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PS3 Firmware Update Shows How Retailers Can Be Exposed


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235w ago - Sony recently stated that it will not compensate retailers who refund customers because of a PS3 Firmware update to its PlayStation 3 entertainment system.

The change prevents the machine from using alternative operating systems, which it was previously able to do. Some owners installed the Linux operating system, allowing them to use their consoles as desktop computers as well as games machines.

Consumer law protects the buyers of goods if their functions change, but retailers generally cannot pass those claims on to the device makers who made the change, according to Richard Parkinson, a technology lawyer with Pinsent Masons, the law firm behind OUT-LAW.COM.

To quote: Press reports indicate that one consumer received a refund for his console from online retailer Amazon. Sony itself has said that it will not reimburse retailers who do so.

The company told reporters that the machine's main function was as a gaming console, and that an ability to run the Linux operating system is not explicitly mentioned on its packaging. Others have claimed, though, that a feature called "Install Other OS" was listed in Sony's promotional material.

"The retailer has a contract with its supplier, the distributor of the product or the overall manufacturer, so he has to look at that contract" said Parkinson. "Because this is a business to business contract you are able to exclude warranties for fitness of purpose or description, so these are very often excluded and warranties and remedies are limited."



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banksc's Avatar
#22 - banksc - 235w ago
Quote Originally Posted by Pretikewl View Post
This is going to be my last post on this, as anyone who tries to find fault in my statements can only whine over and over how illegal it is.

I can only hope this is really your last post on this... Get off your high horse! This has not yet been challenged legally. Until you get a ruling from a judge, you are no more correct than anyone on here. If you really think that just because Sony wrote some legal mumbo-jumbo in their agreement, they are above the law, I have something for you to sign... There are countless cases in which a contract was judged to be null and void, even by major companies. Go ask your lawyer friend about that...

Personally, I think this comes down to how Sony advertised the feature. When I bought my PS3, it was very clear that it had an advantage due to the 'Other OS' feature. It was advertised as a major functionality of the machine, therefore, they have illegally removed it. Is it necessary? No, but that isn't really relevant. Let's use the car argument once again (horrible choice for an example, btw). Is the rear seat 'necessary' to drive from point A to B?

No, but you cannot carry anybody in the back without it. If your dealer says they are taking out the back seat as a request of the manufacturer, due to it enabling people to kick the back of the front seats and damage them (resulting in a warranty claim), do you think that would be legal?

Don't bother responding, we know your position, just think about it... and then wait for a legal judgment before claiming something is legal.

SovietSlayer's Avatar
#21 - SovietSlayer - 235w ago
Quote Originally Posted by SuperDre View Post
Oh legally you really have a lot of ground to stand on, as you claim the PS3's main purpose is a gaming system, I personally disagree with that, it's main purpose is to play bluray's.. Oh wait, no according to Sony, it was a multimedia system, oh wait, according to Sony latest advertisements, IT CAN DO EVERYTHING!.... oh wait, in reality it can't do jack... but nowhere on the box is written that it's main purpose is a gaming system, hell mine even says 'moviepack'.

Bingo, you cannot arbitrarily assign valve to different features and then go on to stay removing a certain feature because it is less important is okay. That is why the law is very clear on these things. A feature is a feature, an ability is an ability, etc. You can give a gift, new features in a firmware update, but you cannot do the opposite. You cannot take back a gift. Even worse in this case it is not a gift because people bought the consoles with that feature built in.

Pretikewl's Avatar
#20 - Pretikewl - 235w ago
This is going to be my last post on this, as anyone who tries to find fault in my statements can only whine over and over how illegal it is.

My first question would have to be to anyone claiming legality.. are you really so naive to think Sony didn't do their homework on this?

You really think the powers-that-be at Sony just woke up one day and said," hey, that George Hotz guy might be on to something, so let's just screw all PS3 users over by removing any possiblity to exploit the system by removing Other OS"?

They probably went to their team of corporate level lawyers; stated they wanted to remove Other OS to help prevent any further hacking of the system, and had them review and research it to see if it would cause any legal problems. The team said no. So Sony went ahead with the update.

Furthermore, (and this is from an actual lawyer, not my words) even if you did manage to make a case of some type, if the judge was sympathetic to your plight and didn't follow the letter of the law (which btw completely protects Sony in this), a partial refund is all you would be entitled to.

Intellectual Property/Software is the part of yours/mine/everyone's PS3 that Sony owns. Yes, Sony owns it, you do not. You own the hardware. That's fact and law in every country. Get over it. Sony can do anything they want with their property.

As for advertising what it does, there's a great Dominos Pizza commercial you should look up. They knock on Papa Johns for using "puffery", which equates to statements used in advertising as opinion, not based on fact. Sony can claim "puffery" just as easy as Papa John's in advertisement. Sony has the final say in court as to what their machine does, not you. Sony says it's a gaming machine.

Now add up all the lawyer fees, court costs, time, energy etc., and tell me that you've been compensated by what little you got back from your refund. In America, you'll spend exponentially more than that just to hire the lawyer.

It's been about three weeks since the firmware update, and even longer than that since it was announced. To date, there have still been zero lawsuits against Sony over the firmware update. Honestly, if anyone has any legal ground to stand on, it would be the Linux community, and there are no lawsuits filed from them. (i believe that's because they are smart enough to know there's nothing they can do)

In America people are sue-trigger-happy. People jump at the thought of getting money out of someone else for "wronging" them. Yet, there still haven't been any lawsuits... now why is that?

I can tell you the answer. Sony hasn't done anything illegal. You people need to just accept that.

Did Sony do something we don't like? Yes.
Did Sony break any laws in doing this? No.

And for anyone following my post here, if all you can do is scream how illegal it is, then show either show me the lawsuit filed against Sony, or shut up. You're not helping anyone here by claiming how "illegal" it is without anything to back it up.

imtylerb's Avatar
#19 - imtylerb - 235w ago
It STILL is a multimedia system after the update. It still can browse the web, play music, movies, blu-rays etc. So really, I don't think there is much of an arguement.

SuperDre's Avatar
#18 - SuperDre - 235w ago
Quote Originally Posted by Pretikewl View Post
The PS3's main purpose is a gaming system. The firmware update doesn't change this. Legally, you don't have a lot of ground to stand on.

Oh legally you really have a lot of ground to stand on, as you claim the PS3's main purpose is a gaming system, I personally disagree with that, it's main purpose is to play bluray's.. Oh wait, no according to Sony, it was a multimedia system, oh wait, according to Sony latest advertisements, IT CAN DO EVERYTHING!.... oh wait, in reality it can't do jack... but nowhere on the box is written that it's main purpose is a gaming system, hell mine even says 'moviepack'.

In theory they can even remove the gaming part, or the bluraymovie part, hell it's up to them because well it's all handled by the firmware, and the firmware can remove stuff AFTER you bought your device...

That's just a no-no in my book, when I buy a device I don't mind if they add features (you normally buy a device because of the features it already has, not was is being promised), but I don't mind if they don't, but removing options is just not done.. no reason is good enough for removing OtherOS.

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