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Technology, Video Games


When Sony released the PS3 in 2006 it came with an “Other OS” feature, or other operating system. It allowed users to boot other operating systems, namely Linux, on the PS3. For many PS3 users, “Other OS” is a feature that would never be used. You can buy and play your normal PS3 games, use the PSN, design Little Big Planet levels, and so on, without ever using the feature. However, for some users (including the US Air Force), the ability of the PS3 to function as a powerful computer was a very useful feature. In 2009, Sony removed the “Other OS” feature from newly produced models of the PS3. By this time, it was well-known that some users were using the “Other OS” feature to get around copyright protection in hacking games.

In 2010, Sony introduced Firmware Update 3.21 over the Playstation Network (PSN). PS3 owners get regular updates through the PSN to enhance and maintain the functionality of the PS3. Here though, Update 3.21 disabled the Other OS feature on any PS3 that installed it. Furthermore, if the user did not install Update 3.21, then they would no longer have access to the PSN. So, Other OS fans had a choice: keep the Other OS and lose the PSN or keep the PSN and lose the Other OS feature. Hence, a lawsuit was filed in federal court in San Francisco suing for damages over Sony’s Firmware Update 3.21.

On December 8, 2011, US District Judge Richard Seeborg signed an Order granting Sony’s motion to dismiss the case without leave to amend. The Court differentiated between the PS3 itself as a device and the PSN as a service provided separately. It also emphasized that the choice was optional: one could choose to install Update 3.21 or not. Thus, there was nothing wrong with the PS3 itself if one failed to update the PSN service and elected to keep Other OS: it would still play games or blu-ray discs. The issue for the Court was whether Sony was obligated to provide PSN access to anyone indefinitely without condition and it found the Plaintiffs did not establish this.

Of course, this is round 1 in the trial court and Plaintiffs might appeal.


About Nerds in Court

John G. Nowakowski, Esq. (LLMT), is a graduate of the University of San Diego School of Law, and is licensed to practice law in California and Nevada. Christina R. Evola, Esq. is a recent graduate of the University of San Diego School of Law where her studies focused on intellectual property, antitrust, and media law. She is a lifelong gamer and avid cosplayer. DISCLAIMER: ‘Nerds in Court’ is for entertainment purposes only. Nothing should be construed as legal advice, or any advice for that matter, and no attorney-client relationship is formed by reading these posts. Do not consider information provided here as a substitute for obtaining legal advice from a qualified, licensed attorney in your state.


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