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Sony PlayStation (Games) The Courts Your Rights Online

New Sony PSN ToS: Class Action Waiver Included 378

Posted by timothy
from the furthermore-and-hereuntoagain-be-it-resolved dept.
rwven writes "Yesterday Sony sent an email to PlayStation Network members regarding a change in the Terms of Service for PSN. When agreeing to this new terms of service, you must waive your rights to a class action suit against Sony. I, for one, will not be agreeing to any such thing. You can view section 15 of the new ToS here (PDF)."
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New Sony PSN ToS: Class Action Waiver Included

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  • by joaommp (685612) on Thursday September 15, 2011 @12:37PM (#37410938) Homepage Journal

    Time to go for a class action lawsuit for trying to make us waive our right to a class action lawsuit. Sony can burn in hell.

    • by Moryath (553296) on Thursday September 15, 2011 @12:41PM (#37411010)

      All it takes is one good judge to declare that crap unconscionable and unenforcable. ESPECIALLY since it's blatantly a try to protect their asses after setting off multiple class-action suits that are already on the books in which the only possible outcome is Sony getting their asses handed to them in court.

      • by joaommp (685612)

        No need to declare that crap unconscionable and unenforcable. It's enough to declare that crap. Period.

      • by sexconker (1179573) on Thursday September 15, 2011 @12:56PM (#37411206)

        All it takes is one good judge to declare that crap unconscionable and unenforcable. ESPECIALLY since it's blatantly a try to protect their asses after setting off multiple class-action suits that are already on the books in which the only possible outcome is Sony getting their asses handed to them in court.

        One good judge? Nope, it'll take 5 of them. And they'll have to sit on the Supreme Court.
        Because on April 27th 2011, five trolls on that bench decided that contractual clauses saying you won't join a class action lawsuit trump your rights, even if your state specifically says that such rights can't be tossed aside by some corporate fuck.

        • by sosume (680416)

          Depends on your country. In the EU it's impossible to sign away these rights and including such terms will effectively void the contract. Bring it on, Sony!

          • by augustw (785088)

            They don't void the entire contract (nor render it voidable), they just invalidate the violating clause.

            • by JavaBear (9872)

              If this is rendered unconscionable, it might just render all TOS changes Sony have made since you purchased the hardware and which didn't give you a "balanced" deal unconscionable, as it would mean Sony have been making their changes from a superior bargaining position.

              OtherOS springs to mind...

            • by sosume (680416)

              In case of a one-sided change in the contract to which you will not or can not agree (eg when it contains unfair or invalid terms) the whole contract will be voided by default.

              • by TheSpoom (715771)

                I guarantee there's a severance clause that says that if a section is deemed unenforceable or unconscionable, it is struck and the rest of the contract remains in full force.

        • by Artraze (600366)

          By my interpretation (IANAL), the decision was basically that contracts can set where and how arbitration is applied for dispute resolution without limit. In particular, they may require arbitration for all disputes, and class action arbitration may be limited because it may disrupt the goals of arbitration (which is basically to have an informal dispute resolution). I do agree that it's a pretty weak decision.

          However, that only says that such terms are not _necessarily_ unconscionable, but still seems to

          • by alva_edison (630431) <ThAlEdison.gmail@com> on Thursday September 15, 2011 @02:12PM (#37412248)
            There's a paragraph which most people will miss which states that if you give them notice in writing to a specific address within 30 days of agreeing to the contract, you can opt out of arbitration and retain your right to class action:

            RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. 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.
            • by psmears (629712)
              That's weaselly in a number of ways - not just the fact that few people will read it or realise its significance until they have a reason to sue Sony (and consult a lawyer), but also the fact that the choice is between "you must use arbitration and waive all rights to class action", and "never resolve disputes with any Sony entity via arbitration". No thanks - I'd prefer to hang on to my right to choose whether to enter arbitration or not, or pursue a class action or not, based on the nature of the dispute.
        • by Quila (201335) on Thursday September 15, 2011 @02:00PM (#37412108)

          It's the one that promotes arbitration over lawsuits, it's the one that preempts state laws on the issue.

          This interpretation isn't really new either, since it was held to preempt in Southland Corp. v. Keating. That was a 7-2 decision.

          Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration

          That was in 1984. The law needs to be changed.

      • by Hatta (162192) on Thursday September 15, 2011 @01:06PM (#37411342) Journal

        Where are you going to find a good judge?

      • IANAL, but isn't it illegal and/or non-binding to try to enforce a contract that waves a legal right? For example, I could not pay you $1 in return for you signing a contract that indicates you are my property. Slavery is illegal, so such a contract would not be enforceable.

        While it is an established practice to create a contract that says someone will not pursue further litigation in return for a settlement, it sounds somewhat shifty to try to proactively prevent someone from engaging in litigation.
    • I'm amazed how companies can get away with such shit! Is this even legal ?
      • When the judges on the supreme court are corporatism friendly it becomes legal.

    • by Bengie (1121981)

      It would be like /. putting a ToS that said "You give up your right to reproduce in exchange for using our services"...... ok, bad example.

      How would this be legal?

    • by tgibbs (83782) on Thursday September 15, 2011 @05:25PM (#37414432)

      Class action suits over consumer products are a lawyer scam. It doesn't much matter whether the alleged product flaw is real or not. The lawyer makes a lot of noise in the media and sues for a ridiculous amount of money, then offers to settle for less than it would cost the company to defend itself in court. The company settles--after all, defending itself in court would just generate more news reports and extend the bad publicity for months, and even if they won, would end up cost them more money than the settlement. All the "members of the class" get a piddly settlement, like a gift certificate for more of the company's products, that is barely even decent compensation for the time it took them to fill out the paperwork. But the lawyer gets a slice of all of those piddly settlements which add up to a nice chunk of change--all for no work other than giving a few press conferences and sending a few letters.

  • by Tastecicles (1153671) on Thursday September 15, 2011 @12:38PM (#37410960)

    in order for you to enjoy gaming on PSN, you must first agree to a EULA which automatically waives your right to enjoin a Class Action against Sony should their network be compromised again!?
    Are they expecting their network to be compromised again??
    Is this legal??

    Sony, you are a bunch of deluded fuckheads.

    • by tysonedwards (969693) on Thursday September 15, 2011 @12:43PM (#37411032)
      It is surprising how a company that used to be regarded as the highest quality whatever-it-was-trying-to-sell can now have the level of respect usually afforded used car salesmen.
      • by thomst (1640045)

        tysonedwards should have said:

        It is UNsurprising how a company that used to be regarded as the highest quality whatever-it-was-trying-to-sell when Akio Morita ran it can now have the level of respect usually afforded used car salesmen ever since Howard Stringer took over.

        FTFY

    • by xMrFishx (1956084)
      I believe in England EULAs aren't Legal & Binding, so this sounds a bit dodgy to me. You can't just lose your rights because of some wall of text.
      • Not so sure about that, I think they're more untested. What is interesting is there's a part in UK consumer law, that would take an act of parliment to change, that basically says "You cannot sign away your statutory consumer rights. Not now, not ever. No rule or contract, however phrased, trumps your basic rights as a consumer."

        it's even an essential part of most T&C's in the UK "Your statutory rights are not affected."

    • It's not legal, you can't put terms in a contract like that, there's no way that would ever stand up in court.
      • by Hatta (162192) on Thursday September 15, 2011 @01:09PM (#37411394) Journal

        Of course you can. If you hire enough lawyers almost anything is legal. Notice how no one at Sony has gone to jail for hacking thousands of computers with their rootkit. However, if I just hacked one Sony computer, what do you expect would happen?

        The US government plainly does not care about the law, or its citizens. All they care about is pleasing powerful corporations and well connected individuals.

        • by Caerdwyn (829058)

          >The US government plainly does not care about the law, or its citizens. All they care about is pleasing powerful corporations and well connected individuals.

          And that has what, exactly, to do with Sony? Last time i checked, Sony wasn't an American company, and the ToS change was to be rolled out world-wide, as was the StarForce rootkit on their CDs. No Sony or StarForce people went to jail in any other country either.

          Tell me again what this has to do with the US specifically? Oh, that's right, NOTHING AT ALL.

      • by gstoddart (321705) on Thursday September 15, 2011 @01:11PM (#37411418) Homepage

        It's not legal, you can't put terms in a contract like that, there's no way that would ever stand up in court.

        Sadly, I don't think there's enough established case-law and precedent to make that a guaranteed thing.

        For example, SCOTUS has ruled [wsj.com] that they can force you to arbitration ... so as long as SCOTUS figures the rights of companies trump yours, I fear what you say might not be true.

    • by Anonymous Coward on Thursday September 15, 2011 @01:06PM (#37411350)

      It it legal for a minor to enter such a contract?

    • by WCguru42 (1268530)

      Your use of the word "enjoin" suggests that you were trying to be a pretentious ass. The word you were looking for was "join."

    • by Applekid (993327)

      in order for you to enjoy gaming on PSN, you must first agree to a EULA which automatically waives your right to enjoin a Class Action against Sony should their network be compromised again!?
      Are they expecting their network to be compromised again??
      Is this legal??

      Sony, you are a bunch of deluded fuckheads.

      Also, they sound pretty confident of their new security setup, if you get my meaning.

  • by girlintraining (1395911) on Thursday September 15, 2011 @12:41PM (#37411008)
    Okay, sooo... who's up for a mass individual filing of, oh, say, 20,000 lawsuits? we'll see how well that works when the courts choke to death on paperwork and reconsider that whole "class action" thing being allowed to be thrown out.
    • by esocid (946821)
      It doesn't matter. You can sign away all of your rights as a citizen to any company's ToS, but I can guarantee that no court in the respective country will find that document legally binding. Try as they might.
    • by Kohath (38547) on Thursday September 15, 2011 @01:00PM (#37411272)

      Okay, sooo... who's up for a mass individual filing of, oh, say, 20,000 lawsuits?

      About 12 people.

      • That's the whole point. NO ONE is up for filing 20,000 lawsuits. That's why the corporations are going this route, because they no that no one will be up to filing small lawsuits for claims that might barely get you back triple-digit amounts.
    • http://www.despair.com/frownonthis.html [despair.com]
      DALLAS, TX - January 2nd, 2001 - In a move that has millions across the Internet community frowning, Despair, Inc. today announced that the U.S. Patent and Trademark Office (USPTO) had awarded them a registered trademark for the 'frowny' emoticon which serves as their logo.

      At a press conference, Despair's COO, Dr. E.L.Kersten, announced his intentions to sue "anyone and everyone who uses the so-called 'frowny' emoticon, or our trademarked logo, in their written email c

  • by BaronHethorSamedi (970820) <thebaronsamedi@gmail.com> on Thursday September 15, 2011 @12:45PM (#37411068)
    Maybe there's one floating around here that could comment on whether this might be deemed unconscionable? [wikipedia.org]

    Seems to me Sony is spontanteously forcing users to renegotiate their use contract in a decidedly one-sided fashion. Yes, yes, all EULAs fall into that category, but this seems more like an ongoing service agreement--you've been using PSN for some time, Sony steps in and says, "Hey, if you want to keep using our network, you need to surrender an important right." Just the sort of important right that could put an individual consumer on more even footing with a multinational corporation in asserting his/her entitlements under contract.
    • by Anonymous Coward on Thursday September 15, 2011 @01:13PM (#37411434)

      Arbitration provisions are generally enforceable. Unconscionability is a matter of contract law, which varies by state. In New York, to be unenforcable due to unconscionability, the provision must reflect both "procedural" and "substantive" unconscionability at the time it is made. In other words, one party must have used its superior bargaining position to somehow trick or "surprise" the other party into accepting a term which was unexpected or out of the ordinary, and the term itself must be unreasonably oppressive to the party that was tricked or surprised into accepting it. An example of an unreasonably oppressive arbitration provision would be a requirement to use a particular arbitration body that required a $1000 fee for all parties involved in the arbitration, where the customers in question were only complaining of goods worth $500.

      I fairly doubt Sony's term would be held unenforceable, at least in NY. They warn you about the new arbitration clause in big red bold underlined text on the first page of the EULA. That would seem to dispense with any "procedural unconscionability" objections. Additionally, if you win the arbitration, Sony covers your legal costs, and Sony even provides in the EULA that if you wind up having to engage in arbitration outside your home county, against your preference, they'll pay the additional costs you incur by having to arbitrate out of state.

      This is to say nothing of the provision that actually allows you to OPT OUT of the arbitration provision, making this even more of a non-story. All told, I'd say this will be enforced if anyone ever tests it in the courts.

      —Legal.Troll (only allowed to post once per day because Slashdot fucktards mostly have an irrational hatred of the law and lawyers)

      • by zoward (188110)

        Thanks for weighing in.

      • Generally, the hatred most Slashdotters have of the Law and Lawyers is not irrational :)
      • by hedwards (940851)

        Yes, but, no matter how clear the term might be, if it's introduced after the person buys the product and is required in order to fully use the product, I can't see how that wouldn't be unconscionable by that definition. When it comes to updates, it's pretty naive to suggest that people agree to those having had a legitimate chance to opt out.

        This sort of thing stinks of racketeering. You don't want to sign the new ToS? Well, it would be a shame if something were to happen to you because you didn't get the

    • by PhilHibbs (4537)

      Maybe there's one floating around here that could comment on whether this might be deemed unconscionable? [wikipedia.org]

      The Supreme Court don't think so [ballardspahr.com]

  • Denmark (Score:5, Informative)

    by JavaBear (9872) on Thursday September 15, 2011 @12:48PM (#37411108)

    The law in Denmark is a bit funny on this, which may be why I haven't seen this mail yet.

    Basically you can not waiver your law given rights in a contract, if the contract (ToS) contains such demands, it pretty much invalidates the entire contract...

    • by Splab (574204)

      Actually, not entirely true.

      There are some weird circumstances where you can waive rights, even stuff that is very close to breaking grundloven. Take TV3 survivor or any of the other "reality" TV shows, there has been cases where people have basically been slaves and unable to get out of the contract.

      However, class action lawsuits are a very new phenonemen in Denmark and perhaps Sony isn't even aware of this posibility yet in Denmark? Secondly, no one knows if it's good to run a class action case here yet,

    • I'm quite certain this clause wouldn't be legal almost anywhere; taking away the right to join a class-action suit that could very well be targeted at the contract's owner is such a basic right that I doubt any US judge would allow it, and in most non-US countries we have actual rights and EULAs cannot take away rights already given by laws, EULAs can only extend them. Atleast here in Finland no matter what you do, if you click on "agree" online or if you go to Sony's offices and write "I agree" in person,

  • by ThinkWeak (958195) on Thursday September 15, 2011 @12:50PM (#37411124)
    FTFToS:

    RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. 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, 10 TH 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.

    You just have to go through the pain-staking task of writing them via snail mail and don't forget to keep a copy of your tracking receipt.
    • So all we have to do is write to them and then we still have the right to use a class action against them the next time they give away* our details. Have I got this right?
      • by ThinkWeak (958195)
        IANAL, but I think that's right. Otherwise you'll have to take them to court individually for leaking your information.
      • by v1 (525388) on Thursday September 15, 2011 @01:26PM (#37411614) Homepage Journal

        The problem is, if only say 2% of the people that click Agree actually send that mail, (and that'd be a very optimistic number) then those 2% are the only ones that can engage in a class action suit. And with such small numbers, getting class status will be impossible. And Sony knows this. So there's no point to it, sending that letter is a waste of time unless you are trying to opt out of arbitration instead of class action, and intend to hire a lawyer.

    • Translation: "Let us know your account number so we can disable it for failing to agree to our terms."
  • I think there was a software update a few days ago when I played Madden for the first time, I didn't read the it as usual. Whatever I have my individual suit I can use after the class action suit wins.
  • by Kohath (38547) on Thursday September 15, 2011 @12:53PM (#37411168)

    I'm really going to miss that coupon for 50% off a Spongebob theme that we were going to get in that settlement. I earned that coupon because Sony could have warned me 10 minutes earlier about my credit card info possibly (but almost certainly not) being stolen.

    Lawyers will get $3 million in fees, of course.

    • by Anrego (830717) *

      Dunno if this is a troll or not, but I'll bite anyway.

      The notification thing, which you've underplayed substantially, was only part of the problem.. the rest was negligence in guarding the data in the first place.

      The point about lawyers getting most of the money, with the actual victims ending up with some kind of token compensation definitely stands though.

  • Thank you Ontario! (Score:5, Informative)

    by rveldpau (1765928) on Thursday September 15, 2011 @12:56PM (#37411216)
    Ontario, Quebec and Alberta actually have legislation that prevents such a clause, which renders Section 15 invalid. This is mentioned in an article about a BC consumer filing a lawsuit against Telus, see this [www.cbc.ca]. I haven't tried to track down the actual legislation that prevents these clauses, but CBC tends to be fairly reliable.

    Disclaimer: I am not a lawyer, this is not legal advice.
  • Honestly, why not try it? Either the courts will allow it or they won't, from Sony's point of view all this means is they've gained one possible avenue of defense against future class action suits. Maybe they'll get some bad publicity out of the deal, but it's not as if things could get much worse for them in that regard.
  • If you actually read section 15, it includes instructions for how to opt out of the waiver: send a letter to Sony HQ. Now, let's be honest, this is absolutely retarded. It would be 1000x easier for the customer if there were a web-based way to do this. Send an email. Check this checkbox. Whatever. It seems apparent that Sony feels obligated (legally, perhaps, definitely not morally) to provide this option, but they want to provide it in such a way that the absolute minimum number of customers will take adva
    • by Beorytis (1014777)

      It would be 1000x easier for the customer if there were a web-based way to do this.

      They must have learned this trick from the banks: On one hand they will charge you a fee for getting paper statements instead of electronic delivery, but then they send a privacy policy and require you to mail in a form if you don't want them to share your information with marketers.

      • by Qzukk (229616)

        mail in a form if you don't want them to share your information with marketers

        Form? What form?

        Better send that form certified if you want to prove that they got it.

        Of course, then they'll say they threw away your grandmother's banana bread recipe that you mailed them for some reason.

  • Exclusions from Arbitration.

    YOU AND THE SONY ENTITIES AGREE THAT ANY CLAIM FILED BY YOU OR BY A SONY ENTITY IN SMALL CLAIMS COURT ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 15.

    RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS.

    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.

    I apologize for the capitalization, but this is how it appears in the PDF.

    Terms of Service Agreement [sonyentert...etwork.com]

    You have to be realistic:

    The successful class action lawsuit demands a major investment in time, money and legal talent. It moves through the courts slowly. The return to any individual claimant is often quite trivial.

  • by iplayfast (166447) on Thursday September 15, 2011 @01:16PM (#37411468)

    I've not bought any sony products since they removed the other OS option from the ps3, and I must say they've lost a bunch of money from me. Didn't look at any monitors, tvs, cd or anything else with the hated label.

    apparently I'm not alone.
    http://wololo.net/wagic/2011/04/24/64-of-users-ready-to-boycott-sony-products/ [wololo.net]

  • You cant agree to give up the right to sue or the right to a class action suit. EULAS have zero enforceability when they put silly crap like this in there.

    • by ALeavitt (636946)

      You cant agree to give up the right to sue or the right to a class action suit.

      The United States Supreme Court begs to differ. [supremecourt.gov]

      • by zzsmirkzz (974536)
        Well they also can't prove that "You", personally, of sound mind, agreed to this condition. They do not have your signature. They do not have a witness to your signature. They just have the notion that "Someone" with access to your account, legitimately or not, agreed to said provision, maybe, if they didn't accidentally hit the wrong button. Really they only have your PS3 agreeing to not bring a class action lawsuit against them and even then I think they'd be hard pressed to prove it was your specific PS3
  • Giving up a chance at a $5 PSN voucher in some random class action suit.

  • This attempt to change the rules after you've purchased the hardware should be slammed down in the hardest possible fashion. Sony should have to refund in full the purchase price of the PS3 and all games and accessories that you purchased for it if you don't wish to accept the new terms.

    This post also incorporates all of the above suggested punishments and outrages against Sony times 2.
  • by makubesu (1910402) on Thursday September 15, 2011 @05:31PM (#37414496)
    this! Why who would buy from a company with such rules?
    Oh, haha, that's right, basically all of their old customers. Apathy will win in the end. I guess this is just one further thing we can expect from our cans of soup EULAs 10 years from now.
  • by Khyber (864651) <techkitsune@gmail.com> on Thursday September 15, 2011 @06:19PM (#37414932) Homepage Journal

    You'll get more money (and they'll lose more) in small claims court.

Never tell people how to do things. Tell them WHAT to do and they will surprise you with their ingenuity. -- Gen. George S. Patton, Jr.

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