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Sep 15 2011
By: vendweb_com First Son 2 posts
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New Terms Of Service Lock You Out Of Class Action Lawsuits

10 replies 61 views Edited Sep 15, 2011

Has everyone noticed that the new terms of service that will go into effect as of Sep 15th 2011 include a clause that does not allow you to be part of class action lawsuits?

And if you do not agree to these terms all the map packs and other online play purchases will not longer work.

Also Sony is not giving back your money you spent on those map packs.

This is just wrong as when I purchased these items this was not the terms of service I agreed to and now if I do not change my agreement I can not use the items,

Also did everyone notice how Sony just gave us less then 24 hours to look thru and figuare out what to do here?

This is why Sony is not doing well amoung the customers as they sell you something under one understanding then change it down the road such as they did with the other OS feature in the original PS3

So how do we fix this?

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MVP Support
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Re: New Terms Of Service Lock You Out Of Class Action Lawsuits

Sep 15, 2011

vendweb_com wrote:

Has everyone noticed that the new terms of service that will go into effect as of Sep 15th 2011 include a clause that does not allow you to be part of class action lawsuits?

And if you do not agree to these terms all the map packs and other online play purchases will not longer work.

Also Sony is not giving back your money you spent on those map packs.

This is just wrong as when I purchased these items this was not the terms of service I agreed to and now if I do not change my agreement I can not use the items,

Also did everyone notice how Sony just gave us less then 24 hours to look thru and figuare out what to do here?

This is why Sony is not doing well amoung the customers as they sell you something under one understanding then change it down the road such as they did with the other OS feature in the original PS3

So how do we fix this?

Yea I saw it, what can 'we' do to fix it, nothing at all.

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MVP Support
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Re: New Terms Of Service Lock You Out Of Class Action Lawsuits

Sep 15, 2011

You don't have to accept the terms.  If you had read the old terms of service you would have noted that you gave Sony the right to amend the terms at any time, and that your continued access to the system would depend on your acceptance of the new terms.  That is what just happened.  Similarly when you purchase content from the Playstation Store your access to that content is dependent on your having access to the Playstation Network, which in turn requires acceptance of the new terms of service. Bottom line, Sony is perfectly within its rights to make this change, and to make your continued access to the Playstation Network, and your DLC, contingent on your accepting the new terms.  Whether you can join a class action lawsuit or not will ultimately be decided by a judge.  Not Sony. No contract agreed to by you is in any way binding on a court.

GKP
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Lombax Warrior
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Re: New Terms Of Service Lock You Out Of Class Action Lawsuits

Sep 16, 2011

gkpama00 wrote:

You don't have to accept the terms.  If you had read the old terms of service you would have noted that you gave Sony the right to amend the terms at any time, and that your continued access to the system would depend on your acceptance of the new terms.  That is what just happened.  Similarly when you purchase content from the Playstation Store your access to that content is dependent on your having access to the Playstation Network, which in turn requires acceptance of the new terms of service. Bottom line, Sony is perfectly within its rights to make this change, and to make your continued access to the Playstation Network, and your DLC, contingent on your accepting the new terms.  Whether you can join a class action lawsuit or not will ultimately be decided by a judge.  Not Sony. No contract agreed to by you is in any way binding on a court.

GKP

Actually that little bit has not been decided yet.  The clause in question is:

"NOTE: THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 15 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO ANY “DISPUTE” (AS DEFINED BELOW) BETWEEN YOU AND SNEI, SONY COMPUTER ENTERTAINMENT INC., SONY COMPUTER ENTERTAINMENT AMERICA LLC, THEIR AFFILIATES, PARENTS OR SUBSIDIARIES (ALL ENTITIES COLLECTIVELY REFERRED TO BELOW AS “SONY ENTITIES”). YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS FURTHER DESCRIBED IN SECTION 15."

Even Sony is unsure whether this is illegal to have in the agreement or not.  But don't take it from me, see how theycovered their tracks up with this (also in the agreement):

"If any clause within this Section 15 (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section 15, and the remainder of this Section 15 will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section 15 will be unenforceable, and the Dispute will be decided by a court and you and the Sony Entity you have a dispute with each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury."

Thoughts?

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Treasure Hunter
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Re: New Terms Of Service Lock You Out Of Class Action Lawsuits

Sep 16, 2011

This is a fundamental violation of the principles of justice in almost any jurisdiction. Sony has no right to interfere with your right to freely pursue legal action against them or any other entity. If Sony ever tried to enforce this clause against a class, any court would throw the TOS out as an unconscionable contract.



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Lombax Warrior
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Re: New Terms Of Service Lock You Out Of Class Action Lawsuits

Sep 16, 2011

Sonic42 wrote:

This is a fundamental violation of the principles of justice in almost any jurisdiction. Sony has no right to interfere with your right to freely pursue legal action against them or any other entity. If Sony ever tried to enforce this clause against a class, any court would throw the TOS out as an unconscionable contract.

9/11/01
We Will Never Forget
"Terrorist attacks can shake the foundations of our biggest buildings, but they cannot touch the foundation of America. " - Pres. George Bush

While I agree with the rest of this statement, the bold section I think needs to be discussed.  That little section in the TOS about "if found illegal nevermind" essentially protects the rest of the TOS from being thrown out.  Just the part that is found to be wrong would be thrown out (by Sony) and the rest would still be a legally binding contract.

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Monster Hunter
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Re: New Terms Of Service Lock You Out Of Class Action Lawsuits

Sep 17, 2011

Unfortunately, the supreme court recently upheld a similar clause in AT&T's contracts:

http://arstechnica.com/tech-policy/news/2011/04/scotus-rules-att-can-force-arbitration-block-class-a...

Fortunately, the new TOS says that we are able to opt out of the binding arbitration & class action waiver bits by sending a (snail mail) letter to SNEI.

"IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 15, YOU MUST NOTIFY SNEI IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT.  YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 6080 CENTER DRIVE, 10TH FLOOR, LOS ANGELES, CA 90045, ATTN: LEGAL DEPARTMENT/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR PSN ACCOUNT NUMBER, IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ANY SONY ENTITY THROUGH ARBITRATION."

My letter went something like this:

I, , hereby opt out of the binding arbitration and class action waiver as described in section 15 of the Terms of Service and User Agreement, Version 12.  

(1)    Name:

(2)    Address:

(3)    PSN sign-in: ; PSN screen name:

(4)    I do not wish to resolve disputes with any Sony entity through arbitration, nor do I wish to be bound by the class action waiver, contained in section 15 of the Terms of Service and User Agreement, Version 12.

I am no lawyer, so I hope that is sufficient to opt me out.  I also sent mine via certified mail + a return receipt, just to be sure it gets there.  So if you too are upset by the new TOS and would like to do something about it, this is at least something to try.

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Re: New Terms Of Service Lock You Out Of Class Action Lawsuits

Sep 19, 2011

Sobia6464 wrote:

"If any clause within this Section 15 (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section 15, and the remainder of this Section 15 will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section 15 will be unenforceable, and the Dispute will be decided by a court and you and the Sony Entity you have a dispute with each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury."

Thoughts?

That's standard contract language.  It acknowledges what I said in my last post, which is that Sony knows that ultimately your participation in a class action lawsuit, or your obligation to submit disputes to binding arbitration, is going to be decided by a judge; not them. This clause ensures that the entire contract can't be declared void, just because one clause in the contract is declared void. It also contains a backup provision, by which if your waiver of your right to sue is declared invalid for any reason, then you also waive your right to a trial by jury.  In that case, the suit would be tried by a judge only, with no jury.  Judges know the law, and juries do not.  This means that the court is much more likely to agree with Sony lawyers' arguments, than it is with your arguments. That often isn't the case with a jury trial. The right to waive a jury trial is well-established in US law (and is a routine practice in Japan), so odds are slim that a court will throw that one out. 

GKP
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Re: New Terms Of Service Lock You Out Of Class Action Lawsuits

Sep 19, 2011

ShadowWeaver wrote:

I am no lawyer, so I hope that is sufficient to opt me out.  I also sent mine via certified mail + a return receipt, just to be sure it gets there.  So if you too are upset by the new TOS and would like to do something about it, this is at least something to try.

People should keep in mind that their access to PSN is entirely at the pleasure of SCEA. Your PSN account doesn't belong to you, and you have few rights associated with it.  SCEA can terminate your access at any time; for any reason, or no reason at all, if Sony no longer believes that your access to PSN is in the best interests of the company.  The fact that you have the right to opt out of the binding arbitration clause does not mean that your doing so won't have any adverse consequences.  What is likely to happen is that in the event that you file or participate in a suit against Sony, your PSN account would be immediately banned, and not restored regardless of the outcome of the case.

GKP
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Monster Hunter
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Re: New Terms Of Service Lock You Out Of Class Action Lawsuits

Sep 19, 2011

As another point, though: if the outcome were in favor of the party(ies) bringing suit against SNEI, any account action against the party or parties that brought suit could be seen as an act of retribution - at best, a slightly counterproductive move, and at worst a retributive act that could be possible cause for further action.

It'd be even muckier if such happened in response to a legal challenge over Section 15's class-action waiver clause.

EDIT: It's already mucky, as it's ridiculously easy to "click-through" and miss the details on the opt-out process.  I'm wondering if there's something in the US Code that requires an agreement to any significant (read: dealing with legal matters rather explicitly) waiver to be physically signed, and/or to be specifically opt-in only.

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