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PS3 OtherOS class action update

EricBall

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All files available from: http://dockets.justia.com/docket/california/candce/3:2010cv01811/226894/

 

Well Sony has fired back at the Amended Complaint with two barrels: a Motion to Strike and a Motion to Dismiss. I haven't gone too far into them, but Sony's first point is the five plaintiffs have different complaints and one didn't even install OtherOS! So Sony's point is if the the five plaintiffs are representative of the class, as a whole, then the court can't assume a class really exists. Ouch!



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Of course, what Sony doesn't see is the negative profits due to their former customers not buying more hardware or software. All the big names go multi-platform so I choose Dead Rising 2 for 360 instead of PS3.

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Of course, what Sony doesn't see is the negative profits due to their former customers not buying more hardware or software. All the big names go multi-platform so I choose Dead Rising 2 for 360 instead of PS3.

 

Yes, Sony has probably lost a few customers over this. But businesses are often short sighted. So the threat of piracy today is worth more than lost sales tomorrow. Also, how many PS3 owners said they'd never buy Sony after the rootkit fiasco?

 

I my mind there are some bigger issues at stake here around ownership and control. Sony has basically said that you do not own your PS3 or it's software - you only purchased a license to use it. And Sony is within the EULA to revoke that license at any time, without compensation. Furthermore, they have the power and ability to do so because your PS3 is probably connected to the PSN.

 

And I strongly suspect Microsoft has similar terms in it's EULA, they just haven't exercised them in as blatant a fashion. (Although banning consoles could be taken as an example on an individual basis.)

 

And now it's up to the Honorable Judge Richard Seeborg to stick to the letter of the law and the EULA or to see beyond it to a world where physical ownership is meaningless.

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Now this is interesting. On November 4th Judge Seeborg heard the motions to dismiss etc from Sony. However, the transcript of that meeting isn't available online until February 14! It is possible to view it in person. Anyone in San Francisco willing to view the transcript and report?

 

Transcript of Proceedings held on 11/4/10, before Judge Richard Seeborg. Court Reporter/Transcriber Katherine Powell Sullivan, RPR, CRR, CSR, Telephone number 415-794-6659/[email protected] Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/14/2011. (Sullivan, Katherine) (Filed on 11/15/2010)

 

Minute Entry: Motion Hearing held on 11/4/2010 before Richard Seeborg; Matters Submitted. (Date Filed: 11/4/2010) re 97 MOTION to Dismiss [Memorandum of Points and Authorities] MOTION to Dismiss [Memorandum of Points and Authorities] filed by Sony Computer Entertainment America Inc, Sony Computer Entertainment America LLC, 96 MOTION to Strike 76 Amended Complaint [Class Allegations; Memorandum of Points and Authorities] MOTION to Strike 76 Amended Complaint [Class Allegations; Memorandum of Points and Authorities] filed by Sony Computer Entertainment America Inc, Sony Computer Entertainment America LLC. (Court Reporter Kathy Sullivan.)(cl, COURT STAFF) (Date Filed: 11/4/2010)

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Hoo-boy! There's a whole bunch of filings last week.

 

First, it appears no decision has been made (yet) regarding the November 4th hearing for motion to dismiss.

 

Second it appears Sony is playing dirty. They've requested a huge amount of information and physical property from the plaintiffs (forensic copies of their PS3 hard drives, and every PC they owned since 2006, the actual PS3 and peripherals, and lots of "non-privledged" correspondence). And Sony Computer Entertainment America is saying the decision came from SCEI (i.e. Japan) so they can't provide the information the plaintiffs have requested unless they agree not to name SCEI as a defendant.

 

Third, the plaintiffs counsel has seriously upped their legal mojo. Lots of references to precedents.

 

I dunno. Sounds to me like Sony doesn't feel their case is strong enough without trying to disprove each of the plaintiff's claims. e.g. they want the PS3 & PC hard drives to show whether the plaintiff's actually used their PS3 in lieu of their PCs.

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The Complaint has been Amended and Groklaw has converted it to text and commented on it.

 

One item in the amended complaint I disagree with is "the utilization of Linux (OtherOS) did not make the PS3 less secure." Although OtherOS was not directly used for piracy, it provided an alternate method to access the console which could be used to find exploits in the base firmware and GameOS.

 

Hmm... but, to a certain extent, the vulnerability was a self-inflicted self-fulfilling prophecy. As has been determined, there were holes in the PS3 security architecture. OtherOS just made it easier to create tools to find them.

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