State of the Industry

State of the Industry
Self-serving Small Print

Douglas Heaven | 10 May 2011 12:26
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When Sony issued Update 3.21 on 1 April 2010, it presented owners of fat PS3s with a stark choice. Accepting the update meant accepting the removal of OtherOS, a feature that allowed the installation of other operating systems on the console; declining the update meant forfeiting access to the PlayStation Network (PSN), including the online store, any remaining credit, PlayStation Home, and online gaming. "We don't say it's a game console. PlayStation 3 is clearly a computer," boasted Ken Kutaragi in 2006, but now people had to choose between the two. Disregarding all of its own pre-launch hype, Sony no longer wanted its customers to have both.

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Mark Ashelford, a partner at London law firm Lee & Thompson who specializes in rights issues for digital media, has worked with both games developers and streaming services and likens the current state of the industry to the Wild West. There is a balance to be made between the lawless frontier where "everyone's taking digital content from anywhere they can get it" and the convenience of managed distribution offered by publishers and games-on-demand services that "take on the role of sheriff, where the consequences of breaching the rules are that you're kicked out of the town." But what happens when a sheriff enforces rules that are self-serving or too stringent, or unfairly refuses the right of reply?

OtherOS was at best a niche feature, mainly of interest to hobbyists and researchers (and the US military, which took advantage of OtherOS by hitching approximately 2000 PS3s together into a budget supercomputer and probably didn't mind giving up its trophy collection). Edge magazine captured the attitude of much of the gaming press when it noted the passing of OtherOS with an offhand epitaph: "Come on, you were never going to install it anyway."[1]

But surely that is not the point. Whether you thought Sony's action a prudent response to a potential security threat, a knee-jerk reaction to a perceived attack on its intellectual property, or an opportunistic move to disable a feature it no longer wished to support - each of which has its loud and myriad supporters - it is hard to shake the feeling that there is something a little odd about Sony taking away a feature that people had paid for, whether they used it or not. What's more, the EULA that all PSN account holders have agreed to states that Sony is allowed to remove whatever features it likes.

One group of PS3 owners was angered enough by Sony's behavior to file a class action lawsuit, in which they allege that Sony's removal of OtherOS is unlawful. In its defense, Sony is unashamedly falling back on its small print. In an early hearing, Sony's lawyers dismissed the claims against it as "inactionable puffery," arguing that they were "contradicted by the explicit terms of all applicable contracts." Moreover, "these contracts specifically provide PS3 purchasers with a license, not an ownership interest, in the software and in the use of the PSN" and Sony therefore has "the right to disable or alter software features or terminate or limit access to the PSN." The case is yet to be decided but the plaintiffs cannot deny they agreed to this.[2]

[1] EDGE 214, May 2010
[2] Quotes taken from court transcript available from http://www.groklaw.net/pdf2/SonyPS3OtherOS-109.pdf

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