New Sony Online ToS Prohibit Class Action Lawsuits, Sony Not Sure It's Actually Legal
New Sony Online ToS Prohibit Class Action Lawsuits, Sony Not Sure It's Actually Legal
Posted 09/15/2011 at 8:16pm
| by Nathan Grayson
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They say you don't really know until you try. Sony, evidently, has taken that nugget of conventional wisdom to heart, as it's added a clause to its online terms of service that doesn't exactly have the firmest legal footing. In short, you can still break your lawyer out of cold storage and have a grand old time individually, but the second you bring in backup, you forfeit one very important tool: your rights.
"Any Dispute Resolution Proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general action,” read a portion of the ToS, as discovered by Gamasutra.
Granted, class action suits are still an option – provided, of course, that Sony opts to accept your invitation for a nice stroll through the law system's wonderful minefield. Otherwise, you're out of luck. That said, Sony's not entirely sure its scheme is, you know, allowed.
"If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section 15 will be unenforceable, and the dispute will be decided by a court and you and the Sony Entity you have a dispute with each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury," says another section of the ToS.
Among other things, these ToS extend to Sony's beleaguered PlayStation Network, which was recently hit with – what else – a 77-million-person-strong class action lawsuit over the infamous outage that took place earlier this year. That suit, however, is free to storm Sony's gates as it pleases, seeing as the new ToS only apply to disputes after August 20.
Regardless, do we have any law experts in the house? This one just seems sketchy on paper. But then, the same could be said of Justin Bieber's continued existence, and that passes legal muster for some reason.
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kiaghi7
September 16, 2011 at 3:30pm
Sony, the potential DEFENDANT, does not get to dictate the manner nor method by which another litigant, i.e. the PLAINTIFF, gets to file an action against them!
As per usual, they can put anything they darn well please in a TOS, but it in no way carries any weight once the legal papers are filed and a lawsuit is in progress. The semantics and strategy behind it all is simply a feint to get -at least some- to adhere to it of their own free will and thus be in less firm footing when fighting against a far larger and more capable entity like Sony.
There is nothing what so ever "illegal" in what Sony has done mind you, I can write up a TOS document right now, one that requires the Powerball organization to let me hit the jackpot on the next drawing... And it's perfectly legal... But it's entirely unenforceable in a court of law, because Sony isn't a legislative body, they do not get to write law, and as case law has long since established, no TOS agreement carries the weight of law.
As it's name applies, a Terms of Service Agreement, is just that. It is an -AGREEMENT- between you, the user, and them, the service provider, that you will adhere to the rules and requirements of you to receive their service while taking part in their service. They have and reserve the right to deny you service at a whim, no matter how trivial or significant the matter may be, just as you have the right to tell them to go jump in the river by not giving them your patronage should their service not meet your needs for it.
At the end of the day however, as it is by definition an agreement, it is not en forcible as a CONTRACT, the two are NOT even remotely comparable, and contracts typically -DO- carry legal weight and ramification should one, some, or all parties involved breech the terms set forth by that contract.
In this case, it's nothing more than a cute, albeit insidious, gambit by Sony to try and shake-down customers before they try to sue Sony into oblivion for Sony's own mistakes, al a the whole PSN hacker debacle. By preemptively starting in on the legal intimidation and making end-users think they will get in trouble if they join a class-action lawsuit against Sony.
At the end of the day, Sony -CAN- perfectly legally deny you service to their system if you so much as fart and they don't like the smell, so if you join a lawsuit against them and they don't like that, they -CAN- kick you off of THEIR property and not allow you access to it. But they can't tell you that you can't join a class action against them, you most certainly still can and they can't stop or litigate your ability to do so away.
If they want to pretend like they don't have to respond to a lawsuit filed on behalf of a group or class, Sony is going to be in for the mother of all suing because the litigants aren't going to adhere to Sony pretending like they can just stick their fingers in their ears and chant "not listening"... The court doesn't work that way, and a subpoena most certainly doesn't work that way... As a defendant, you can't pick your plaintiff...
Eoraptor
September 18, 2011 at 9:48am
Actually, no, as per the link Morete provided, it is completely, totally, 100% legal for SONY to do this, thanks to the same bought and paid for court that told corporations they were free to pour all the money they wanted to into elections.Because of that ruling, the only way you could file a Class Action against any branch of Sony would be to go do it in Tokyo, outside of US jurisdiction. (at which point they would point out that their SOE and Sony of America are wholly owned but independant subsidiaries and boohoo you have to sue them in the country they operate in)
And your discussion on the difference between "agreement" and "contract" is so much stuff and nonsense. What about "Contracts for Service" such as you get with a cell phone or other ongoing service-industry product. Cry all you want over the specific words used, but the precedent in all the courts in america state that a EULA is in fact an enforcable non-verbal or written contract between provider and user which is accepted or rejected as a whole with the use of a product, except where specific provisions are unenforcable (Such as in states which determine that a physical product can not be given away for free when attached to a revolving service) . And since the SCOTUS ruled that federal arbitration law is the dominant legislation here and enforcable on all interstate commerce, then yes, SONY's determination that you can't file class action against them is perfectly legal.
kiaghi7
September 19, 2011 at 2:52pm
Actually no, what you left out is that Sony, regardless of what they put in a TOS agreement, does NOT get to determine their PLAINTIFF.
It's not a matter of "legality", I never said, suggested, implied, or inferred anything they've done here is "illegal", it's simply a matter of it not carrying any weight.
Again, no court is going to recognize their TOS as any sort of legally enforceable contract. You ignorantly throw the red-herring of an EULA out to pretend like the two are the same thing when they are not, and I suspect you already know this.
Terms of Service is rules you must follow for them to provide access and service from their provided service whatever that may be.
End-User Licensing Agreements are legally binding limitations on what you can do in regards to legal use, reproduction, marketing, and redistribution of a product without the expressed consent of the creator/copyright holder.
Now you know very well you're trying to muddy the water and pretend like you know what you're talking about, but you're either talking out of your posterior, or you're willfully trying to pretend like Sony has jurisdiction beyond that of the Court, which they most certainly do not, and I will eagerly bet you that in the not too distant future yet another class-action will be filed against Sony for one reason or another, and this TOS will be laughed out of the court room, the proceedings will continue on entirely unabated, and Sony will have to actually pull their head out of their... sandbox...
Anyway, despite your clear agenda in all this, your nonsense holds no more weight than it did before you typed it, by all means look into this, or simply consult any attorney and they will tell you in no uncertain terms, a defendant can't say "well I'm just not going to recognize this type of plaintiff in the future", it's laughable.
You may as well go in to work, and say, "from now on, I'm not going to accept any paychecks less than a million dollars"... To which the boss will promptly say "ok", and just not give you any more checks...
You don't get to tell the court which plaintiffs you will and will not allow to sue you, only the Government gets that sort of sway.
thetechchild
September 17, 2011 at 1:22am
Very nice. Don't know how this could be put any better, and I agree 100%.
Denial of service (not the attack, I mean an action by the service provider) is at the provider's discretion. The ToS has no effect on actual legislation, so Sony has no right whatsoever to deny you a class action or trial by jury.
Cooketh
September 16, 2011 at 12:55pm
There's evidence against and in favor of this.
This is one of those things (like arbitration, digital media, etc) that the court system haven't completely caught up with.
Trooper_One
September 16, 2011 at 12:47pm
Since the PS2 (which I barely used) and FF11 (which sucked and it's boring), I've pretty much took an effort in avoiding Sony products.
Yea some of their products are great, but there's plenty of alternatives which have equal or better quality at better prices.
This is one giant that needs to tumble and die for all I care. They seem to carry a snotty attitdue against their own customers and as such, screw 'em.
DON'T BUY THEIR PRODUCTS!
weavil
September 16, 2011 at 8:36am
i submitted this to mike masnick over at techdirt. looks like he already started the disccusion.
http://www.techdirt.com/articles/20110915/14072315967/thou-shalt-not-sue-sony.shtml
someuid
September 16, 2011 at 8:03am
Doesn't matter if it is illegal or not and Sony knows it, because none of you have enough money to pay the lawyers to find out if it is illegal or not, let alone sue them to start with.
The only solution is either a major pro-bono case, or we just don't use Sony's products. I'm not saying "vote with your wallet, power to the people, this is capitalism and we'll take them down with a grassroot campaign and a boycott!". I'm saying if you stand to be harmed in any way (probably financially?) from Sony's products and you have no recourse, then your only option is to simply not use their products, no matter how cool you think their game systems or games are.
don2041
September 16, 2011 at 7:55am
Im not worried at all about this because I wont deal with Sony or own any of their products. EVER
Morete
September 16, 2011 at 6:12am
Companies can block customers' class-action lawsuits, Supreme Court rules
http://articles.latimes.com/2011/apr/28/business/la-fi-court-class-action-20110428
April 28, 2011|By David G. Savage, Los Angeles Times
Reporting from Washington — The Supreme Court dealt a blow to class-action lawsuits that involve small claims affecting thousands or even millions of people by ruling that corporations may use arbitration clauses to block dissatisfied consumers or disgruntled employees from joining together.
In a 5-4 decision, the justices said Wednesday the Federal Arbitration Act of 1925, originally aimed at disputes over maritime and rail shipments, trumps state laws and court rulings in California and about half the states that limit arbitration clauses deemed to be "unfair" to consumers.
The ruling was "the biggest ever" on class actions, said Vanderbilt University law professor Brian Fitzpatrick, an expert on such litigation.....
(edit) The hyperlink is incorrect. Just copy and paste the full link above.
Eoraptor
September 15, 2011 at 10:24pm
it would be nice if someone would challenge the idea of these eula's; that you can willingly separate yourself from your legal rights. It seems to me like "bend over and take it or deny yoursel a product or service" has to violate due process, or search and siezure. it would be different if you actually COULD choose to go to a competitior with different terms, but they ALL use the same terms.
bling581
September 16, 2011 at 9:46am
I agree. The whole concept of user agreements is ridiculous at best. I understand they need some sort of legal terms but forcing you to sign it or render your product useless is crap. This is especially the case with software, since you really can't view the agreement until you being the install process, in which case you're already screwed because you just opened the box. They know that most people don't read the agreements before they click okay. Even if they are being read just how much of it is even understandable?
CaptainFabulous
September 15, 2011 at 9:09pm
Doesn't AT&T have a similar clause that was upheld by the courts recently?
Phrish
September 15, 2011 at 8:38pm
No lawyer, but I'm with you... I don't think this is even remotely up-holdable. It's moronic really. Next we'll have pharmaceutical companies with fine print on the bottle "... if you take this drug and it kills you, you agree that only you can sue us and that no one can sue us on your behalf for your death."
Nolndi
September 16, 2011 at 12:20am
"...if you take this drug and it kills you, you agree that only you can sue us and that no one can sue us on your behalf for your death." Thats whats wrong with it
Maktaka
September 16, 2011 at 1:40am
I suppose the wrongness of it is really dependent on whether or not a ghost can act as a legal entity in court.
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