Friday, 23 April 2010

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:

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:


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.


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."


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."


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:


  1. incase this doesn't come off, as my interpretation is the law doesn't cover situations where the system is modified by the manufacturer, thus the retailer is within its rights to say the product was suitable for purpose at the time of sale, and modifications to the system made by Sony are beyond its control.

    The product obviously wasn't fit for purpose, Sony have proved that by removing OtherOS they have put a bandaid over a design flaw in the hypervisor which with a slight hardware modification and some software can be exploited, if the hypervisor didn't respond to spefic queries about memory locations this bus overflow exploit wouldn't exist. Just an idea

  2. the letter is vague about whether the refund is for the return of your playstation.

    Im interested into how far this can escalate within the UK however, it is unfortunate that the only direct course of action for consumers is to go to the retailer.

    What would you believe as a "winning' outcome, if it turns out that John Lewis is forced to pay out to all customers, but Sony remains unscathed then it would be very unfortunate.

    The product number clarification is wonderfully funny, nice of them to ignore your claim that a sales assistant personally advised you of the other OS function.

  3. For the attention of [name]
    Manager, Audio & Television Department
    John Lewis
    Buchanan Galleries

    Dear [name],

    Re: Playstation 3 loss of function

    Thank you for your letter dated 27 April 2010. I apologise for failing to reply sooner, but I have been away.

    You continue to state that there is no fault with the product, and that John Lewis is not liable. Since I have already, on more than one occasion, explained to you EU directive 1999/44/EC and its relation to the Sale and Supply of Goods Act, I can only surmise that any further attempts at enlightenment by me would be wasted effort, as you seem merely to be repeating the initial kneejerk denials of your immediate staff, and subsequently of your legal department. Perhaps they are terrified of an avalanche of similar complaints, should they admit the liability which is certainly present. They ought to relax a bit more! I'm possibly the only customer in Scotland, outside of research bodies with little interest in games, who has ever seriously used the "Other OS" feature for business critical documents, to say nothing of purchasing a PS3 because of that ability.

    You also state that I was offered £75 as a gesture of regret on 14 April 2010. This claim is equally disingenuous, since I received no such payment, and when I consequently and subsequently enquired (more than once) as to the terms of this putative offer, my queries were repeatedly ignored. Finally, I note that the offer has been withdrawn unilaterally in your recent letter, and am therefore forced to conclude that it never really existed at all.


  4. /...continued

    Perhaps your offer of a return for full refund is equally insincere? The offer now seems, in fact, to be an irrelevancy for several reasons:

    1. We have reached your stated deadline of 8 May 2010.

    2. This might be yet another bait-and-switch. Like when you sold me a machine advertised throughout the world as a combined computer, blu-ray player and games console, then denied any responsibility when half of its functionality was unilaterally and deliberately disabled. Or, like that £75 payment of yours, which also turned out to be vapourware.

    3. It is not possible for me to comply with your condition of "no further action being taken on this matter", since from the outset, I have been absolutely committed to publishing our entire correspondence, including this reply, on my website (see below).

    4. Despite being what I requested in my initial email six weeks ago, such a refund would never actually have done anything to help me regain control of my home OpenOffice, blu-ray player and games console.

    5. I have been forced to purchase a new PC (not from John Lewis, obviously) in order to rescue my office documents and regain blu-ray and games operation, so I will no longer use the "Other OS" feature of the PS3.

    None of this changes the facts of the case, upon which I'm happy to say my solicitor is in full agreement with my initial interpretation. I must say incidentally, she had a right good old laugh at your suggestion, that regardless of the facts and discussions at the time of purchase, I should have known I'd purchased a games console and not a computer, because there was a number 826 rather than an 827 on my receipt!

    I have now instructed her to start proceedings with a letter to John Lewis's legal department, while I try to drum up a media campaign, initially using just the contents of these two articles from my website, with which I'm sure your lawyers will already be quite familiar:

    She has however suggested a delay of possibly some weeks before commencement, to see what happens in the related class action against Sony in America (their consumer legislation is far poorer than Europe's, and they have no recourse against the retailer). This is advisable I'm told because Sony may soon decide internationally to re-enable the deliberately broken features, which would materially alter the substance of our case.

    Yours truly [...]

  5. Bravo!

    Although... delay commencement by some weeks?

    The lawsuits in the US are gonna take a lot longer than some weeks? Could be months!

  6. Accordion the law that is and has been used for partial refunds actually allows the company to claim back from Sony, except Sony has stated that no refunds will be made which is why retailers are fobbing consumers off

  7. Well done John, I wish you every success!

    I have not updated my PS3, pending the outcome of the US cases. Unfortunately I'm locked out of PSN and BD-Live functionality until I do.

  8. To: J Kerr
    Date: Sat 15 May 2010 - 10:54 am

    Dear Mr Kerr

    I acknowledge receipt of your e-mail of 8 May 2010 addressed to [name], the Department Manager of our Audio and TV department at John Lewis Glasgow.

    As I believe you are aware, [name] has been out of the business this week and has asked me to respond [...]

    I am sorry that you are not satisfied with the solutions [...] proposed to your situation over a number of weeks. I can assure you that they have been made with honesty and sincerity and that both options will now remain open to you until 30 May 2010.

    To clarify the two proposed resolutions are;

    1. A £75 gesture of regret to allow for your inconvenience and you retain possession of the PS3.
    2. A full refund for the PS3 at the price you paid when purchased and the item is returned to us.

    Both of these offers are made as full and final settlement of this matter and are on condition that no further action will be taken against John Lewis.

    If however you wish to continue to pursue your complaint I would ask that all further correspondence is made in writing to our legal department for the attention of [name]. The address of our head office is 171 Victoria Street, London SW1E 5NN.

    Yours sincerely

    DM Customer Services
    John Lewis Glasgow


  10. For the attention of: [name]
    DM Customer Services
    John Lewis Glasgow

    Dear [name],

    Thank you for your message dated Sat, May 15, 2010. In reply, and in view of the most recent legal advice that I have received, I would like to accept option "1" of your proposed resolutions:

    * A £75 gesture of regret to allow for your inconvenience and you retain possession of the PS3.

    This acceptance is made:

    * as full and final settlement of this matter and [...] on condition that no further action will be taken against John Lewis.

    Please convey to [name] my sincere regret for those occasions when my sheer frustration with the actions and attitudes of Sony Corporation have spilled over into our correspondence. I have nothing but admiration for all of the John Lewis personnel with whom I have been in contact, and nothing remains but my complete respect and gratitude for the patient and professional manner in which this issue, and I as a customer, have been handled.

    Sincerely [...]

  11. Yes, I took the money. What more was there to be gained by going to court? A full refund, upon return of my PS3, if I "won"? - I'd already been offered that level of settlement, out of court, but I didn't particularly want to lose my console.

    The End.

  12. A few people have made comments on this case. Mostly elsewhere, oddly enough, and not in this comments section! Comments, upon my eventual decision to accept John Lewis's £75 payment, or 25% of the phat PS3's original purchase price (and I get to keep it).

    I'm always happy to read such comments, both good and bad, whatever their source, whatever the forum. For example, NeoGAF junior member Bungieware recently posted that I "bitched out in the end", which was "Disappointing and in the end very hypocritical."

    Earlier on that same thread, the forum's moderator Iapetus, who has previously commented here, posted the opinion that my business "probably deserves to go under".

    And that's all great, as far as it goes. Free speech is a truly marvellous invention; I can tell that from afar, even though we don't actually have it yet here in the UK.

    Unfortunately I don't seem to have been afforded the right to reply at NeoGAF, despite being a member since this crisis broke in April, and despite having written to them more than once asking why. So when I find that I want to provide the additional information that these commenters lack, the best I can do is to publish it here.

    So then, here in all their glory, are my many reasons for dropping the case against John Lewis...

    (1) They removed the condition of non-liability from their compensation offer. I had refused to accept any offer that required I agree to their claims of non-liability; they removed that barrier.

    (2) They rebranded their offer as a "gesture of regret to allow for your inconvenience". This simple extension, this form of words, satisfied my wish to hear them accept responsibility.

    (3) Incidental damages, such as the costs of the Blu-rays and games which I was unable to use for some months, could not be attached to the fast track small claims procedure at the Sheriff Court. For that reason and others...

    (4) I was advised that the "best possible outcome" from the court hearing would be no better than what was being offered out-of-court, while it was eminently possible that it might be worse in many ways (loss of one or both offers; valuation reductions).

    (5) I could not countenance any alternative legal process, for reasons of cost. And in fact, even the "small claim" could potentially have exposed me to more costs than I can easily afford, had I lost - which was always a possibility.

    (6) My case had already caused a stir at all levels of management within and beyond John Lewis's Glasgow store, and into their legal department. What it really needs now, I figure, is for other PS3 users to do the same. In Europe, it's only through Force Of Numbers that our message will ever get back to Sony.

    In short: I feel that I have "done my bit". And now, my fellow PS3 users, the interesting question is:

    Have you?

  13. Update, more than a year after that previous comment: just been admitted to the NeoGAF forum! Also: Bungieware appears to have been banned, hope I had nothing to do with that.