What rights do buyers have once they purchase something? Are we licensing or actually buying a product? Do we have a right to modify or change the product in anyway once we purchase it? Just the hardware? What about the software? These are questions that consumers must ask themselves within an increasingly litigious world of corporations, especially tech and software corporations, that continue to push users and consumers around, while manipulating and shaping the law of the land. One company, in particular, consistently rails against its own consumers, that is, Sony Corporation.
Sony, maker of the popular PlayStation 3 gaming console, has in the past sued its own consumer base for the modification of products, notably Aibo, a dancing dog. More recently, Sony has been in a legal and marketing dance with consumers over code and functionality within its PS3 product.
The PS3, marketed for its ability to do “everything” was noted by its supporters and users for its “OtherOS” feature, which allowed users to install open Linux operating systems, and thus run custom firmware and other software on the platform. In the spring of 2010, much to the surprise of PS3 owners, Sony, through a remote firmware update, simply deleted this feature from the console, citing security holes with allowing unsigned code on the machine, a gateway for piracy. While Sony might have had legitimate concerns over piracy and security holes within the PS3, what about the owners, many of whom bought the PS3 over rival Microsoft and Nintendo consoles, for the “everything” ability, for the flexible functionality that Sony marketed?
Sony is illustrating that you do not actually own what you buy, at least in the case of this product. You thought you did, but you actually just license the product software for your hardware. While you are buying the hardware, the physical object of the PS3, you agree in the code of conduct and terms of service that Sony can update and change these agreements whenever they want. And they did. While you bought the product with, and perhaps because of, a certain feature, you agreed that Sony could adjust and change the software and online functionality of the PS3.
So, do consumers and purchasers only own the physical object, but license what the can do with that object in terms of software? Well, not exactly. With the PS3, for now, but as has been seen in the case of the Apple iPhone, buyers own both the object, and can legally modify and change the software in ways that Apple does not care for. This does not mean you are not breaking your warranty, as you still agreed not to make these certain changes, but you are not breaking the law, since it is your product. You OWN it, and cannot be sued for breaking DMCA anti-circumvention.
Some PS3 owners view the iPhone case as precedential, and sued Sony for making their product less functional, in April of 2010, but not much has come of it. Late in 2010, though, a hacker named George Hotz, well known in the iPhone jailbreak community, found a way to restore the functionality to the PS3. Sony had previously updated the PS3 firmware do to the extent Hotz was able to find PS3 loopholes, and has now proceeded to send its legal army him, claiming Hotz has broken the DMCA anti-circumvention clause, first getting a restraining order on him in January 2011, and then getting a gag order on him to attempt to stop the code from “getting out”. The judge, who clearly does not understand technology, even agreed with Sony and initially tried to order Hotz to “retrieve” the code from the Internet. More recently, Sony has been allowed access to the identity of anyone who has come into contact with Hotz via social networks or visiting his website, and Sony has threatened to cut them off of the PS3 network.
While some, such as Wired.com writer Mark Brown, say Hotz’s actions only leave the PS3 system open for hackers with malicious intent; I think that this is simply a writer toeing Sony’s own line, he misses the larger issue. Sony did not remove the function of “OtherOS” due only to security issues; it is another case of corporate control. Sony sells you a box, and you agree when buying that box and signing up for their online platform, to allow Sony to do whatever they want. You are in essence allowing Sony to own the functionality of what you purchased. Users cannot simply not agree to this or Sony would not sell them the physical product at all. Sony initially marketed the system with the “OtherOS” feature, but for reasons only they know, removed this feature. The reasons do not matter, as much as the fact that you agree to let Sony do it, the can, they own the software.
The use of DMCA anti-circumvention by corporations to practically maintain an increasing amount of ownership and control over their products, after the purchase has been made, brings our society to a split path, we can go down the road of licensing and excessive litigation in the name of protecting copyright and fending off harmful pirates, while holding consumers hostage, or we can take the road of consumer protection and innovation, where companies reward and applaud what we do with their products, which consumers legally own.