There is a legal principle that goes something like: you can't contract out of the law. That means it doesn't matter what you put in your terms and conditions or EULA, you can't force someone to accept your unlawful actions by making them sign a document saying they will let you do it.

If indeed there is a law that says you cannot force removal of functionality from a device which was openly advertised as an intended capability of the device then you can't use a ToC or EULA to allow you to contravene that law. Sony can put it in their EULA/ToC and brush people off by saying "look you agreed to this in the ToC / EULA, so we can do what we want", but it doesn't mean such clauses will stand up to competent legal challenge. I was being facetious in my previous post (and I still think overall it's an obscure little known law, otherwise Sony wouldn't be trying it on) but I do think it's likely that a well organised and funded legal challenge to this would probably see any clauses in EULAs opr ToCs rendered null and void, which would have some quite serious implications well beyond what Sony might want to do in future with PS3 FW updates if it became a legal precedent in the EU.

In any case these things are not true contracts because there is no oportunity to negotiate conditions or variations. Before you even get to see the EULA/ToC you have to buy the device most of the time, which means you have committed youself to signing something before you've even had a chance to look at what you're committing yourself to. You are basically forced to accept the conditions more or less under a state of duress, because if you don't hit the little "accept" button then if your system doesn't become an expensive paperweight right then it soon will.

There's probably only 1 watertight clause in most EULAs / ToCs and that is a clause saying that you agree not to use the device / software for illegal activities, and the manufacturer is indemnified from any illegal activities you do commit using the device you have purchased.

I don't have a problem with Sony releasing 3.21 for myself and 90% or more of phat users wouldn't have a problem either. But for those people who do use (or want to use) OtherOS on their phat they should be able to do so without having some of the other essential functions of their PS3s cease to function.

You see that's where Sony overstepped the mark. It isn't in the removing of the OtherOS functionality, its in the removing of other functionality if you don't remove OtherOS functionality. They've presented OtherOS users with an unacceptable ultimatum: either use your PS3 as a Linux computer and media centre, or use it as a gaming machine and media centre, but you cannot use it as a Linux computer and gaming machine.

What Sony should have done is give an optional added benefit to accepting 3.21 to incentivise uptake. Perhaps a 1 month 15% discount on PSN titles, or some other basically no cost little treat that most people with think "hey nice, and all I have to do is disable a function I never use". Then the OtherOS users have the choice of keeping Linux and missing out on some wee bonus offer that no one can claim any legal right to or ditching Linux for some little e-trinket that amounts to not very much. If you take the e-trinket then you weren't much of a committed OtherOS user at the end of the day. But no, they had to take the punative line, threatening people with loss of functionality of they don't take up this "optional" FW update, that was guaranteed to get some people's backs up.

Consumer choice in the totalitarian dictator style, always works a treat.

Look what I just found:

EU Directive 1999/44/EC

Article 2

Conformity with the contract

1. The seller must deliver goods to the consumer which are in conformity with the contract of sale.

2. Consumer goods are presumed to be in conformity with the contract if they:

( a ) comply with the description given by the seller and possess the qualities of the goods which the seller has held out to the consumer as a sample or model;

( b ) are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted;

( c ) are fit for the purposes for which goods of the same type are normally used;

( d ) show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling.

http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=31999L0044&model=guichett