Sony’s ‘No-Sue’ PlayStation Network Use Clause is Anti-Consumer
By Matt Peckham
File this under “awfully crass of them”: Sony’s legal team thinks it can forestall future class action lawsuits (and legal action in general) by forcing users to agree not to sue Sony if they want to continue using their PlayStation 3 game consoles online.
It’s pretty simple, really. For those who’ve never owned a PS3, let’s review: In order to use Sony’s PlayStation Network online service, you have to check “I agree” after reading a wall of legalese about what you can and can’t do thereafter. Each time Sony issues an update to the PS3—and whether it’s relevant to the online component or not—you have to accept those often revised terms and conditions again. Fail to do so and you nerf your PS3.
And now, in the wake of Sony’s catastrophic PSN security failure last April-May, the company’s legal team seems to think the best way forward involves forcing consumers to agree that if they have a “dispute” with Sony (where the word dispute “is to be given the broadest possible meaning that will be enforced”), they agree to work it out with Sony without legal recourse.
From Section 15 of the new terms and conditions:
If you have a Dispute with any Sony Entity or any of a Sony Entity’s officers, directors, employees and agents that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below. Other than those matters listed in the Exclusions from Arbitration clause, you and the Sony Entity that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section 15, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
Note that dispute, according to Sony’s lawyers, “means any dispute, claim, or controversy between you and any Sony Entity regarding any Sony Online Services or the use of any devices sold by a Sony Entity to access Sony Online Services, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence).”
Oh, there’s a way out of jail—sort of. If, within 30 days of accepting the latest terms and conditions, you send a snail mail letter saying, in so many words: “Thanks but no thanks, Sony.”
Either way, this is pretty low, and you’d have to be a fairly dyed-in-the-wool Sony devotee (or just another corporate apologist) to think this reasonable, ordinary, and acceptable. Reasonable would be allowing you to opt out of “Section 15” online, not by typing up a letter and mailing to Sony Legal in California. The latter’s obviously, cynically intended to deter anyone from bothering. Sony hopes you’ll just click “I accept” and get on with whatever you’re playing, and in the event they do something—anything, frankly—that’s worthy of “dispute,” if it can’t be worked out through “arbitration,” that’s just too bad for you.
I haven’t pulled down the update yet. I don’t know if I will, though I’m still not sure this attempt to gag tens of millions would even stand up in court. Yes, Sony has a right like any service provider to dictate the terms of its services, but this isn’t a question of how you use the PlayStation Network, it’s a brazen attempt to deprive consumers of their only real alternative, should Sony behave badly, to simply quitting the service outright.
Yes, you could always just quit Sony…like that’ll happen. Over 77 million PSN members worldwide, each with hundreds (perhaps even thousands) of dollars invested in the PlayStation 3? Don’t bet on the quitting strategy as a means of communicating consumer ire upstream…and that, frankly, is exactly what Sony’s counting on.