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Sony's Asking You to Waive Your Rights, But You Have Options

Keep your legal rights by sending a letter--we even made a template! Plus, a lawyer questions whether this will even hold up.

Agreeing toPSN's new Terms of Service waives certain legal rights, unless you mail a letter.

UPDATE: Some users pointed out this wouldn't apply worldwide, as laws are in place elsewhere to protect consumers from this. Kotaku Australia confirmed it won't apply to Europe or Australia.

ORIGINAL STORY: When I booted up NFL Sunday Ticket to watch the Chicago Bears on Sunday (which worked fine this week), Sony asked me to agree to an updated Terms of Service to access PlayStation Network. Standard stuff. We blindly agree to these things all the time, but this time, it's different.

Sony is asking you to waive the right to collectively sue them, and instead resolve any disputes individually through another process called arbitration (read: outside of the courts).

Sony has not revealed why it's implemented this change, but it's easy to guess it's in response to PSN security imploding back in April, exposing the personal data of 75 million PSN accounts. It was a total disaster.

Within days after admitting PSN had been compromised, the company had been sued, that time by 36-year-old Kristopher Johns of Birmingham, Ala, in the U.S. District Court for the Northern District of California.

Below is the legal excerpt causing a stir, but you can read the entire updated Terms of Service right here.

"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 legal action, unless both you and the Sony entity with which you have a dispute specifically agree to do so in writing following initiation of the arbitration. This provision does not preclude your participation as a member in a class action filed on or before August 20, 2011."

If you don't agree, you cannot continue to play games online. That's a hard bargain.

The reason people bring class action lawsuits against companies runs under the the same principles governing unions: power in numbers. One person's going to have a tough time staring down a giant corporation, but if thousands or millions of people are speaking together, there's a chance it'll listen. Having the discussion happen behind-closed-doors doesn't help matters.

This effectively cuts group action off at the knees.

Sony's likely buried the opt-out option in this update to discourage anyone from opting-out.

"This really sort of sucks because it is doubtful that any individual could afford to sue them," explained Washington attorney Thomas Buscaglia, who specializes in games. "Not sure how enforceable it will be, but I think it it would be really cool if gamers started to circulate a form opt out rejection of these terms and mailed them in."

As it turns out, there's an opt-out buried in the Terms of Service, but if you've already signed off on the updated Terms of Service, you need to act quickly; Sony's built a countdown into the agreement itself.

"If you do not wish to be bound by the binding arbitration and class action waiver in this Section 15," reads the Terms of Service, "you must notify SNEI [Sony Network Entertainment] in writing within 30 days of the date that you accept this agreement."

Tick, tock. Tick, tock.

To retain your right to participate in class action lawsuits, you must send the company a letter with your name, address, PSN account and a "clear statement that you do not wish to resolve disputes with any Sony entity through arbitration." Once you have that letter prepared, print it out and mail it here:

6080 Center Drive
10th Floor
Los Angeles, CA 90045
Attn: Legal Department/Arbitration
Attn: Sony Legal Department: Dispute Resolution

I'll even make things easier: here's a document I created you can use as your personal template.

What happens next isn't clear.

Sony has provided all 75 million and counting members of PSN a clear way to maintain their existing rights, but by asking everyone to agree to ditching those rights in order to continue using PSN and asking them to mail a letter to keep them, they've ensured most will have given them away. That's assuming the majority of users are even aware something substantive has changed; how often have you seen an email full of legal mumbo jumbo, pretended to read it, then quickly deleted it?

That said, Sony's move could run into problems, regardless of whether you send in a letter or not.

"This is certainly not standard practice by any standards...in fact it may well not be enforceable," said Buscaglia. "Time will tell on that one. The US Federal Trade Commission and various state consumer protection agencies could have a problem with it. Also, some courts might not allow it to be enforced due to existing state court precedent."

Even if this move wouldn't hold up in court (ironic!), it may scare off anyone from trying, which would make it a success.

As Buscaglia said, time will tell. In the meantime, maybe you should go buy some stamps.

Patrick Klepek on Google+
328 Comments
Posted by Legend

So, instead of trying to gain back their customers' confidence in their company, Sony decided to do this. Fucking idiots.

Posted by GS_Dan

I hate myself for it, but I don't honestly care. :(

Posted by Maajin

@lordgodalming: I think the template is meant to be funny. I think. I hope.

Posted by plaintomato

I checked with counsel and Sony can stick our pluribus up their unum. E Sonybus, Bitchesum and all that he said, because he's an attorney so he's all fond of Latin and things.

Posted by DigitalMystic

I'm just a student in law school who aced Contract Law last semester, but an online click-wrap agreement cannot make you fully waive any legitimate constitutional rights you have to legal remedy. Period.

Sony is simply including phrasing in their user agreement that matches the same kind of thing you accept every day from your electric company, phone company, bank, gas company, cell phone provider, credit card company, etc.

Where are the angry protests in the streets over the greed and injustice of so many American businesses and utilities operators, gamers? No, it's much more cool to shake our internet fists at Sony... perspective is everything, my gaming peers.

Posted by Altersparck

@Cyrisaurus: I agree with you, but I'm still sending the letter as a matter of principle.

Posted by Vegetable_Side_Dish
@lordgodalming said:

Why are people making such a stink about this? The EULAs for Valve and iTunes, for example, are way more intrusive than the PSN's. And anyway, if millions of people's credit cards got stolen again, the company would be held responsible again. Simple as that.

And you made us a template? Articles like this are pure fear-mongering. I love GB, but Mr. Klepek brings down the whole site.

In this case, this. 
Posted by Count_Zero

As an aside - this doesn't just affect your ability to play games online. This also affects your ability to watch Netflix Streaming on your PS3. While, yes, you can also watch Netflix Streaming on the Xbox 360...

  1. Netflix on the 360 requires a Live Gold subscription.
  2. Netflix on the 360 doesn't support subtitles or closed captioning for the deaf or hard of hearing.

So, if you fit into either of those categories, you're kind of SOL.

Posted by stealthdf2

If i dont intend to sue them then what is the point in sending them a letter telling them that? if i dont intend to use the right to sue then why should i care to even keep the right? it seems like a waste of time . the average user this doesnt really matter, if you were already planning to sue then it affects you and thats it

Posted by iAmJohn

@akumous said:

This is not uncommon of big multinational corporations like Sony, everyone does it and they conveniently trap their user base in such a dilemma to avoid losing. If an individual wishes to take the right path that would protect their rights he or she has to go through much tedious bureaucratic nonsense just for their voices to be heard. Corporations have too much power and something mush be to done to stop this because the average person does not have the resources to oppose them.

Well said.

Posted by MisterMouse
Posted by UnderSkorr

@Cyrisaurus:

You misunderstand. This movement makes it so that if Sony fucks you over, you have to go out of your way to sue. By clicking and moving on, you are saying that no one can sue in your defense, on your behalf unless you do it yourself. Sending in a letter is a preventative measure saying that you want keep your right to be included in a mass lawsuit against Sony if they actually manage to lose credit card info or something similar.

Posted by MaddProdigy

@Cyrisaurus said:

I clicked agree, and moved on. You know why? Because I just want to play games online. I don't have any intentions of going out of my way to try and sue some major company.

And you know what? I doubt anyone else does too. I guarantee you that 100% of the people who complain about this have no intentions of suing Sony (and probably don't own a PS3). Some people just like to bitch because they think "Hur I'm an American, you can't take my rights". If Sony issued a new ToS stating that you were not allowed to stab yourself in the eye with a fork, there would be thousands of people raging over the situation acting like Sony is evil, just like this situation.

Newsflash, nobody lost their CC info from the PSN attacks, or suffered any long-term effects. So it would be best for people to move on, and just play some damn video games

Such a pretentious douche comment

Posted by bartok

So is C. Montgomery Burns the new CEO of Sony?

Posted by TurboMan

Great job, Klepek

Good for looking out for us

Online
Posted by billyhoush

Major corporations rely on consumer apathy and ignorance to get their way.

Posted by SeriouslyNow

@DigitalMystic said:

I'm just a student in law school who aced Contract Law last semester, but an online click-wrap agreement cannot make you fully waive any legitimate constitutional rights you have to legal remedy. Period.

Sony is simply including phrasing in their user agreement that matches the same kind of thing you accept every day from your electric company, phone company, bank, gas company, cell phone provider, credit card company, etc.

Where are the angry protests in the streets over the greed and injustice of so many American businesses and utilities operators, gamers? No, it's much more cool to shake our internet fists at Sony... perspective is everything, my gaming peers.

This isn't a remedy to liability clause, this is deferring constitutional rights to restitution. No company can do that and EULAs have been debated in court many times.

Posted by ze_ro

oh dear... all you people. but i lol'd reading thru this thread so thanks i guess.

Posted by Peanut

@Vegetable_Side_Dish said:

@lordgodalming said:

Why are people making such a stink about this? The EULAs for Valve and iTunes, for example, are way more intrusive than the PSN's. And anyway, if millions of people's credit cards got stolen again, the company would be held responsible again. Simple as that.

And you made us a template? Articles like this are pure fear-mongering. I love GB, but Mr. Klepek brings down the whole site.

In this case, this.

Agreed. This kind of sensationalist approach to news of this nature feels very Fox News to me.

Posted by Andtheworld

Dammit guys, this shit is in every EULA I know and you're whining when Sony does it? Wunderbar.

Just for that, I wont send that letter unless you guys do it for every major company who does this, such as Valve or perhaps iTunes.

Posted by Grognard66

Little wonder the Playstation brand has deteriorated so rapidly in the US this generation. Sony has stumbled from one PR disaster to another and the worst part is that they were all easily avoidable if Sony was not so smug and arrogant. Maybe if Sony spent as much time and money on improving their products they wouldn't have to try these underhanded legal tactics.

Sadly, Sony's strategy this generation seems to be one of mitigating the fallout from their poor decisions at the start of the PS3 era by removing the other OS and now this (not to mention dropping features like memory card readers, backwards compatibility, etc.).

Posted by mikey87144

I actually read it. I thought about it clicked agree and moved on for 2 reasons.

1. It won't be enforceable. I've studied contract law for a couple of semesters and if Sony were to repeat a fuck up as big as the PSN disaster no judge would allow them to settle the resulting lawsuits with binding arbitration.

2. I have no interest in suing Sony or most companies for that matter if they their best to make good. In fairness to Sony they've provided free ID theft protection and 4 free games. Plus free plus for a month.

Posted by atomic_dumpling
@Peanut said:

@Vegetable_Side_Dish said:

@lordgodalming said:

Why are people making such a stink about this? The EULAs for Valve and iTunes, for example, are way more intrusive than the PSN's. And anyway, if millions of people's credit cards got stolen again, the company would be held responsible again. Simple as that.

And you made us a template? Articles like this are pure fear-mongering. I love GB, but Mr. Klepek brings down the whole site.

In this case, this.

Agreed. This kind of sensationalist approach to news of this nature feels very Fox News to me.

You pay for this, mind you. Maybe you guys should force the issue more vocally - customer is always right.
Posted by Undeadpool

@Afroman269 said:

I don't use my ps3 enough to care about all this but I think I'll send in a letter anyways. Thanks for the heads up, Patrick.

Likewise. Uncharted 3 and Dark Souls are coming, so I know I'll be dusting the ol' girl off. And, hey, if someone DOES get the ball rolling, might be nice to be included.

Posted by Joeybagad0nutz

Well, I still have my 360 so goodbye ps3.
Edited by SomeJerk

Should see what say, Nintendo or Microsoft have in their fine print, before you complain about this. Or hey. Look at facebook.

Also see how a lot of people are getting their Live accounts hijacked and used for relocating into Russia, and having 4k and 6k gamerpoints purchased, and most of the points spent in FIFA 11 lately. Xbox support themselves say it's JTagged Eeastern-European machines, gaming media says not a single thing.

But give the opportunity to drop a loaf on evil foreign Sony and everybody will jump on.

Posted by CyleMoore

I don't really care.

Posted by Peanut

@atomic_dumpling: I'm subscribed to Whiskey for Jeff, Ryan, Vinny, Brad and the Tested guys. Not Patrick Klepek. However, I also decided on a monthly instead of a yearly so that I can opt out at any time and there's a very specific reason for that.

Posted by 71Ranchero

@lordgodalming said:

Why are people making such a stink about this? The EULAs for Valve and iTunes, for example, are way more intrusive than the PSN's. And anyway, if millions of people's credit cards got stolen again, the company would be held responsible again. Simple as that.

And you made us a template? Articles like this are pure fear-mongering. I love GB, but Mr. Klepek brings down the whole site.

I agree. Most of his articles are deliberate flame bait designed to rile up the masses. I would expect this constant barrage at a lesser site but GB is not Destructoid and should not be posting articles that are charged for page views and click traffic.

Stay classy Klepek, keep throwing chum to the sharks.

Posted by White_Silhouette

People seem to be using Valve and itunes and example of EULA's that already have this. The Valve part was posted. But (at least my understanding of it) is that it didn't stop you from seeking a class action in the case of any wrong doing. I don't have any legal background so I could be completely wrong.

If anyone can post the itunes part that would be much appreciated.

Either way the Supreme Court in Canada has already set precedence here so it's really not an issue for us. I could see the Supreme Court in the states following suite, if they haven't already.

Posted by zeezkos

a lot of people are making a lot of assumptions about others, and then either beating up straw men or getting outraged. everyone needs to relax

Edited by ImpureAscetic

@Cyrisaurus: The only thing necessary for evil to triumph is for good men to do nothing. The revocation of rights doesn't happen with a bang but with a whimper. Every soldier displaced by Blackwater, every court decision like Citizens United, and each corporate denial of rights is a stepping stone to the subjugation of ordinary citizens by people with predatory interests. Sure, video games are an anesthesia, but if you're not angry you're not paying attention.

Posted by Alphazero

So that was the stupid update that kept me from watching Netflix on my PS3 this morning? I feel doubly pissed.

Posted by DigitalMystic

@SeriouslyNow said:

This isn't a remedy to liability clause, this is deferring constitutional rights to restitution. No company can do that and EULAs have been debated in court many times.

No, mate. They're trying to control the venue through which you can bring claims against them, restricting your right to legal remedy. The clause Patrick quoted doesn't waive liability. It's a standard fare arbitration clause, just like on my AT&T agreement, the kind that used to exist in the credit card industry until a year or two ago when the forums were all revealed to be owned by the banks. It's actually a bit more friendly than theirs. While EULAs and arb clauses have been repeatedly thrown out in the past, one was held up in favor of AT&T in a major case last year. A concerning precedent for consumers.

Restitution wouldn't even come into it, though. Restitution is the remedy for gains received through unjust enrichment, which would require Sony to profit from something that you have a right to have profited from yourself. When it comes to the online store, the only thing customers could reasonably seek would be compensation for loss.

But we agree fundamentally that it's unenforceable, so I'm with you. :)

Posted by Fayt

@BenderUnit22: Did you just link to the Pocono Record?! I'm not living there right now (just moved to Canada for grad school), but that's my home town!! Right on!!

Posted by thatdutchguy

lol americans with your sueing bullshit

'im to fat to fit in this mc donalds chair" SUE !

Posted by SHADOWINFINITE

Now I have to use snail mail to continue to use my PS3 online profile? Within 30 days!!!

Posted by Ruken

Now THIS is news. I wish more media would focus on issues like this. Patrick Klepek, I gotta say, you have a knack for finding the stories (even though I would consider some of them more niche) that I care about.

Posted by shinigami420
Posted by MrKlorox

Awesome racism in some of these comments. I hope it's a case of Poe's Law at least on some of them.

Posted by ultimatepunchrod

@Cyrisaurus said:

I clicked agree, and moved on. You know why? Because I just want to play games online. I don't have any intentions of going out of my way to try and sue some major company.

And you know what? I doubt anyone else does too. I guarantee you that 100% of the people who complain about this have no intentions of suing Sony (and probably don't own a PS3). Some people just like to bitch because they think "Hur I'm an American, you can't take my rights". If Sony issued a new ToS stating that you were not allowed to stab yourself in the eye with a fork, there would be thousands of people raging over the situation acting like Sony is evil, just like this situation.

Newsflash, nobody lost their CC info from the PSN attacks, or suffered any long-term effects. So it would be best for people to move on, and just play some damn video games

i was about to say this but maybe not as angrily. i agree though. it doesnt matter if you have no reason to sue them or if you do nothing wrong with their hardware/pirate games/whatever the hell may get you in trouble with the company. this isnt a big deal to me at least.

Posted by DoctorWelch

Maybe if there was actually a reason to play games online on my PS3, or turn it on at all, then I may be a tiny bit intrigued by this, but as it stands now...nope.

Posted by Aas

Keep it up, Patrick. You put the "journalism" in "video game journalism". Mothertruckin' professional!

Posted by Vash108

This couldn't be because of the way they poorly handled the information hack?

(╯°□°)╯︵ ┻━┻

Posted by Gordo789

@MrKlorox said:

Awesome racism in some of these comments. I hope it's a case of Poe's Law at least on some of them.

American is not a race, but I totally agree.

Posted by DrSwank

@Cyrisaurus: It doesn't matter if you clicked agree, if you live in America, you have certain inalienable rights (i.e. rights that you cannot waive under any circumstance). Legal rights, such as constitutional rights, common law rights, and statutory rights.

This is the same reason why that no man, woman, or child can willingly sell themselves into slavery. And also, why it's illegal to commit suicide.

Under no circumstance can you waive your constitutional rights, natural rights, or legal rights (in America).

Posted by MrKlorox
@Gordo789: I was waiting for that semantic note from somebody.
Posted by wickedsc3

@lordgodalming said:

Why are people making such a stink about this? The EULAs for Valve and iTunes, for example, are way more intrusive than the PSN's. And anyway, if millions of people's credit cards got stolen again, the company would be held responsible again. Simple as that.

And you made us a template? Articles like this are pure fear-mongering. I love GB, but Mr. Klepek brings down the whole site.

How is it fear-mongering exactly? He simply reported on a change of the TOS in reaction to Sony latest breach. Knowing most people just simply agree to those TOS he is doing his job reporting it.

The thing you clearly don't realize is that Sony might be responsible for the money they lost, good luck on making your house payment, car payment, car insurance, cell phone bill, and others when you just lost all of your money in your checking because Sony got hacked again.

I'm sure it would take Sony longer than a month to get everyone's money back so missing those payments would cause your credit to drop. Now how is Sony going to make up for that? They are not going to. That is something you have to settle in court and good luck going up against Sony by yourself (which is what you are agreeing to in this tos) in court with no money, because they just lost it.

Posted by Dick_Mohawk

Thank you Patrick. I wouldn't have waded through all that crap to discover that rather back handed user agreement. I don't own a PS3 yet, but I'll keep the template bookmarked as I like to ensure as many of my rights are intact should the need arise to exercise them.

Excellent work.

Posted by bombHills

Thanks for this, I will get it in the mail.

It's not that I am looking to sue someone and get some money. I just think its better to be safe than sorry. Ink on paper and a stamp is a small price to pay.