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>Heck, they could even cut down all legitimate 3080Tis to what would be 3080 or even 1060 performance via drivers after 3 years and you'd be able to do nothing besides complain on social media -- you still have exactly the amount of hardware sold, and they never promised any performance levels (just check their site, you only get things like compute units, clock speed, ram etc. not performance guarantees like FLOPs or FPS)

They can't legally do that now either. Apple was challenged in court for doing something similar and lost. There's already legal precedent. The problem is while that can't do that legally, they can do it technically and the path to recourse for the individual is difficult and often not worth it. Which means they can usually get away with it.

We need a way for the legal system do deal with these kinds of things that don't involve actually going to the over worked and too expensive courts to settle it.

Assuming this refers to Batterygate, the loss was only in the EU where they do have better consumer protections.

They actually settled in the US to avoid setting precedent...

> We need a way for the legal system do deal with these kinds of things that don't involve actually going to the over worked and too expensive courts to settle it.

Arbitration?

Could also gather a class. Unless if we are saying the argument is we shouldn't have to do these things. I agree, this is true. We also don't have to purchase Teslas if they indeed do these types of things on the regular.

It's called small claims court.

That might be worth for the $4500 Tesla downgrade but for the 3080 Ti vs. 3080 example you are probably going to spend more in court fees and wasted time than you are going to get unless small claims in your jurisdiction somehow lets you claim compensation for those too.

> I think the problem is that there are 2 different types of "can't": can't as in technologically impossible, and can't as in legally disallowed.

Exactly. Bait and switch is legally disallowed, even when technically possible.

Actually, it isn't bait and switch at all. Unless Tesla advertised the upgraded capacity explicitly after the service, you are not entitled to anything.

This is why things like consumer CPUs and GPUs do not advertise a guaranteed level of performance (they only state things like clock speeds, core counts, memory etc.) -- they are not liable if performance gets better or worse down the line. There is no distinction between, say, "games moved to a new API and now old cards are slow" and "we made our new drivers make old cards slow on purpose because we want to sell more new cards". Companies don't do this because it's bad press if found out (which is why there's this whole Twitter thread), not because they are legally required to (at least in the US).

Did you read the post? It said it was a 90.

Actually it didn't. The post said the battery had a 90 badge and the car reported capacity as if it were 90.

Neither of these are direct claims by Tesla that an "upgrade" happened.

Some 2060s also have dies marked for 2080s that are then fused (re: badging doesn't imply performance). Similarly, you could potentially overclock a GPU and end up having measured performance that matched a higher model (re: car reported capacity). In order for the upgrade to have legally applied, they'd actually need to have stated that it was indeed intended as an upgrade and came with new guarantees that matched the higher performing model. Based on reading the post, this never happened thus the whole problem.

If this did happen, the new owned could just produce the documentation for the upgrade and it would be open-and-shut resolved.

No I don't think I agree.

To use a different example someone brought up - imagine your CPU breaks in your laptop. You send it to the manufacturer, and they replace it with a higher model CPU because <reasons> - cool, right? You sell it advertised with that better CPU, then the next owner has to send it in for another, completely unrelated repair, and the manufacturer then says "oh we noticed the last repair fitted more powerful CPU than intended, so we removed it and fitted the original spec CPU".

That wouldn't be just immoral, that would be actual theft.

The matter of fact is, after the warranty repair the guy was given a car with a bigger battery and the bigger capacity enabled in software. Whether Tesla intended to do this or not, is completely and utterly irrelevant - it was his to keep and sell. Now Tesla taking this away should be(but probably isn't) illegal. You have a product with a feature X, Tesla removed that feature and in fact holds it ransom for payment - the fact that they never intended to install it is irrelevant.

To use a different example again - imagine you buy a new car and the factory made a mistake and fitted an extra option that you didn't order. Is the manufacturer in the right to remove that part during your next service?

I think there is a difference with Tesla though, because they do segment based on software. So some of their actual 60 level cars are sold with 90 batteries limited in software.

This is more akin motherboard manufacturers who would unofficially unlock overclocking on unsupported chipsets in first version firmware. If someone bought such a board, overclocked the CPU, sold it, and then the next owner sent the board back to the manufacturer for unrelated repairs, and as part of fixing the other problem the board manufacturer needed to do a BIOS update, resulting in the overclocking feature being lost.

The segmentation being purely in software makes no difference in the principal. Software segmentation merely makes the effects technically achievable (whereas it'd be hard or impossible via physical means).

But the principle that a consumer's product shouldn't be modified without asking for explicit permission from the owner still stands regardless of segmentation methods.

> the factory made a mistake and fitted an extra option that you didn't order. Is the manufacturer in the right to remove that part during your next service?

Your bank makes a mistake and adds a million dollars to your account balance when you tried to deposit $100. Is the bank in the right to remove that when they discover the mistake?

Your bank makes a mistake and adds a million dollars to your account balance when you tried to deposit $100.

In this scenario, the bank also tells you: “we are giving you a million dollars, it’s yours”. Then, 3 years later, someone else at the same bank says: “oopsies, we actually made a mistake, so we withdrew that million from your account”.

It’s even worse, imagine you actually received that million, as a payment for something, from someone else who originally received it from the bank.

> the bank also tells you: “we are giving you a million dollars, it’s yours”.

This doesn’t seem to be the case with the larger battery though? Nothing in the tweet thread indicates that Tesla explicitly stated the car is now a 90 and the original owner can keep it forever.

Yes, because it's their account and their system - that does happen in fact, plenty of stories like that. If you take the money out, or move it elsewhere, they cannot just break into your house and take the cash however - they would need a court order to recover it, and the court would need to agree that it was a reasonable mistake(and that's not always the case! plenty of cases where people/companies send money to the wrong account by mistake and the courts rule that you can't force the other side to return the money)

Also you haven't answered my question, which I think compares better to this situation than a random million dollars deposited into my account. No one randomly gave this guy an upgrade - it was a warranty replacement with a better item, that happens literally all the time in all kinds of industries. What doesn't happen is the manufacturer turning around few years later and taking the item back.

> If you take the money out, or move it elsewhere, they cannot just break into your house and take the cash however

That’s because they don’t have the technical means to extract that money from your house without entering it. I’m sure they would gladly do it if they could.

> Also you haven't answered my question, which I think compares better to this situation than a random million dollars deposited into my account.

In your “car with unpaid option” example I think the manufacturer is in the right to remove it if they didn’t explicitly say you can keep it.

> No one randomly gave this guy an upgrade - it was a warranty replacement with a better item, that happens literally all the time in all kinds of industries. What doesn't happen is the manufacturer turning around few years later and taking the item back.

It’s not clear from the tweet thread if Tesla actually said “sure, you can keep the larger battery”. It seems it was an assumption made by the original owner based on… passage of time and Tesla’s inaction I guess?

>>In your “car with unpaid option” example I think the manufacturer is in the right to remove it if they didn’t explicitly say you can keep it.

See, this is where we're going to disagree. Manufacturer's control over an item ends when the item is sold. If they have an issue with how the car was released from warranty repair, then they can go after the service centre that did the repair, not the owner. Or even if they want to go after the owner, they should do it through legal means, not just modify your product without asking.

>>It’s not clear from the tweet thread if Tesla actually said “sure, you can keep the larger battery”.

Tesla doesn't need to say that. It literally doesn't work like this anywhere, ever. The car was released after the warranty repair, documents were signed for that I'm sure, and after that point the car is what it is. If they installed a larger battery(and enabled it), whether intentionally or by accident, then it belongs to you at that point. Manufacturer should not be able to modify a product you own without your explicit permission, full stop.

I'll use one other analogy and then will give analogies a rest I think.

Imagine picking up a brand new car from the dealer, the car is advertised as having CarPlay support. You buy it, drive it around, then after a year bring it in for its first service - during which the manufacturer goes "oh, but this car was never actually speced with CarPlay support, it must have been a mistake at the factory, we'll remove it now". They might be technically correct, but it literally should be illegal for them to remove it. It's not different than them saying "oh the car was built with 7 seats but we can see that it was ordered with 5, so we removed the 2 extra seats during service" - again, that would be just theft. The car was released from their ownership as-is, and if they have an issue they can pursue it through courts, not just remove an item they think doesn't belong to you.

Like, what if they got it wrong? What if the battery upgrade was actually paid for and Tesla says it wasn't? Do we want them to have unlimited right to modify a product that YOU OWN, just because their database says something? Or should they go through the legal system if they think something is wrong? Because I'm very sure I know what the answer to this one is.

The answer in the UK is "No."

Misdirected payments can be disputed by the reciever in which case it gets settled with legal action by the sender.

There must be a difference between “misdirected” payments vs “they accidentally added a few extra zeros at the end” though. Surely the receiver has no recourse for the latter.

It's the same situation. The money doesn't legally belong to the reciever, but there is little you can do outside of the courts if they want to be a dick about it.

I’m sorry, in what world is having an actual 90 physically installed by Tesla, and enabled physically by Tesla, able to be used and reported as such in the Tesla UI less relevant than some row in the Tesla sales db? Tesla did put in the 90 and enable it!

The fact that there isn’t a receipt proving that anybody paid for it is irrelevant. It could have been a gift, a reward, a thank you, a bribe, a reasonable business decision given the parts on hand, or an accident. Regardless, that’s on Tesla.

Am I required to ask the manufacturer if they will take back the Chrome wheels when I buy a used car just to make sure they didn’t put them on accidentally?

> in what world

In our world? Based on the thread, Tesla did a battery service on a model of car with a 60 battery. Unless it was stated as upgraded, after the service it is still a 60 car to the manufacturer. A 60 car that just happened to be able to run at the performance level of a 90 version. They then state this is a bug and fixed it.

It's immoral on Tesla's side, for sure, but the previous owner selling it as an "upgraded" car without documentation is the real problem. We all know that Tesla does this market segmentation using software, so this should mean that just because the hardware's badge states something does not mean the thing will be guaranteed available.

> Am I required to ask the manufacturer if they will take back the Chrome wheels when I buy a used car just to make sure they didn’t put them on accidentally?

No, but if it turns out you mistook plastic for Chrome, it's on you (or on the seller if they misrepresented it knowingly). Just because you can't see lack of software license, doesn't mean it's there.

If you buy a laptop with a pirated copy of Windows, and later after a couple of updates the OS detects this asks for activation, do you go to Microsoft to ask them to enable your pirated software or do you go to the seller of the laptop?

Who installed the pirated copy in this hypothetical? If it was Microsoft itself for whatever reason, then yeah - it’s on them to make the customer whole.

>If you buy a laptop with a pirated copy of Windows, and later after a couple of updates the OS detects this asks for activation, do you go to Microsoft to ask them to enable your pirated software or do you go to the seller of the laptop?

Except in this scenario, it wasn't pirated by the owner, it was literally installed by Microsoft

> > in what world

> In our world? Based on the thread, Tesla did a battery service on a model of car with a 60 battery. Unless it was stated as upgraded, after the service it is still a 60 car to the manufacturer. A 60 car that just happened to be able to run at the performance level of a 90 version. They then state this is a bug and fixed it.

It is completely irrelevant what type of car it is, they installed a 90 battery and enabled it. This is not a software licence. Are you saying it would also have been OK for Tesla at the next service to take out the battery and reinstall a 60 because they made a mistake 3 years ago? That's exactly what they did here. I also doubt that it is legal, there are implicit contracts in the warranty service and when they put in the 90 battery, you can't just renegade on those things. I have the suspicion that way too many people here have been working for too long in software, which has always been in a grey zone between purchase and licence and thus got away with things that hardware people never did.

> and enabled it

Did they though...? If they did you'd think there'd be documentation of that provided as a part of the service.

The problem with this is that there is no direct comparable parallel. Physical removal is not allowed, and that most agree with. But this is not the same, there was no physical change, only a software lock. You and I would maybe like it to be treated the same, but it isn't yet.

Software licenses are revoked quite frequently. Game console vendors can blacklist serials bricking essential features of a game console, Steam blacklists stolen activation keys, storage providers can "expire" free space from promos that never included a time limit. Porting the law naively would mean all of these are not allowed either.

Did they enable it? Yes. They did. Or it wouldn't have worked. And they wouldn't have been able to disable it.

If I sell a base package of software, and the same codebase has advanced functionality sold as an option/upgrade, with the only difference being the software key used to activate the software, and a version of my software fails the key validation and gives you everything, am I now required to upgrade you to the full version forever?

No one is suggesting that Tesla ought to be obligated to replace the battery for free whenever the new owner wants.

It amazing the hoops that people have been trained to jump through with respect to Tesla. This is a company that has sold vaporware “full self drive” systems for $10k.

Tesla as the sole provider or parts and labor provided a product as a replacement and through their own incompetence failed to install it correctly.

The problem is it's not just a software tweak, you're also lugging around 30kWh of batteries. They are useful when they add range; less so when they're just dead mass.

The response to this would be, fine reduce my range, but also swap out the battery for the proper size.

IIRC some (?) of their lower capacity cars come out of the factory with higher capacity batteries + a software lock and you can pay to enable the extra capacity ($4500 according to this post apparently).

So, the dead mass is there even in brand new cars. I'm guessing the 60 -> 90 swap is because they're not making 60 anymore and it's just all 90 with a software cap... The OP thread even mentions that essentially Tesla forgot to lock the capacity and just left it with the full 90.

Basically it's the whole issue about takebacks of physical features via digital un-licensing. There is no direct parallel in the past. A dealership removing accidentally installed physical components after an unrelated service is unacceptable. A digital provider revoking accidentally provided licenses seems pretty common (I still remember Dropbox giving free storage in very early on promos and later going "oops, that actually expires!"). So this is kind of in the middle. A digital license that controls access to a physical good.

I feel like digital licenses that control access to physical goods should just be banned. Putting a 90kwh battery in a car and not letting people use it is incredibly wasteful in a world where battery supply is a key limiting factor on EV production.

Although I agree with you in some ways, there are things like SSDs that are overprovisioned so they have a bit of extra space that they can use as the flash degrades.

Not having that extra space will dramatically lower the lifespan and reliability of the drive. Same with these batteries.

They just need to be honest about what they're selling.

Aye but with my samsung SSD it's up to me how much overprovisioning there is and I can choose to disable it like

I'd rather have the manufacturer decide. They should know more about the reliability of their own device than a consumer possibly could.

I have a Samsung SSD. How do I know how much to overprovision? 100Mb? 200Mb? 1000Mb?? How would I know?

When they sell an SSD as, say, 2Tb but then I'm expected to assign 20Gb of that just for reliability, that's materially worse than a drive that advertises 2Tb but doesn't count the overprovisioning. But they're both advertised as 2Tb.

If they're selling a 2Tb drive, it should work as a (reliable) 2Tb drive.

Just like hard drives that manage bad blocks themselves.

I had a free sub-domain name go.to/blah offer for life, they started charging, and still went under. Bought by another company, I can't even get that subdomain name any more.

All large silicon chips (dram, CPU, GPU, FPGA, SSD, etc) are built with spare sections to replace non-functional ones. A 6 core CPU could be really only 6 but could also be a disabled 8 core when not enough people buy the more expensive 8 core, and they built too many of them. GPUs can be the same, but there are a dozen different functions that could be broken, so they sell it as the next lower SKU. For example, mining chips don't need HDMI, so if HDMI is broken, normally you would toss a 99% good chip. Contracts for digitally controlled goods need proper consumer protection. Tesla just happens to use the feature a lot. Much cheaper to lose 30kWh worth of raw material that might not have passed qualification, and sell it as a 60, than pay for inventory, scheduling, and swap/configuration stations on your assembly line.

Also, if rumors get out that SKU xyz CAN be overclocked or unlocked 10% of the time when a higher chip is used, people will buy and return 9 cards before getting the bonus, causing lots of grief to the entire supply chain and 9x packaging/refurb costs, and then have to sell as open box at a lower profit. Not gonna happen. These locks are heavily encrypted, or physically unaccessible.

Unless they use different types of batteries for 60kWh that don't have the same energy density.

And assuming the software change didn't account for that by giving a bit more capacity.

>Yeah, morally, but we need to start working to make this guaranteed legally.

Good luck with that. The main reason it isn't illegal is the people who have been in charge of the Federal government are too old to understand computers. They've never updated most laws for the computer age, which is why it's legal to eavesdrop on someone's e-mail but not their paper mail, why corporations aggregating huge amounts of data together to know more about their customers than the customers know is legal, and why it's legal for Tesla to do what they did here.

Get the money, geriatrics and religion out of the US government and make it functional again, then we can fix things like this. Until then, lotsa luck.

> The main reason it isn't illegal is the people who have been in charge of the Federal government are too old to understand computers.

But this is a self-resolving problem. Eventually the older generation will just... you know... die off...

The more problematic thing is the whole lobbying situation where money is doing the talking. Consumers in general don't have nearly enough money to be viable as political pressure.

What really needs to happen is for consumers to be on comparable footing with industry lobbies in terms of political say, and clearly just relying on voting is not cutting it, since you often have cases where all the candidates are different kinds of bad just backed by different lobbies...

Even still, who in their right mind is going to pay a lawyer $10k+ to present a case over a $2k GFX card? Or even do a class action suit just to be mailed a $3 check after the legal fees are worked out... It's all impossibly far from functional.

Indeed. This is recapitulation of the old fight Intel got themselves into trying to implement market discrimination via selling chips that could be overclocked but setting them to underclock because it was cheaper to sell all the same chip and then underclock the ones that didn't pass their performance tests in the warehouse (or even that did, but they didn't have enough low-end chips in the pipeline) then it was to physically make multiple different dies of high and low clock chips.

Tesla installed a 90 battery because it was easier and faster to do that than wait around for a 60 battery to show up in the distribution pipeline. They then let the customer take advantage of the fact that they had given them an "overclocked" battery. Trying to force price discrimination at this point is at the very least a bad look and may actually be a violation of the law regarding principle of second sale.

Yeah. It does remind me of things like heated seat subscriptions for some other brands.

IIRC there you had 2 models, both with the same heated seat hardware, but if you paid for the feature outright during purchase, it will be enabled perpetually even after any resale. But the subscription model would require the subscription be re-applied by the new buyer. And, possibly, if you resold the remaining subscription time would not transfer (?).

Three types:

The person you're responding to meant "can't" as is "socially disallowed".

"Socially disallowed" is not a thing that can be implied through "can't" though, as that's just a convention and courtesy.

OP probably would like to have the legal guarantee, but it's a fight that's still in-progress.

> "Socially disallowed" is not a thing that can be implied through "can't" though ….

You are actually implicitly doing it right there! A slight re-wording of your post is "'Socially disallowed' can't be implied through 'can't'" … meaning that it is socially/linguistically unable to be so implied (though I disagree), not legally or technically so.

And of course there are tons of other examples—when I say that "you can't just [do that thing]", I very often mean it is socially unacceptable to do it, not that it is illegal or technically impossible to do it.

I mean if the goal is "Socially disallowed" it should be "shouldn't".

"Can't" implies some kind of enforcement/compelling force preventing that, either from nature, or some authority (a nation state, a workplace superior, a parent of a child etc.). As much as we might want it, society doesn't act as an authority for this kind of stuff...

Social sanction is an enforcement mechanism.

> Yeah, morally, but we need to start working to make this guaranteed legally.

I'm not sure I disagree with you, but the invocation of the word "morally" here really reminds me of the software licensing debates from twenty-something years ago. Twenty years later most people seem resigned on the software licensing issue (although I doubt their opinion has changed), and they seemed resigned on limiting their ability to run custom software on hardware they paid for (jailbreaking an Apple phone), but there is still plenty of grumbling for software that limits access to hardware features. Tesla limiting the battery capacity is not really different from Apple limiting which OS's you can install on their hardware. Unless I'm missing something?

Yeah, there's no logical distinction, only a moral one.

Imagine 3 scenarios:

Company A rolls out a new mandatory update to a phone that addresses a CPU vulnerability, and to compensate for the reduced performance, overclocks the CPU so now your battery life is 20% shorter.

Company B rolls out a new mandatory update to a phone that improves the battery management so phones do not shut down unexpectedly. However, due to lack of hardware battery reporting when the device was built, they could only estimate the capacity based on the phone's age and natural battery degradation. This causes older phones to have 20% shorter battery life, even though some batteries that were not used as hard could have supported longer.

Company C rolls out a new mandatory update to a phone that detects the phones age and reserves 20% battery capacity on older phones, forcing them to have 20% shorter battery life so users are incentivized to upgrade.

The end result is the same, a phone with worse battery life, but we don't see all of them to be morally the same. The only real difference is the human intent behind it, which is why we probably eventually need regulations that make sure companies should justify that they have a reasonably good intent if challenged. Getting this right is very hard -- you don't want to overburden companies from frivolous cases, but you also want regulations to be effective so they can't just handwave them away.

Too much pedantry. If it doesn't benefit the consumer unequivocally, don't fucking do it.

Better still, tell me what the update does, then offer me the choice.

Obviously that's easier said than done for a complex product, but don't expect sympathy when you screw up. Moving away from monolithic all-or-nothing OS updates would certainly help.

Offering a choice is tricky here. Since failures are significantly affected by the software ability to properly manage the device (and needs to be updated periodically to keep that up to date).

So yeah you can choose to keep the old version and loose warranty, cheers!

Im not sure what the legal side of warranty conditions is. But outdated software is potentially a very real cost to the manufacturer in therms of extra warranty work.