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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 lockwoodx

Edited by Thor_Molecules

Pretty much nobody even uses creditcards anymore where I live, and nothing of any importance is stored on my PSN, unless they want to steal my Ratchet and Clank savegames.

A dick move, sure, but it doesn't affect me personally.

Still, I suggest everyone who feels otherwise to immediately send out this letter.

Posted by Diablos1125

@Atramentous said:

Less QQ, more QL.

Love this

Posted by zameer

Things like this are pretty much why Klepek's on the site. Good work man

Posted by Norusdog

@BenderUnit22 said:

I'm not American, so the concept of suing people and/or companies as I please still sounds ridiculous to me.

doesn't matter what country you're from. If you have any intelligence you can see that Sony trying to absolve themselves of legal ramification is bullshit.

I too think the trend of suing over every little thing is pathetic...but the law exists in regards to this for a reason. It's so companies can't get away with any fucking thing they want.

Thankfully this probably won't hold up in court. Not to any judge with a grip on reality.

Posted by Krakn3Dfx

I don't really foresee a time when I would sue a game console maker for any reason. It would be the equivalent of suing McDonald's for spilling their hot coffee on my crotch or getting fat from eating their food.

This is all just silly, and the fact that GB feels like it warrants a banner across the top of the site just makes it all the more silly.

Posted by FoxMulder

Meh... I just wanna play some Uncharted online...agrees. Like most people are saying, this probably won't hold up in court.

Posted by amir90

Yay Europe! :D

Edited by Gunharp

@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.

Right on. This is exactly where my thoughts went when all of this was getting reported on. At least new people are being informed about ToS/EULA's in general. It also reminds me...well...I don't even want to think about the crap I signed to be a contractor for Sony. It was just as hefty as the paperwork for my previous contract with Microsoft.

Posted by xaLieNxGrEyx

If there's anyone big enough of a douche bag to send in a letter please leave this site now.

Edited by ReaganStein

Between this and Apple's incredibly intrusive contracts for developers we are in for a very dark digital future where all our greatest concerns could very well become true. This comes from someone who owns both platforms, do these companies learn anything from public outcry? I had no anger towards Sony regarding the hacking issue but seeing this shoddy covering of their collective asses is completely disgusting. Thank you Sony for making a crappy situation even worse. I guess I was stupid to expect better.

Posted by Grognard66

I'm surprised some of the Sony apologists on this site have taken to attacking Patrick Klepek for reporting on this. How is it inappropriate or fearmongering to do investigative journalism on this? Klepek is one of the few in the industry who believes in sourcing, fact checking and investigation rather than just regurgitating press releases and I'm grateful for it. Just because you identify personally with a soulless corporation to an unhealthy degree is no reason to shoot the messenger. I wonder how many of you bashing Klepek would have minded if it was MS he reported doing this...

Posted by LostFlock

We gotta sue someone!

Posted by yabbikoke

It seems like Sony has always alienated their customers by seeming to just not give a shit about them, but this is just ridiculous.

Posted by Thor_Molecules

So, as plenty of commenters have already pointed out by now, the TOS changes actually mean very little, and surely aren't worth the sensationalist fear-mongering and all the hateful comments. Last I checked, this wasn't Destructoid or Kotaku just yet.

I usually like your articles a lot, Patrick, but you do seem to get a little carried away on matters like this. First Nintendo gets a string of blatant flame-articles because they have the NERVE to show off a new optional peripheral, and now Sony's next on the cutting block? I'm all for informative articles, but stop writing them like the sky is falling, it reflects poorly on the site, in my opinion.

Posted by Pinworm45

@Cyrisaurus said:

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

But if they had, they would have every legal right to sue. This is a slimy move by Sony and it's pathetic that anyone could support it. Indifference, fine, but understanding at least

Posted by Nicholas

@patrickklepek In the template, in the top right, Arbitration is misspelled.

Thank you for the article and the template, sir.

Posted by HairyToeKnuckles

I only agreed to the new ToS because I knew like an old man writing his Will on his dick, it would not stand up in court.

Posted by zombiesatemycereal

@xaLieNxGrEyx: How does not wanting to give up your rights make you a douche? People's idiotic love of Sony never ceases to amaze me.

Posted by SavageM2

Maybe I'm feeling especially apathetic today, but I don't think this is going to do/change much either way. All you are going to get is comments taking jabs at Sony. Or comments taking jabs at "Americans hur dur sue sue sue." I don't see many people caring in a months time. If it even takes that long for people to forget about it.

Posted by AxleBro
Posted by TheHakku

Thank you, Patrick.

Posted by Skullking

while i think that sony doing this is lame, i think suing people is lamer

Posted by phantomzxro
@Buckfitches said:

So, as plenty of commenters have already pointed out by now, the TOS changes actually mean very little, and surely aren't worth the sensationalist fear-mongering and all the hateful comments. Last I checked, this wasn't Destructoid or Kotaku just yet.

I usually like your articles a lot, Patrick, but you do seem to get a little carried away on matters like this. First Nintendo gets a string of blatant flame-articles because they have the NERVE to show off a new optional peripheral, and now Sony's next on the cutting block? I'm all for informative articles, but stop writing them like the sky is falling, it reflects poorly on the site, in my opinion.


I could not agree more i don't know what the big deal is, because this really does not mean alot its just sony covering its butt. I believe it did say if both parties agree you can still  collectively sue. Sony just don't want a million angry hacker just sueing over linux just for the heck of it.  For most other normal case it will not change how you want to sue sony if that is your thing. But i agree on patrick he's a cool guy an all but he is throwing the hate on sony and nintendo pretty hard of late.
Posted by acadiasreech

I know that the implications of the agreement really have no bearing on my playing Bad Company 2. However, I do think that it's offensive to commit a massive goat fuck of a debacle and then create a contingency that ensures that they won't be held accountable if and when they next go to the farm. Legally it is inconsequential to me. I agree with the sentiments of many on here. Regardless, out of sheer principle, I'm sending the letter.

Edited by Jack_Lafayette

@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

Well you've managed to successfully pardon Sony of a massive security failure, call people who are concerned about a mega-corporation levying their power to reduce common freedoms dumb whiners, and imply that it would be best to keep our heads down and deal with whatever Sony throws on us in the future as a matter of course because any one of us would do anything just to keep playing video games. If your goal was to come off as a scumbag, you've been successful. Also, great insult to Americans there. Convincing argument and all that.

@jkuc316 said:

I don't get it, what's the problem everyone? You're probably not gonna sue them anyways...

The point of having these rights is largely to prevent corporations from taking advantage of us in ways that they almost certainly would if we didn't have them. It's for protection as much as it is for retaliation.
 
@coloursheep said:

i dont kow if its an american thing to get all up in arms when some of your rights are taken away, except of course if it is for national security then by all means get rid of them, but if sony wants to protect themselves from getting sued because someone else hacked their system then they should and anyone who sued or tried to sue sony for the hack then they are extremely misguided and should instead focus their efforts on trying to get governments to crack down on cyber crime. remember sony was a victim of the hack as much as any user if not more so, so dont judge them if they are trying to protect themselves because they got hacked then people tried to sue them instead of those actually responsible for the hack.

A bigger problem here is that Sony will have far less incentive in the future to cover their bases and respond quickly to threats or inherent system flaws. I wouldn't sue them unless they made a truly heinous misjudgement, but the people who would keep Sony on their toes and having to make sure they aren't wronging their consumer base.
Posted by TruthTellah

More than a response to the recent PSN outage, this is probably a direct response to the recent US Supreme Court verdicts in Walmart v. Dukes and AT&T v. Concepcion.

Both verdicts reaffirmed the legality of anti-Class Action clauses, and AT&T v. Concepcion maintained that Mandatory Arbitration clauses like this were legal. These rulings just came down in the last few months, and so, Sony most-likely saw that these added clauses will indeed hold up in any court in the United States. That is why they are focusing on the US for the moment. They know it won't face any legal challenge, as the verdicts so directly defend clauses like these.

The only surprising thing here is that they include any opt-out at all; they are not required to do so. Personally, I disagree with the Supreme Court decisions and dislike clauses like these, which are far too common today, but as far as US law goes, they are now quite legal and enforceable.

Posted by phantomzxro
@Grognard66 said:

I'm surprised some of the Sony apologists on this site have taken to attacking Patrick Klepek for reporting on this. How is it inappropriate or fearmongering to do investigative journalism on this? Klepek is one of the few in the industry who believes in sourcing, fact checking and investigation rather than just regurgitating press releases and I'm grateful for it. Just because you identify personally with a soulless corporation to an unhealthy degree is no reason to shoot the messenger. I wonder how many of you bashing Klepek would have minded if it was MS he reported doing this...


first off i think investigative journalism should be unbiased and having a premade letter to fight sony is pretty biased on a investigative journalism standpoint. Also i'm tired of this sony apologists act how many people have really been burned by sony? i mean really, online was down for close to two month and they made good on that when it went back online. Some people are still sore about linux being gone but last time a checked no one has been screwed over by sony. So what are sony apologists a pologizing for. Sony has messed up sure no company is perfect and they are looking out for themselves like all companies do but as a gaming service the ps3 and sony is still pretty good. Also i  think people are waiting for klepek to bash MS because at least then it will be even because he has been running to town on ps3 and nintendo of late.
Posted by McShank

@White_Silhouette said:

I know I choose not to play my PS3 online until sony changes the policy.. I'm also going to write a politely worded letter to any devs of PSN games that I want to play. Telling them they have lost a potential sale due Sony's current EULA

Everything you just said will be laughed at by sony and the dev's.

What is wrong with this? Did anyone get hurt in any way during the hacking? No.. No one did. Why are people so Butt hurt about this? Its not like Origin's EULA which is complete trash. Did anyone on here actually try a collective sue during that time? Did anyone even try to sue them at all on here? (I am not bitching about the letter, I am bitching about people being so butt hurt that they are getting angry about a new Agreement that has a loophole..)

Posted by Swoxx

It only does no lawsuits

Posted by TheSouthernDandy
@phantomzxro
@Buckfitches said:

So, as plenty of commenters have already pointed out by now, the TOS changes actually mean very little, and surely aren't worth the sensationalist fear-mongering and all the hateful comments. Last I checked, this wasn't Destructoid or Kotaku just yet.

I usually like your articles a lot, Patrick, but you do seem to get a little carried away on matters like this. First Nintendo gets a string of blatant flame-articles because they have the NERVE to show off a new optional peripheral, and now Sony's next on the cutting block? I'm all for informative articles, but stop writing them like the sky is falling, it reflects poorly on the site, in my opinion.


I could not agree more i don't know what the big deal is, because this really does not mean alot its just sony covering its butt. I believe it did say if both parties agree you can still  collectively sue. Sony just don't want a million angry hacker just sueing over linux just for the heck of it.  For most other normal case it will not change how you want to sue sony if that is your thing. But i agree on patrick he's a cool guy an all but he is throwing the hate on sony and nintendo pretty hard of late.
You two are just ADORABLE
Posted by Nakiro

You guys sound like you're about to cry, maybe along with those stamps buy some tissues as well.

Posted by OptimalPower

Good job Klepek, thanks for the heads up.

Posted by Thor_Molecules

@Swoxx: If you have a valid lawsuit against Sony, this clause isn't going to do anything to stop you from suing them.

People are grossly misunderstanding what Sony is actually doing here and just assume they are being wronged in some way, and the way this article is written only adds fuel to the fire.

I still remember Jeff saying that this website was strictly about videogames, not about companies, business or flamewars.

Posted by Swoxx

@Buckfitches: I was only kidding around, you know.

Posted by MJLL

@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.

Couldn't have said it better.

Posted by thenexus

Nice work.

Some people may not be fussed by this but Sony is trying to prevent any legal action against them at all as legally as they can. They know you and me taking legal action separately will get us know where.

What is worse is what this means, Companies basically blackmailing you into wanting to use their services. What else will they try and include in their TOS?

It is like Game boxes telling you that you agree to the terms and conditions by breaking the seal. The Terms though are inside the box!

Posted by GUTBOMB

@Buzzkill said:

Just popped on while I was taking a break from studying for a Physics test, and you provided a much needed laugh.

Thank you sir

Posted by Duder_Me

Do I care? Do any of you seriously care about this? No? Good :)

Edited by Kosayn

In time, these click through EULAs will be struck down as unlawful, or forced to a twitter-like character limit. The way they are currently operating is contrary to the spirit of actually making an agreement between two parties. Press X or read 5 pages and send a letter - that's ludicrous.

If lawsuits are a matter of interest to you, I would recommend watching the Hot Coffee documentary. People have the right to sue because often disputes seem very different to each party based on their perspective.

Posted by Bruce

Wrong form of "its," Patrick.

Posted by piropeople13

GOOD WORK PATRICK. I'll send my letter in tomorrow. Thanks for the excellent investigative journalism.

Posted by Little_Socrates

I'll be writing a letter. Currently not a PSN user, but was planning on rejoining to play Uncharted 3. Sad, because I'd also been intending to play LittleBigPlanet 2, and it's unfortunate that it'll take work to do this.

Edited by phantomzxro
@wickedsc3 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.

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.


i think you anwsered your own  question because your statement is textbook fearmongering. How many people were reported who lost money because of the sony hack awhile ago. You can't name any because there were none to my knownage or not alot of people to make a fuss over. Sony offers free ID theft service and this agreement does not stop you from sueing sony for this. This is in place to slow down class action lawsuit for people who like to create them for the fun of it. any suit on sony will still be taken to court and if both parties agree class action lawsuits can still happen. so this does not really change anything, that is why this can be fear mongering because it shocks readers without giving them the full story.
Posted by Arkasai

Isn't this semi-proof that Sony is fully expecting a massive security failure that would mobilize lots of class action suits? Despite making all manner of statements ensuring customers safety is top notch. It speaks to Sony's confidence level in their own security, if they can't protect users, they'll at least take steps to protect themselves from their users.

Edited by lockwoodx

Sony decided to use Snail-Mail because they know the Government will close down the postal system before the opt-out deadline is up, making the decision for you in their favor. Evil companies will be evil, and sheeple will be sheeple.

Posted by WEGGLES

PSN account, is that like... my username or is there an account number?

Posted by zakkro

Man, this is fucked up. On the other hand, I have enough problems to worry about, so I really don't care.

Online
Posted by Foggen

Note also that small-claims filings are exempt. That means you could sue them yourself for 5 grand and win due to them not bothering to show up.

Posted by Even

@TruthTellah said:

More than a response to the recent PSN outage, this is probably a direct response to the recent US Supreme Court verdicts in Walmart v. Dukes and AT&T v. Concepcion.

Both verdicts reaffirmed the legality of anti-Class Action clauses, and AT&T v. Concepcion maintained that Mandatory Arbitration clauses like this were legal. These rulings just came down in the last few months, and so, Sony most-likely saw that these added clauses will indeed hold up in any court in the United States. That is why they are focusing on the US for the moment. They know it won't face any legal challenge, as the verdicts so directly defend clauses like these.

The only surprising thing here is that they include any opt-out at all; they are not required to do so. Personally, I disagree with the Supreme Court decisions and dislike clauses like these, which are far too common today, but as far as US law goes, they are now quite legal and enforceable.

@Buckfitches The new TOS changes mean a lot. TruthTellah is right on the money. The Supreme Court strengthened arbitration in AT&T vs Concepcion and Sony is now taking full advantage of that. Patrick's article is showing you how to retain your class action rights.

Class action lawsuits are there to punish companies that "fuck-it-up-big-time", and the pro-corporation trolls sitting on the Supreme Court have now made it more difficult to go that route.