Sony requires you to agree you won’t sue to play PS3 games online

September 16, 2011 By Molly McHugh

Hidden in an upgrade are Sony's new terms, which take away your right to participate in a class action lawsuit.

It wasn’t long ago that we could barely keep up on the unending, daily accounts of Sony PlayStation hacks. The PSN and other Sony Web properties worldwide were subject to hackers for months, and users found themselves unable to use their subscription services as well as risking their credit card and personal data.

To say Sony’s reputation was tarnished would be something of an understatement. The company did what it could to placate user frustrations, but the PSN Welcome Back program and the promise of free games isn’t going to make anyone forget. And because of that, Sony is issuing a few updates to its terms of service.

Users will be asked to perform a mandatory upgrade on their PS3’s, which will include this new jargon:

Any dispute resolution proceedings, whether in arbitration or court will be conducted 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.

Basically, Sony is trying to cover its bases from being held fully responsible should something like the PlayStation hacks ever happen again. The PSN security breach unsurprisingly resulted in a class action lawsuit filed against the company in April, a case which remains ongoing. By electronically pigeon-holing customers into this agreement barring them from joining class action suits, Sony could avoid more court time as a result of hacks. There’s no way to by-pass the new TOS via the upgrade, instead you’ll have to send a letter to the company’s headquarters in Los Angeles. Saying no to the upgrade means you can’t play games online.

We’d suggest taking the time to pen that letter. Sony’s taking great measures to improve the security of its network, but sneaking a clause like this into an upgrade and requiring it to play online games doesn’t speak well of a company’s intentions. Given the amount of users who are likely to barely glance at the legal-speak and hit “accept,” the whole thing feels a bit underhanded.

Showing 37 comments

jesterking at 8:20am 19th September 2011 Ryan, they still require you to upgrade to the current firmware in order to play new games... So, you basically buy a piece of hardware, and can't use it unless you update the software and agree to the terms. I wouldn't care much about agreeing to the terms, becuase I don't play online or buy things from their store anyway. But to tell me that I must upgrade my firmware and have features removed that I use almost daily (like the OtherOS) is just bull... They should sperate the ToS and the firmware for people who don't want to upgrade.
1. agafaba at 9:58am 19th September 2011 I agree that it sucks, although from what I can gather Arbitration isnt so bad anyway. My comment was just that they are not trying to sneak it past anyone, they made their intentions clear in the email.What were the terms for Sony Network Entertainment International anyway? We may just be agreeing to what everyone else in the world already goes by.
  1. jesterking at 7:24am 26th September 2011 If everyone jumps off a bridge...;)
    agafaba at 3:38pm 26th September 2011 Then its unlikely they were discussing the difference between changing the ToS of an existing entity and merging that same entity into an already existent one with its own set of ToS.Would you rather the entire world change their ToS to match Americas?
    jesterking at 9:20am 28th September 2011 I would rather that no one changes any ToS to match anyone! As consumers we seem to have forgotten that we control how things work... But Sony is doing their best to make people think otherwise... We as a society just fall inline with what the company wants... Instead of not upgrading and not playing the new games, we blindly accept the terms without reading them. How many of us do you think actually read this ToS before accepting them? I have a suspicion... not many.
    agafaba at 1:47pm 28th September 2011 Well in this case you would have to also blindly ignore the e-mail, and if you dont read the ToS and dont read emails then I dont know what else they could do... Mail a physical letter (and hope it doesnt get tossed) or call you I guess.Technically they didnt change the ToS though, Sony Network America doesnt exist anymore, and neither does its ToS. Sony Network International does continue to exist, with its own set of terms. What changed is who your dealing with when you go online, and Sony international simply stated you can agree with their terms or you can get a refund.
    
    agafaba at 1:51pm 28th September 2011 As for falling in line, its a companies right to say this is their policy, if you dont like it dont sign up. If enough people decide that its unacceptable then they can decide to lose those customers or change their policies. If these changes end up sinking sony then it is all their fault, but it is still completely under their control. Being willfully ignorant does not excuse someone from following their terms though, and even the new terms allow you to go after them for damages, just not as part of a class action lawsuit (unless you already joined one, in that case you would continue to be part of it)
    jesterking at 7:31am 29th September 2011 So, what would you do if you don't want to go online, and want to keep the functionality of the system that you own, and continue to play new games? There is no opt-out feature... ya know?p.s. I never got an email from Sony about the new ToS.
    jesterking at 4:07pm 30th September 2011 Well well well, look what I just got from an attorney that is handling the class action lawsuit involving the removal of the OtherOS. I think you'll find it interesting:Dear PS3 User:You are receiving this email message because you previously contacted this or another law firm regarding the Sony PlayStation 3 "Other OS" litigation.Sony's new Terms of Service include a class action waiver clause. You have the right to refuse to waive your rights. To do so, send a letter no later than 30 days of the date you accepted Sony's new terms of service (which were issued on or about September 15, 2011), stating the following:SNEI6080 CENTER DRIVE, 10TH FLOORLOS ANGELES, CA 90045ATTN: LEGAL DEPARTMENT/ARBITRATIONRe: Opt Out of Arbitration and Class Action WaiverDear SNEI:I do not wish to resolve disputes with any Sony entity through arbitration, and I decline to waive my right to participate in any class action lawsuit or seek relief in a court of law. The following is my contact information:Name:Address:PSN Account number (if any):Thank you.Signed,Your NameIf you have any questions, please do not hesitate to contact us. Thank you.
agafaba at 8:16am 19th September 2011 Although there are new terms, I would hardly say its hidden, recieved an email from sony with this being the first paragraph"On September 15, 2011, Sony Network Entertainment America Inc. ("SNEA") will transfer its online services operations, including your wallet and the funds in it, to Sony Network Entertainment International LLC ("SNEI"). The first time you sign in to your PlayStation®Network account on or after September 15, 2011, you will be asked to enter into a new Terms of Service and User Agreement ("TOS") and Privacy Policy with SNEI if you wish to continue using your PlayStation®Network account. Please review all changes to the TOS and Privacy Policy carefully before indicating your agreement. In particular, please review Section 15 of the TOS, which now includes a class action waiver and requires that most disputes be resolved through arbitration. "
1. Ian Bell at 9:53am 19th September 2011 Reply below.
Adam Hughes at 2:33pm 17th September 2011 You can even class action sue them. It's means absolutely nothing in a legal sense it prevents you from initiating nothing.
Adam Hughes at 2:31pm 17th September 2011 Thank you aaron and chris for adding some sense to this thread with me
Adam Hughes at 2:27pm 17th September 2011 Lol. People, this little clause DOES NOT disallow you from suing Sony! laughable scare tactic to dissuade the uninformed from exercising their legal right. You can sti sue if they did something worth suing.
Mark Caldera at 3:18am 17th September 2011 When my son told me Freemasons killed JFK, and I asked where did you hear this and he replied PS3, I was done with Sony, they are trying to illuminate( Brainwash) game players
Kevin Doherty at 2:01am 17th September 2011 Tell that to the masses, I'm not saying we have no power, but how many people do you think would listen or even give a shit?
Richard Wills at 11:42pm 16th September 2011 don't buy anything from sony anymore or any company anymore that makes you sign something like this.
Damon Schmitt at 7:46pm 16th September 2011 The Free Market has spoken.
Matthew Green at 7:26pm 16th September 2011 "the consumer doesn't own the company" is TOTAL BS. Stop buying anything Sony and watch them crumble. Besides.. this whole thing is BS. Is just means "We can do what we want and you can't stop us" bloody Empire... just wait until Luke hers about this.
Pramod Patil at 7:09pm 16th September 2011 it all means Sony is not confident on its security and there may be more damage to come or not conveyed to consumers. At the end of the day i feem happy to play games on PS, however, expect sony to take securiry more seriously.
jesterking at 12:02pm 16th September 2011 What about those of us who don't want to upgrade our firmware due to absurd clauses in their agreements, but are being held hostage of not being able to play any new game that comes out that Sony requires the firmware upgrade to? They are forcing us to agree to their terms, or deem our systems useless inthe future... That's not right. That's not fair. This business practice should be examined. There is nothing that is really required in the new firmware to play the games... Other than the agreement of the new terms. It's a hostage tactic, and it's a bully tactic... screw $ony. I won't upgrade, and I will join in any class action lawsuite just in spite of them now.
Kevin Doherty at 6:33pm 16th September 2011 They can do whatever they want really, the consumer doesn't own the company, and even if people say they won't buy Sonys products, that would only be a small handle out of millions. This is the world we live in I guess, all about profit and not quality of service.
Chris Johnson at 6:18pm 16th September 2011 This is interesting. What it’s saying is that if you sue Sony (for whatever reason) you must do so on an individual basis and cannot start and/or join a class action lawsuit that would be filed against Sony.Everyone knows that a class action lawsuit is a great way to get money for doing nothing – Circuit City paid me and a lot of other people a ton of money a few years ago because of a class action due to unpaid wages. For obvious reasons, Sony would rather settle every individual case out of court for an undisclosed amount of money, as opposed to paying a lump sum to be divided by anyone involved in this issue.The reason that I found this so interesting is that if someone ended up having their account stolen, they could file a suit against Sony, refuse to settle and take their a chances in court, if Sony was found liable, a jury might throw the book at Sony. Granted, Sony would appeal but if they lost one, it would set a precedent for more people to sue and who knows how many suits Sony could lose (of course, I’m sure most people would settle and not deal with the legal proceedings).To me, it sounds like Sony is willing to pay but not to everyone who was involved but wasn’t necessarily affected; I think that’s both fair and a relativity smart business move.
Bradley Wint at 6:18pm 16th September 2011 fair argument...but let's say you're writing an essay... you look it over from different angle a million times... then someone else reads it and finds errors immediately... sometimes small things get overlooked...even the CIA and FBI have their sites cracked easily...and they're supposed to be the gods of security. Sony did a good job handling the whole situation imo... hopefully they will try to keep up in the security department... but nothing is perfect, so its an accepted risk when you post your information to their servers.
Aaron Timm at 6:18pm 16th September 2011 Except that any lawyer worth his salt knows how easy it is to legally ignore that sort of thing. Just ask anyone who got injured on a ride where they had to sign a waiver.
Tim Bevins at 6:16pm 16th September 2011 That's one very lame way to say they don't have good security - blame the victims.
Blake Tibbetts at 6:13pm 16th September 2011 They always need to be on top, always looking for new solutions and better protection. ALWAYS.
Blake Tibbetts at 6:11pm 16th September 2011 It doesn't matter. That should have been in place before-hand. For a company so large, they should have seen it coming and prevented such things from happening.
Bradley Wint at 6:11pm 16th September 2011 the thing is..no service is impenetrable. look at how many established organizations got knocked down recently... its a sign that they need to step it up but because programmers are human, there will always be loopholes in systems for hackers to exploit..also some loopholes are intentional...just in case they themselves screw up and need to get in through the back door.
Nima Soleimany at 6:08pm 16th September 2011 for those who had their information stolen, sure, but sony did their best to settle it offering credit protection services and now all those credit cards are being monitored
Blake Tibbetts at 6:06pm 16th September 2011 They have every right to sue Sony. Their 'secure' information was stolen.
Nima Soleimany at 6:04pm 16th September 2011 no i would still keep my ps3 overall. xbox is the worst quality console money can buy you, far more worst than wii but i can argue that later.
Bradley Wint at 6:04pm 16th September 2011 who could blame them. PS fans already dont pay for the service yet they want to sue Sony? talk about being greedy
Blake Tibbetts at 6:03pm 16th September 2011 LOL. Another reason not to buy a PS3.
Nima Soleimany at 6:01pm 16th September 2011 dear digital trends, sorry if im a bit lazy on the research side but is there anyway you could get/add the information to send letters to their l.a. offices? it would be much appreciated. and also wanted to say i love your updates, it makes it worth coming on facebook seeing important news feeds rather than useless junk other people talk about
Demii Love at 6:01pm 16th September 2011 :D
bclark at 11:00am 16th September 2011 They are setting a very bad precedent if they are allowed to do this. It's one thing to sign a doctor's waiver due to the nature of medicine and hospital care but if all companies start indemnifying themselves before they even let customers use their products I see a very slippery slope of problems cropping up - think lack of regard for consumer safety. If consumers start signing away their rights why should Sony or any other company really care if their products harm you. Is this even legal?