
Sony sued over PSN "can't sue us" clause - ukdm
http://www.geek.com/articles/games/sony-sued-over-psn-cant-sue-us-clause-20111220/
======
georgemcbay
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
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.

~~~
dhimes
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.

~~~
subway
You could always buy the device outright instead of letting AT&T subsidize it.

------
johngalt
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
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?

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

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

~~~
ja30278
I wonder if a payment provider (Visa, Amex, etc) could insert consumer
friendly terms into their merchant agreements.

~~~
steve-howard
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."

~~~
CaptainZapp
Travel agents and airlines throughout Europe started to charge processing fees
(usually ~ 8EUR by airlines) when you pay by credit card.

Unfortunately there is usually no other reasonable means to pay for the
service so I bite the bullet and pay it.

It bugs me and annoys me, but I think - at least in Europe - this is perfectly
legal and within the framework of the merchant agreements.

(Don't get me started on the 20 Euro "Service Charge" I pay when I purchase a
flight ticket on the internet for the privilege of doing their work by hacking
the necessary data into _their systems_ )

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

~~~
grecy
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
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.

~~~
rayiner
In the U.S. the sign would be relevant only to the extent that it would
support a finding of contributory negligence (i.e. you were aware of the risk
and took it anyway), which would be the case in Australia too since it's a
common law concept. It would not bar a suit.

In general, you cannot in the U.S. sign a blanket waiver giving up your right
to sue. Waivers are generally narrowly construed to limit their scope to what
the parties foresaw, and some types of waivers are just void as against public
policy. For example if you sign a waiver of liability when you go skydiving,
it might protect the skydiving company against a suit if you land the wrong
way and sprain your ankle, but it won't protect them against a suit if the
pilot was drunk and the plane crashes.

------
roc
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-...](http://lawprofessors.typepad.com/banking/2011/05/us-supreme-
court-okays-binding-arbitration-clauses-prohibiting-consumers-from-joining-
class-actions.html)

~~~
gareim
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.

~~~
roc
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.

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

~~~
cryptoz
Tied with RIM.

~~~
redthrowaway
And Nokia. And, arguably, Netflix.

We'll call it "The Digg Awards".

~~~
Xylakant
Let's go for "The Delicious Digg Awards".

------
rayiner
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.

------
nik_0_0
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.

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

~~~
chc
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.

~~~
richardburton
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.

------
finnw
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.

------
Natsu
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.

------
fosk
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
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
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!

~~~
uptown
I haven't knowingly bought a piece of Sony hardware or audio since their root-
kit fiasco. In fairness, based on their products, they haven't really made
this difficult to commit to.

~~~
Terretta
Agreed, seems like you're not missing much. Sony gear I bought in the 80s and
early 90s still works. Sony gear I bought in the last decade has already
failed, usually in under 5 years. I quit buying it, as it doesn't seem like
it's made by the same company.

------
kermitthehermit
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.

------
minikomi
Godel, Escher, Sony?

