Sony Responds to 'Other OS' Lawsuit

[UK_fan_05]

Well, the last thread got deleted I guess because I couldn't find it to update. Here's an update!

http://ps3.ign.com/articles/112/1121709p1.html

The attorneys representing Sony Computer Entertainment America have responded to a class action complaint filed against the company for removing the other 'Other OS' feature from the PlayStation 3.

Sony removed the feature in April due to potential security issues as part of PS3 firmware update v3.21. Seven total class action lawsuits were filed against the company soon after, and in July, a judge ruled to consolidate all the lawsuits into one complaint.

Last week, however, Sony's attorneys filed a motion for the court to strike the class allegations and to dismiss the case.

Sony contends the plaintiffs' claims that the company advertised the Other OS feature the later removed it - depriving PS3 users of software features - is contradicted by the explicit terms stated in SCEA's written express warranty, the System Software License Agreement and the PSN Terms of Service.

"These contracts specifically provide PS3 purchasers with a license, not an ownership interest, in the software and in the use of the PSN, and provide that SCEA has the right to disable or alter software features or terminate or limit access to the PSN, including by issuing firmware updates," the motion reads. "Plaintiffs therefore cannot succeed in any of their claims because SCEA's alleged alteration/disablement of PS3 features including the Other OS, was entirely proper and authorized."

Sony's motion also said the complaint fails to provide any mass media advertising campaign, statements by SCEA, or PS3 packaging that referenced the 'Other OS' feature.

"Instead, it includes a mix of quotes drawn from obscure articles and unrelated third party publications, and a smattering of out of context and incomplete references to a few pages of SCEA's website and user manual," Sony said.

Sony went on to list several reasons why the court should strike the class allegations from the complaint and pointed to the fact all plaintiffs did not use the Other OS feature in the same manner, if at all.

"One plaintiff never installed Linux during the more than two years he owned his PS3; two plaintiffs used the Other OS feature only to do things equally available through the PS3 native operating system; one plaintiff supposedly also played Linux-specific games; and the last plaintiff used Linux extensively, including for electronic mail, word processing, spreadsheet software, and other 'productivity applications.'"

Sony later referenced various message board postings from PS3 owners admitting they had "no idea that the PS3 even had an Other OS function or Linux functionality."

The company also cited numerous postings from owners who stated they "did not purchase the PS3 because of the Other OS feature and did not use it" and others saying they downloaded the update because "they did not care about the Other OS feature."

Both parties will be heard before a judge on November 4, 2010. The plaintiffs, meanwhile, have requested that Sony turn over internal documents regarding the decision to remove the 'Other OS' feature.

"We are in the process of reviewing Sony's Motions to Dismiss and to Strike," a representative from the interim co-lead counsel for the plaintiffs told IGN. "These types of motions are fairly common at this stage of the litigation and we believe we have strong arguments for why they should be denied."

"We plan on vigorously opposing these motions and we hope to have them decided in November. In the meantime, we have requested that Sony turn over its internal documents about why the 'Other OS' feature was removed and we look forward to reviewing those materials."

A copy of both motions to strike and dismiss can be viewed in PDF form here http://ps3movies.ign.com/ps3/documen...nyresponse.pdf and here http://ps3movies.ign.com/ps3/documen...yresponse2.pdf

[kjacobs03]

Originally Posted by eagle_fan_05

"One plaintiff never installed Linux during the more than two years he owned his PS3;.'"

That person should be stoned to death! Or is he a genious? Can we now sue people/companies that have no connection to what we are doing?
I'm going to go try and sue Mcdonalds because someone else spilled hot coffee on their lap.

[Groo The Perverted]

Originally Posted by kjacobs03

I'm going to go try and sue Mcdonalds because someone else spilled hot coffee on their lap.

BTW: have you ever heard the FULL story of that? Everyone makes that out to be some grand example of the overzealous litigation, however there were more details about that than simply spilling hot coffee.

http://www.caoc.com/CA/index.cfm?eve...wPage&pg=facts

There is a lot of hype about the McDonalds scalding coffee case. No one is in favor of frivolous cases of outlandish results; however, it is important to understand some points that were not reported in most of the stories about the case. McDonalds coffee was not only hot, it was scalding - capable of almost instantaneous destruction of skin, flesh and muscle. Here is the whole story.

Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson's car when she was severely burned by McDonalds coffee in February 1992. Liebeck, 79 at the time, ordered coffee that was served in a Styrofoam cup at the drive-through window of a local McDonalds.

After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. (Critics of civil justice, who have pounced on this case, often charge that Liebeck was driving the car or that the vehicle was in motion when she spilled the coffee; neither is true.) Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.

The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonalds refused.

During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonalds' knowledge about the extent and nature of this hazard.

McDonalds also said during discovery that, based on a consultant's advice, it held its coffee at between 180 and 190 degrees Fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonalds' quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into Styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the "holding temperature" of its coffee.

Plaintiff's expert, a scholar in thermodynamics as applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebecks spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.

McDonalds asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the company's own research showed that customers intend to consume the coffee immediately while driving.

McDonalds also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third-degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder" since the location of the writing would not warn customers of the hazard.

The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonalds coffee sales.

Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped to 158 degrees Fahrenheit.

The trial court subsequently reduced the punitive award to $480,000 -- or three times compensatory damages -- even though the judge called McDonalds' conduct reckless, callous and willful.

No one will ever know the final ending to this case.

The parties eventually entered into a secret settlement which has never been revealed to the public, despite the fact that this was a public case, litigated in public and subjected to extensive media reporting. Such secret settlements, after public trials, should not be condoned. Many courts in California have adopted policies against enforcement of secret settlements, which is a positive development for consumers and the public.

[Rike255]

Originally Posted by Groo The Perverted

BTW: have you ever heard the FULL story of that? Everyone makes that out to be some grand example of the overzealous litigation, however there were more details about that than simply spilling hot coffee.

http://www.caoc.com/CA/index.cfm?eve...wPage&pg=facts

I know this is off topic but that didn't change a single thing for me. I wish I could be only 20% at fault for every dumb thing I do. Coffee is hot, the rest of the world minus 700 people in a 10 year span managed to not be stupid...but none of us got ~$3 million for it. ...Just my two cents.

Back on topic, this Other OS stuff just won't go away haha. Sony should just download these complainants a free copy of a Linux ISO, case closed!

[Clark Kent]

That lawsuit is never going to get the "Other OS" feature back. The likely outcome is that Sony settles and admits no wrongdoing, while affected users get like $5 off in the PSN store. The only winners in class action lawsuits are the lawyers.

[Groo The Perverted]

Originally Posted by Rike255

I know this is off topic but that didn't change a single thing for me. I wish I could be only 20% at fault for every dumb thing I do. Coffee is hot, the rest of the world minus 700 people in a 10 year span managed to not be stupid...but none of us got ~$3 million for it. ...Just my two cents.

Seriously? The fact that McDonalds had their coffee at about 40 to 50 degrees hotter than what was served everywhere else in the industry doesn't change anything? The fact that they KNEW that it was way too hot, that they had had many other instances of this type of thing happening that means nothing and changes nothing? Also she did nothing dumb, unless you consider being 79 years old and trying to open her coffee dumb.

Wow.

it held its coffee at between 180 and 190 degrees Fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonalds' quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into Styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the "holding temperature" of its coffee.

[UK_fan_05]

Back on T guys.

Go to the McDonalds thread to further discuss that.

[UK_fan_05]

Originally Posted by Clark Kent

That lawsuit is never going to get the "Other OS" feature back. The likely outcome is that Sony settles and admits no wrongdoing, while affected users get like $5 off in the PSN store. The only winners in class action lawsuits are the lawyers.

Agreed. Unless it is a clear cut case, only the lawyers ever truly win.

The "Plaintiffs", from what is stated, only one of them have used Linux for purposes that the PS3 itself couldn't do. One guy never even installed it lol.

[Rike255]

Originally Posted by eagle_fan_05

Back on T guys.

Go to the McDonalds thread to further discuss that.

Yes you are correct

I wonder how much money that guy who never even install Linux will lose on this?

[UK_fan_05]

Originally Posted by Rike255

Yes you are correct

I wonder how much money that guy who never even install Linux will lose on this?

Hopefully a lot. I hope they try to make an example and set a precedent for it.

[Rike255]

Originally Posted by eagle_fan_05

Hopefully a lot. I hope they try to make an example and set a precedent for it.

Yep especially for that guy, this seems like a get rich quick scheme for him. Better chances with the lottery I'd say.

[Sharpie]

I just upgraded one of my PS3s and I actually read the entire software agreement concerning the removal of this menu choice and it explicitly tells the end user exactly what is going to happen and gives the user a chance to back out of the upgrade process.

I do not see where this case against Sony has any legal standing at all. Lawyers just love clowns like these.

[tarvis]

Originally Posted by Sharpie

I do not see where this case against Sony has any legal standing at all. Lawyers just love clowns like these.

There is an issue of precedent involved. For example, is it lawful for Sony to release a firmware update that would remove Blu-Ray film playback just because there is forewarning in the End User Agreement.

[Groo The Perverted]

Originally Posted by Sharpie

I just upgraded one of my PS3s and I actually read the entire software agreement concerning the removal of this menu choice and it explicitly tells the end user exactly what is going to happen and gives the user a chance to back out of the upgrade process.

I do not see where this case against Sony has any legal standing at all. Lawyers just love clowns like these.

Well I think the fact that the upgrade was essentially mandatory, seeing as how many features of the PSN network would be unavailable if you didn't upgrade is what many are upset about as well.

Obviously some are irritated at the mere removal of the Other OS (something I never used, and no I'm not that guy in the suit. lol) but if it wasn't MANDATORY, due to other aspects being disabled for you, I don't think there'd be as much of an outrage, if there would be any at all.

[jamclaur]

Originally Posted by Groo The Perverted

Well I think the fact that the upgrade was essentially mandatory, seeing as how many features of the PSN network would be unavailable if you didn't upgrade is what many are upset about as well.

Obviously some are irritated at the mere removal of the Other OS (something I never used, and no I'm not that guy in the suit. lol) but if it wasn't MANDATORY, due to other aspects being disabled for you, I don't think there'd be as much of an outrage, if there would be any at all.

99% of the people are only pissed because they can see a lawsuit in it. I could give a crap about Linux. I'd testify on Sony's behalf that other OS was useless and I'm totally fine with the fact that they chopped it and gave us a ton of other free features...

[Terjyn]

Originally Posted by tarvis

There is an issue of precedent involved. For example, is it lawful for Sony to release a firmware update that would remove Blu-Ray film playback just because there is forewarning in the End User Agreement.

But removal of Blu-Ray would be entirely different because in THAT case Sony has no claim that it wasn't heavily advertised or well-used.

And what's the alternative? "Sorry Sony, you need to put out a survey before upgrading Firmware to make sure all your users agree with the Firmware"? Grats as you never are allowed to upgrade firmware again.

[Maximus]

Originally Posted by Groo The Perverted

Well I think the fact that the upgrade was essentially mandatory, seeing as how many features of the PSN network would be unavailable if you didn't upgrade is what many are upset about as well.

Obviously some are irritated at the mere removal of the Other OS (something I never used, and no I'm not that guy in the suit. lol) but if it wasn't MANDATORY, due to other aspects being disabled for you, I don't think there'd be as much of an outrage, if there would be any at all.

PSN is a free optional service (or it was at the time) which means SCE are well within their rights to withhold the service until you are running the latest firmware. There would be different rules for a paid service a la XBLG or PSN+.

The most likely action will be dismissal or settlement, I can't see a media company allowing a case like this go all the way, it would set a precedent too restrictive on future upgrades and on removal of exploits. If unadvertised features cannot be removed, then what bearing does that have on exploits?

[BluHavik]

Originally Posted by Groo The Perverted

Well I think the fact that the upgrade was essentially mandatory, seeing as how many features of the PSN network would be unavailable if you didn't upgrade is what many are upset about as well.

Obviously some are irritated at the mere removal of the Other OS (something I never used, and no I'm not that guy in the suit. lol) but if it wasn't MANDATORY, due to other aspects being disabled for you, I don't think there'd be as much of an outrage, if there would be any at all.

Did you have an issue with the last update? All it did was disable the jailbreak hack(for now or ever yet to be determined) When you click I agree, you admit I agree to let you run your service as you see fit.

If you want to blame/sue anyone it should be the hackers. They ruin it for everyone. Just ask PC gamers, hackers about killed that industry.

[bhampton]

Such a waste of time.

If only people bothered to READ.

1) You don't have to ever do a FW update to a PS3. If keeping the "other OS" mattered to you then you should have not continued to update the FW. I bought a launch date PS3 and it did everything it was advertized to do including the Other OS.

2) If you do a FW update ... All that text you ignore before agreeing to says you are doing the FW because you want to and you agree to the updated tems and conditions.

Nothing here but a waste of time and a long shot for a few people to just cash in on nothing.

Sony shouldn't have had to even answer to anything here. That's what those terms and conditions are for.

[BluHavik]

Originally Posted by bhampton

Such a waste of time.

If only people bothered to READ.

1) You don't have to ever do a FW update to a PS3. If keeping the "other OS" mattered to you then you should have not continued to update the FW. I bought a launch date PS3 and it did everything it was advertized to do including the Other OS.

2) If you do a FW update ... All that text you ignore before agreeing to says you are doing the FW because you want to and you agree to the updated tems and conditions.

Nothing here but a waste of time and a long shot for a few people to just cash in on nothing.

Sony shouldn't have had to even answer to anything here. That's what those terms and conditions are for.

Problem is to play newer games you need the firmware, most likely people crying about not being able to pirate games. They will spend money on lawyers but not games