Opinion// The Law and the PS3 Apocalypse

Posted 2 Mar 2010 18:19 by
New SPONG guest columnist and lawyer Jas Purewal of GamerLaw gives his views on the PS3 ApocalyPS3 debacle.

Poor Sony. Just from those words, you probably already know exactly what I'm going to talk about: the biggest storm in a teacup we've seen so far this year in the games world. Yes, I mean the ApocalyPS3: what it was and the legal problems that would have arisen if it hadn't been averted.

The what?

Here's the background: on 1 March 2010, out of nowhere, PS3s start exhibiting all sorts of problems and nobody knew why. Sony erroneously called it a 'PSN bug' when users first complained of being unable to connect to the network, but slowly it emerged that the real problem was actually a millennium bug: one PS3 component expected 2010 to be a leap year and caused chaos when that proved wrong. As a result, Sony was forced to issue the following extraordinary statement:

"If you have a model other than the new slim PS3, we advise that you do not use your PS3 system, as doing so may result in errors in some functionality, such as recording obtained Trophies, and not being able to restore certain data."

Translated: do not turn on your fat PS3, at all, until there is a fix. Cue howls from the Twittersphere from destitute PS3ers unable now to play Heavy Rain.

Sony then promised a fix within 24 hours and its engineers faced a long and difficult night making that happen. Except, fortunately, they didn't need to: the great majority of the affected PS3s apparently have fixed themselves overnight when the PS3s' internal date went from 29 Feb 2010 to 1 March 2010.

What might have happened if the ApocalyPS3 hadn't been averted?

Hopefully the Sony engineers can get some rest now and PS3 players can go back to Heavy Rain. But, it's worth reflecting on what might have happened if the ApocalyPS3 hadn't gone away last night. What if serious hardware/firmware errors developed in the PS3, meaning that a remote patch was unworkable and that all the affected PS3s had to sent off for repair?

Obviously, first of all, it would almost certainly have had a real impact on the PS3's sales and Sony's financial performance. But what I'm really interested in, of course, are the legal ramifications. What legal rights would PS3 owners have? Answer: it depends on the Sony warranty provisions and consumer law in each PS3 owner's jurisdiction.

If the PS3 was within the original warranty period, then in principle Sony would have an obligation to the original PS3 owner to repair the defect or replace the PS3 for free (subject always to a detailed assessment of each individual case, natch). But the warranty would probably not cover owners of pre-owned PS3s (i.e. the guy I sold my PS3 to over eBay) unless Sony specifically extended the warranty.

This issue came up time and again with the Xbox 360, where people had bought Xbox 360s secondhand and then found there was a Red Rings problem which Microsoft wouldn't repair for free (eventually though, Microsoft extended the warranty to help out second hand owners).

If the PS3 was outside the warranty period, then Sony would have no legal obligation to repair the ApocalyPS3 defect, but consumer law in your jurisdiction may still help the PS3 owner out. In the UK, a retailer (i.e. the shop/site which sells you the PS3) has a legal obligation under the Sale of Goods Act 1979 to ensure that the products it sells are of "satisfactory quality", meaning it must be free from defects that stop it working altogether, for up to six years from the date of purchase.

So, in the UK at least, an original PS3 owner could theoretically demand a repair/replacement/refund from his PS3 retailer. How straightforward it would be to get that would depend on how cooperative the retailer is, of course; though note that there could be issues regarding, for example, proving the defect and wear and tear.

Again, secondhand owners would be left out in the cold because there is no legal relationship between the retailer and the guy who bought it from the original owner; meaning the retailer could refuse to repair the second hand PS3 at all.

Leaving product liability to one side, it's a fair bet that someone would also decide to sue Sony for financial compensation.

You may even have seen a class action lawsuit being launched over in the US, particularly since they are on the rise in the games industry generally (but not in the UK, because class actions don't exist here).

But, it seems to me, those lawsuits would be unlikely to get very far. For a start, if the PS3 can be repaired for free under one of the above strategies, what actual financial loss has the owner suffered?

A plea of: "I wasn't able to play my PS3 for a while", isn't likely to get you very far because a judge is unlikely to place a high financial value on playing a game. And, if the PS3 can't be repaired for free it's because Sony has no legal liability to you, in which case why should they pay compensation? On the other hand, PS3 owners' lawyers may be able to come up with inventive arguments based on negligence/product liability, or Sony may just want to settle the lawsuits fast and minimise the adverse publicity. Either way, the legal battles wouldn't be resolved anytime soon.

But we don't have to worry about any of that now! To sum up, thank goodness the ApocalyPS3 was averted because if it hadn’t been:

* Sony could potentially have been on the hook for product liability claims and other lawsuits.

* PS3 owners would have been deprived of Heavy Rain (and other games).

* PS3 owners who hadn't bought extended warranty protection would kick themselves mightily.

* Secondhand PS3 owners would be well out in the cold.

Players and retailers would have had to talk to people like me (i.e. lawyers) to work out what their rights/responsibilities are.

Everyone would realise PCs are the best games platform anyway.

Jas Purewal writes and edits Gamer/Law, a blog about computer/video games and games law, which discusses legal issues and developments from the perspective of both the games industry and gamers, covering all platforms and game genres. Jas is a qualified English lawyer who works with a City firm in London and plays many, many games. All opinions expressed in this column are his own. You can reach him at: jas@gamerlaw.co.uk or on Twitter as gamerlaw.

Obligatory legals: this column is intended only as a means of bringing news of games and technology law and practice to its readers; it is not intended to provide legal advice and is no substitute for it. If you would like to discuss the matters raised in this column, you can contact Jas or speak with a lawyer qualified in your jurisdiction. Thanks.

The opinion expressed in this article is that of the author and does not reflect those of SPOnG.com except when it does.

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deleted 2 Mar 2010 20:26
* PS3 owners who hadn't bought extended warranty protection would kick themselves mightily

The is wouldn't matter as it affected every single PS3 (fat) version it would of been deemed at fault at production and as such been covered (in the UK) up to 7 years from sale date.
DrkStr 3 Mar 2010 09:09
haritori wrote:
* PS3 owners who hadn't bought extended warranty protection would kick themselves mightily

The is wouldn't matter as it affected every single PS3 (fat) version it would of been deemed at fault at production and as such been covered (in the UK) up to 7 years from sale date.

Did you read the article, you know the one by the actual lawyer, not the psychologist commenter. He specifically said six years, but it depends on proving a lt to the retailer. In that case, you'd be better off with an extended warranty cos no questions asked.
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kinghorn316 3 Mar 2010 18:37
When I phoned sony they took liability soon as I phoned and these calls are recorded so they would have to replace it with warrenty or without
OP 13 Mar 2010 03:12
Good thing I have the slim, whoo.
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