Giant Bomb News


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.
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.
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 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 CommentsRefresh
Avatar image for scarycrayons
Posted By scarycrayons

@kpaadet said:

I knew is was written by Patrick the second I read the headline, taking something and blowing it way out of proportion seems to be his M.O., you dont have to be a laywer to know this wont hold up in court. Terms of Services are not legal binding. I am really not liking what Patrick Klepek is turning Giantbomb into.

The headline sounds entirely accurate to me. What part of it do you think is out of proportion?

Sony -is- asking you to waive the rights you agreed to, and you -do- have options.

Avatar image for mrhollender
Posted By mrhollender

This is increasingly becoming the standard with a lot of companies. Check out the terms on your Best Buy card, or many other Line of Credit cards.

They may want to avoid Class Action, but one thing that you can do, and puts a big hurt on their legal team, is group arbitration. If everyone that would've signed up for a Class Action suit instead goes with arbitration, Sony has to have a representative present or lose the arbitration "case". This has been done with other mandatory arbitration cases, and has brought about a swift change in TOS verbiage.

Avatar image for vacancy009
Posted By Vacancy009

Fanboyism over basic rights abound. Of course nobody expects to sue Sony, and aside from the law firm representing the case those in a class action lawsuit don't get rich. If you were to get more than 5$ being a non founding member of a class action lawsuit against Sony then they would have had to put out a console that caused seizures in 75% of its owners. The purpose of a class action lawsuit is not for high monetary gain for the plaintiffs but for high monetary loss for the defendant due to some gross negligence on their part. It's meant to keep them in line so they cannot take advantage of the consumer. I 100% agree that the majority of these lawsuits are frivolous BS brought up by selfish and self righteous people that should never see the light of day. But if they were to do something serious, such as use a part that has a known risk to catch fire within a system but risk it to keep costs down, you should not give up your right to make sure your heard.

Avatar image for enigma_2099
Posted By Enigma_2099

OH FOR FUCK'S SAKE!!! It's not that big of a deal! Most class action lawsuits are just cash grabs, and if you're THAT worried about them pulling something under the guise of "diplomatic immunity," keep this in mind. Even if it came to that, if they pissed off people bad enough, this would lose them potential customers, so they'd shoot themselves in the foot. They're just trying to protect themselves from greedy lawsuits/lawyers/gamers. Remember the guy that tried to sue them over refusal of service for maintenance on his PS3... then later we find out that this was because he was practically too lazy to clean the LAYER of dirt he left on the damn thing? Yeah, that.

Avatar image for firrae
Edited By Firrae

I love this site for it's fanboys... Question a console maker and everyone who loves it hates you. God I hate fanboys, and for the record I own all the systems and still prefer PC gaming. Before you go flaming me, please think before you type.

Also good story Patrick, very informative and I'll be sending my letter just because I can :) Keep up the awesome work!

Avatar image for monkeyking1969
Posted By MonkeyKing1969

Collectively sue for what? Want be be angry about something be angry about cutting down old growth forest on public lands, fracking natural gas out of the ground, or 500 million tons of non-degrading plastic floating in our oceans.

What is happeing to the news around here? Why are we suddely getting news with a distinct agenda that seesm to just be Patricks whim? Is Mr. Kelpek supped to be the Stephen Colbert or Jon Stewart of GB, because he should know he'll needs a gagel of New York writers behind him to be that interesting?

Avatar image for robiin
Posted By Robiin

And now PSN is down until... With no news of when it will be up. This article was pretty timely, Patrick

Avatar image for somejerk
Posted By SomeJerk

Yeah MonkeyKing1969, Live has been mysteriously down a shitload of times, and Live accounts are getting hijacked back and forth en masse lately and nothing about that, even Live accounts belonging to people who don't even have a 360, just own a phone and boom, ripped off, relocated to China or Russia, CC data belonging to the account gets used to buy a bunch of Live points and burn them.. and nothing.

Avatar image for qkt
Posted By QKT

@Robiin said:

And now PSN is down until... With no news of when it will be up. This article was pretty timely, Patrick

this is true, and ironic.

Avatar image for rta
Edited By rta

big deal. you lose the right to get 43 cents from some half-assed class action suit if sony looses your email address. big. freakin. deal. they'll give you a free game and a free resistance shirt under the table if you cry hard enough, which you'll like better anyway.

Avatar image for phantomzxro
Posted By phantomzxro
@Xeirus said:

@phantomzxro said:

@go_diego_go said:

@phantomzxro: @phantomzxro said:

@wickedsc3 said:

@lordgodalming said:

once again you are giving me a story in which you can't prove i'm not saying no one was affect i'm just saying many people are using this as a reason to give sony all this heat when they were not affect or even know anyone who was affect. For the most part Sony has done its job to make good on this and If your ID or card info was taken i don't think you will have a problem with sony helping you on this matter. So you are creating a story that can't be proven yourself. I don't think you will have a problem sueing sony for all the money their worth if an extreme case like that was to happen, and rightfully so. But don't you find it strange that sony has gotten sued more for removing linux then people info being hack from sony. The reason is many people are going overbroad with trying to sue sony for anything. But i'm not here to try and defend sony i think they learned from their mistakes and made good on it. If you feel different that is fine by me, because sure a company looks out for themself but there is a check and balance also because they need customers to make money so they have to take care of their customers if they want money, so most companies are not trying to screw over their customers or at the very least not out in the open. like i said this is only in place to weed out bogus class action lawsuits, if you really have a case i'm sure a judge would be happy to throw this out if they deem it worthy.

Christ the stupidity spewing from your mouth is pathetic......... I honestly can't tell if you're trolling or just really are that stupid.......

Who is really trolling here i have not once insulted you or called your opinions stupid. I respect your opinion and just simply disagree with you, nothing mean or trolling about it just a debate among gamers. I don't really know what is really stupid about what i said and believe it make sense at the very least. Sony is getting a lot of unjust heat just because hey from time to time they have to be a company and protect their own interest. Linux being removed sucks for some but hey it was because of backdoor hacking into their systems. System being down people have a right to be pissed and if your account infomation was taken and you lose money or resourses because of it you have every right to sue or damn sony. Last i check sony is trying to help out anyone who has such a case. And now this sony is just using the same terms of agreement that other services use that people may have named already. Once again your not signing aways your rights here, it only affect class action lawsuits and even then if a case is strong a judge could surely throw it out.  
look if your truly that mad at sony fine write them a letter and curse their name on the street its fine by me. but many companies have crappy term of services like this that don't mean a whole lot in the grand plan of things. All i know is their gaming service has been fine so far for me and i have not had a problem with sony, so until i do i can't see people want to raise hell over stuff like this when ps3 service is good not perfect but good.  
Avatar image for nethlem
Edited By Nethlem

@Cyrisaurus: It's really sad that i as an non-american have to do this but i have to do this so maybe you can see the pure wrongness of your statement:

"Those who give up their liberty for more security neither deserve liberty nor security."

The sad part is that you are giving away your rights for a little bit of convenience. I can't decide if that's just sad or plain pathetic, but i'm pretty sure the founding fathers of your countrie are rotating in their graves right now.

Also you might now wanna sue sony now, but you never know what's gonna happen. You certainly won't miss your customer rights when a faulty PS3 unit sets your house on fire killing your family and destroying your whole life. Stuff like that NEVER happens right? You know like car's don't get sold without working breaks... oh wait..

Avatar image for cyrisaurus
Posted By Cyrisaurus

@Nethlem: Yeah but you know what? That will never happen, and you know it.

You think you can throw some worst case scenario at me that has a 0.01% chance of happening and suddenly I'm wrong?

Not to mention, "shit happens". I'm not one of those fools who think that everything is someone else's fault and that I should be paid millions of dollars because "hot coffee burns when I spill it on myself".

Also, I'm sure there are a million other things wrong with this country that are making the founding fathers turn in their graves fast enough for them to drill into the Earth's core, I don't think some guy agreeing to a ToS for convenience in exchange for a right that he will never use is making it any worse.

I'm sure you're right though, we should all live over-protected lives with lawyers on our side ready to sue any company with money. You act like Ben Stiller's character from that movie where he is a Risk Analysis who never has fun.

Avatar image for blackout62
Posted By Blackout62

Truly Mr. Klepek you are the Cronkite of our industry.

Avatar image for insanelycool
Edited By Insanelycool

@Cyrisaurus: you should be careful making such blanket statements. especially ones you know nothing about. i had my credit card information stolen and used because of the psn breach. people do and should care. you never know when you will need those rights you are giving away. remember what happened to the man who gave up his freedom for security... he got neither.

Avatar image for onemanx
Posted By OneManX

Ehhh.. It;s not different from when you signed papers with a new employer. And people who use iTunes should read the EULA..

This is nothing new, b/c it's Sony it's slimey... click and just move one.

Avatar image for stickyw3b
Posted By StickyW3b

I would send in a letter.....but id rather just play some Battlefield then pretend to care that I cant sue a company I never had intention of suing in the first place

Avatar image for gregner
Posted By Gregner

It's lame, but really, I would never have any intentions of suing them.

Avatar image for monkeyking1969
Posted By MonkeyKing1969

@Blackout62 said:

Truly Mr. Klepek you are the Cronkite of our industry.

I met Walter Chronkie in 1980's at the Tisbury Agricultural Society Fair; he was talking to my father as they both filled-in raffle tickets for the Jeep Wrangler. FUN FACT: Neither Walter nor my father won the jeep that year.

Avatar image for shadowinfinite

I don't want to sue Sony for any reason, but if you don't send a letter, you don't get online play. Which really is stupid.

Avatar image for fire_marshall_bill
Posted By Fire_Marshall_Bill

Frankly anyone who finds this an acceptable practice is being a bit niave. If you are ok with giving over your rights to corporations why don't you just give them your power of attorney while you are at it. Just so long as you can play Gears 3, Diablo, or COD.

Avatar image for laviddichterman
Posted By laviddichterman
Avatar image for mariokart64fan
Edited By mariokart64fan

man sony really ? maybe you should not give people reason to sue you, if you dont wanna sue you but making us agree to some garbage that is unconstitutional , guess what , ill gladly renew my 360 , now thank you , after you been shut down yet again , lol it never seams to fail , when you get free service it really dont pay off , well in some cases, at least the wii was yet to surcome to this outage its not like sony offers me rugrats to begin with, ill keep my gold just for that reason , and that reason alone since online gaming just is not fun any more , especlly when you got hackers and such exploiting the game so it is impossible to win a single match speaking of that i just played a game of gta iv and to no suprise a guy admits to modding and guess what else i got it on facebook on video , lol , and i have already reported him lol sucks to be him i guess cause he sure signed out fast haha

Avatar image for habster3
Posted By habster3


Holy shit, I forgot about that whole fiasco. My bad :P

Avatar image for lobst
Posted By Lobst

Sent my letter just to let them know I'm not going to stand by and let them waive my right to pursue legal action. I encourage everyone with a PSN account to do the same -- they've messed up once, they could do it again.

Thanks for the story, Patrick! You do great work :D

Avatar image for ezdude
Posted By ezdude

Wooooooooo, I'm American so I'm going to sue the shit out of Sony, thanks Klepek!

Yeah but really I don't know what Sony is thinking, don't they realize this is exactly the kind of stuff that produces rage around the internet. I don't think Sony is in the position to be endangering their public relations right now, at least not here in the U.S.

Also, pretty brilliant idea of having comments be like 1.5 line spaced, makes it easier to read--now to make the font blue...

Avatar image for xsheps
Posted By Xsheps

Glad I left my PS3 in a dumpster in the middle of a thunderstorm.

Avatar image for emjaylawthertin
Edited By emjaylawthertin

Two things from the Ars article: don't forget to add your PSN account number, and absolutely get all of the US Mail bells and whistles (delivery confirmation, signatures, etc).

We all have rights. Signing them away thoughtlessly is yours if you wish. I'll send a letter.

Thanks for spreading good information, Patrick.