Judge dismisses Sony 'Other OS' suit

PlayStation 3 maker will not be held liable for decision to remove console functionality that inspired hacker attack.

Sony picked April 1, 2010, to remove the "Other OS" functionality from the PlayStation 3, and it resulted in turbulence that went well beyond any misguided April Fool's joke. The move set off a chain of events that resulted in hackers permanently jailbreaking the PS3 and tearing apart the PlayStation Network, costing Sony more than $171 million and compromising personal information for millions of customers.

RIP Other OS. Most of us never even knew you.

The good news for Sony is that it won't also be liable to those who expressed their outrage over Other OS's removal through more legitimate means. Late last week, a Northern California judge tossed out the remaining charges in a class-action lawsuit filed against the Japanese company over the firmware update that removed Other OS functionality from the PS3.

The suit, which was initially filed in late-April 2010, claimed that Sony breached its sales contract, as well as "the covenant of good faith and fair dealing," by removing the Other OS feature from the system. It sought to include all PS3 owners who purchased the console between November 17, 2006, and March 27, 2010.

The court's decision to dismiss the class-action suit in its entirety comes after most of the initial charges against Sony were tossed out earlier this year. The one remaining point in question relied on the Computer Fraud and Abuse Act. At that time, the court allowed plaintiffs to continue pursuing its claim that it was illegal for Sony to force users to choose between installing the firmware update that removes the Other OS feature or losing full access to the PSN.

Now, the court has deemed that the plaintiff could not prove that PS3 owners had a right to expect continued access to the Other OS option past the console's warranty period.

"The flaw in plaintiffs' analogy is that they are claiming rights not only with respect to the features of the PS3 product, but also to have ongoing access to an Internet service offered by Sony, the PSN," the judge wrote. "A somewhat fanciful, but more apt, analogy would be if Toyota sold hybrid vehicles with an advertisement campaign touting that Toyota owners would have access to a recreational driving facility, a no-speed limit amusement park for cars."

"Then, at some time thereafter, Toyota instituted a rule that its hybrids would not be permitted in the park unless the owners allowed the battery feature to be disabled. In those circumstances, Toyota hybrid owners who declined to authorize disabling of the battery feature would still have fully-functional hybrid vehicles, capable of running on an electric motor or a gasoline engine, as appropriate under the conditions. Similarly, PS3 owners who declined to install Firmware Update 3.21 still have fully-functioning devices, capable of either being used as game consoles to play games on optical disks, or as computers, with the Other OS feature."

The Northern California judge concluded his opinion by noting that while it may have not been the best move as far as engendering good will among customers goes, the plaintiffs failed to make an argument as to how it was illegal for Sony to have removed this functionality from the PS3.

"The dismay and frustration at least some PS3 owners likely experienced when Sony made the decision to limit access to the PSN service to those who were willing to disable the Other OS feature on their machines was no doubt genuine and understandable. As a matter of providing customer satisfaction and building loyalty, it may have been questionable. As a legal matter, however, plaintiffs have failed to allege facts or to articulate a theory on which Sony may be held liable."

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