back to article After hack nightmare, Sony bars lawsuits with new TOS

After getting the pants sued off it for security breaches that exposed personal information connected to more than 100 million online accounts, Sony is requiring subscribers to waive their right to wage class-action lawsuits for almost any reason. Sony dropped the bombshell in an updated terms of service and user agreement (PDF …

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  1. Anonymous Coward
    Anonymous Coward

    Interestingly...

    I believe in California at least, such clauses in click through EULA's were demed to be unconstitutional and thus it wouldnt apply here. Which is especially amusing since the EULA says that it has to be served in California and thus would mean it would need to be filed in California which means it would come under the California constitution. But I would imagine Sony would have thought of that first right? Surely? Okay maybe not.

    1. GatesFanbois
      Meh

      I really have no idea about how the US legal system works and the powers of individual states but I would have thought that:

      http://www.theregister.co.uk/2011/04/28/supreme_court_class_action_decision/

      Would have meant that the EULA would apply in California

      1. Anonymous Coward
        Anonymous Coward

        The Supreme Court overstepped it's bounds in that deciscion. Technically the federal government had no business looking into that case at all since the question at issue was a state constitution. Unfortunately they did and it's binding. Welcome to the Incorporated States of America.

      2. Anonymous Coward
        Anonymous Coward

        EULA

        The EULA is a contract, and contracts cannot USERP the courts, law, or legal options of any entity.

        Sony may try this all they like, but ultimately it is a court that will decide if a civil action may be class action or not. EULA not withstanding.

    2. Mike Judge
      Paris Hilton

      Weird

      As this is standard legal speak, infact other companies use the same wording, but guess what, nobody is beating them up....

      www.t-mobile.com/Templates/Popup.aspx?PAsset=Ftr_Ftr_TermsAndConditions&print=true

      Aren't you embarrased how easilly you can be manipulated by a bogus news story? Even Paris didn't fall for this tripe.

    3. carldec

      Sony is not thinking at all on this one.

      If they gave more than a seconds empathetic thought to their customers on this issue, they would have killed this idea before it got out to the press.

      This is a reaction by very stupid business people at Sony to a few events that very stupid business people at Sony mishandled:

      A) they got hacked. B) they let the world know about it. C) they screw their customers over D) they destroyed data and evidence. E) they do this which will F) guarantee that they get hacked again and soon. Repeatedly.

      Its like watching a good old friend descend into terminal drug abuse. There is no way this ends well.....

  2. M1
    Childcatcher

    If only

    the ignorant herd would vote with their feet rather than clicking agree ...

    but they won't - what are human rights compared to the ability to stream a B list movie you're not that interested in seeing in the 48 hour window in which it's available for the same price as a circle of obsolete plastic that you could leave in a corner for years but lend, with little risk of being dragged before the courts, to any interested party in a few years time.

    The point , as ever, though is they screwed up big time and you have to pay.

    1. DrXym Silver badge

      Human rights?

      Some perspective please, this is a service for a video games console.

      1. Kane Silver badge

        Agreed - which country are you posting from M1? Different countries have different listed Human Rights Acts.

      2. Anonymous Coward
        FAIL

        and..

        everyone has the same TOS.

        EPIC EL-REG FAIL..

        http://www.t-mobile.com/Templates/Popup.aspx?PAsset=Ftr_Ftr_TermsAndConditions&print=true

        LOL at all the braindead fanboys getting upset over this.....

    2. Alien Doctor 1.1

      Optical title

      So that's no more Movies 24 +1 +2 +WTF, Horror Channel, SyFy (siffi? a cleaning fluid) et.c et.c what a loss! OMG how will I be able to live?

  3. DelM
    FAIL

    That settles that

    I won't be buying any new Sony h/w that connects to the 'Net.

  4. Haku

    Oh Sony,

    What has happened to the nice company that made amazing Walkmans & Discmans, creating a whole new way for people to listen to music.

    Now you're just creating whole new ways of business practices that makes people distrust & hate you.

    So sad.

    Oh well.

    Anyone up for a bit of XBox? ;)

  5. Steven Roper
    FAIL

    This is unenforceable in Australia

    since IIRC we have a constitutional clause here that prohibits us from signing away certain inalienable rights - including the right to legal redress in the event of another's negligence.

    1. Trygve Henriksen

      and Sony's answer to that?

      Probably taking you to court for breach of contract as it was 'obvious that you had no intent of adhering to the EULA when signing up'

    2. Ian Michael Gumby Silver badge
      Boffin

      @Steven... No.

      The new ToS states that you can't sue in court, an you agree to binding arbitration. So you still retain your legal rights.

      The only thing that could be of concern is that Sony gets to pick the arbitrator. If their pet arbitrator isn't fair and impartial.... Then it's back to he courts and class action. However that takes time and you have to show a history or pattern...

      The truth is that only the lawyers win in a class action, not the plaintiffs so this change in ToS isn't that bad. Don't like it? Walk away.....

    3. DrXym Silver badge

      You wouldn't be signing your rights away

      1. This is contract law, not human rights.

      2. You could sue them no matter what the EULA says but the judge might wonder why you didn't go to arbitration

      3. You could also file a complaint through the small claims court

      4. The EULA applies to the US not Australia

      5. It's explicitly targeted at class action suits

      6. It's based on existing US arbitration law

      7. Even under arbitration you would still be represented by a lawyer

      I think the primary target is to stave off class action suits. I would be surprised if classactions brought from the PSN hacking / outage would result in any substantial damages being awarded anyway. Consumers will be fobbed off with a $10 PSN voucher or similar and the lawyers will walk off with millions in cash.

    4. Anonymous Coward
      Anonymous Coward

      Nice!

      So you have a constitutional clause in Australia that prohibits you from signing away certain inalienable rights? That's a really good thing, especially because "inalienable" means that you can't sign them away (and Constitutional rights are by definition inalienable.) So your statement actually means that in Australia, according to the constitution, you can't away rights that you can't sign away.

      Clever.

      Ve-e-e-e-e-e-e-e-ery clever.

  6. Anonymous Coward
    Anonymous Coward

    Never change, Sony.

    Never change...

  7. Anonymous Coward
    Anonymous Coward

    Legal?

    Can a contract over-write legal rights these days? Or it just the usual EULA-style bluff?

  8. Anonymous Coward
    Anonymous Coward

    A clear law needs to be writen on the book that basically states "Compagnies cannot make you sign your soul away or give away your rights in exchange for anything"

    Having your ass dragged in court when you make a foul as bad as 1: obtaining too much information you don't really need and then 2: not securing it properly, then you deserve what you get and you shouldn't be allowed to force people to give you a get out of jail free card.

  9. asdf
    FAIL

    [email protected]

    Tos takes away legal rights eh? Bullcrap all it does is stop ignorant people who think TOS mean carp in court.

  10. Thomas 18
    Unhappy

    Potential Goldmine

    As long as we are going down this route we might as well end the violence in videogames argument by having folks waive the right to bear arms and waive freedom of speech (when it comes to sony criticism).

  11. Dave Murray Silver badge
    Alert

    Do the new terms also state that you will allow Sony to sew your mouth to another PSN user's ass and the mouth of a third PSN user to your ass?

    1. Fred Flintstone Gold badge

      Yup, it's clause 11 sub B, printed in 6 point white on a white background.

      I have an old PS/3. Never been on the game network, and only updated until they decided to remove the "Other OS" option - which it still has. It sort of dates the last moment I ever bought anything from Sony.

      I understand that a company needs to make money. However, the way Sony does it doesn't agree with my wants as a consumer and my wants for business. So out they go. Simple.

  12. Nights_are_Long
    FAIL

    So don't sue us for being morons, ask us for service credits if we cock up again?

    Sounds like some one is huffing the jenkim at Sony.

  13. Old Handle
    Trollface

    This doesn't apply to me

    I years on the Internet have taught that shouty-caps paragraphs never have anything useful to say, so I always skip them, whether they're in a blog or an EULA. Since I don't read that crap, there is no "meeting of minds" and I can't be bound by it.

    Of course I don't use Sony products anyway.

    1. drengur

      There is also some good research to show that all-caps is quite hard to read. I certainly find myself glossing over all-caps without taking it in.

      Has to do with a words shape contrast being much lower. It feels to me that using caps in an EULA is akin to writing it in as small a font as possible.

      The whole system of EULAs seem to become more and more intrusive and unbalanced as time goes on - surely there's a point where claims like 'you can't sue us in a class action', when violating... well... basic human rights in most democracies should be grounds for a class action iteself.

      1. Haku

        I'M ACTUALLY QUITE COMFORTABLE READING ALL-CAPS

        It's When The People Who Think Comic Sans Is A Valid Font To Use For Any Occasion Type Like This I Find It Difficult To Read.

  14. kain preacher

    It's legal

    It is legal in the California. You can thank the health insurance for that one . All heath insurance have a clause that says you must go to arbitration first .

  15. Anonymous Coward
    Anonymous Coward

    Not enforcale in the UK

    1) Such a term restricting the legal right of redress is illegal.

    2) The EULA is something that is presented after the contract has been agreed and consideration has been paid and so it does not form part of the contract.

    1. Ian Michael Gumby Silver badge
      Facepalm

      Who cares?

      Sorry but how many class actions are filed in the UK?

      Sony is trying to protect themselves....

    2. Anonymous Coward
      Anonymous Coward

      Nice little piece of legislation

      The Unfair Contract Terms Act

  16. Anonymous Coward
    Anonymous Coward

    Fuck Sony!

    boo yeah!

  17. auburnman
    FAIL

    Even if it did form part of a contract, any clause in a contract / EULA term that tries to restrict your legal rights is automatically null and void. The lawyers sneak them in anyway, presumably as a way of upping the barriers to taking their company to court or dragging out any court action. Unenforceable clauses are so common that most contracts have clauses that state in the event any part of this contract is deemed unenforceable/inapplicable etc, then only that clause 'dies' and the rest of the contract remains in place.

  18. Svein Skogen
    Mushroom

    Hmmmm....

    Maybe it's time we start by attaching EULAs to our money? Something akin to this:

    BY ACCEPTING THIS MONETARY UNIT AS PAYMENT FOR SERVICES OR PRODUCTS RENDERED, YOU REVOKE YOUR PROTECTION FROM VIOLENCE OR DEATH UNDER THE LAW, SHOULD YOUR SERVICE OR PRODUCT BE OF UNSATISFACTORY QUALITY

    should do it, methinks.

    Note that I'm in general skeptical of all corporations headquartered in the USA, since they usually have the moral backbone of damp gingerbread.

    //Svein

  19. MJI Silver badge

    Do they do class actions here?

    Don't think they do (UK)

    TBH free service - does it matter?

    Lawyers are parasites anyway

    1. Anonymous Coward
      Anonymous Coward

      There are group actions or multi-party claims in UK law which permit multiple claims against a defendant to be grouped into a single action. However class actions where one party or a group of parties may sue as a representative of a larger class, including absent or unidentified parties, are not allowed.

      Basically in the UK you must opt into a group action (unless the court itself combines your case with others.) This does not stop a US lawyer from implicitly including UK citizens in a class action filed in the USA.

  20. Anonymous Coward
    Anonymous Coward

    Scum sucking lawyers

    Will be the first against the wall when the revolution comes.

    1. MJI Silver badge

      And looks like Sony are shooting them

      That is the feeling I get, binding 3rd party arbitration.

      To me it simply looks like self defence against the US legal system.

  21. Christoph Silver badge
    Trollface

    Don't clean up your act, just change the rules of the game

    If they are pre-emptively avoiding getting taken to court when they release user information again, that seems to imply that they are planning to do it again. Or at least not bothering to put in reliable defences against doing it again.

    I wonder if they could be charged with conspiring to do so? Since they are obviously preparing for it?

  22. NoneSuch Silver badge
    Go

    (To anyone who actually spends money on the Playstation after the hack)

    HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA...

    Oops. I wet myself....

  23. Mondo the Magnificent

    Next time..

    I walk into a Sony shop and buy a PS3 or the forthcoming PlayStation 4, I will make them sign a document that immunises my ass for opening, upgrading or modifying "MY" PS3.

  24. Identity

    Don't know if...

    Given the opt-out, I don't know if this falls afoul of a) adhesion contract and b) bailee's liability, but it sure is typical of corporate hobnail boots in the small of one's back...

  25. Hatless Pemberty
    Unhappy

    <music>If You Tolerate This...</music>.

    Anyone willing to sing this EULA may also be interested in other Sony offerings:

    http://goo.gl/CQhe

    Feeling old now. I still remember when Sony was a reputable company selling quality products that lasted for more than a couple of years.

  26. sisk
    Unhappy

    My wife clicked through the EULA while I was at work so I never got to read it. Excuse me, it seems I have a letter to write....Now where did I used to keep those envelopes?

    1. Anonymous Coward
      Anonymous Coward

      Surely this would mean...

      That **you** didnt agree to the terms of the contract and so are not bound? Not sure on that one as INAL. Also of interest is that G4 had a lawyer look at the EULA and their opinion was that it couldnt be binding in California. So what we end up with is a legal agreement that lawyers are going to fight over. Looks like Sony just put more $$$ in the hands of the legal profession.

  27. Robert A. Rosenberg
    Boffin

    Mailing That Letter

    By requiring that the customer opt-out from the forced arbitration requirement, Sony is taking an out where they can say "What Letter?". The only way that you can show that you attempted to contact them via SnailMail is to send the letter Certified (or Registered) with a Return Receipt Request. Ordinary mail is too easy to deny having received. BTW: If such a letter delivery is rejected by the addressee, so long as the returned envelope is left sealed it is legal service and delivery. In fact the returned sealed envelope is even better than one that was signed for since it eliminates the claim that there was no enclosure or it was blank paper (not relevant in this case but only in the general case).

  28. InfosecChap
    Big Brother

    shurly shume mishtake

    surely not? you can't sign up to something that says "i promise not to complain and if i do you can't hit me"

    not even in a supremely litigious place like Tonga would they do that

  29. Robert Carnegie Silver badge

    Something I don't actually want to see, is,

    "our-users-naked.sony.com".

    But it's a thought.

  30. Rune Moberg Silver badge
    FAIL

    Spammers from h---

    April 29th 2010, some ruddy b---- named Cecil Lee thought it would be funny to use my e-mail address to sign up for the PlayStation Network.

    And after a while, after having received at least a dozen e-mails from this network, I must say I am impressed.

    There is no "unsubscribe" link handy. It seems I must sign in using the account created.

    Ah, but isn't there a "forgot password" function? Yes, press this and you are met with "The server is currently down for maintenance".

    On the plus side, I am always up to date with all news concerning the Playstation Network, change of policies and whatnot. Too bad I do not own any Sony devices, except for a small handheld video camera. Maybe it will play the latest PS3 games?

  31. Metal Marv
    Unhappy

    So sick of all this crap

    I dunno about the rest of you but I'm just sick of it all now. I hardly play any games on the damn thing anymore, I don't want an xbox either. Think I am just gonna give up on games full stop and stick to activities that don't require me to sign away my life. wonder if I can get a Blu ray player that is not bogged down with legal crap or should I get my video recorder back out of the loft....

  32. nascentt

    "Only applies to America"

    http://www.metro.co.uk/tech/games/875898-sony-denies-threatening-psn-ban-no-tos-change-planned-for-europe

    "What it failed to say though is that the changes in the terms of service (TOS) only applies to America and even then nobody's getting banned from PlayStation Network if they choose to opt out. "

  33. Tree & Tree = Dirty Tree
    Facepalm

    REAL names, adresses etc.?

    Who is stupid enough to buy a game console and add his real personal data? What for?

    I have two aliases I use for all purposes where my real personal data is irrelevant, say where no transfer of money or rights occurs.

    And that is 99% of all cases!

    As you cannot trust in most security implementations of online services "out there" that is the easiest and best possible damage control I can think of.

    Go hack my account. That one? Not my account! :-P

  34. Anonymous Coward
    Anonymous Coward

    Not just Sony messing with the law

    Have a look at this extract from the NOD32 license:

    "THIS IS NOT A PURCHASE CONTRACT BUT AN AGREEMENT ON THE RIGHTS OF THE END USER. The Provider remains the owner of the copy of the Software and of the physical medium, if any, on which the Software is supplied in commercial packaging as well as of all copies of the Software to which the End User is entitled under this Agreement."

    If this is not a purchase contract, they remain the owner of the physical medium, and I can only read it after I've opened the package, what did I actually buy?

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