5 ms·

This shouldn't even be legal. Since it probably is; I think these days most people are probably buying a PS3 for PSN so if users can no longer access it they s

by danssig 15y ago

This shouldn't even be legal. Since it probably is; I think these days most people are probably buying a PS3 for PSN so if users can no longer access it they should bring the device back and demand their money bag. If Sony gets away with this expect more companies to follow suit.

andrewgodwin 15y ago
I'm not even sure it is legal in the UK - we have laws against "unfair contracts" [1], and there are also some statutory consumer protections that can't be waived. Of course, this is about security breaches, and IANAL, but I'd say this doesn't stop all potential lawsuits. [1] http://www.oft.gov.uk/about-the-oft/legal-powers/legal/unfair-terms/guidance http://www.oft.gov.uk/about-the-oft/legal-powers/legal/unfai...
- ugh 15y ago
  It’s complicated but I think many countries have pretty strong protections for consumers against unusual or unexpected clauses in contracts. I would be very surprised if this part of the terms would be enforceable, for example, in Germany.
  - gavinballard 15y ago
    The title of this article is somewhat misleading. A clause that prevented any right of action whatsoever would most likely be illegal in many countries (including, I think, all EU countries, the US and Australia/NZ). However, "binding arbitration" clauses which require parties to submit to alternative dispute resolution procedures before any legal action is taken are actually quite common (perhaps more common in Aus/NZ, the UK and the EU than in the US?). They're a common feature of mobile phone contracts, internet contracts, et cetera. Edit: I see this question has been given excellent treatment here: http://news.ycombinator.com/item?id=3001086 http://news.ycombinator.com/item?id=3001086
    - tnorthcutt 15y ago
      Binding arbitration clauses are quite common in the US, as well.
- sneak 15y ago
  The only people qualified to determine whether a contract is fair or not are the parties that do or do not sign it.
  - dhimes 15y ago
    I completely disagree. Being able to determine whether or not a contract is fair depends on domain knowledge. In the US anyway, being able to sign a contract is no indicator of domain knowledge. It is dependent on age and, if you represent another entity, your status as an agent for that entity.
    - sneak 15y ago
      Agreed. However, even with that domain knowledge, an outside party cannot determine for one of the parties whether or not they find it "fair" or not. This is not the role of government. It's common knowledge that contracts require domain knowledge, and if you proceed without it, it's akin to riding a motorcycle without a helmet, eating foods fried in trans fats, or driving a car without a seatbelt. Oh, wait. Nevermind.
roc 15y ago
The SCOTUS recently affirmed that not only are such clauses legal, but that individual States cannot pass laws to forbid them. http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/ http://www.scotusblog.com/case-files/cases/att-mobility-v-co...
- deleted 15y ago
  [deleted]
- dgallagher 15y ago
  If I read that correctly (not a lawyer), SCOTUS ruled that an agreement prohibiting class-action lawsuits is legal if both parties agreed to use individual-arbitration instead. So you can still sue them individually in court, or go through the arbitration process, to grieve a claim against them. My question is, how do you know the end-user agreed to that? You have no signature, video, or audio proof. PSN accounts generally remain logged-in, and it's possible someone other than you agreed to the EULA and upgraded your PS3's firmware, like a guest or roommate, without your knowledge or permission.
  - a3camero 15y ago
    It's really a spectrum of enforceability. It doesn't matter whether it's ironclad. The idea is to discourage suits and to have something to point to when people try to sue you. It may not work but it might help. There are many issues of enforceability and this is one of them (although do you find that argument very convincing? You'd need to be able to point to someone and have some reason for why it was them and not you in order to be convincing).
  - roc 15y ago
    The problem with arbitration is legal resource mismatch and sealed results. Each complainant would have to find, pay for and manage any suit or negotiation (bringing the likelihood of complaints escalating beyond the initial offer to near-zero). And even if a John Doe and his cousin-lawyer managed to dig up a smoking gun, no-one else would know about it. So each individual would go through the process ignorant of other results, while the Corporation builds experience and additional strategic advantage dealing with the situation over and over again. If you approach class-action lawsuits from the standpoint of "what good comes of it for the individual" there's not a big change and I've heard that we could expect more people (who put up with the process) would be more likely to get some award and that such an award is likely to be higher than what they'd get from a class-action suit. [1] But if you approach class-action lawsuits from the standpoint of "what punishment does the misbehaving corporation suffer", mandatory individual arbitration is a tragedy. [2] It's implausible for the legal investigation into the corporation to approach the same level and implausible for the net penalty to even remotely approach that of a class action suit. The corporation is already heavily favored in any legal battle and individual arbitration simply compounds that advantage. And PR damage done from having said bad behavior exposed to the market at large is no longer a concern. In short: the penalty for misbehavior is massively reduced. As to "how do you know the end-user agreed to that": click-through EULAs have also been upheld by US courts for some time. Though I don't believe the SCOTUS has addressed them directly just yet. [1] I've read that multiple studies have found arbitration as having a higher and more frequent payout rate for complainants than class action lawsuits. I won't vouch for that position, but I don't take issue with it, as those results are largely irrelevant from my viewpoint. [2] Yes, there is a ton of progress that could be made on the question of how that penalty gets distributed. But I believe it's far more important to address that issue on its own than to effectively end class-action suits.
wastedbrains 15y ago
Seriously any agreement that waives the right to sue, is very likely to not be held up in a court of law.
miratom 15y ago
This really isn't any different than any credit card application. The arbitration clause is buried in the fine print of those as well.

by danssig 15y ago

andrewgodwin 15y ago

I'm not even sure it is legal in the UK - we have laws against "unfair contracts" [1], and there are also some statutory consumer protections that can't be waived. Of course, this is about security breaches, and IANAL, but I'd say this doesn't stop all potential lawsuits. [1] http://www.oft.gov.uk/about-the-oft/legal-powers/legal/unfair-terms/guidance http://www.oft.gov.uk/about-the-oft/legal-powers/legal/unfai...

ugh 15y ago
It’s complicated but I think many countries have pretty strong protections for consumers against unusual or unexpected clauses in contracts. I would be very surprised if this part of the terms would be enforceable, for example, in Germany.
- gavinballard 15y ago
  The title of this article is somewhat misleading. A clause that prevented any right of action whatsoever would most likely be illegal in many countries (including, I think, all EU countries, the US and Australia/NZ). However, "binding arbitration" clauses which require parties to submit to alternative dispute resolution procedures before any legal action is taken are actually quite common (perhaps more common in Aus/NZ, the UK and the EU than in the US?). They're a common feature of mobile phone contracts, internet contracts, et cetera. Edit: I see this question has been given excellent treatment here: http://news.ycombinator.com/item?id=3001086 http://news.ycombinator.com/item?id=3001086
  - tnorthcutt 15y ago
    Binding arbitration clauses are quite common in the US, as well.
sneak 15y ago
The only people qualified to determine whether a contract is fair or not are the parties that do or do not sign it.
- dhimes 15y ago
  I completely disagree. Being able to determine whether or not a contract is fair depends on domain knowledge. In the US anyway, being able to sign a contract is no indicator of domain knowledge. It is dependent on age and, if you represent another entity, your status as an agent for that entity.
  - sneak 15y ago
    Agreed. However, even with that domain knowledge, an outside party cannot determine for one of the parties whether or not they find it "fair" or not. This is not the role of government. It's common knowledge that contracts require domain knowledge, and if you proceed without it, it's akin to riding a motorcycle without a helmet, eating foods fried in trans fats, or driving a car without a seatbelt. Oh, wait. Nevermind.

roc 15y ago

The SCOTUS recently affirmed that not only are such clauses legal, but that individual States cannot pass laws to forbid them. http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/ http://www.scotusblog.com/case-files/cases/att-mobility-v-co...

deleted 15y ago
[deleted]
dgallagher 15y ago
If I read that correctly (not a lawyer), SCOTUS ruled that an agreement prohibiting class-action lawsuits is legal if both parties agreed to use individual-arbitration instead. So you can still sue them individually in court, or go through the arbitration process, to grieve a claim against them. My question is, how do you know the end-user agreed to that? You have no signature, video, or audio proof. PSN accounts generally remain logged-in, and it's possible someone other than you agreed to the EULA and upgraded your PS3's firmware, like a guest or roommate, without your knowledge or permission.
- a3camero 15y ago
  It's really a spectrum of enforceability. It doesn't matter whether it's ironclad. The idea is to discourage suits and to have something to point to when people try to sue you. It may not work but it might help. There are many issues of enforceability and this is one of them (although do you find that argument very convincing? You'd need to be able to point to someone and have some reason for why it was them and not you in order to be convincing).
- roc 15y ago
  The problem with arbitration is legal resource mismatch and sealed results. Each complainant would have to find, pay for and manage any suit or negotiation (bringing the likelihood of complaints escalating beyond the initial offer to near-zero). And even if a John Doe and his cousin-lawyer managed to dig up a smoking gun, no-one else would know about it. So each individual would go through the process ignorant of other results, while the Corporation builds experience and additional strategic advantage dealing with the situation over and over again. If you approach class-action lawsuits from the standpoint of "what good comes of it for the individual" there's not a big change and I've heard that we could expect more people (who put up with the process) would be more likely to get some award and that such an award is likely to be higher than what they'd get from a class-action suit. [1] But if you approach class-action lawsuits from the standpoint of "what punishment does the misbehaving corporation suffer", mandatory individual arbitration is a tragedy. [2] It's implausible for the legal investigation into the corporation to approach the same level and implausible for the net penalty to even remotely approach that of a class action suit. The corporation is already heavily favored in any legal battle and individual arbitration simply compounds that advantage. And PR damage done from having said bad behavior exposed to the market at large is no longer a concern. In short: the penalty for misbehavior is massively reduced. As to "how do you know the end-user agreed to that": click-through EULAs have also been upheld by US courts for some time. Though I don't believe the SCOTUS has addressed them directly just yet. [1] I've read that multiple studies have found arbitration as having a higher and more frequent payout rate for complainants than class action lawsuits. I won't vouch for that position, but I don't take issue with it, as those results are largely irrelevant from my viewpoint. [2] Yes, there is a ton of progress that could be made on the question of how that penalty gets distributed. But I believe it's far more important to address that issue on its own than to effectively end class-action suits.

wastedbrains 15y ago

Seriously any agreement that waives the right to sue, is very likely to not be held up in a court of law.

miratom 15y ago

This really isn't any different than any credit card application. The arbitration clause is buried in the fine print of those as well.