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If Sony PS3 users blindly click through the console's terms of service, they sign away their right to bring class action suits against Sony or join existing class actions.  (Source: Simpsons/Matt Groening/20th Century Fox)
Updates terms of service state that the customer is guaranteeing if it sues Sony it can't be a class action

Uh oh, Japan's Sony Corp. (TYO:6758) is back at it again.  The company who installed malicious rootkits on users computers via music CD, banished OtherOS from the PS3, and legally harassed/tried to sue into bankruptcy hardware enthusiasts who modified the firmware of the Playstations they legally purchased, has come back with another controversial policy.

In an update to its popular PS3 gaming console Sony writes in the Terms of Service (TOS) that the user guarantees:
ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND THE SONY ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS PROVISION DOES NOT PRECLUDE YOUR PARTICIPATION AS A MEMBER IN A CLASS ACTION FILED ON OR BEFORE AUGUST 20, 2011.
The contract is similar to the one presented by some employers.  Since a 1984 U.S. Supreme Court ruling, binding arbitration has been increasingly used by corporations to escape lawsuits when behaving abusively.  

Here's how binding arbitration works.  The signer waives their rights to join or bring class action lawsuits.  Instead, they can present their case to an "arbitrator" appointed by the company.  This is essentially equivalent to a dismissal, as the company's "unbiased" private arbitrator nearly almost always dismisses the case.  The only alternative allowed is an individual suit against Sony, which again, will likely be a lost cause given that Sony has high powered attorneys on retainer, which will seek to quickly have your claims dismissed without the power of a class.

Unfortunately even if you don't sign such contracts, just receiving them is enough to partially nullify your right to due process, according to recent rulings.

Fortunately Sony has offered customers an opt out.  The TOS states:
IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 15, YOU MUST NOTIFY SNEI IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 6080 CENTER DRIVE, 10TH FLOOR, LOS ANGELES, CA 90045, ATTN: LEGAL DEPARTMENT/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR PSN ACCOUNT NUMBER, IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ANY SONY ENTITY THROUGH ARBITRATION.
In other words Sony provides no electronic opt out, you must write it a letter.  And of course Sony could claim not to have received that letter, unless you pay extra for tracking and signature on delivery.

Why all the legal gymnastics in the terms of service?  Well, several lawsuits are pending class action status against Sony.  Most involve the company's failure to protect PS3 users' private data, including credit cards, from hackers.  Sony was hacked dozens of times [1][2][3][4][5][6][7] in recent months thanks to woefully lacking security.  

Granted the change may not exempt Sony from some of these lawsuits, which were filed before August 20.  It does, however, prevent users from participating in future class actions should Sony conduct itself in an abusive or negligent manner.

Of course, should the Supreme Court overturn such "opt in" contracts, Sony ability to pressure users into signing away their rights could vanish.  However, there's little guarantee that will happen anytime soon.


Comments     Threshold


This article is over a month old, voting and posting comments is disabled

Meh...
By Kharohz on 9/16/2011 7:21:13 PM , Rating: -1
How about you just click accept and move on, what are the incredibly low odds that you would actually be a part of a class action or even a personal one with Sony?

If you didn't get a new CC to replace the one that was compromised, and in the unlikely event that your account was one of the rare ones that was used. You deserve to lose any money that was taken from you.

You should sue yourself for being stupid instead of Sony.

Crap happens, anyone can be hacked, your information isn't truly safe anywhere. This is why you should be on top of your finances, and act accordingly when something bad happens.




RE: Meh...
By FastEddieLB on 9/16/11, Rating: 0
RE: Meh...
By Hiawa23 on 9/17/2011 2:42:40 AM , Rating: 3
I have no intention of being in court for months or years on end just to be awarded a couple thousand dollars after legal fees, taxes, etc. I use my PS3 for exactly what it was designed to do: play PS3 games. I'm not about to sue Sony, so this has no effect on me whatsoever. All Sony is doing is covering their asses and after the way they've been treated lately I don't blame them at all.

I agree with this, mine only plays games, & bluray movies, so no issues accepting the terms.


RE: Meh...
By nikon133 on 9/18/2011 8:36:14 PM , Rating: 2
Completely agree.

If I'm not happy with Sony, I will not support them any more by buying their games and next-gen console; I'll move my gaming somewhere else. But I'm not going to sue them. It is not like I've spent my life-savings on them.

I have a life to live...


RE: Meh...
By danjw1 on 9/17/2011 11:05:22 AM , Rating: 3
Huh? They used terrible security and allowed hackers to steal users personal information. How is that "nothing wrong"? They are big enough of a company to be able to afford to properly protect data, but it was too much of a bother. If you want hackers to have your credit card number, sure, stay with Sony.


RE: Meh...
By Reclaimer77 on 9/17/11, Rating: -1
RE: Meh...
By nikon133 on 9/18/2011 8:31:41 PM , Rating: 2
Their security was not as good as it should have been, but then, their PSN is free for everyone, so they don't have MS benefits of leeching extra customers' money for on-line gaming.

Funny thing is, two of my mates moved from X360 to PS3 since July; they found free online gaming more tempting than (supposedly) better security... and they are both IT professionals, well aware of what Sony was going through recently.


RE: Meh...
By Nfarce on 9/16/2011 8:05:52 PM , Rating: 2
Exactly (and I was wondering what the hell that was about last night, but too drunk to care).

But you have to remember that in these modern times, we have a lot of bed wetters out there that can't accept and handle personal responsibility and need someone else (or the government) to manage it for them.

The free market will always reign. If Sony makes similar mistakes in the future and pisses enough people off, their PlayStation gaming platform will go the way of a feathered dinosaur.

I would have no problem whatsoever switching to the Xbox for console gaming to supplement my PC gaming. For now it just so happens that most of my friends have a PS3 as well.


RE: Meh...
By futrtrubl on 9/17/2011 12:25:21 AM , Rating: 2
Sorry but I really did have to say this...
quote:
their PlayStation gaming platform will go the way of a feathered dinosaur

Umm it will continue to exist and eventually rule the skies? Birds ARE feathered dinosaurs.


RE: Meh...
By Nfarce on 9/17/2011 4:52:57 PM , Rating: 2
Uhm, actually they evolved into birds. If you see any feathered lizards flying around, please take a picture of it.


RE: Meh...
By Fritzr on 9/18/2011 6:02:00 PM , Rating: 2
Lizards are a separate branch from the dinosaurs ... Crocodilians and turtles are also NOT descended from dinosaurs.

Among the differences, the dinosaurs of the Age of Dinosaurs are known to have had feathers & were warm blooded. We call their modern descendants "birds".

Americans traditionally have a centerpiece dish of oven roasted dinosaur on Thanksgiving.


RE: Meh...
By JKflipflop98 on 9/16/2011 9:02:43 PM , Rating: 5
I'm sorry, but you're a moron. Stating that someone "deserves to lose any money taken from you" due to Sony's cock-up is one of the dumbest things I've possibly ever heard. It's right up there with "well, it's her fault she got raped". Wow.


RE: Meh...
By cmdrdredd on 9/17/11, Rating: -1
RE: Meh...
By chick0n on 9/23/2011 1:22:09 AM , Rating: 2
you need to learn how to read, moron.


RE: Meh...
By dark matter on 9/17/2011 2:15:25 AM , Rating: 3
So, you're liable for the actions of EVERY organisation you do business with because somehow it's your fault if one them isn't maintaining the correct level of security...

What a douche.


RE: Meh...
By Reclaimer77 on 9/17/11, Rating: 0
RE: Meh...
By BugblatterIII on 9/19/2011 6:51:19 PM , Rating: 2
They need a -6 thing on here.


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