Dear Edge Magazine

I wrote this grumpy letter to Edge magazine two years ago, annoyed about Sony’s removal of OtherOS. It was letter of the month in Edge 217 (August 2010) and bagged me a DSi XL. It’s the first piece of writing I got published and remains, word for word, the highest earning.

Sure, most of us were probably never going to install PS3 Linux (Edge 214), but that can’t be the point here – or it shouldn’t be. Sony’s move to force owners of older PS3s to remove OtherOS, a feature they’d purchased, via an update, is radical and a precedent for potential future post-purchase meddling that should be of interest to the gaming community at large.

Whatever you thought of OtherOS – and it’s clear most people thought it a useful gimmick at best – it was apparently OK for Sony to deny its customers online gaming unless they threw away something they’d bought. And Sony’s not the only publisher playing fast and loose with traditional concepts of ownership, as Edge has previously reported (Edge 200): in an ongoing legal dispute against developers of a World Of Warcraft bot, Blizzard is arguing that buying a piece of software actually only amounts to buying a license to use it under terms prescribed by the publisher. Another high-profile example is a case brought by Autodesk, in which it claimed (with similar reasoning) that purchasers of its software infringed a licensing agreement when they tried to sell that software secondhand.

Luckily, Autodesk’s claim was rejected, but the potential implications this kind of boundary-pushing has for the games market are significant. (Consider also Sony’s and EA’s recent introduction of an additional fee for buyers of secondhand copies of online games: was online play part of the original purchase or not? It isn’t clear.)

There’s obviously something fishy about this, but what exactly? Courts have long rejected attempts by vendors to impose after-sale restrictions or undesirable alterations. The only difference now, it seems, is that vendors of networked software can readily impose post-sale restrictions over the internet. With future distribution likely to be via some mix of digital marketplace and live streaming, the notion of software ownership and the rights that come with it become even less clear cut.

Before embracing this heady future of ubiquitous and instantly accessible gaming, shouldn’t we take publishers’ recent behaviour a bit more seriously? I for one won’t relish a future in which I have few guarantees that, once paid for, my cherished gaming experiences will remain unchanged.

More > Kicked Out of Town, Who Owns Your PlayStation?

Kicked Out of Town

Feature written for The Escapist.

Odds are pretty good you don’t bother to read every EULA you agree to, and odds are even better that someone is counting on that fact.

“Self-serving Small Print” (The Escapist, Issue 305):

When Sony issued Update 3.21 on 1 April 2010, it presented owners of fat PS3s with a stark choice. Accepting the update meant accepting the removal of OtherOS, a feature that allowed the installation of other operating systems on the console; declining the update meant forfeiting access to the PlayStation Network (PSN), including the online store, any remaining credit, PlayStation Home, and online gaming. “We don’t say it’s a game console. PlayStation 3 is clearly a computer,” boasted Ken Kutaragi in 2006, but now people had to choose between the two. Disregarding all of its own pre-launch hype, Sony no longer wanted its customers to have both.

Mark Ashelford, a partner at London law firm Lee & Thompson who specializes in rights issues for digital media, has worked with both games developers and streaming services and likens the current state of the industry to the Wild West. There is a balance to be made between the lawless frontier where “everyone’s taking digital content from anywhere they can get it” and the convenience of managed distribution offered by publishers and games-on-demand services that “take on the role of sheriff, where the consequences of breaching the rules are that you’re kicked out of the town.” But what happens when a sheriff enforces rules that are self-serving or too stringent, or unfairly refuses the right of reply?

Continue reading at The Escapist >>

Who Owns Your PlayStation?

With the recent lifting of the European injunction against the import of PlayStation 3s on 11 March Sony has won a brief respite in its bitter patent dispute with LG, but it cannot role down those shirt sleeves just yet. In the US Sony continues to fight two lawsuits with potentially far-reaching consequences for consumer rights and our intuitions about ownership and private property.

Both US lawsuits centre on claims of “unauthorized access” to PS3 consoles. Both cases also invoke the US’s Computer Fraud and Abuse Act (CFAA), a law passed in 1986 to address the hacking of “protected computers”. And both suits are being heard in the same US District Court in San Francisco. But in one case Sony is suing, in the other it is being sued.

In the more widely reported case, Sony is suing George “GeoHot” Hotz, also known for jailbreaking the iPhone, who Sony alleges in its filed complaint “accessed one or more of Sony Computer Entertainment America’s PS3 systems without authorization”. Sony is specifically claiming among other things that Hotz – and, if Sony gets its way, members of a collective known as fail0verflow together with up to 100 as-yet-unidentified others – “violated the Computer Fraud and Abuse Act … by accessing one or more PS3 systems – which consist of protected computers used for interstate commerce or communications – without authorization”.

Under the CFAA, “protected computers” usually denotes computers “for the use of a financial institution or the United States Government” or “used in interstate or foreign commerce or communication” – hence Sony’s careful qualification above. But on the face of it, at least, that is not the situation here: whatever the law finds Hotz to have done, he did it to a PS3 in his private possession in the privacy of his home.

The second lawsuit, on the other hand, is a class action claim brought by a group of individuals who each purchased a PS3 with a feature called OtherOS, which allowed the installation of Linux-based operating systems on a walled-off part of the console’s hard drive. In April 2010, following a perceived security vulnerability, Sony disabled OtherOS via a downloaded software update. Technically, the update was optional: users could refuse to accept it, thereby keeping the OtherOS feature, but they would not then be able to access their PlayStation Network (PSN) accounts, play online games, redeem PlayStation Store credit, nor play games or DVDs requiring the latest updates.

Sony stated on its website that the update was to “protect the intellectual property of the content offered on the PS3 system”. However, the claimants objected in their initial complaint that Sony “never revealed how its ‘intellectual property’ would be unprotected through the use of Linux on the PS3” and suggest that 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”.

More importantly, the allegation against Sony is that the removal of this feature via the update was an “unauthorized” intrusion resulting in “damage and loss” and thus an action violating the CFAA. In a hearing for its motion to dismiss on 4 Nov. 2010, Sony reminded the court that PS3 users had a choice in whether to accept the update, but James Pizzirusso, a lawyer for the claimants, called it “a Hobson’s choice”, likening it to being “dangled over a cliff” and observing that users “are going to lose features either way. And we said that’s not a real choice”.

Sony dismissed the initial claims against it as “nonactionable puffery”. Luanne Sacks, Sony’s lawyer for this case, further argued that “in order to accept the notion that Sony made an unauthorized intrusion onto the plaintiffs’ PS3s, you have to start with the assumption that what was, quote/unquote, disabled was something that the plaintiffs had an ownership interest in. I’ve got an ownership interest in my computer and my hardware and what I have sitting on my hardware drive. So if somebody hacks into my computer, they have literally made an unauthorized intrusion. But that’s not what we’re talking about here.”

The claimants filed an amended complaint on 9 March 2011 with a much greater body of evidence and the even stronger claim that “the true reason [Sony] removed the ‘Other OS’ feature was because of financial concerns” and “because it was expensive to maintain” and not, as Sony maintains, to protect its intellectual property.

However, Sony’s main defence still rests confidently on the explicit terms of its System Software License Agreement (SSLA), an agreement that all PS3 users have to accept when they sign on to the PSN and one that Sony argues gives it leave to remove features if it wishes. The SSLA clearly states “You do not have any ownership rights or interests in the System Software”.

So who is right? “Historically, the first sale doctrine in the US and exhaustion of rights principles in the EU are the places to start with these claims”, says Adam Andrews, Professor of Information Ethics at Meiji University in Tokyo. However, a precedent was set in the US, at least, by the long awaited Vernor v. Autodesk ruling in September 2010. Timothy Vernor had been prevented by Autodesk from selling sealed CDs of its software on eBay which Vernor had acquired second-hand. Vernor took Autodesk to court and won, with the court upholding the doctrine of first sale which essentially gave Vernor rights to sell on the software as its owner. But Autodesk appealed and the appeal court overturned this ruling because of what Autodesk states in its terms and conditions.

The appeal court’s ruling is very clear: “Autodesk distributes [the software] pursuant to a limited license agreement in which it reserves title to the software copies and imposes significant use and transfer restrictions on its customers. We determine that Autodesk’s direct customers are licensees of their copies of the software rather than owners, which has two ramifications. Because Vernor did not purchase [the software] copies from an owner, he may not invoke the first sale doctrine, and he also may not assert an essential step defense on behalf of his customers.”

Sony’s and Autodesk’s smallprint is far from unusual. Most distributors of software include similar terms. To take another recent example, on 9 March 2011 videogame publisher and distributer Electronic Arts (EA) imposed a 72 hour forum ban on Arno, one of its users. Though the ban was ostensibly only from online activity Arno was also unable to play several purchased EA games offline because they required access to an online account to load. In effect, EA managed to ban Arno from playing games he had bought and it could potentially have done so indefinitely, without offer of refund. Its license agreement states that “EA may also terminate your Account(s) (and access to all related Entitlements) for violation of this Terms of Service, illegal or improper use of your Account, or illegal or improper use of EA Services, Content, Entitlement, products, or EA’s Intellectual Property as determined by EA in its sole discretion”.

For all their end-user convenience, digital downloads and online subscription services also provide an unprecedented way for copyright holders to monitor and control the use and consumption of its content. Licensing, as it stands now, gives far fewer rights than are conveyed by property ownership. Purchases may apparently be revoked or altered without notice at the discretion of the license holder. Some suggest that such draconian terms may be unconscionable, legally speaking, meaning that nobody in their right mind or without unfair coercion would accept them. If somebody is made to agree to something while being dangled over a cliff then that agreement cannot be enforceable, hence Pizzirusso’s specific characterisation of his clients’ predicament in the OtherOS case.

Similarly, Norway’s Consumer Council, a goverment agency, is claiming that Sony breached the Norwegian Marketing Control Act when it took away OtherOS. “There needs to be a limit to what constitutes a reasonable change to products we buy. Terms of service that grant the manufacturer full access to literally downgrade the product or limit the functionality are unreasonable and in clear violation of the Marketing Control Act”, says Thomas Nortvedt, speaking for the Council.

The open-source community surrounding the PS3 are obviously angered by Sony’s behaviour. As prominent community member Youness Aleoui, known as KaKaRoTo, puts it in an email posted online: “Imagine for some reason, Microsoft or Apple (Windows or Mac OSX) were acting like Sony, and that you couldn’t access anything on your computer without their authorization? You want to install Skype, you can’t because Microsoft didn’t ‘approve’ it … because they want you to use MSN Messenger instead … Then where is your freedom on your own machine?” This analogy between the PS3 and the more open computer platforms is ironic given how keen Sony once was to showcase the PS3′s multi-purpose computing capabilities. Speaking in 2006 about the PS3 before its launch, then president and CEO of Sony Computer Entertainment Ken Kutaragi pushed similar comparisons: “We don’t say it’s a game console. PlayStation 3 is clearly a computer … We put up no restrictions. Because it is a computer, it can interact with anything, freely. If someone is familiar with PC building, he or she can upgrade easily PS3′s [hard drive]”.

Of course, Sony has since made it clear it views replacing a hard drive and installing unofficial software as very different things. But freedom to install and run custom software was deemed important to the plaintiffs suing Sony, many of whom specifically bought a PS3 for the OtherOS feature that allowed them to do so. It is also important to fail0verflow, who hacked the PS3 partly to restore the lost functionality to the system. Hotz too claims his actions were primarily to put back OtherOS. It will be interesting to see how the OtherOS plaintiffs’ argument that Sony removed this feature illegally goes down in court, since the arguments made in this case cannot fail to influence the state of Sony’s case against Hotz. If, in short, it turns out Sony removed OtherOS illegally, its case against Hotz will be weakened considerably.

Desire for an open platform and the freedom to run a variety of programs from different sources was also the motivation behind Hotz’s iPhone jailbreak. In principle, the parallels between the opening up of the closed iPhone system and the PS3 are strong. But while the iPhone was explicitly covered by a new exemption of the Digital Millenium Copyright Act in 2010, permitting DRM circumvention in phone handsets when done to enable interoperability of software, Hotz has no such protection with the PS3. However, in its July 2010 ruling the US Copyright Office made a point of noting that “while a copyright owner might try to restrict the programs that can be run on a particular operating system, copyright law is not the vehicle for imposition of such restrictions.”

Software licensing terms – and those of digital media in general – are not new, but they are only now beginning to be tested properly in the courts. In the short term, Sony may succeed in setting a new precendent for consumer rights not in the favour of its customers. Indeed, there may well be a current trend in this direction but the long term outcome is not inevitable. As Andrews says, “this is unclear territory, analogous to similar situations in the past where a combination of court decisions and statute law has gradually set up the current status quo which differs from country to country”. Even the appeal judge in the Vernor v. Autodesk ruling acknowledged the “serious contentions on both sides” and pointed out that “Congress is free of course to modify the first sale doctrine” if it deems “a different approach” is required.