Sony sued over PSN "can't sue us" clause | Hacker News Reader

Sony sued over PSN "can't sue us" clause

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174 pointsukdm70 comments

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).

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.

I see no paradox. Their legal funds are larger than yours, so they can do whatever they want.

Uh no; they can't. Or more precisely: It probably very much depends on the jurisdiction (or country).

The absolute fundamental basis of contract law (at least around here, but I strongly suspect this to be a more or less universal concept) is that a contract is negotiated in good faith from both parties.

I'd wager (and no IANAL) that a bait and switch scheme (and it's exactly that when a contract is suddenly unilaterally changed on the whim of one party) is fundamentally contradictory to this very concept and thus invalid.

Sure: They try it anyway, but I would be very, very surprised if such a scam is upheld by a court.

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.

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

Well, certain rights can't be signed away. I really suspect this is one of them. If you stand in front of a Jury and say "yes, I signed it. I couldn't use what I paid good money for if I didn't!" all 12 of them are going to feel your pain.

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.

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?

More like you can now not drive on the highway. You can drive around in the suburbs (single player) but if you had a house far way (PSN+, XBL Gold) you can't get a refund even though you prepaid a years worth of rent.

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

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

LOL I have the same fantasy...a tiny written statement on the back of a check or inserted into a payment envelope...

They do this. If the terms they present don't match the terms you present, you can refuse to pay them.

Oh, I understand what you are saying. And in truth, you could propose this. You could contact them with a counter proposal, and they'd probably just turn you down.

What would be interesting is a service that defines your default conditions in an easy to parse manner. You could then provide it to the service, and it could tell you quickly whether it met your needs, etc.

A better solution would be a political and legal reform, so crap like this from the heights of $$$ stops "trickling down" on everyone else.

It would be difficult but possible to organize a user's union that accepted/denied terms as a group. Something like a better business organization for software services. Hmmm -- the more I think about it the difficulties increase and the possibility decreases.

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

They do. This is why, even after you are shipped a product from a merchant, you can go to your credit card company, take the money back from the merchant and ding them an extra fee on top. Meanwhile, there doesn't seem to be a good way for merchants to cite customers for fraudulent usages of these mechanisms (you might win the chargeback, but honestly if that happens the customer's credit card should be put on hold or cancelled).

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."

>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;

Technically true, but merchants can offer a cash discount. It's effectively the same thing, with the key difference being that they can lower their stated price if you pay in cash, but they can't raise their price at time of purchase if you choose to use a credit card.

>the answer to the second question is not ever.

The FAQ is out of date on this point. Visa, Mastercard, and AmEx all started allowing a $10 minimum purchase last year:

http://consumerist.com/2010/09/amex-visa-mastercard-all-give...

As the article notes, this was a provision of the Dodd-Frank Act.

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)

I had checks printed up that had that wording with a URL pointing to a page of T&C. It was the same language that was on my phone / cable bill. The checking account and the page are long gone, but it only had a couple of clauses. One was that this agreement overrides any other and that my ISP/web host was to notify me in writing via certified mail and allow a 2-week grace period before taking my account down for overages. They had a habit of preemptively taking down my site if I reached 85% of my bandwidth before the 15th of the month. And it was only down for the internet at large. Anyone on the ISP, including me, could still see it fine, which was very frustrating.

They always cashed the checks without complaint but I moved to a better hosting company about a year later and never got a chance to invoke the "agreement".

Nice idea about the checks. I need new ones and I just might see about doing similar myself.

Legally, you'd have to show a meeting of the minds.

I'm not sure if Sony can show that for their agreements, can they?

Well in theory, they presented a contract to you, you read it/had the opertunity to read it, and 'signed it', by agreeing to it.

Twould be interesting to try proving otherwise, since everyone knows people don't read, yet alone understand, those contracts.

Further, you can't use the device you've bought unless you click "agree". Anything else won't let you use it. I seriously doubt those things would hold up in court.

You're not the only one[1]:

<DmncAtrny> I will write on a huge cement block "BY ACCEPTING THIS BRICK THROUGH YOUR WINDOW, YOU ACCEPT IT AS IS AND AGREE TO MY DISCLAIMER OF ALL WARRANTIES, EXPRESS OR IMPLIED, AS WELL AS DISCLAIMERS OF ALL LIABILITY, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL, THAT MAY ARISE FROM THE INSTALLATION OF THIS BRICK INTO YOUR BUILDING." <DmncAtrny> And then hurl it through the window of a Sony officer <DmncAtrny> and run like hell

[1] http://bash.org/?577451

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

I must respectfully disagree. It can be a significant and useful feature of a contract fully negotiated by parties of equal bargaining power and it comes up quite frequently as something desired by both sides in contracts between sophisticated entities like businesses.

I do however find clauses like this absolutely abhorrent in a take it or leave it contract where the bargaining power is grossly uneven. I find it even more disturbing when such contracts are essentially presented after the fact, such as when printed on the back of a ticket or...included as part of a mandatory update for a system you purchased long ago and can no longer return.

This. I feel that the law should make a sharp distinction between "a contract fully negotiated by parties of equal bargaining power and it comes up quite frequently as something desired by both sides in contracts between sophisticated entities" and the sort of cookie-cutter fine-print contracts that consumers are presented with. One should be able to agree to very broad things in a fully negotiated contract. Consumer contracts, on the other hand, should be quite restricted both in power and in length.

It probably isn't. But that doesn't mean they can't put it in the terms. Now you have to fight two things. First the terms and then the thing you are actually suing for. How convenient. Most people give up at the thought of that.

Hopefully this will set a precedent.

Not in advance of the dispute arising anyway.

Example of a law that makes arbitration clauses unenforceable against consumers in New Zealand unless they agree otherwise after the dispute arises:

http://www.legislation.govt.nz/act/public/1996/0099/latest/D...

As far as I'm aware, this kind of clause can't be enforced in the EU so if you're in Europe, sue away!

Interesting, got a source?

Not sure about Europe, but Portugal has all kinds of laws that says you can't sign your rights away in any contract (contract is declared void if it goes against this and as such, initial rights prevail)

There might be some cases where it makes sense. Think about stupidly extreme sports (SES) for example. If someone organises a SES event for you, it might be reasonable for you to have an agreement that says they checked everything they could and you were informed about everything you should. But you shouldn't be able to sue them when you get hurt, since you knew from the beginning the whole thing will be dangerous. It doesn't have to be SES to apply this logic to some extent however. Every time I go kayaking on an artificial course I sign some "I'm aware this is dangerous and I want to do it anyway" papers. I'm sure those papers would be the first thing presented in court if I wanted to sue the organisers for breaking some bones. It's not giving up my rights really, but has almost the same effect in a limited scope.

> But you shouldn't be able to sue them when you get hurt, since you knew from the beginning the whole thing will be dangerous.

Why not? Just because you sue them doesn't mean you're going to win. Maybe stupidly extreme sports purposely made the event more dangerous to ensure your injuries (and subsequent ratings). Signing away your right to sue puts you in an almost infinitely dangerous position.

If that is the case, any business that provides any activity that is remotely dangerous would not be able to stay in business without the huge overhead of a powerful legal team backing it. Consider skydiving, watersports, or even karting.

The high cost of frivolous legal defense is a completely separate issue. It should not be the basis for denying the right to sue. If someone is injured skydiving, it should up to a court to decide if that was a reasonable expectation or if there was negligence on the part of the business. The court shouldn't need to take months and tens of thousands of dollars to make such a determination.

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.

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.

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.

I know this is fine when everyone is being moral/rational. But what prevents someone from maliciously suing the skating (or something more dangerous, such as skydiving) place for something they weren't really responsible for?

Nothing. But to win they would have to show that the company really was responsible for it, since the accused is innocent until proven guilty. The accused can also request a trial by jury; 12 people generally make the right decision.

(Note: not legal advice, and possibly only relevant to the US)

IANAL but have you ever read an Open Source license? Or almost any other software license? If you cannot unload liabilities onto the consumer, you cannot have Open Source code. If you could sue for a defective "free" product we would be worse off. Or do you want to require all software to always, legally "work". At some point, customers should be held accountable for their choices.

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-...

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.

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.

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

Tied with RIM.

And Nokia. And, arguably, Netflix.

We'll call it "The Digg Awards".

HP already won last years.

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

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.

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.

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

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.

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.

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.

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.

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.

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.

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!

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.

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.

I made the same commitment at the same time (though I've probably paid to see Sony movies, alas), but I was still looking enviously at their laptops last time I was buying one.

Still, it gives me a fair amount of satisfaction to choose something else over Sony when the products are next to each other on a shelf.

Sony just lost about $600 the other day when I bought a TV, rejecting the otherwise perfectly good Sony option. That's neither the first, nor likely the last, purchasing decision they'll be excluded from.

I'm not buying Sony products since they tried to make everyone to use memory stick. Unfortunately, sometimes they create products that are not matched by the competition: they shipped reasonable e-ink reader well ahead of everyone; now Nex 7 looks like a camera that outperforms others in the segment.

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.

Godel, Escher, Sony?

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