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LGJ: Does PS3 Firmware 3.21 come with a refund?


Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

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By now you've installed the PS3 Firmware 3.21 update that removes the "Other OS" option (more or less) from your console. (You've at least read about it.) Besides angering the PS3 users who had been enjoying the Other OS feature, this incident has had some unintended consequences in the realm of consumer protection and warranty laws, both in the US and abroad. It's certainly a bit of an unusual situation, but hopefully this column will provide you a bit of an explanation on a global scale, and answer the question, can I get a refund?

For anyone who's not clear on what laws are involved, the broad areas of consumer protection and warranties both deal with protecting the purchasers of products from those who make or sell those products. The idea being that you should be entitled to purchase and own the product that you intended to buy, rather than something that's misleading, fraudulent, likely to break on its own, or broken. This is to help ensure the integrity of the marketplace, which helps secure consumer confidence. After all, aren't you more likely to buy a game console when you know it's a game console and (if new) covered by a warranty against defects, rather than an empty case or a box with bricks in it?

What the advent of required firmware updates has created, though, is an instance where you buy a product that could do one thing today, but not be able to do that same thing tomorrow. In the case of the PS3, you're stuck with the dilemma of trading the Other OS feature for the ability to connect to PSN, since the firmware update is required for continued use of the service. Thus, it is possible that any representation made in the sale of a console like this could be illusory, to the extent features are completely turned off, such as in this case. Bear in mind, though, this it the kind of situation where only the loss of features really becomes relevant. Allowing what you bought to do more than was advertised at the time of sale wouldn't make much of a claim in this regard, as the idea is to set a minimum expectation, not a complete boundary, with regard to the purchased item.

NeoGAF administrator "iapetus" reported that he received a partial refund from Amazon UK on his PS3 purchase under their implementation of the provisions of Directive 1999/44/EC, which requires that "any seller" provide minimally "a guarantee of at least 2 years for new goods" such that the goods must "comply with the description given by the seller and posses the same qualities and characteristics as other similar goods," "be fit for the purpose which the consumer requires them and which was made known to the seller at the time of purchase," and "show the same quality and performance, which are normal in goods of the same type and which consumers can reasonably expect. This will also take into account any public statements made about the specific characteristics of the goods by the producer, seller or in their advertising." It goes on to allow partial refunds after the first six months, in circumstances where the unit cannot be repaired or replaced, as with the Firmware 3.21 update.

Interestingly enough, there is an analysis stating "exceptions will only be allowed if it can be shown that the seller could not reasonably have known about any defect (or 'lack of conformity') beforehand," which might arguably apply here, though it doesn't seem to match the exact wording of Article 2, Section 4 of the Directive. Clearly, Amazon knew Sony could force firmware updates, but it seems improbable at best that anyone knew Sony would pull the plug on the Other OS feature before it was formally announced. To that end, if this analysis is accurate under some jurisdictions' implementation of the directive, only if there was a gap between the announcement and the revision on the Amazon product page (if it mentions this feature) would there be a really concrete claim in my view, but the EU states do tend to take a more liberal view of these kinds of things than those of us in the US do.

In the US, the issue is a little more unusual. There's no clear right like this for a refund. However, it's entirely possible we could see a class action over the change under some states' consumer protection or deceptive trade practices statutes. It's also possible that, if provoked enough, an agency like the Federal Trade Commission could step in, but I'm not sure this instance provides enough of a problem for it to get involved at this stage. Usually it needs to be a far more substantial and widespread issue. In any event, there's not an easy remedy in the US like there is in the EU on this issue, at least not provided by law.

The more intriguing option for those in the US is actually rooted in credit cards. Many credit cards provide fairly substantial warranties for products purchased with those cards. I can't say I've reviewed every credit card warranty agreement in existence, but it's possible that some may provide for a partial or full refund on PS3 purchases based on this change. You would have to review your cardholder benefits to see if this might apply to you.

It's hard to say if continuing events like Firmware 3.21 might push the US to adopt similar consumer protection rules to the EU's directive. Clearly, we have an interesting new problem where, in theory, a company could sell a product based on a key feature that it could then choose to disable; meaning the consumers have essentially bought something that doesn't do what they want it to do. Just imagine if Apple decided to end all video playback on iPods. Ignoring that this would be public relations suicide, it's a scenario where millions would have been misled into purchasing a product that the manufacturer then changed to be useless for the intended purpose.

Now, imagine if a company disabled a feature like that on all existing units to encourage people to buy an upgraded hardware model, which regains the feature, or a software update to re-enable the feature. Certainly, there is a lot of opportunity for underhanded behavior in the marketplace, but that's not necessarily a call for government action, given that public relations and thereby consumer spending generally keep companies in check.

[Update: Fixed an incorrect quotation/reference; added reference links.]

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own.

Reach Mark at: lawofthegame [AAT] gmail [DAWT] com

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL Inc., Weblogs, Inc.,, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.

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