Monday, 26 September 2011

Sony Says "You Can't Sue" - The New Terms of Service and You

It's been extremely difficult to actually be keeping track of gaming news over the past week and not heard of this story. I know that because of the theme week I had last week that my reaction to this news is a little late, but I feel that this issue is important enough that I need to weigh in on it even if it is coming a little late to the party.

The issue here is that with the latest Terms of Service to use the Playstation Network, Sony has slipped in a clause that probably went unnoticed by many gamers -- let's face it, most people don't read the terms of service to begin with and even the ones that do rarely read it every time to check for what changes have been made; something that Sony was probably banking on -- but not by the media. The change was that by agreeing to the ToS, a user of PSN effectively gave up their right to bring a class-action lawsuit against Sony should the need arise.

Sony claims that this change to the ToS was not a decision that had any part to do with the recent hacker induced network outages, but rather that a Supreme Court ruling made them decide that it was a viable thing to do.

Even after being made aware of the clause, some gamers seem apathetic about the whole thing taking an, "It doesn't matter because I'm not going to sue Sony any time in the future anyways." stance. The problem is though, that if something like the PSN outage happens again, or at any point you or a group of people believe that Sony has unfairly infringed upon your rights, you can't take them to public court. Oh, you can still get an arbitration, but in cases of those the individual bringing the case against the corporation probably has better odds of being struck by lightning than actually winning the case, and with arbitration the arbitrator doesn't even have to tell you why the case was thrown out, or why they reached the decision they did. Not exactly what you want in terms of a system that is supposed to be holding people and corporations accountable for their actions.

Legal experts are predicting that it's very unlikely that the no sue clause would hold up in court to begin with, mostly because Sony basically snuck it under the noses of most of its user base. Even if it does, gaming sites have begun to fight back, with GiantBomb giving a generic letter that will allow a user to opt out and retain their right to sue and many other sites directing users towards the opt out and encouraging users of the PSN to do so.

This move on Sony's part has bothered a lot of people, myself included. Truth be told I haven't even updated my PSN to the current state, which means that although I currently don't have access to the online components of my PS3, that I also still have a right to take civil action against Sony should the need be. Slipping this clause into the latest terms of service is a really underhanded move, and one that other companies might try if they think they can follow Sony's example. Certainly the odds are not in Sony's favour, but there's a slight chance that this will hold, and in the event it does Sony has just rendered hundreds of thousands, if not millions, of its user base unable to pursue legal action.

It would have been understandable, if just as unreasonable, if a change to the ToS like this would have come immediately after the PSN outage. But the fact that it comes just when users aren't being vigilant about any changes anymore just stinks of dirty pool tactics. If this is how a game company decides to treat its clientele is it any wonder why people are wary or outright hostile towards the industry?

Addendum:

It seems that before I can even take this to post that it has come to light that EA has done this as well. Basically the only way that you can protect yourself from giving up your rights is to actually read the ToS every time a new update comes out. It might be tedious, but at the same time it's also the only way you might be able to know if you're giving away something you really shouldn't be by clicking that "I agree" box.

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