
New PlayStation Network ToS Include a No Suing Sony Clause - francescolaffi
http://kotaku.com/5840517/new-playstation-network-terms-of-service-include-a-no-suing-sony-clause
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incomethax
IANAL but wouldn't these Terms of Service be unenforceable? It doesn't seem
like Sony is offering anything extra in consideration, rather just limiting
your rights. If they change their ToS to limit your rights, wouldn't they have
to offer some consideration for this type of contract to be enforceable?

~~~
ansy
IANAL, but arbitration clauses are standard in contracts[1] at least in the
United States. Arbitration is generally seen as preferred because suing people
is actually very expensive.

In Sony's favor, Sony excluded small claims. So for pretty much everyone this
arbitration clause is meaningless. The limit for small claims is in the
thousands of dollars (depending on state) [2]. The circumstances where Sony
would be liable for more than a few thousand to a single consumer would have
to be pretty extraordinary.

Also in Sony's favor, Sony did not choose to use the arbitration clause to set
an onerous jurisdiction. Sony could have said all arbitration needed to take
place in a specific city in the middle of nowhere. Sony didn't even pick the
location of its headquarters; you can pick any jurisdiction. Most arbitration
clauses I've seen set a jurisdiction that favors the contract writer, so I'd
say this puts Sony in a decent light for not doing the same.

If you really wanted to find fault with Sony's particular arbitration clause,
it would be that it is binding. Neither side can appeal the decision of the
arbitration panel to a higher court. But keep in mind this cuts both ways, and
it really isn't unusual. It is even endorsed in the United States.

I should also note that arbitration clauses can be voided if the panel can be
proven to be biased. So this isn't necessarily a license for Sony to
circumvent the law, at least against a well funded opponent. And anyone with
the balls to sue Sony for any serious amount of money would be a well funded
opponent.

[1] <http://en.wikipedia.org/wiki/Arbitration_clause>

[2] [http://www.nolo.com/legal-encyclopedia/small-claims-suits-
ho...](http://www.nolo.com/legal-encyclopedia/small-claims-suits-how-
much-30031.html)

~~~
burgerbrain
Are damages of more than a few thousand that uncommon as a consequence of
identity theft? I suspect not, and if any damages result from a security
breach of their service, I believe identity theft is the most likely cause.

~~~
ansy
According to this article from 2006[1] the average out of pocket loss (to the
consumer) from identity theft was around $400 and is often nothing.

While the fraud committed from identity theft is generally in the several
thousands of dollars, this is almost entirely absorbed by businesses. In the
United States the consumer liability for credit card theft is federally capped
at $50 [2]. Most credit card companies just go ahead and make it $0 to sound
good in advertisements. As a side note, it is criminally foolish to ever use a
debit card in place of a credit card because the liability limits are higher
and more strict to enforce [3].

So yes, even for most victims of identity theft, small claims would more than
cover their potential damages. Not to mention the legal fees to prepare the
case would dwarf all but the most disastrous losses. Most people would be far
better to take Sony to small claims court for the $150 filing fee and get the
maximum $4000 or whatever and be done with it.

[1] <http://www.bbbonline.org/idtheft/safetyquiz.asp>

[2]
[http://en.wikipedia.org/wiki/Credit_card_fraud#Cardholder_li...](http://en.wikipedia.org/wiki/Credit_card_fraud#Cardholder_liability)

[3] <http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre04.shtm>

~~~
burgerbrain
Out of pocket loss does not equate to total damages. Time lost and effort
spent trying to clean it all up is significant.

