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The Sony PS3 Class File An Amended Complaint
Thursday, March 10 2011 @ 05:59 PM EST

The class action plaintiffs in In Re SONY PS3 “Other OS" Litigation have filed their Amended Complaint [PDF] that they hope will fully address the deficiencies that the judge found in the original filing, and it's dynamite.

The Amended Complaint claims that Sony Computer Entertainment America didn't remove OtherOS functionality due to security concerns. It had other options, if security had been the real issue. It was done, they claim, for financial reasons, and that Sony's justification for the removal of Linux functionality was "false", chosen so Sony could rely on the wording of various terms. They also point a finger at IBM, claiming that possibly IBM was not happy about the military using PS3s for clustering, instead of buying IBM Blades servers:

159. SCEA suggested initially that the removal of the “Other OS” function from the “fat” models in April 2010 was for security and intellectual property reasons.

160. On its website, SCEA wrote: Why did you delete the “Other OS” feature?

A. To protect the intellectual property of the content offered on the PS3 system as well as to provide a more secure system for those users who are enjoying games and other entertainment content on the PS3 system, we have decided to delete the feature to address security vulnerabilities of the system.
161. This statement is a fabrication. SCEA gave these reasons as a pretext so that it could attempt to argue that the Warranty, SSLA, and/or TOS allowed for the removal of the “Other OS” feature. In reality, SCEI and SCEA removed this feature because it was expensive to maintain (as they previously admitted when the feature was removed from the “slim” models – but which they conveniently removed from SCEA’s website); they were losing money on every PS3 unit sold (due to poor decisions in the planning and design of the Cell chip as noted above and given the PS3’s extra features); SCEA needed to promote and sell games to make their money back on the loss-leading PS3 consoles (and there was no profit in users utilizing the computer functions of the PS3); and IBM wanted to sell its expensive servers utilizing the Cell processor (users could cluster PS3s for the same purposes much less expensively).
Wow. If you were George Hotz's lawyers, your ears would be perking up right about now, methinks. We don't know yet how the judge will rule on this amended complaint, but if they are allowed to go forward and can prove these allegations, I don't see how this could not affect the SCEA v. Hotz litigation.

I'll work on a text version for you, and when that's done (it is 98 pages), we'll take a closer look, but I didn't want you to have to wait for that. Here's just a snip, beginning on page 44 of the filing, to give you a fuller idea of this particular claim:

SCEA’s purported Justifications for Removal were False

159. SCEA suggested initially that the removal of the “Other OS” function from the “fat” models in April 2010 was for security and intellectual property reasons.

160. On its website, SCEA wrote: Why did you delete the “Other OS” feature?

A. To protect the intellectual property of the content offered on the PS3 system as well as to provide a more secure system for those users who are enjoying games and other entertainment content on the PS3 system, we have decided to delete the feature to address security vulnerabilities of the system.
161. This statement is a fabrication. SCEA gave these reasons as a pretext so that it could attempt to argue that the Warranty, SSLA, and/or TOS allowed for the removal of the “Other OS” feature. In reality, SCEI and SCEA removed this feature because it was expensive to maintain (as they previously admitted when the feature was removed from the “slim” models – but which they conveniently removed from SCEA’s website); they were losing money on every PS3 unit sold (due to poor decisions in the planning and design of the Cell chip as noted above and given the PS3’s extra features); SCEA needed to promote and sell games to make their money back on the loss-leading PS3 consoles (and there was no profit in users utilizing the computer functions of the PS3); and IBM wanted to sell its expensive servers utilizing the Cell processor (users could cluster PS3s for the same purposes much less expensively).

162. SCEA has never revealed how its “intellectual property” would be unprotected through the use of Linux on the PS3. Moreover, the utilization of Linux did not make the PS3 less “secure.”

163. It is virtually impossible to use the “Other OS” for piracy because the PS3 is specifically designed to avoid allowing piracy through using the “Other OS” feature. When the “Other OS” feature is enabled, the software prevents the proper operation of the gaming feature to avoid allowing the features to interplay. In order for a hacker to pirate a game, it is necessary to perfectly emulate the operating system for which the game is designed, including the API, which is the interface for the game OS that supports all of the features of a game. However, when the Other OS is in use, the API and other hardware features are blocked, including the graphics chip in the PS3, which makes it impossible to run a pirated game on the Other OS. As of January 2011, Sony had yet to identify a single instance in which someone used the Other OS to pirate protected content.

164. Blu-Ray piracy using the Other OS was not a unique threat. In order to pirate a Blu-Ray disc, a hacker requires a secret code or key; with that key, a hacker can pirate a Blu-Ray using a PC or a PS3 or any other computer – there is nothing unique about the PS3 in this regard.

165. In the AV Watch article discussed supra, Takase-San also commented on security not being an issue by saying: “That with respect to the Other OS security becomes the hole, but with the PS3 very firm security measures are being done, presently there is no such problem. If anything, support power is lightened.”

166. In short, SCEA has offered no valid security justifications for removing the Other OS feature. The PS3 became subject to hacking after SCEA removed the “Other OS” feature and angry users sought ways to have their advertised and paid for features turned back on.

167. Further, in February 2011, well after the Other OS feature was removed, it was a Sony employee who “tweeted” (sent a message via Twitter) the code that allowed users to get around the protections that prevent the PS3 from playing pirated games.

168. It was only on February 16, 2011, that SCEA announced that “[u]nauthorized circumvention devices for the PlayStation 3 system have been recently released by hackers.” Notably, this was only after SCEA had removed the “Other OS” feature and then tweeted the PS3’s anti-circumvention codes to the world.

169. SCEA could have taken other steps that were less intrusive than removing an advertised function of the device if security truly were a concern. Indeed, SCEA revealed that it had the capacity to monitor PS3 systems using “hacking” software and would remove those consoles from its PSN if they violated the TOS. In its February announcement, SCEA stated: “Consumers using circumvention devices or running unauthorized or pirated software will have access to the PlayStation Network and access to Qriocity services through PlayStation 3 system terminated permanently.”

170. Thus, if any security concerns truly did exist at the time that justified SCEA’s removal of the “Other OS” feature, it could have taken alternative steps at that time and barred “hackers” or “jailbroken” consoles from the PSN as opposed to removing the “Other OS” feature for all users.

171. Instead, the true reason SCEI, SCEA and Sony removed the “Other OS” feature was because of financial concerns.

172. Initially priced at $599 (much more than its competitors), SCEA was losing money on every PS3 console sold. In 2006, isuppli.com estimated that it cost Sony $806 to produce each PS3. That meant that each console sold resulted in a net loss to SCEI and SCEA of over $200.

173. SCEA priced the PS3 with the expectation that it would make back the money lost on the console through the sale of games and accessories. The problem for SCEA arose from consumers and researchers who used the PS3 for its value as a computer through the other operating system. Such users bought few or no games or accessories, giving SCEA no way to recoup its losses on the console.

174. As one article noted, Sony “isn’t pleased with the handful of private research labs, companies, and individuals using racks of PS3s as a relatively inexpensive Cell cluster node or workstation. Because Sony sells the PS3 at a loss, any customer who doesn’t buy games for the console is bad for the bottom line.” Further, on the Air Force cluster alone, SCEA likely lost hundreds of thousands of dollars.

175. SCEA and the other Sony entities were constantly looking for ways to cut costs and lower prices. For example, IBMs Cell chips originally went from 90-nanometers to 65-nanometers and eventually to 45-nanometers in 2009. The 65-nanometer Cell cost Sony $46.46 per unit, and the 45-nanometer Cell was $37.73. This reduction did not substantially alter performance, but was less expensive to manufacture, and reduced the power usage of the PS3, reducing the need for cooling mechanisms.

176. Instead of maintaining the original price in an attempt to profit from these types of lower costs, Sony cut the price of PS3 from $599 to $399 and then to $299 to increase market share and as a result of increasing competition. Isuppli estimates that Sony was still losing money on consoles with a sale price of $299, however, as production costs, while lower, were still estimated at $348 per unit.

177. As SCEA admitted when it removed the “Other OS” feature from the “slim” models, maintaining the hypervisor which allowed for multiple operating systems was very expensive. The tremendous financial pressure to cut costs further led to the removal of this feature – not “security” concerns.

178. On the Fixstars message board forums, Kai Staats (former CEO of Terra Soft Solutions and later of Fixstars) explained how the hypervisor became increasingly difficult and expensive to maintain for Sony:

Sony was quite diligent about testing, and with each new rev of the GameOS (which acts as the hypervisor for Linux) there was a battery of tests. Often the GameOS had to be modified to support things which otherwise broke in Linux, so it is not a one-way street. GameOS affects Linux, and Linux affects GameOS. If a component on the mobo changed, the hypervisor code would change to support the new component, and then the testing starts again. While I am not aware of a time when the GameOS was modified to correct something we discovered to be broken in Linux, I can state that with nearly every third release of updated GameOS versions, something broke in Linux for which we compensated on our end, often with the assistance of Geoff [Levand] (who was great to work with, BTW).
179. As the sonyinsider.com website notes, based on this evidence, the decision to remove the “Other OS” feature appears to be “100% cost-based.”

180. Other sources have speculated that, IBM, SCEI’s partner in STI, also applied pressure to convince SCEI to remove the “Other OS” feature as it was losing sales of its expensive servers to those who were clustering PS3s (which had the same Cell processor) for much less money.

181. Although they contained lower performance per unit, PS3s were an inexpensive alternative to IBM’s Cell Blade servers which cost approximately $18,000. When the US military purchased thousands of PS3 for a super-computing cluster, the purchasing report noted that SCEA was the only company capable of manufacturing the required hardware at an economical price.

182. When an article in The Economist1 noted that the military was making a substantial saving by creating the PS3 network compared to building a traditional super computer, users speculated: “Do you think that other investors in Cell technology. Such as IBM [sic] might be a little pissed at Sony selling devices that are near equivalent to their own more expensive products? One could speculate the pressure to remove PS3 linux came from external sources.”2

183. Financial pressures were what led SCEI and SCEA to remove the “Other OS” feature. SCEA had no valid basis to remove an advertised feature from its PS3, for which users had paid significant sums, merely because it no longer wanted to pay to support that feature or it was losing money on sales of games and accessories. SCEA’s pretextual “security” or “intellectual property” concerns were not the true reason for the removal of the feature. 184. SCEA relies on wording from its Warranty, SSLA, and TOS to argue that “security” concerns allow it to remove the Other OS feature. Even if security were a concern, the language in these documents does not support SCEA’s interpretation. 185. The Warranty states that “[s]ome [warranty] services may . . . cause some loss of functionality.”

186. Update 3.21 was not a “warranty service.” Nor did Update 3.21 cause “some loss of functionality.” Users who downloaded Update 3.21 had a core advertised feature removed from their system. Users who did not download Update 3.21 lost other core advertised features. SCEA’s Warranty does not authorize the removal of Other OS or those other features.

187. The SSLA states “SCE may provide updates, upgrades, or services to your PS3TM to ensure it is functioning properly in accordance with SCE guidelines or provide you with new new offerings. . . . Some services may . . . cause a loss of functionality.”

188. Update 3.21 was not a “service” as intended in the meaning of the SSLA. It was an optional “update.” SCEA’s SSLA does not claim that an “update” will cause a loss of functionality – only “services” are mentioned as possibly doing so. Nor did Update 3.21 cause “a loss of functionality.” Users who downloaded Update 3.21 had a core advertised feature removed from their system. Users who did not download Update 3.21 lost other core advertised features. SCEA’s SSLA does not authorize the removal of Other OS or those other features.

189. SCEA’s TOS states “[f]rom time to time, it may become necessary for SCEA to provide certain content to you to ensure that Sony Online Services and content offered through Sony Online Services, your PlayStation3TN computer entertainment system . . . is functioning properly. . . . Such content may include automatic updates or upgrades which may . . . cause a loss of functionalities or utilities.”

190. Update 3.21 was not an “automatic update or upgrade” as intended in the meaning of the SSLA. It was an “optional” update, meaning that the user selected whether to download the update, and lose a critical feature, or not download the update, and lose a different critical feature.

191. None of the agreements which SCEA claims apply state that an optional Firmware Update will cause a user to lose core advertised features of the PS3, nor do they alert users that the “Other OS” feature might be disabled, particularly in light of Defendant’s representations that the “Other OS” is a central feature of the PS3 and that Defendant would support it for the ten year lifespan of the PS3. The “Other OS” feature and the ability of the PS3 to operate as a computer (or the elimination of access to the PSN network and play games online, as well as other features) were not “functionalities” – they were core advertised features of the PS3 along the lines of its ability to play games or play Blu-Ray DVDs.

192. Thus, even if security issues were a valid concern, SCEA was not authorized by any of the purported agreements it has cited to issue Firmware Update 3.21 and remove the “Other OS” feature for millions of users.

193. In February 2011, SCEA released Firmware Update 3.56. This Update contained a security patch preventing “jailbroken” consoles (such as those that had been “hacked” to actually allow the “Other OS” feature back on to the consoles) from accessing the PSN. Thus, if SCEA truly wanted to prevent “unauthorized” consoles that may have been “hacked,” it had other methods available to it, such as barring access to the PSN (to the extent allowed under its purported agreements), as opposed to removing a feature that it no longer wanted to pay to support, that was causing it to lose money on game sales, and/or that IBM was upset about because of a loss in sales of Blades servers.

______
1 http://www.economist.com/node/15063872?story_id=15063872

2http://www.neogaf.com/forum/showthread.php?t=383838


  


The Sony PS3 Class File An Amended Complaint | 229 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Amended Complaint Link
Authored by: dio gratia on Thursday, March 10 2011 @ 06:15 PM EST
The amended complaint link isn't currently found.

thanks

[ Reply to This | # ]

Corrections Thread
Authored by: SilverWave on Thursday, March 10 2011 @ 06:38 PM EST
:-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Off Topic Thread
Authored by: SilverWave on Thursday, March 10 2011 @ 06:39 PM EST
:-D

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

News Picks Thread
Authored by: SilverWave on Thursday, March 10 2011 @ 06:40 PM EST
;-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Comes v. MS Thread
Authored by: SilverWave on Thursday, March 10 2011 @ 06:44 PM EST
:-(

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

The Sony PS3 Class File An Amended Complaint
Authored by: Anonymous on Thursday, March 10 2011 @ 06:44 PM EST
Wow - such powerful arguments!
Let's hope this benefits George Hotz.

-Gringo

[ Reply to This | # ]

  • For and against - Authored by: Anonymous on Friday, March 11 2011 @ 12:19 AM EST
The Sony PS3 Class File An Amended Complaint
Authored by: cward24 on Thursday, March 10 2011 @ 07:25 PM EST
When researchers at universities were doing this it was not much of a problem it seems during the time. But when the Air Force built their Condor Cluster this seemed to be the straw that broke Sony's back. I remember that the Air Force started with over 300 PS3's and they were so low in cost and green they tried to order 2,200 more. It was recommended that the order would be reduced to 1,700. Clicky This cleaned Sony out of all the the fat PS3's that were available at the time. This would mean the Air Force is still short 500 PS3's that they originally wanted.

My real question is why have the Air Force not filed an amicus curiae in support of the OtherOS feature if it was such a benefit?

[ Reply to This | # ]

Sounds like mud-flinging
Authored by: GreenDuck on Thursday, March 10 2011 @ 08:23 PM EST
This is probably true - but I don't see any credible evidence
presented. All I could see was that the website mentioned cost
as one factor when removing a related product. Was the person
writing that website even authorised to make that claim?

Short of finding a whistle-blower from one of the Sony
meetings where they made this call - how is this any more
useful than some of the random claims SCO made?

[ Reply to This | # ]

OtherOS memory writing
Authored by: Anonymous on Thursday, March 10 2011 @ 08:57 PM EST
I seem to remember right before Sony took out OtherOS that someone
had gotten write access to the NAND through OtherOS. I feel like it was
saurik that did this, but could have been Hotz. Nonetheless, next thing i
hear is Sony freaking out and stripping out OtherOS.

[ Reply to This | # ]

I feel terribly tempted
Authored by: The Mad Hatter r on Thursday, March 10 2011 @ 09:49 PM EST

To buy a PS3, hack it, install Linux, and use it for a computer full time, just
to cost Sony money.

This is a totally ridiculous idea. I don't need another computer. I don't have a
use for another computer. I don't have the money to spend.

I am really annoyed at Sony. And since I don't normally buy Sony products
anyway, this is the only way I can think of to let them know that I don't
appreciated their actions.


---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

If the PS3 is not a computer
Authored by: Anonymous on Thursday, March 10 2011 @ 10:11 PM EST
Then why does it still not only support a keyboard and mouse, but also still has
an option to connect a printer? USB flash media and EXT HDD? Internet web
browser?

To me the web browser would be more of a concern than Linux...

[ Reply to This | # ]

Sony's Yet Other Legal Action
Authored by: Anonymous on Thursday, March 10 2011 @ 10:40 PM EST

Sony's other legal action in Germany is against Alexander "graf_chokolo" Egorenkov. He is a student at the University of Stuttgart's Institute of Parallel and Distributed Systems [Source]. His diploma thesis was a topic in Parallel and Distributed Systems [Abstract]. His PlayStation 3 Linux and reverse engineering blog is at http://grafcholoko.com.

Sony is maniacal for going guns drawn after members of the scientific community who would possibly want to use Sony's product for scientific research purposes. Even if the DMCA or Germany's EUCD anti-circumvention provisions are deemed to have been violated in Hotz or Egorenkov's case, respectively, the circumvention has substantial and commercial use, which both the DMCA and EUCD explicitly exempt in the anti-circumvention prohibitions.

[ Reply to This | # ]

Sony still says use Linux
Authored by: Anonymous on Thursday, March 10 2011 @ 11:54 PM EST
http://www.playstation.com/ps3-openplatform/index.html

It does not seem to say "DANGER SECURITY HOLE". It just says you need
earlier models that have not been software upgraded.

Then it says lots of nice stuff about Linux and what you can do.

[ Reply to This | # ]

The Sony PS3 Class File An Amended Complaint
Authored by: IMANAL_TOO on Friday, March 11 2011 @ 02:47 AM EST
"I don't see how this could not affect the SCEA v. Hotz litigation."

If you can't, I guess can't either.

But, as in the SCO vs IBM turning SCO vs Novell, Shirley (and don't call me
that) there could be spill over effects?



---
______
IMANAL


.

[ Reply to This | # ]

I thought Sony were good guys :)
Authored by: Anonymous on Friday, March 11 2011 @ 05:21 AM EST
Playing by the rules?

[ Reply to This | # ]

Sony repairs
Authored by: Anonymous on Friday, March 11 2011 @ 08:39 AM EST
I have it! Why didn't I think of it earlier? It makes perfect sense. Did Sony ever agree to "repair" the PS3s, or to "fix" them?

[ Reply to This | # ]

This lawsuit seems like a non-starter
Authored by: EvilJake on Friday, March 11 2011 @ 09:31 AM EST
I don't see how Sony can lose this lawsuit.

Even if you grant every allegation about Sony's true
motivations, it doesn't really matter.

What really matters is whether or not Sony has the right to
disable non-core functionality on their product. And why
shouldn't it?

Those who buy products and use them for a purpose other than
the clearly intended purpose envisioned by the vendor are
taking a risk. Maybe the gamble will pay off, maybe it
won't. But to argue that the vendor is not within their
right to discontinue supporting that feature seems unfair to
me.

[ Reply to This | # ]

There is another way
Authored by: TomWiles on Friday, March 11 2011 @ 12:43 PM EST
It kind of depends on your State, but here is Texas law.

A couple of years ago Texas passed an Intrusion bill that Sony's action clearly
violates.

1. Do NOT file a class action suit.

2. In Texas it costs between 60 and 85 dollars to file in small claims court
(damages up to 5000 dollars).

3. The average price that a Texas lawyer charges to file in small claims court
is $250. If you win you get legal fees!

4. SONY has a distribution center in Texas.

My lawyer friend whom I eat lunch with twice a month calls this the "Death
by 10,000 cuts".

5. If SONY does not send a representative to the court, you get an automatic
default ruling (in Texas) for whatever you claim whether or not the case has
merit.

6. If SONY send a lawyer they have to pay his fees and they are still looking a
loosing.

7. Good luck (SONY) trying the consolidate a large number of small claims court
filings into a single suit.

Remember, small claims court tends to deliver justice and has very little
patience for legal maneuvering. The judge hears both sides, makes a decision
and then goes on to the next case which are all lined up.

8. SONY has to pay or their distribution center will be shut down by court
order. Unfortunately not all States have this big a hammer.

You have to love it.

Tom

[ Reply to This | # ]

The Sony PS3 Class File An Amended Complaint
Authored by: Anonymous on Saturday, March 12 2011 @ 08:19 AM EST
These unscrupulous companies LOBBY LOBBY LOBBY hard for more draconian
intellectual property laws that take away our freedom to protect their profits.
(DMCA) etc. And now they have the gall to LIE to the public, claiming
intellectual property is the reason why they killed the other OS option. It is
so cynical I want to throw up. I think this is the last draw for me. NO MORE
SONY PRODUCTS as long as I live. I am now going on an active campaign to
educate everyone I know and ever cross paths with in my life NOT to purchase ANY
Sony products. Sony HATES you. Thats right. Sony hates its customers. I
will do everything I can to inform everyone I know not to purchase Sony products
EVER AGAIN. Ridiculous.

[ Reply to This | # ]

Whose burden?
Authored by: Anonymous on Sunday, March 13 2011 @ 09:04 PM EDT
So, help me out with who has the burden to establish what in a civil case like
this.

Let's assume for the moment that the lawsuit is correct in asserting the only
reason allowable under the ToS for removing functionality is for valid security
reasons (already a big assuming, but work with me for a second...)

Who is responsible for establishing whether or not Sony's reasons were related
to security? Does Sony (as the party who removed the functionality) have to
establish that their reasons were related to security? Or do the plaintiffs (as
the moving party) have the burden to establish that Sony had no security-related
reasons?

If the former, this case is interesting. If the latter, I can't see this
getting past summary judgement...

[ Reply to This | # ]

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