The Sony PS3 Linux Saga: Part 2

Update: John Lewis's reply letter appended below; my reply, subsequent correspondence, and the dénouement, are all now in the Comments. At the time of writing, there are three American million dollar class action lawsuits (update: now four) pending against Sony (all at the US District Court of Northern California, oddly enough).

Best of luck also to Michael Trebilcock from Modbury, Adelaide, who is on disability pension, and is suing Sony for $800.

Update [July 22] Seven (!) class actions so far filed against Sony in San Francisco federal court have now been consolidated into a single class-action complaint, the request of "all counsel." The three law firms involved will act as co-lead counsel against Sony.

The Story So Far

Big surprise! Sony Corporation screwed a bunch of their legal, fee-paying, law abiding customers, including me - as described in this earlier article:

http://mycodehere.blogspot.com/2010/03/sony-fb.html

I took up the matter with my retailer, John Lewis, as documented by the email exchange recorded in the Comments section of that article. Now we've got to the big standoff, and while we wait to see who blinks first, I've sent to the retailer this PSA, which was a little too big, and a little too RTF, for a comment...

~

To: [name], Customer Service @ John Lewis Glasgow
From: John M. Kerr
Date: 23rd April 2010
Time: 4:53 PM

Hi [name],

Thank you for your recent message, and also for returning my telephone call on Saturday 17th April, regarding our Playstation 3 loss of function.

As I said to you on the telephone, I am currently keeping an open mind with respect to your recent offer of a £75 payment to me, which I recognise is after all 25% of the purchase price, and as such represents an improvement on previous refunds in the history of this issue. However, I do feel that I must insist on a clear statement of the terms and conditions under which this offer is being made, for if they involve my agreeing that John Lewis have not contravened the relevant consumer protection legislation, clearly I should be quite unable to comply with that.

We acknowledge your intention to reply more fully next week. As you know, we are now more than halfway through the 5th week since I filed my initial complaint with John Lewis, by email, on Tuesday 30th March at 10am. I am sorry to hear that in the interim, your legal department appears to have misinformed you on this matter. Perhaps while awaiting your final response, I might take the opportunity to clarify the applicable law, and to reiterate our position.

[1] EU Directive 1999/44/EC

The Directive states the following:

“The goods must:

• comply with the description given by the seller and posses the same qualities and characteristics as other similar goods
• be fit for the purpose which the consumer requires them and which was made known to the seller at the time of purchase.”
  

The Directive applies to the contract of sale between the retailer (not the manufacturer) and the customer. It also mandates a minimum two-year warranty on all new consumer goods (in Scotland, the Sale and Supply of Goods Act 1994 extends this to five years; in England, six).

[2] The "Purpose"

The Purpose, for which we required the goods, was: as a general purpose computer, Blu Ray player, and online games console. This Purpose was made known to the seller, viz. John Lewis personnel, at the time of purchase.

[3] How the Purpose was made known:

There were three distinct ways in which this occurred, any one of which alone suffices to establish liability.

[3.1] We explicitly made this Purpose known.

We made our requirements perfectly clear to your sales personnel at the time of purchase. And that, essentially, is all that is required under consumer protection law.

[3.2] Your salesman pointed out the Playstation's suitability for our Purpose.

We were shopping that day for either a computer (for use as [my] "home office" machine, and also to let my wife edit & process photographs), or a games console (for my upcoming birthday), or both. Your salesman pointed out to us that the Sony Playstation [3] could do both; and that although it could not run Microsoft Windows, there was a lot of free software available for its "Other OS" feature.

[3.3] Sony advertised the Playstation's suitability for our Purpose.

At the time of purchase, I was in fact already aware of the "Other OS" capability of the Playstation 3; since launch, it had been widely advertised by Sony personnel on their websites, their public forum websites, and elsewhere. Here are four such published examples, all of which predate our purchase:

[3.3.1] http://www.playstation.com/ps3-openplatform/index.html

Sony Computer Entertainment Inc.:

Overview of the Open Platform for the PLAYSTATION®3 system

There is more to the PLAYSTATION®3 (PS3™) computer entertainment system than you may have assumed. In addition to playing games, watching movies, listening to music, and viewing photos, you can use the PS3™ system to run the Linux operating system.

By installing the Linux operating system, you can use the PS3™ system not only as an entry-level personal computer with hundreds of familiar applications for home and office use, but also as a complete development environment for the Cell Broadband Engine™ (Cell/B.E.).

[...]

To use the Linux operating system, you must update the PS3™ system software to version 1.60 or later.

Very recently, a red warning has been added to the top of that page, saying: "On PS3™ system models sold earlier than the CECH-2000 series models, the Open Platform feature will not be available if the system software is updated to version 3.21 or later". This condition was of course not present at the time of our purchase.

[3.3.2] http://kotaku.com/235049/20-questions-with-phil-harrison-at-dice

Phil Harrison, February 2007,
President of Sony Computer Entertainment Worldwide Studios 2005-2008:

"One of the most powerful things about the PS3 is the 'Install Other OS' option."

[3.3.3] http://www.gamasutra.com/php-bin/news_index.php?story=9290

Sony executive Izumi Kawanishi
Sony Computer Entertainment Inc., 2006-2009:

"The Linux Distributor's Starter Kit provides information, binary and source codes to Linux Distribution developers who wants to make their distro support PS3."
"Because we have plans for having Linux on board [the PS3], we also recognize Linux programming activities... Other than game studios tied to official developer licenses, we'd like to see various individuals participate in content creation for the PS3."

[3.3.4] http://www.spiegel.de/netzwelt/web/0,1518,418642,00.html

Phil Harrison, May 2006,
President of Sony Computer Entertainment Worldwide Studios 2005-2008:

"The Playstation 3 is a computer. We do not need the PC."
[Note: German text]

In the past several weeks, Sony moved urgently to remove some such evidence from certain promotions similar to those detailed above, to alter the wording of agreements, and so on. But in fact their websites had by then already been cached by search engines such as Google, and many further "incriminating" backup copies have also been secured since then.

I have mentioned earlier in this ongoing email exchange, the console games that we are presently unable to play online, and the Blu Ray discs whose BD-Live content we are currently unable to access. What I did not mention, because it wasn't obvious until we received the relevant papers and began preparing our sheriff court claim, is that these purchases themselves amount to literally thousands of pounds. Should this case go to court, this is indicative of the level of damages that we would claim.

In view of your message today, we shall make our final decision on how to proceed, based on all available information at that time, no later than Monday 3rd May 2010.

Thank you once more for your efforts in trying to negotiate a happy resolution for us.

Yours Truly [...]

~

Here is the letter I received in reply (click to embiggen):

page 1 page 2

I'm especially fond of the part where they assert my PS3 can't be a computer, because it is a games console; designated by the numbers 826 against the product on your receipt [...] If it had been sold as a computer the number would be 827.

Yes, I literally laughed out loud too. Wasn't it Jodie Foster who said, They should have sent a poet...

But then reading on to the part John Lewis remain not liable [sic] for what has happened to your product... I realised that I hadn't won after all. What I want is neither a partial £75 compensation, nor a return for a full refund - both of which I've now been offered - what I want is just my retailer's acknowldegement that giant corporations like Sony cannot simply EULA their blustering way past any and all consumer protection legislation, to steal from me in my living room, or at my place of business.

John Lewis are indeed liable. They should accept their responsibilities under EU Law. Yes, they are also victims; but they should be kicking Sony's arse, not their own customers.

I'm about to decline this latest offer, just as soon as my language cools down to the optimum temperature for discursive efficiency. Meanwhile, as we prepare for war both in the media and in the Sheriff Court, we should perhaps pause to see what happens next in America. For it is extremely gratifying at last to see Anthony Ventura, a user from California, launch a class-action suit against Sony, alleging deceptive business practices:

http://ps3movies.ign.com/ps3/document/article/108/1086720/gov.uscourts.cand.226894.1.0.pdf