posted by Thom Holwerda on Fri 16th Apr 2010 09:39 UTC
IconI think we need to start a digital rights category or something (the next version of OSNews will have it, for sure), because we have yet another article about this subject. After Sony removed the Other OS feature from the PlayStation 3, a European PlayStation 3 owner successfully secured a partial refund from Amazon under the European Sale of Goods Act. Sony has now retaliated, stating it is not going to reimburse retailers.

While there's enough to harp on when it comes to the European Union's involvement with everyday life in its member states, it also does several things relatively well - one of those is consumer protection laws. Directive 1999/44/EC states that goods must "comply with the description given by the seller and posses the same qualities and characteristics as other similar goods" and "be fit for the purpose which the consumer requires them and which was made known to the seller at the time of purchase".

This directive under his arm, a UK customer who bought his PlayStation 3 through Amazon contacted the worldwide retailer, and Amazon refunded him 20% of the original purchase price, without him having to return his console. The sad thing here is that European law places the responsibility on the shoulders of the retailer - not the manufacturer.

Sony seems to have understood this notion, and has stated that it does not intend to reimburse retailers who stick to the letter of the law. "We do understand the frustration a small number of consumers may feel at SCE's decision to provide an upgrade to the firmware to disable the Linux operating system but we refute any suggestion that this action is in any way a contravention of the terms of Sale of Goods Act," David Wilson said, the head of Sony PR in the UK.

"The provision in the Sale of Goods Act which requires an item to be fit for a purpose made known by the consumer to the retailer prior to purchase and confirmed by the retailer applies only to the contract between the retailer and the consumer," he continued, "The decision by Amazon to give a consumer a partial refund is clearly between Amazon and the consumer, but we do not expect the decision to have a legal basis and we have no plans to compensate retailers."

He is technically correct here, but that doesn't mean it has to end here. If enough people were to complain to retailers about the removal of the feature and ask for refunds, maybe they could pressure Sony. Sadly, this won't happen. The feature was only used by a small number of people; certainly not enough to put any serious pressure on retailers.

Where Sony is not technically correct - most likely - is by hiding behind the terms of service for the console. "The PS3 is first and foremost a games console and our marketing materials for the console reflect this," said Wilson, "The console packaging and the in-box manual for the console do not refer to the use of Linux on the console. Rather, the console packaging states that the product's design and specifications are subject to change without notice and that the system software within the console is subject to a limited licence between SCE and the consumer, and this licence permits SCE to update the system software and services offered from time to time."

This license clause is not definitive in any way, most notably because the license is not shown as part of the purchase process. At least in The Netherlands, the clause will most likely not hold [Dutch], unless Sony can show beyond a doubt that people who install Linux ruin the PlayStation Network experience. Another interesting insight comes courtesy of the comments to that Dutch article: even if PS3-Linux users ruin the PSN experience, is Sony allowed to cripple one product (the PS3) to protect the other (PSN)?

I hope this isn't the last we've heard of this. Sadly, I have no PlayStation 3, else I would've contacted the original retailer. I'm hoping enough people try to get the refund they are entitled to under European law to force Sony to reconsider its stance. A company should not be able to unilaterally cripple purchased products and/or change agreements - whether it's Sony, Apple, or anyone else.

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