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PS3 Other OS Removal: Unfair play?

Opinion: Legal eagle Steve Kuncewicz gives his view on US lawsuits

Entertainment giant Sony has been sued for over $5 Million by a disgruntled gamers after removing the "install other OS" feature from their PlayStation 3 console.

The feature allowed users of the console to install the widely used and very popular Linux operating system, which could effectively turn the PS3 into a home computer rather than an entertainment system, a feature which was touted prominently in Sony's marketing when the console was launched in 2007.

Following the removal of the feature due to security concerns earlier this month, California resident Anthony Ventura has launched a class action claim against Sony on behalf of "a nationwide class of all persons who purchased a PS3 during the period November 17, 2006 and March 27, 2010 and who did not resell their PS3", describing the removal of the feature as "based on its own interest and made at the expense of its customers".

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Many gamers may not have noticed the removal of the feature, but to the hardcore PS3 user who intends to use the console beyond its obvious gaming and entertainment capabilities, the move was extremely controversial.

However, it was probably only a matter of time before Sony took this step as a part of their ongoing efforts to curb piracy through digital rights management.

The use of Linux as an operating system effectively allowed PS3 users to modify the console as and when they saw fit.

Amazon in the UK have already made a number of refunds to disgruntled customers who have complained that it no longer works in the same way it was advertised when purchased, although Sony have already ruled out such a move.

Under UK Law (the Sale of Goods Act 1979), consumers are fairly well-protected and sellers must provide goods which meet certain minimum standards, the main being that what is being sold must "correspond with their description", be "fit for purpose" and "of satisfactory quality" at the time of purchase.

Consumers expecting a certain functionality from the PS3 may well have valid claims, although there may well be an equally valid defence on the basis that the PS3 remains fit for purpose on the basis for which it is commonly supplied (i.e. as a gaming console rather than a home computer) and that it was of satisfactory quality in terms of "all relevant circumstances", again to be used as a games console.

It's probably fair to say that this claim would be dealt with differently in the EU than the US and it is worth noting that the feature is only removed through a downloadable firmware update.

Although any user refusing to update their console could still use Linux, they would not be able to use other features, such as playback of certain Blu-Ray discs.

It may well be that Sony is willing to risk a flood of similar claims against the potentially huge amount it could lose through the use of modified consoles; to circumvent their DRM system in the wake of the announcement of an available "hack" for the system in January this year by the same user who successfully cracked the iPhone.

In the battle for copyright protection, it may well be the informed gamer who ends up as the loser.

Steve Kuncewicz is an assistant solicitor in the IPCT team at law firm Halliwells LLP. Email him on: Steve.kuncewicz@halliwells.com

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