15 years ago

Nice idea about the checks. I need new ones and I just might see about doing similar myself.

rmc3• 15 years ago

Legally, you'd have to show a meeting of the minds.

tibbon2• 15 years ago

I'm not sure if Sony can show that for their agreements, can they?

slavak• 15 years ago

You're not the only one[1]:

<DmncAtrny> I will write on a huge cement block "BY ACCEPTING THIS BRICK THROUGH YOUR WINDOW, YOU ACCEPT IT AS IS AND AGREE TO MY DISCLAIMER OF ALL WARRANTIES, EXPRESS OR IMPLIED, AS WELL AS DISCLAIMERS OF ALL LIABILITY, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL, THAT MAY ARISE FROM THE INSTALLATION OF THIS BRICK INTO YOUR BUILDING." <DmncAtrny> And then hurl it through the window of a Sony officer <DmncAtrny> and run like hell

[1] http://bash.org/?577451

richardburton2• 15 years ago

I have never understood those clauses in contracts that force any settlements to go straight to administration. How is that legally possible?

chc• 15 years ago

How is it possible to promise in a contract that you will not do something you would otherwise be legally entitled to do? Well, that's half the point of a contract. You may as well say, "What's with this clause in the contract that says Sony can't sell our data to scammers? How is that legally possible?"

The real problem IMO is the circumstances under which the clause is presented, not the basic idea of arbitration.

richardburton2• 15 years ago

I had never thought of it that way. I guess the distinction I am making in my head is between the contract and the way in which the contract is enforced. I have always felt uncomfortable when those two circles have overlapped.

nextparadigms• 15 years ago

Sony should win the "most suicidal company of the year" award.

cryptoz• 15 years ago

Tied with RIM.

redthrowaway• 15 years ago

And Nokia. And, arguably, Netflix.

We'll call it "The Digg Awards".

johngalt• 15 years ago

General Motors finds flaw in one of their engine designs putting millions at risk. It responds by requiring all drivers to waive their right to sue, or they will send an engine kill signal through onstar.

hkmurakami• 15 years ago

I wonder just how much the consumer electronics industry considers lawsuits against them when deploying technology, TOS, or really anything to the customers.

Back in the day when I was in the auto industry, I noticed that my managers were incredibly conscious of the potential lawsuits when considering any product, technology, or service. When BMW deployed tire air pressure monitors in their cars, my manager commented, "I wonder if they've considered the possibility of lawsuits coming their way when one of those systems fail to notify a low tire pressure, and the customer gets into an accident".

Do you think it possible that the consumer electronics companies are more complacent with respect to lawsuits from the customer, because their products and services can never threaten people's lives, and hence will rarely trigger a drastic and catastrophic legal response?

Maxious• 15 years ago

More like you can now not drive on the highway. You can drive around in the suburbs (single player) but if you had a house far way (PSN+, XBL Gold) you can't get a refund even though you prepaid a years worth of rent.

nik_0_0• 15 years ago

Maybe I'm incorrect, but I recall reading (when Sony first implemented this clause) that Sony was only doing so because there was another company that provided a similar case in court, and won, and therefore they had precedent, etc. In that case it also explains why Microsoft also is able to introduce it, that being when something like this happens, they are able to refer to the original court case. I'm interested to see how this turns out.

rayiner2• 15 years ago

It's not exactly a "you can't sue us" clause, but more like a "you agree to arbitration" clause. Courts will generally not construe such clauses to prevent suit in situations like if your XBox explodes and injures you, but thanks to the good old boys in Congress (fueled by conjured fears of frivolous litigation) and the laws they've passed endorsing arbitration rather than litigation, courts give more effect to such clauses than they otherwise would.

Natsu2• 15 years ago

This is why I don't buy Sony products. I just bought a new TV two days ago, rejecting a Sony TV. I have no regrets; I found a better TV after a little more looking. Sony has lost thousands of dollars from me alone due to crap like this.

finnw• 15 years ago

I wonder if anyone has tried returning an electronic device to a retailer (could be a console, but also a printer or scanner) claiming it was unfit for its purpose, on the grounds that it would not work without drivers but the customer was unwilling to accept the EULA required to install the drivers.

roc2• 15 years ago

It looks to me like Sony is being sued, not over the clause itself, but in their application of it and the circumstances surrounding it.

That is, that it was patched in, bolted on toward the bottom of an agreement that is difficult to even read on a console, that the opt-out method is unnecessarily cumbersome, and that opting-out would take away an advertised feature of the purchased hardware with no recourse.

Because the more general question of "is this clause even legal?" was famously settled not all that long ago by the SCOTUS in the AT&T Mobility case.

http://lawprofessors.typepad.com/banking/2011/05/us-supreme-...

gareim• 15 years ago

As I understand it, the AT&T case determined that clauses restricting consumers from engaging in class action lawsuits were legal. But in the Sony case, their clause restricts a consumer from suing in court and instead, must bring the arbitration to a neutral body (but not court). This scenario seems much more harmful and possibly infringes on a very, very important right.

roc2• 15 years ago

The AT&T case was not specifically about class until it hit the SCOTUS. The case was originally found for AT&T, with the court finding the clause was fine. The California Federal Circuit court reversed that decision, because it felt the clause was 'unconscionable' because it also signed away the right to sue as a class. The SCOTUS rejected that interpretation, upholding not only clauses that deny the right to sue as a class, but the arbitration clause itself.

minikomi• 15 years ago

Godel, Escher, Sony?

kermitthehermit• 15 years ago

I simply adore the irony of this.

It's not like it wasn't expected. You can't just expect people to sit back and accept this.

I hope they are forced to remove the "no sue" clause for good.

Sony sued over PSN "can't sue us" clause

Related Stories