Monthly Archives: December 2012

Sony Sued Over PSN Security Breach, Faces Millions in Damages

On May 11th, 2011 James Campo filed a class action suit in the U.S. District Court for the Northern District of California seeking relief for all parties injured by Sony’s subpar security practices that led to the compromise of personal information of millions of subscribers.

The complaint breaks down as follows:

  1. Breach of express warranty: Sony failed to protect customers’ personal information as promised in its privacy policy.
  2. Negligence: Sony failed to use reasonable care in handling customers’ personal information and in informing customers of the security breach.
  3. Gross Negligence: Sony knowingly failed to implement proper security measures to safeguard customer data.
  4. Negligence Per Se: Sony violated California Civil Code section 1798.82 that requires a timely disclosure when a breach of security takes place.
  5. Unlawful Business Practices: Violations under a plethora of statutes basically saying that Sony’s conduct and business practices are injurious to consumers.
  6. Unlawful Business Practices: By advertising Sony’s system and the PSN as safe even though Sony knew or should have known they had inherent defects.
  7. Violation of California Civil Code section 1798.80: Sony failed to disclose to plaintiffs the security breach without unreasonable delay.
  8. Breach of Implied Contract: Plaintiffs provided Sony their personal information in order to buy online content or play games, implicit in this transaction was Sony’s promise to use reasonable care in safeguarding that information.
  9. Bailment: Sony was the bailor of plaintiffs personal information and breached this duty by not exercising reasonable care over it.
  10. Injunctive Relief: Plaintiff wants Sony to fix the security flaws, disclose to the list of those whose information was compromised and remedy the effects of the disclosure of the confidential information.

Sony has yet to file an answer to the complaint and we probably won’t be seeing one for a bit but what is clear is that Sony faces millions/billions of dollars in damages and is likely to settle and take better care of their network security from now on.

A copy of the original complaint can be found here

Sony Sued Over FFXIII-What Sony Really Thinks of Your Rights as a Consumer

Almost a year ago Mr. Daniel Wolf filed a class action suit against Sony and Square Enix due to Final Fantasy XIII allegedly bricking his PS3 along with others. The complaint, which states multiple violations of California consumer laws can be found here. A quick google search reveals multiple users that have had their consoles destroyed by the game and at this point it isn’t clear whether it is due to a defect in the PS3, a defect in FFX13, or both.

In its motion to dismiss defendant Sony admits the allegations that there are “100’s of complaints” but in a surprising twist claims that hundreds of people getting their consoles bricked is an insignificant amount compared to the millions of copies sold. I’m sure to Sony that sounds like a small price to pay but it doesn’t sit so well with the consumer who just had his shiny new toy destroyed and now needs to pay $250 to get it fixed. And besides, if hundreds of broken PS3s is “insignificant” to Sony then why does the multimedia giant refuse to repair the consoles free of charge? Sony’s stance however, might make legal sense since Mr. Wolf is trying to certify a class of all FFXIII buyers and not just the ones that have suffered actual damage from the game.

Sony’s second stance is one that will likely get some heads turning. In its motion to dismiss Sony claims something to the effect that the PS3 only has a 1 year warranty and whatever happens to it afterwards is not Sony’s concern. This stance means that those whose PS3 is over 1 year old should be at risk of having it damaged without any remedy even though it could very well be Sony’s fault that creates the damage. Sony’s motion was filed in March 2011 and it will certainly be some time before this controversy is resolved but this case is worth following as it will set the tone for what consumers’ rights are after the express warranty has expired when their products are damaged as a result of the manufacturer’s misconduct.

Complaint

Motion to Dismiss

Setting the Virtual Stage

Virtual Real Estate

We begin our immersion into the world of computers and the law by analyzing the four year old case Bragg v. Linden Research, Inc. 487 F. Supp. 2d 593. In Bragg, the plaintiff who is apparently a lawyer brought suit because Linden Research(the maker of Second Life) closed his account after the plaintiff allegedly used an exploit to acquire a Second Life parcel of land at far below market value. Bragg brought claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, California Unfair and Deceptive Practices Act, California Consumer Legal Remedies Act, fraud, conversion, intentional interference with contractual relations, breach of contract, and tortious breach of the covenant of good faith and fair dealing along with violation of California Civil Code section 1812.600.

After removing to Federal court defendant Linden attempted to compel arbitration as stipulated in the Second Life EULA which Bragg had agreed to. The Second Life arbitration agreement at the time stated:

Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by binding arbitration in San Francisco, California under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules…. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive relief or enforcement of this arbitration provision without breach of this arbitration provision.

If the arbitration agreement stood, the parties would be forced to arbitrate their claims leading to more expense to Bragg, a substantial likelihood of a smaller award for damages and most importantly the arbitration was to be confidential so that future plaintiffs bringing actions against Linden would not benefit from precedent. Fortunately for Bragg and gamers worldwide, the court found that the arbitration clause was unconscionable because it, coupled with other terms of the EULA which allowed Linden to cancel accounts for any reason, allowed the stronger party to choose its forum while forcing the weaker party to only one forum(arbitration in SF). Another important factor was the cost differential. Although the parties couldn’t come to an agreement as to the cost of arbitration, the average of the estimates provided was over $10,000. If this provision was upheld, it was clear that many plaintiffs would be kept from having their day in court as it wouldn’t make sense for a person to spend tens of thousands of dollars to litigate small claims which are more typical.

So what does it all mean for gamers everywhere? At least in California contract conditions which put the weaker party in a disfavorable position so as to keep it from having its day in court will not be enforced. Furthermore, at least in the context of Second Life where the defendants had an ongoing advertising campaign claiming that gamers could actually “own” property the courts will uphold a gamer’s right to protect his virtual property from unfair taking by game companies.

Ehrhardt’s Florida Evidence

Ehrhardt

Ehrhardt’s Florida Evidence is the evidence book that teaches you everything you ever wanted to know about the Florida evidence code, and then some.

With clear and concise language, this book carefully guides you through the Florida evidence code, breaking down important and complicated sections into subsections for easy understanding of the material. Particularly useful are the book’s numerous parenthetical citations on the bottom half of every page. Not only does the author do a fantastic job of explaining each section of the Florida evidence code, but by making references to the applicable caselaw, the reader is able to follow up on any doubts that remain.

Ehrhardt’s Florida Evidence dedicates over 260 pages to hearsay, making it one of the most complete sources on the subject. As expected, the book focuses on the technical aspects of the rule as applied in Florida caselaw, and is replete with applicable caselaw throughout this entire chapter. If you’re like me and find the many challenges embedded in the hearsay rule and its many exceptions exciting, Ehrhardt’s Florida Evidence is the right book for you.

Something I found particularly useful is the book’s chapter on authentication of documents. In it the author covers the many different permissible ways of having a document authenticated, when a document is self-authenticating, and when no authentication is required. Ehrhardt’s Florida Evidence is certainly a valuable source to keep handy when figuring out whether a document needs to be authenticated, and if so whether the witness or method you have in mind can get it done.

With 1082 pages of solid, on point knowledge, and an appended full copy of the Florida Evidence Code, Ehrhardt’s Florida Evidence deserves a 10/10. I only wish I had gotten my hands on this wonderful resource months ago.