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Sony Sued Over PSN 'No Suing' Provision

Soulskill posted more than 2 years ago | from the had-to-see-that-coming dept.

Sony 384

An anonymous reader writes with this excerpt from the Examiner: "In a grand dose of irony today, Sony was sued over a term in the PlayStation Network's End User Agreement that states that users cannot sue Sony. These terms were added in September, after a long string of Sony hacks (the official count is that Sony got broken into 17 times in a space of about 2 months), which included a massive outage of the PlayStation Network itself. The suit that was filed today is a class action suit for all of those who bought a PS3 and signed up for the PSN before the September update to the EULA. The suit also claims that this is a unfair Business practice on Sony's part, and requires users to forgo their rights in order to use the device that they purchased."

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EULAs (4, Informative)

bonch (38532) | more than 2 years ago | (#38441692)

"The suit also claims that this is a unfair Business practice on Sony's part, and requires users to forgo their rights in order to use the device that they purchased."

I don't know about the rest (avoiding legal culpability isn't exactly uncommon in EULAs), but this part is untrue. You don't have to use PSN to use a PS3, and you are also free to return the PS3 if you don't like the EULA for its online component.

Anti-Sony stories are one of Slashdot's most common page-view drawing tactics, so I'm always a little suspicious of any stories Slashdot posts. Not to automatically dismiss this one, but lawsuits are filed literally every day for every reason imaginable, and this one is only getting reported because it's "ironic" and it's a well-known company that Slashdotters love to hate. Strangely, Nintendo gets a lot of love even though it has a history of being even more evil than Sony.

No doubt there will be comments about the evils of EULAs following mine (assuming I'm not modbombed into oblivion), but I should mention that EULAs are no different from free software licenses--they are contracts you agree to the terms of in using the software. The majority of U.S. courts have upheld the enforceability of EULAs.

Re:EULAs (5, Insightful)

XanC (644172) | more than 2 years ago | (#38441728)

No EULA is required to use free software. DISTRIBUTING software is a different matter. It's an important difference.

Re:EULAs (-1)

Overly Critical Guy (663429) | more than 2 years ago | (#38441790)

Wrong--in the case of a free software license, the user agreeing to the license is the developer who uses the code.

Re:EULAs (1)

Anonymous Coward | more than 2 years ago | (#38441824)

I think he was right. The license doesn't come into force until you distribute a modified version. You can compile and use the code without releasing the source.

Re:EULAs (4, Informative)

exomondo (1725132) | more than 2 years ago | (#38442428)

Wrong--in the case of a free software license, the user agreeing to the license is the developer who uses the code.

Which is why he said no EULA is required to use free software. I can take linux and use it all i want, modify it, re-compile, not release my changes, remove all copyright and legal notices, etc... and that's fine. It's only if I want to distribute it that the license terms will have to be considered.

Re:YourACoon (0)

Anonymous Coward | more than 2 years ago | (#38441988)

No EULA is required to use free software. DISTRIBUTING software is a different matter. It's an important difference.

Not entirely. The EULA (that is, the GPL) is why I can make copies of my Linux install CDs and give them to friends. It is legal and it is not piracy because of the "EULA". You don't have to be a developer for this to apply to you.

Whereas with the EULA that comes with Windows, no such right is granted and doing that would be illegal piracy and could land you in court.

I understand the part about "must distribute source if you distribute binaries" gets all the attention but it is NOT the only clause of the GPL.

Re:YourACoon (1)

Bert64 (520050) | more than 2 years ago | (#38442222)

If you are making copies of Linux CDs then you are DISTRIBUTING...
As XanC said, you don't need to agree to the GPL if you only want to use or modify the software yourself... Its terms only apply if you distribute it, and giving copies to friends counts as distribution.

Re:YourACoon (1)

Fred Foobar (756957) | more than 2 years ago | (#38442252)

No EULA is required to use free software. DISTRIBUTING software is a different matter. It's an important difference.

Not entirely. The EULA (that is, the GPL) is why I can make copies of my Linux install CDs and give them to friends. It is legal and it is not piracy because of the "EULA". You don't have to be a developer for this to apply to you.

You're stating the exact same thing as the parent you replied to. What are you doing when you "make copies of my Linux install CDs and give them to friends"? You're DISTRIBUTING it. The GPL (which is not a EULA because it doesn't apply to the end-user but to anyone distributing it) gives permission to distribute the software with a few conditions on such distribution.

Whereas with the EULA that comes with Windows, no such right is granted and doing that would be illegal piracy and could land you in court.

Even in the absence of an EULA, it's still illegal. (Of course, an EULA almost invariably does not grant the user any additional rights (eg, to use the software) beyond what they already had in the absence of the EULA. But I'll save that discussion for another time.)

Re:EULAs (0)

mungewell (149275) | more than 2 years ago | (#38442084)

Technically the GPLv3 is a EULA, it requires the _user_ of the software to do things. GPLv2 is only in action if you are distributing the software.

Re:EULAs (5, Interesting)

InsightIn140Bytes (2522112) | more than 2 years ago | (#38441746)

In this specific case Sony also allowed you to opt-out from that specific provision and still accept the rest and use PSN, you only had to give them written notice about it. So if you want to bash Sony, it would be good to at least stay in truth.

Re:EULAs (5, Informative)

dan828 (753380) | more than 2 years ago | (#38441758)

A EULA, like any other contract, is only enforceable if it's provisions don't break the law. A company can put whatever they want into them, but that doesn't mean it has legal standing. Companies don't get to arbitrarily make laws. They could add a provision that you'll give them your first born son, but I'm pretty sure that wouldn't stand if challenged in court.

Re:EULAs (5, Insightful)

Anonymous Coward | more than 2 years ago | (#38441864)

A EULA, like any other contract, is only enforceable if it's provisions don't break the law. A company can put whatever they want into them, but that doesn't mean it has legal standing. Companies don't get to arbitrarily make laws. They could add a provision that you'll give them your first born son, but I'm pretty sure that wouldn't stand if challenged in court.

You clearly don't live in the USA.

Re:EULAs (-1)

Anonymous Coward | more than 2 years ago | (#38442242)

They were probably sick and tired of dealing with americans suing them for every little shit.

Re:EULAs (2)

Cyberllama (113628) | more than 2 years ago | (#38441926)

And, IIRC, didn't the Supreme Court recently rule that an AT&T provision in their contracts did not violate the law? If you are an AT&T customer, your lack of right to sue them (for any reason, no less) has apparently been upheld by the courts. Your sole method of redress is binding arbitration with, as I recall, some sort of liability cap.

Re:EULAs (5, Insightful)

causality (777677) | more than 2 years ago | (#38442068)

And, IIRC, didn't the Supreme Court recently rule that an AT&T provision in their contracts did not violate the law? If you are an AT&T customer, your lack of right to sue them (for any reason, no less) has apparently been upheld by the courts. Your sole method of redress is binding arbitration with, as I recall, some sort of liability cap.

What's the good, compelling reason that anyone is allowed to forfeit (or demand another party forfeit) what is otherwise a legal right? What was the justification given for considering this a legitimate part of contract law? Especially in one-sided, non-negotiable contracts of adhesion?

If there are any lawyers who can answer that, I'd really like to know. It seems like one of those incredibly short-sighted ideas that does more harm than good.

Re:EULAs (4, Insightful)

AngryDeuce (2205124) | more than 2 years ago | (#38442180)

What's the good, compelling reason

What on earth makes you think there was one of those involved?

Re:EULAs (2)

mattack2 (1165421) | more than 2 years ago | (#38442258)

What's the good, compelling reason that anyone is allowed to forfeit (or demand another party forfeit) what is otherwise a legal right?

IANAL, but the logical reasoning (yeah, that doesn't usually any similarity with the law...) is: That some users may be willing to give up a legal right in exchange for something that they wouldn't otherwise be able to get (or not at that price)?

Just like I can pay $x for a good or service, I might be willing to give away some other intangible item for it.

It seems to me similar to Facebook, etc., where a lot of people have privacy concerns, but are willing to give that up in exchange for the benefit they get.

Re:EULAs (3, Interesting)

Anonymous Coward | more than 2 years ago | (#38442324)

And some people might be willing to sign themselves up for slavery. Doesn't mean it should be allowed.

That said, how many people actually read EULAs? There are simply too many, and they are always long and filled with legalese.

Re:EULAs (5, Insightful)

ILongForDarkness (1134931) | more than 2 years ago | (#38442448)

Not to mention it seems like my PS3 every other time I turn it on wants to either update its OS or update the game I'm currently running before letting me use it. It is like the Windows box from hell (KB 1010283 ready to install don't do anything and don't shut me off while I spin for 20min installing another .00.01 release of a feature you don't use). It isn't just a matter of reading the EULA, I think I did when I opened my box. It is the biweekly OS updates since this problem, each with an EULA warning, which may are may not be different from the original one (and if it is the same is a complete waste of time to read again) but which I'm not willing to spend the 20 minutes I was planning on spending playing a game reading it instead. I'm not sure couldn't they just have sort of a release note? Ie. "all previous rights and terms as before except ... you can't sue us". Would save a heck of a lot of reading/might actually get read/might actually fit on one screen.

Re:EULAs (3, Insightful)

causality (777677) | more than 2 years ago | (#38442382)

IANAL, but the logical reasoning (yeah, that doesn't usually any similarity with the law...) is: That some users may be willing to give up a legal right in exchange for something that they wouldn't otherwise be able to get (or not at that price)?

I understand why it could be tempting. But there are lots of tempting things the law does not allow (eh use your imagination if you like).

What makes this one special? Especially considering the nature of a contract of adhesion and the tendency for all companies in a given market to use extremely similar agreements? It's just a bad idea. I see no benefit to it being allowed by law. That's especially true in the USA which is founded on the concept of natural inalienable rights. It would be more understandable in a country where rights are considered something granted by law.

Re:EULAs (0)

msobkow (48369) | more than 2 years ago | (#38442530)

I have another question for you: What is it about Americans that they can't resolve differences without a judge, jury, and obscene settlement involved?

Is it so horrible to just do the honourable thing and resolve issues and differences without being forced to?

Re:EULAs (0)

Overly Critical Guy (663429) | more than 2 years ago | (#38442040)

Businesses make people sign release forms all the time that dissolve them of legal culpability, and those releases are legally upheld in court. For instance, a tattoo shop can make it so you can't sue them if your tattoo gets infected, as long as you sign a release form which says they're not responsible for infections, because infections are a possibility with tattoos.

Sony is not asking you to give up your first-born son, so that's just a meaningless strawman.

Re:EULAs (4, Insightful)

NoobixCube (1133473) | more than 2 years ago | (#38441770)

I'd like to see my local EB Games accept my PS3 return now, after the EULA updates, even though I bought it years ago...

Re:EULAs (3, Informative)

InsightIn140Bytes (2522112) | more than 2 years ago | (#38441810)

If this EULA update worries you, then just give them a written notice that you don't accept that clause. They allow it as long as you notice Sony, and they still let you accept rest of the EULA and use PSN. It's even written there right next to the clause. Read it.

Re:EULAs (3, Informative)

Anonymous Coward | more than 2 years ago | (#38441878)

No.

Sony gave 30 days written response from the time the EULA was accepted..

Outside of that time, Sony considered the EULA to be accepted in full by the user.
 

Re:EULAs (1)

InsightIn140Bytes (2522112) | more than 2 years ago | (#38441932)

So all in all, there is a provision that lets you do just what I said.

Re:EULAs (2)

realityimpaired (1668397) | more than 2 years ago | (#38442202)

And the time period for exercising the rights in that provision has now expired. If you didn't exercise that right when they made the change, you're SOL.

Re:EULAs (1)

geekoid (135745) | more than 2 years ago | (#38442498)

Yes, it's in the basement guarded by a tiger.

THIS is the type of thing he was poking fun at.

Re:EULAs (1)

NoobixCube (1133473) | more than 2 years ago | (#38441914)

I'm just saying, I don't think an entirely unrelated retailer is actually legally obliged, or inclined, to accept my four year old game console back, no matter who signs a note for me. One might be able to return directly to Sony, but I just doubt a shop that could have changed management or even franchisee in all this time is going to care.

Re:EULAs (2)

geekoid (135745) | more than 2 years ago | (#38442510)

Sony would be forced to pay the retailer for their efforts in accepting returns. then the retailer is out nothing.

And if I know how these thing work, after about a month Sony will tell the retailers to just destroy the unit and throw it away.

Re:EULAs (5, Insightful)

causality (777677) | more than 2 years ago | (#38442208)

If this EULA update worries you, then just give them a written notice that you don't accept that clause. They allow it as long as you notice Sony, and they still let you accept rest of the EULA and use PSN. It's even written there right next to the clause. Read it.

Marketer says: if my decision to automatically sign you up for our endless reams of junk mail err I mean special promotions, adding your name to every advertising database we maintain, and spamming you err I mean keeping you posted about interesting new offers worries you, just waste your time by opting-out of them!

This is a little like mail-in rebates. The company is counting on the fact that most people are lazy, are not diligent, and won't follow through. The number of customers who would say they dislike this clause if asked directly is far higher than the number who actually read through the EULA of their own initiative and used their limited time to follow up on each provision they disliked. Sony knows this.

If you think a business practice that depends solely on laziness and lack of due diligence is perfectly legitimate and deserves to be successful ... well, that's where we would disagree. If we are going to have that sort of free-for-all marketplace then I also want all warning labels removed from all products, all drugs to be legal and unrestricted (you still go to a doctor because it's a good idea, if you are too stupid to realize that then you take your chances), all other victimless-crime laws to be repealed, and all scams to be legal since the targets should have known better anyway.

In some ways, I would like that because laziness and stupidity would become much, much more painful to the point of become rarities. People would learn that no one cares about their own interests more than they do. They'd also learn how to perform basic research when in doubt about something important. However, I'm not really so sure that replacing lazy, fat, stupid people with smart, fit, evil assholes would be an improvement. At any rate, some time ago we decided that "consumer" protection was a good idea and shady business practices don't deserve to be rewarded. All I'm asking for is a little consistency.

Re:EULAs (1)

ILongForDarkness (1134931) | more than 2 years ago | (#38442504)

It's not just laziness, well I guess it is, but it is time. You are obviously willing to do something and have time (you're playing games) its just them jerking you around by changing the contract every couple weeks and expecting you to write a letter if you want to dispute a change every time is unreasonable. EULAs didn't change this frequently until we had the expectation of constantly connected devices. Some how them pushing changes is made really convenient but your responding to them has to rely on snail mail, likely to some bloody office in Japan that would cost you $5 every time you mailed a letter. Your "free" PSN doesn't seem so free anymore.

Re:EULAs (1)

Overly Critical Guy (663429) | more than 2 years ago | (#38441924)

That's a silly response. EB Games wouldn't accept your returned PS3 because it's years old, regardless of the EULA updating or not. Sell it used.

Re:EULAs (4, Interesting)

jazzmans (622827) | more than 2 years ago | (#38441844)

PSN is required to use Netflix, So, yes, it is required to 'use' the PS3.

I don't game, and didn't buy the ps3 to game. I bought it to act as a media viewer. Not being able to watch netflix on my bigscreen is a huge problem. I had to agree to the new TOS or the netflx app wouldn't connect.

I'd sign onto this class action, you bet.

  I'll never buy a sony product again.

jaz

Re:EULAs (-1, Offtopic)

InsightIn140Bytes (2522112) | more than 2 years ago | (#38441884)

You should had bought an actual media box or built one yourself to begin with, not buy a game console. Use the right tool for the job if you want something done.

Re:EULAs (1)

Travelsonic (870859) | more than 2 years ago | (#38441978)

No ... just no. "you should have blah blah" WELL HE DIDN'T, really, what is the point of subjective opinions like that?

Re:EULAs (-1, Troll)

InsightIn140Bytes (2522112) | more than 2 years ago | (#38442036)

It's not a subjective opinion. While I could probably use it too, I still don't go out to buy screwdriver when I want to hit nails to a wall.

Re:EULAs (1)

king neckbeard (1801738) | more than 2 years ago | (#38442204)

Is the screwdriver marketed as having hammer functionality? You also chose a rather strange analogy, as a great number of non-hammer tools do a decent job of being a hammer. Using a hammer as a screwdriver is where you really run into trouble.

Re:EULAs (1)

Anonymous Coward | more than 2 years ago | (#38442282)

It's not a subjective opinion. While I could probably use it too, I still don't go out to buy screwdriver when I want to hit nails to a wall.

This seems closer to buying a power drill that also can act as a powered screwdriver. The PS3 did advertise itself as a media machine. I believe the Netflix logo was even on the box when I purchased mine.

If, using your analogy, a given screwdriver also came with a blunt-hammer-end for the occasional hammering, it wouldn't be unexpected for someone to buy it for hammering.

Re:EULAs (5, Insightful)

PopeRatzo (965947) | more than 2 years ago | (#38442446)

I still don't go out to buy screwdriver when I want to hit nails to a wall.

You're on such a shill roll, I hate to interrupt your flow, but you do realize that Sony marketed the PS3 as a media box, don't you?

And you do realize that they advertised it as a media box on which you could install an "OtherOS", right?

Then, after you shelled out your cash and bought their product, they decide that "Well, no, we really didn't mean that, so we're going to take those capabilities away from you even though you paid for them".

It would be like a a car company saying, after you bought that car, that no, you can no longer put groceries in the trunk because someone might put contraband in their trunk so they're going to remotely lock all trunks so they cannot be used. No, you didn't buy the car just to use it as storage, you bought it as transportation, but the manufacturer just took away a very useful feature of a product. A feature for which they gladly took your money when you bought the product.

"InsightIn140Bytes", I'm trying to figure out why, in the nearly 300 comments you've posted on Slashdot in the three weeks since you signed up for an account here, that so many of them are posts fiercely defending Sony (at least when you're not fiercely defending Microsoft). I'm curious, is it because you just can't stand the injustice of people picking on poor, weak corporations who only want to give their customers great products and make them happy, or is it because you work for one of the "New Media Strategies" type companies and defending these corporations is your job? Because honestly, I can't wrap my head around anyone suggesting that Sony has been anything but hostile to their customers, using the worst kind of bullying and sleazy legal maneuvers (like a 30 day period for sending a written, notarized opt-out via certified mail or else you are considered to have accepted their brand new EULA for a product you may have paid for years ago, or else you won't be able to use many of its features and fuck you if you don't like it).

So tell us, please: What's your story?

Re:EULAs (1)

exomondo (1725132) | more than 2 years ago | (#38442526)

It's not a subjective opinion. While I could probably use it too, I still don't go out to buy screwdriver when I want to hit nails to a wall.

Of course you don't, a screwdriver is not made for hitting nails into a wall and would not be advertised as such. So your example clearly is not analogous to the situation with the PS3, which was advertised as a machine that 'only does everything'. Avoiding being obtuse and taking things literally you can see that while you're not going to use this to hit nails into a wall this does include media center functionality and streaming apps like Netflix. Consoles evolved beyond being purely gaming machines years ago, get with the times.

Re:EULAs (1)

ILongForDarkness (1134931) | more than 2 years ago | (#38442536)

Hey I have this screwdriver, I'll give it to you if you'll hit these nails into my wall. There ya' go, problem solved.

PS3 is reasonably cheap now, especially since you get a bluray with it (always nice to have a spare in case your dedicated one goes to hell), and you have the option to play games if you have a visitor that wants to. In short: more options for about the same cost (and comes with a couple, albeit crappy for purpose remotes).

Re:EULAs (0)

Anonymous Coward | more than 2 years ago | (#38442004)

This is the right tool for the job you twat.

Re:EULAs (3, Insightful)

AngryDeuce (2205124) | more than 2 years ago | (#38442020)

The game console was marketed as a media box, just like it's linux capabilities were. You can't fault someone for buying a product to do a job that they were told the product did.

In all honesty, I don't know anyone that bought a PS3 for the games. Most people I know bought it for the Bluray player, since the good ones were going for more than a PS3 was at launch, as well as the streaming capabilities (whether local or via Netflix, which I don't think even had streaming service at that time).

Besides, putting together a decent HTPC that could push 1080p wasn't nearly as cheap back in 2005 (or was it 2006?) as it is today.

Re:EULAs (3, Informative)

Synerg1y (2169962) | more than 2 years ago | (#38442026)

A blu-ray player and a ps3 for the longest time were very comparable in price, where you'd have to be stupid to buy the former when the latter was available with 10x more functionality.

Re:EULAs (1)

king neckbeard (1801738) | more than 2 years ago | (#38442044)

Maybe he felt that was the best tool for him.

Re:EULAs (1)

The Pirou (1551493) | more than 2 years ago | (#38442090)

Did you just dictate that post via a Siri-like program? You shouldn't have typed that with a standard keyboard.

Individual reasons for doing anything should not be predicated solely on the original intent of the creator, else you lose the chance to hack your life your way.

Re:EULAs (1)

meerling (1487879) | more than 2 years ago | (#38442284)

He purchase a product to do a job it was advertised as being capable of doing.
Now, after the fact, the manufacturer is attempting to get him to agree to lose his rights he already has or else he can't use the functionality they sold him the device for.
He is using the right tool. It may not be what you or I would have chosen, but he did, and they said he could.

Re:EULAs (1)

damiangerous (218679) | more than 2 years ago | (#38442290)

He's using the product in a manner for which it was designed and sold. How is that not the "right tool"?

Re:EULAs (1)

causality (777677) | more than 2 years ago | (#38442316)

You should had bought an actual media box or built one yourself to begin with, not buy a game console. Use the right tool for the job if you want something done.

Just curious, do you ever actually put forth your own ideas instead of waiting for opportunities to condescend and tell people why they're wrong on matters that aren't even factual in nature?

For example ... there was a time when the PS3 was one of the more affordable Blu-Ray players. That time may have passed, but at one point it was a good deal and significantly cheaper than a standalone player or a PC with a Blu-Ray drive. This is attractive to people who are on a budget and are willing to work with the ways that a PS3 is less flexible than a home-built media box. If you are unwilling to deal with such things, and spending more money is worthwhile to you, that is your own preference. The GP obviously has a different one. Your preference is more suitable for you personally but that does not make it superior to his.

I will say that few people are such a purist about a damned media machine. If it connects to their TV and plays the media they want to play, most people are satisfied at this point. Do you have any idea how smug you come across when you say they used the wrong tool? The problem here is not the tool or any technical aspects of the tool. The problem is the legal agreement surrounding the tool.

Tired of seeing this mentality everywhere. If you really must insist on looking down your nose at everyone else, try earning it by contributing more than they do.

Re:EULAs (2)

HiThere (15173) | more than 2 years ago | (#38441968)

Your final proposed course of action is the proper one. Given the course of recent decisions, I don't think this suit has much of a chance.

Others may have other reasons for thinking this suit won't succeed. My reason is that courts usually find a way to decide in favor of large businesses. Justice isn't involved, though frequently the wording of the law is. After all, the laws were written by the lobbyists that the corporations paid for. And passed by the legislators that ...

Re:EULAs (0)

Anonymous Coward | more than 2 years ago | (#38442046)

netflix added a similar thing to their agreement this year. you can't sue them either.

Re:EULAs (1)

Anonymous Coward | more than 2 years ago | (#38441912)

Strangely, Nintendo gets a lot of love even though it has a history of being even more evil than Sony.

Sony used Audio CDs to install rootkits on hundreds of thousands of computers. [wikipedia.org]

Show me what Nintendo did that was more evil than that.

I am waiting...

Re:EULAs (4, Funny)

arth1 (260657) | more than 2 years ago | (#38442464)

Sony used Audio CDs to install rootkits on hundreds of thousands of computers.

Show me what Nintendo did that was more evil than that.

Easy. "But our princess is in another castle!"

FFFfffffffuuuuuu.....

Re:EULAs (1)

PatDev (1344467) | more than 2 years ago | (#38441980)

IANAL, but no, EULA are not the same as free software licenses. The primary difference is that one is a *licensing agreement*, and the other is a *license*.

The concrete difference between the two is that a licensing agreement rests on contract law, in that it is an agreement between two parties. Generally speaking this means it must have (at least) two parties (software vendor and user) and there must be mutual consideration (they give you a license to software, you provide the agreement not to do certain things, and often toss in some money). A license rests on copyright law. Thus it does not require two parties or mutual consideration. Rather it is the unilaterally granted permission of a copyright holder to someone else to use their work.

The best place to see the difference is in the consequences of failure to adhere. The only way to fail to adhere to most free software licenses is to distribute binaries without the source and/or license du'jour. If you fail to adhere to the conditions of the license, then you have no license and are distributing a copyrighted work without permission of the author, which is copyright infringement. If you fail to adhere to the conditions of an EULA, then you are in breach of contract.

A helpful overview: http://www.law.washington.edu/lta/swp/law/contractvlicense.html [washington.edu]

Re:EULAs (1)

mark-t (151149) | more than 2 years ago | (#38442188)

Actually, the chief difference between the two is that the free software license just specifically outlines what a person is permitted to do with the work, typically relatively freely copy it, where otherwise they would not be permitted to copy it at all (fair use provisions notwithstanding) without obtaining explicit permission from the copyright holder, even if they *did* have access to the source code. Essentially, the free software license acts as "written permission" from the copyright holder for people to do the things that it permits, and that you otherwise would not be able to do without infringing on copyright.

Re:EULAs (1)

Fred Foobar (756957) | more than 2 years ago | (#38442380)

That's a good, concise distinction between the two.

For a while now I've maintained that EULA's (but not free software licenses because, as you pointed out, are different from EULA's) are bunk anyway, in the vast majority of cases. Copyright law explicitly grants to end users the right to make copies of software as necessary to use the software, so what other rights or permissions does an EULA grant to the end user? If you (as an end user) don't agree to the EULA, then you can still legally use the software and are not bound by any of its terms and conditions*. Requiring the user to accept the terms before installing the software is merely a technical hurdle, not a legal one.

* Copying and distributing software is covered by copyright, so an EULA doesn't add any protection in that area that isn't already in law.

Re:EULAs (1)

M0j0_j0j0 (1250800) | more than 2 years ago | (#38442154)

I agree with some of your points, but it is abusive , and should be illegal for a contract to make you abide your rights as a citizen to sue. The company commits to something, it must deliver, if not, sufer the legal consequences, to me even arbitrage court is abusive since most of the times they favor the costumer, which of course is the targeted company.

Re:EULAs (1)

Bert64 (520050) | more than 2 years ago | (#38442206)

Can i return the PS3 i bought several years ago (one of the launch models), because i don't agree with the new PSN terms?

Most free software licenses only cover distribution, you don't need to agree to them if you only want to use the software yourself and don't intend to distribute it to third parties.

There's the legality of EULAs (3, Interesting)

jd (1658) | more than 2 years ago | (#38442326)

That is something the courts have been hesitant to rule on but I believe that the US courts have ruled things like First Sale Doctorine, etc, take precedent over any such agreement. (ie: the EULA can't violate the law or otherwise impose a system contrary to the law.) Not being able to sue Sony in the event of Sony violating civil law - ie: denial of access to any system that can give relief - is usurping the courts entirely. This might not go down too well with judges, since if it's allowed, any product could have such a provision. If they allow one company to exempt itself from the legal system, they create a precedent (something judges are VERY loath to do) and case-law which would essentially state that any company could stipulate that a purchaser can't sue.

The civil court system depends heavily on people being able to sue each other. If the civil court system were to allow one party to opt-out, those judges and lawyers dependent on the lawsuits for work would be out of business. I just can't see the judges voluntarily writing themselves pink slips.

Personally, I think there's way too much litigation in the US, but this isn't the right way to reduce it. Especially in Sony's case, when fewer rootkits and more security admins might have been cheaper and have produced better results than hiring lawyers.

Re:EULAs (4, Insightful)

Fieryphoenix (1161565) | more than 2 years ago | (#38442350)

Having a PS3 without being able to play online is kinda like having a TV that you can only watch VHS tapes on. Yeah, technically it's using it, but without the TV stations its value is greatly diminished.

Re:EULAs (1)

ILongForDarkness (1134931) | more than 2 years ago | (#38442354)

Can I return my 1.5 year old PS3 because the new version of the EULA has terms I don't like and I bought it specifically for the online component?

Yo dawg (1)

kakyoin01 (2040114) | more than 2 years ago | (#38441752)

We heard you like suing...

New XBOX LIVE EULA has a similar provision. (0)

Anonymous Coward | more than 2 years ago | (#38441886)

What are the chances of a similar suit against Microsoft?

Re:New XBOX LIVE EULA has a similar provision. (1)

LordStormes (1749242) | more than 2 years ago | (#38441948)

I'm game. I was pissed when I had to agree to that to use my Xbox, especially since a) half of the Xbox experience doesn't work if not on a XBL Gold account, and b) MS didn't offer a "mail a letter to opt out" like Sony did. So MS' clause is actually worse, though I was willing to agree to it anyway because I don't have experience getting boned by them other than the absurd failure rate of the 360 hardware. MS got away with restricting me, because they haven't screwed me over at every turn. A novel concept - you earn goodwill in the marketplace.

To this day I have not upgraded my PS3 to the latest firmware due to that clause (haven't gotten around to mailing my +1 Postcard of Go Screw Yourself yet), rendering my PS3 a $300 Blu-ray player. In the meantime, I've not really missed it for games; I've just bought 21 more games for my 360. The postcard mailing becomes less important, and Sony loses another person who could have bought stuff, used PSN, etc.

Re:New XBOX LIVE EULA has a similar provision. (1)

mark-t (151149) | more than 2 years ago | (#38442142)

I was pissed when I had to agree to that to use my Xbox, especially since a) half of the Xbox experience doesn't work if not on a XBL Gold account, and b) MS didn't offer a "mail a letter to opt out" like Sony did.

Could you please elaborate on point a) above?

Re:New XBOX LIVE EULA has a similar provision. (1)

Wamoc (1263324) | more than 2 years ago | (#38442276)

b) MS didn't offer a "mail a letter to opt out" like Sony did. So MS' clause is actually worse

I thought I remembered seeing that you could opt out by sending a letter in when I accepted the latest 360 EULA. I will have to check that again tonight...

Re:New XBOX LIVE EULA has a similar provision. (1)

geekoid (135745) | more than 2 years ago | (#38442532)

Send a letter. What crap.

Re:New XBOX LIVE EULA has a similar provision. (1)

jd (1658) | more than 2 years ago | (#38442334)

See "Refund Day".

F Sony memory stick duo's (-1)

Anonymous Coward | more than 2 years ago | (#38441910)

They don't work in any other devices.

Rights, in Canada (3, Interesting)

Teunis (678244) | more than 2 years ago | (#38441920)

One is not allowed to sign rights away in Canada, from what I heard (from lawyers, although I'm most definitely not one)
Mind, EULAs aren't normally considered binding either.

Consumer Law (5, Interesting)

EEPROMS (889169) | more than 2 years ago | (#38441940)

I can't speak for the rest of the world but here in Australia it is illegal to infer in a contract that a consumers "legislated" rights have been waved, from memory it's $10,000 per infringement.

Re:Consumer Law (4, Funny)

mattack2 (1165421) | more than 2 years ago | (#38442120)

Australia it is illegal to infer in a contract that a consumers "legislated" rights have been waved

Good bye, rights. [hand waving] Byebye.

Re:Consumer Law (4, Interesting)

Jackdaw Rookery (696327) | more than 2 years ago | (#38442348)

It's unlawful here in Canada too. Seems like they can only apply this in the USA.

Re:Consumer Law (4, Interesting)

jd (1658) | more than 2 years ago | (#38442360)

I still think that plaintiffs should be able to feed CEOs of malignant companies to the salt water crocodiles. The TV coverage would be so much better than most of the regular programming and it shouldn't require that many before corporate practices clean right up.

Re:Consumer Law (0)

Anonymous Coward | more than 2 years ago | (#38442378)

Depends on the nature of the contract law. Seriously.

There's parts of the Civil Code under which Sony's license won't stand up in Texas Courts- in the large, you can't waive your rights under the Texas Deceptive Trade Practices Act (DTPA...) such as to be bound to arbitration with regards to the DTPA and where you can, you HAVE to have a Lawyer present and signing off on it as well as you doing it. This EULA change likely falls under one of the prohibited practices under which they can be held actionable under the law for. Sony has an official presence in Texas. You do the research and the math there. Willful and knowing violations of this law can weigh in with 6 times damages. Get a large enough group and you could get a class-action that can, even worse, drag any company into the Texas Federal District Courts and apply the law at the Federal level under Diversity if you can't apply it to the Texas based division.

Saying that this doesn't have legs...heh...it might.

Bought a Sony product? (4, Insightful)

Ossifer (703813) | more than 2 years ago | (#38441946)

Too bad, you got screwed... Now, do you plan on buying their products again?

Re:Bought a Sony product? (3, Interesting)

future assassin (639396) | more than 2 years ago | (#38442438)

>Now, do you plan on buying their products again?

Have you looked at the world lately? Some or really a lot of people will look the other way for what the stand for if it means a new shiny to show off to their friends.

My wife gave me a weird look when she said she was going to get the daughter a Sony eBook reader and I told her that there will be no Sony products in this house , ever.

Re:Bought a Sony product? (4, Interesting)

geekoid (135745) | more than 2 years ago | (#38442560)

That's too bad, Sony makes some great products. So tell me, what bastion of perfection do you buy your goods from?

Re:Bought a Sony product? (0)

Anonymous Coward | more than 2 years ago | (#38442592)

Forcing your view of Sony on others to the point your wife cannot own a Sony product should get you weird looks.

Is this US only? (3, Informative)

Nick Ives (317) | more than 2 years ago | (#38441976)

I looked in the PSN agreement last time I updated a couple of days ago and couldn't see it; I live in the UK though. This sounds like it would be totally unlawful here.

Re:Is this US only? (2)

Narishma (822073) | more than 2 years ago | (#38442250)

It is US only, and it's not just Sony, at least AT&T, EA and Microsoft have clauses like that in their recent updated terms of use. Microsoft doesn't even give you the option of opting out of it like the others.

Re:Is this US only? (1)

Wamoc (1263324) | more than 2 years ago | (#38442426)

It is US only, and it's not just Sony, at least AT&T, EA and Microsoft have clauses like that in their recent updated terms of use. Microsoft doesn't even give you the option of opting out of it like the others.

When I accepted the recent changes I thought I saw something about sending in a letter to opt out of that clause for the 360. I will have to see if I can find the text of it to check.

Common Nonsense (5, Interesting)

WarpedCore (1255156) | more than 2 years ago | (#38442008)

I agree it's an unfair act to strangle customers with new provisions to older purchases. I don't believe I have a working system that could log onto PSN currently to accept those provisions but I'm considering sending an opt-out to Sony's legal department just in case because I have a lot of older digital purchases from the Playstation Network dating from 2006-2009. If a lawsuit does happen over the EULA and it works in the favor of people that are entitled to class action ability (or even the ability to launch a lawsuit on my own), I want to be a part of it.

You can't get a refund for anything on the Playstation Network. Trust me, I tried. After SCEA turned the keys over to SNEA (or whatever abbreviation Sony's using for their digital networking division) and the hacking that bought PSN down for a month, I wrote a letter to Sony explaining that I've lost faith in their digital service and their ability to secure vital financial and personal information and could no longer A) Be their customer B) Agree to their new terms because it's not the service I signed up for in November of 2006 (and it might have never been with the way EULAs are crafted). I can either have to forfeit your ability to log in or accept the new terms.

EULAs have become this living contract that only favors the company and totally, unconditionally screws the customer. Period. Sony is a case example of excessive abuse of EULAs because of their management and business shortcomings and have a total disconnect with their customers.

Re:Common Nonsense (-1, Offtopic)

CanHasDIY (1672858) | more than 2 years ago | (#38442112)

EULAs have become this living contract that only favors the company and totally, unconditionally screws the customer. Period. Sony is a case example of excessive abuse of EULAs because of their management and business shortcomings and have a total disconnect with their customers.

Yup, which is why A) I despise the concept of a "Living Constitution," and B) I feel those who support constant re-writing of what I once agreed to can go piss up a rope.

Re:Common Nonsense (3, Insightful)

mattack2 (1165421) | more than 2 years ago | (#38442162)

Yup, which is why A) I despise the concept of a "Living Constitution," and B) I feel those who support constant re-writing of what I once agreed to can go piss up a rope.

Yeah, 3/5 of a person forevermore, right?

Re:Common Nonsense (0)

ceswiedler (165311) | more than 2 years ago | (#38442306)

I support modern interpretation of the Constitution (what the GP hates). But 3/5 of a person was changed in an amendment, which I'm sure he fully supports, not an interpretation.

Re:Common Nonsense (1)

mattack2 (1165421) | more than 2 years ago | (#38442488)

He said "re-writing". It seems to me that an Amendment is exactly re-writing, and not interpretation of what is already there. Especially since the 21st repealed the 18th.

Re:Common Nonsense (1)

king neckbeard (1801738) | more than 2 years ago | (#38442410)

That's a rather moot point, given that nobody in the US is LEGALLY a slave anymore, and the 14th amendment changed that anyway. Also, it's probably worth remembering who was on each side of the 3/5 compromise. The slaveholders were the ones wanting slaves to count as whole persons, and abolitionists were the ones wishing for them to not be legally counted as people at all. Counting slaves as whole persons gave an advantage to the slave states.

Re:Common Nonsense (1)

Nutria (679911) | more than 2 years ago | (#38442582)

Yeah, 3/5 of a person forevermore, right?

That's not what "Living Constitution" means.

Re:Common Nonsense (0)

Anonymous Coward | more than 2 years ago | (#38442192)

You *never* agreed to the Constitution unless you're a lot older than I think you are.

Re:Common Nonsense (1)

mr1911 (1942298) | more than 2 years ago | (#38442232)

Off topic, but a valid point.

Re:Common Nonsense (0)

geekoid (135745) | more than 2 years ago | (#38442578)

Yes, screw what the fore fathers expected with what they wrote! I'm sticking with only men voting, and some people only being counted 3/5ths.

Racist Idiot.

The Supremes already ruled on this (4, Interesting)

artor3 (1344997) | more than 2 years ago | (#38442106)

The Supremes already ruled on this, and unsuprisingly we got a 5-4 ruling that corporations are better than people. Until the conservative stranglehold on the SCOTUS is broken, Americans won't be allowed to sue any company they've entered into a contract with. Now, maybe EULAs don't count for this. But given the court's corporatist bent, I wouldn't count on it.

Re:The Supremes already ruled on this (-1, Troll)

Svartalf (2997) | more than 2 years ago | (#38442432)

I didn't know that the Supremes actually had any weight on this...

(Hint: It's the Supreme Court. The Supremes is a vocal group....use the proper naming and terminology...)

As it stands...a Liberal majority Supreme Court wouldn't have ruled any differently. Seriously. It might've even done worse- they've been known to nuke real rights instead of this stuff. You know, things like waving a wand and erasing aspects of the Bill of Rights illegally. That sort of thing.

If you think that Liberal or Conservative means anything other than flip sides of the same rotten corrupted coin, you're kidding yourself and lying to everyone including yourself.

what i don't get about eulas (2, Insightful)

Anonymous Coward | more than 2 years ago | (#38442136)

I totally agree lots of EULAs these days are one sided crap, with terms like, "We can change these terms any way we want and all you can do is suck it up".

I even see that often you can't see the EULA until you buy the product, which seems horribly unfair to be "bound" by it then. I should think that would be found illegal, even.

But once these terms are well known and publicized, what I don't get is, why does ANYBODY else ever buy that product again? Why would any otherwise sane person buy a product which to continue using as intended, you have to give the company you bought it from that much control, and the ability to *change the terms* later on without you being able to to jack except stop using the thing?

If people just woke up and said, "hey, that's idiotic!" and stopped forking over $$ for that particular item of entertainment, the terms would change within days. Nobody *needs* a PS3. It's a luxury item and there are plenty of other ways to scratch a gaming itch without agreeing to such terms.

It seems to me like, I say, "Hey, I'll sell you this sandwich for 5 bucks". You say, "OK". I say, "Wait, there's more. You have to agree to anything I tell you to do ever again". Why in the name of sanity would you say OK to that too?

XBOX 360 NEXT!!! (0)

Anonymous Coward | more than 2 years ago | (#38442200)

Microsoft just added this to their agreement this month.

Heh. (0)

Anonymous Coward | more than 2 years ago | (#38442328)

"You can't sue me, you signed a contract saying you wouldn't!"

"Oh yeah? We'll see who's right... IN COURT! Buahahaha!"

In New Zealand (1)

viperidaenz (2515578) | more than 2 years ago | (#38442424)

The only way you can contract out of law is if it is expicitly stated in the law that this can be done.

Sony will win (1)

bigsexyjoe (581721) | more than 2 years ago | (#38442458)

Think about it. To get a job you have to sign an "at-will" contract waiving your employment rights. So now you will have to waive rights to sue and waive consumer protections when you buy products. I suppose you will eventually have to make a similar agreement when you buy food to agree to waive FDA regulations.

No more rights. We shall live in a libertarian paradise in which artificial entities will have unlimited freedom to take liberties with you and you will have an unlimited liberty to eat their shit.
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