The flaw in plaintiffs’ analogy is that they are claiming rights not only with respect to the
features of the PS3 product, but also to have ongoing access to an internet service offered by Sony,
the PSN. A somewhat fanciful, but more apt, analogy would be if Toyota sold hybrid vehicles with
an advertisement campaign touting that Toyota owners would have access to a recreational driving
facility, a no-speed limit amusement park for cars. Then, at some time thereafter, Toyota instituted
a rule that its hybrids would not be permitted in the park unless the owners allowed the battery
feature to be disabled. In those circumstances, Toyota hybrid owners who declined to authorize
disabling of the battery feature would still have fully-functional hybrid vehicles, capable of running
on an electric motor or a gasoline engine, as appropriate under the conditions. Similarly, PS3
owners who declined to install Firmware Update 3.21 still have fully-functioning devices, capable
of either being used as game consoles to play games on optical disks, or as computers, with the
Other OS feature.
While plaintiffs would characterize the ability to access the PSN as a “fundamental feature”
of the PS3 itself, it cannot be disputed that the “feature” is dependent on something outside the
actual device—i.e., the continued existence of the PSN. Additionally, plaintiffs acknowledge that
installation of Firmware Update 3.21 was entirely at the discretion of the user; indeed they have
proposed separate subclasses for those who did chose to download it and those who did not. The
choice may have been a difficult one for those who valued both the Other OS feature and access to
the PSN, but it was still a choice.
Under these circumstances, it cannot be said that Sony “unilaterally took away a
fundamental feature of a product after that product [was] sold to a consumer.” Rather, Sony
unilaterally imposed a requirement that PS3 owners who wanted continued access to the PSN
service would have to allow the Other OS feature in their machines to be disabled. As a
consequence, for Sony’s conduct to have been in any manner wrongful, it is not enough for
plaintiffs to show that they have a right to expect continued availability of the Other OS feature
beyond the warranty period, but also a right to continued access to the PSN.
Nothing in plaintiffs’ factual allegations or their arguments is sufficient to support a
conclusion that Sony has any obligation to maintain the PSN in operation indefinitely. Had Sony
elected to shut down the PSN entirely, and for some unknown reason then offered PS3 owners the
option to disable the Other OS feature on their machines, users who elected to do so would plainly
have no claim for loss of the OS Feature.1 Nor would it be sufficient for plaintiffs merely to say
that, having elected not to shut down the PSN entirely, Sony had no right to limit access to the
service to those who agreed to disable the Other OS feature. This is not a discrimination case, and
nothing in plaintiffs’ factual allegations supports the existence of a legally enforceable duty on
Sony’s part to refrain from altering the conditions under which users are permitted access to the
PSN.

The dismay and frustration at least some PS3 owners likely experienced when Sony made
the decision to limit access to the PSN service to those who were willing to disable the Other OS
feature on their machines was no doubt genuine and understandable. As a matter of providing
customer satisfaction and building loyalty, it may have been questionable. As a legal matter,
however, plaintiffs have failed to allege facts or to articulate a theory on which Sony may be held
liable. The motion to dismiss is granted, without leave to amend. The motion to strike is denied as
moot. A separate judgment will issue.
IT IS SO ORDERED.
Dated: 12/8/11
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE