In Re Sony PS3 "Other OS" Litigation

Filing 99

Request for Judicial Notice re 97 MOTION to Dismiss [Memorandum of Points and Authorities] MOTION to Dismiss [Memorandum of Points and Authorities], 96 MOTION to Strike 76 Amended Complaint [Class Allegations; Memorandum of Points and Authorities] MOTION to Strike 76 Amended Complaint [Class Allegations; Memorandum of Points and Authorities] filed bySony Computer Entertainment America Inc, Sony Computer Entertainment America LLC. (Related document(s) 97 , 96 ) (Sacks, Luanne) (Filed on 9/10/2010)

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DLA PIPER LLP (US)
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LUANNE SACKS, Bar No. 120811 [e-mail] CARTER W. OTT, Bar No. 221660 [e-mail] DEBORAH E. MCCRIMMON, Bar No. 229769 [e-mail] DLA PIPER LLP (US) 555 Mission Street, Suite 2400 San Francisco, CA 94105 Tel: [phone] Fax: [phone] Attorneys for Defendant SONY COMPUTER ENTERTAINMENT AMERICA LLC (erroneously sued as "Sony Computer Entertainment America Inc.") UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

In re SONY PS3 "OTHER OS" LITIGATION

CASE NO. 3:10-CV-01811 RS (EMC) REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT'S MOTIONS TO DISMISS AND STRIKE Date: Time: Judge: Courtroom: November 4, 2010 1:30 p.m. Hon. Richard Seeborg 3

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REQ. FOR JUD. NOT. ISO MOTIONS TO DISMISS AND STRIKE CASE NO. 3:10-CV-01811 RS (EMC)

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Defendant Sony Computer Entertainment America LLC ("SCEA") respectfully requests that the Court take judicial notice of certain documents and information cited in its Motion to Dismiss and Motion to Strike, filed herewith. I. REQUEST FOR JUDICIAL NOTICE Pursuant to Federal Rule of Evidence 201, SCEA requests that the Court take judicial notice of the following documents, each of which is attached to the accompanying Declaration of Carter Ott ("Ott Declaration"). 1. Exhibit A. 2. System Software License Agreement (Version 1.4) for the PlayStation®3 System. Limited Hardware Warranty And Liability for the PlayStation®3. Ott Declaration,

Ott Declaration, Exhibit B. 3. System Software License Agreement (Version 1.3) for the PlayStation®3 System.

Ott Declaration, Exhibit D. 4. System Software License Agreement for the PlayStation®3 System, Version 1.1.

Ott Declaration, Exhibit C. 5. System Software License Agreement for the PlayStation®3 System, Version 1.0.

Ott Declaration, Exhibit S. 6. System Software License Agreement (Version 1.2) for the PlayStation®3 System.

Ott Declaration, Exhibit T. 7. Terms Of Service And User Agreement for the PlayStation®Network, Version

7.0. Ott Declaration, Exhibit E. 8. Terms Of Service And User Agreement for the PlayStation®Network, Version

6.0. Ott Declaration, Exhibit X. 9. PlayStation®Network: Terms of Service and User Agreement, Version 5.00. Ott

Declaration, Exhibit G. 10. PlayStation®Network: Terms Of Service And User Agreement, Version 4.0. Ott

Declaration, Exhibit W. -1-

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REQ. FOR JUD. NOT. ISO MOTIONS TO DISMISS AND STRIKE CASE NO. 3:10-CV-01811 RS (EMC)

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11.

PlayStation®Network: Terms Of Service And User Agreement, Version 3.0. Ott

Declaration, Exhibit V. 12. PlayStation®Network Terms of Service and User Agreement, Version 2.0. Ott

Declaration, Exhibit F. 13. PlayStation®Network Terms Of Service And User Agreement, Version 1.0. Ott

Declaration, Exhibit U. 14. 15. Open Platform for PlayStation®3. Ott Declaration, Exhibit H. Document from the PlayStation® Knowledge Center containing "FAQs." Ott

Declaration, Exhibit R. 16. Complaint in Baker, et al. v. Sony Computer Entertainment America, LLC, U.S.

District Court, Northern District of California, Case No. CV-10-01897-RS. Ott Declaration, Exhibit I. 17. Complaint filed in Densmore, et al. v. Sony Computer Entertainment America,

Inc., U.S. District Court, Northern District of California, Case No. CV-10-1945-RS. Ott Declaration, Exhibit J. 18. Complaint filed in Wright v. Sony Computer Entertainment America, Inc., et al.,

U.S. District Court, Northern District of California, Case No. CV-10-01975-RS. Ott Declaration, Exhibit K. 19. Complaint filed in Harper, et al. v. Sony Computer Entertainment America, Inc.,

U.S. District Court, Northern District of California, Case No. CV-10-02197-RS. Ott Declaration, Exhibit L. 20. Complaint filed in Huber v. Sony Computer Entertainment America, LLC, U.S.

District Court, Northern District of California, Case No. CV-10-02213-RS. Ott Declaration, Exhibit M. 21. Complaint filed in Benavides v. Sony Computer Entertainment America, Inc., U.S.

District Court, Northern District of California, Case No. CV-10-02612-RS. Ott Declaration, Exhibit N. -2-

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REQ. FOR JUD. NOT. ISO MOTIONS TO DISMISS AND STRIKE CASE NO. 3:10-CV-01811 RS (EMC)

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22.

Complaint filed in Allee v. Sony Computer Entertainment America Inc., State of

Wisconsin, Circuit Court, Milwaukee County, Case No. 10CV012458. Ott Declaration, Exhibit O. 23. SCEA's Notice of Removal in Allee v. Sony Computer Entertainment America

Inc., U.S. District Court, Eastern District of Wisconsin, Case No. CV-00737-WEC. Ott Declaration, Exhibit P. 24. Internet postings and "public statements" from a message board Plaintiffs relied on

in their Consolidated Class Action Complaint (the "Consolidated Complaint"). Ott Declaration, Exhibit Q. 18. PlayStation® Knowledge Center, "Can I install different Operating Systems (OS) or system Software on the PlayStation®3 computer entertainment system?" Ott Declaration, Exhibit R. II. JUDICIAL NOTICE IS APPROPRIATE A. The Court May Take Judicial Notice Of Documents Incorporated By Reference In The Consolidated Complaint Federal Rule of Evidence 201 allows a court to take judicial notice of, inter alia, adjudicative facts "not subject to reasonable dispute in that [they are] . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." In ruling on a pleading challenge, a court may take judicial notice of "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading" if (i) the complaint refers to such document; (ii) the document is central to the plaintiff's claim; and (iii) no party questions the authenticity of the copy submitted.1 Here, the Consolidated Complaint alleges that SCEA sold millions of PlayStation®3 ("PS3") consoles by advertising a wide array of its features and functions, including the ability to Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Knievel v. ESPN, Inc., 393 F.3d 1068, 1076 (9th Cir. 2005) (judicial notice appropriate where the plaintiff's claim depends on the contents of a document, stating: "We have extended the `incorporation by reference' doctrine to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint."); Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1281, fn. 16 (11th Cir. 1999); Chambers v. Time Warner, Inc., 282 F.3d 147, 153, fn. 3 (2d Cir. 2002). -3WEST\222449539.1 1

REQ. FOR JUD. NOT. ISO MOTIONS TO DISMISS AND STRIKE CASE NO. 3:10-CV-01811 RS (EMC)

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play games and movies, view photographs, access the "unified online gaming service called the PlayStation Network" ("PSN"), and utilize alternative operating systems, like Linux ("Other OS"). According to the Consolidated Complaint these features and functions were promoted, among other places, on SCEA's website.2 The Consolidated Complaint asserts eight causes of action against SCEA premised on the notion that SCEA misrepresented or failed to disclose that it "might" alter or disable features or functions in the future, including the Other OS feature. In support of these assertions, the Consolidated Complaint states explicitly that SCEA's "right to remove the `Install Other OS' feature is not specifically disclosed in [SCEA's] Terms of Service or System Software License Agreement."3 The Consolidated Complaint also alleges that SCEA informed users that it released Firmware Update Version 3.21, which disabled the Other OS function if downloaded, to protect the "security" of users systems and later admitted that it issued the update "to protect the intellectual property of the content offered on the PS3 system."4 Finally, the Consolidated Complaint asserts that certain terms of the System Software License Agreement should be declared void because they are unconscionable. 5 Notwithstanding their repeated references to various provisions of SCEA's website, System Software License Agreement, the Terms of Service and User Agreement, and Firmware Update 3.21, Plaintiffs fail to attach or even quote adequately and completely any of these documents, each of which is available on the Internet.6 Because the Consolidated Complaint references these documents ­ indeed confirms that they are patently central to Plaintiffs' claims ­ and no party questions their authenticity, the Court may take judicial notice of documents attached as Exhibits A through H and R through X to the Ott Declaration.7 Consolidated Complaint, ¶¶ 2, 10, 30, 45. Consolidated Complaint, ¶¶ 41. 4 Consolidated Complaint, ¶¶ 63. 5 Consolidated Complaint, ¶¶ 114, 117. 6 See, e.g., Consolidated Complaint, ¶¶ 74(c), 74(d), 78-81, 107, 109, and 134-139. 7 Datel Holdings Ltd. v. Microsoft Corp., --- F. Supp. 2d ----, 2010 WL 1691790, **6-7 (N.D. Cal. April 23, 2010) (taking judicial notice of "Xbox 360 `Limited Warranty and Return Information,' which includes the Xbox 360 software license; [] the Xbox Live Terms of Use; and [] a portion of the Xbox 360 console packaging. The first two documents are publicly available online and the third is available in any Xbox 360 console packaging."); Berenblat v. Apple, Inc., 2009 WL 2591366 at *1, n. 3 (N.D. Cal. Aug. 21, 2009) ("[defendant's] Request for Judicial Notice of the terms of the express warranty is granted, as the FAC references the warranty and at least two of the [] Plaintiffs exercised their rights under the express warranty."); In re Samsung -43 WEST\222449539.1 2

REQ. FOR JUD. NOT. ISO MOTIONS TO DISMISS AND STRIKE CASE NO. 3:10-CV-01811 RS (EMC)

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In support of their allegations, Plaintiffs also cite to a number of comments purportedly made by PS3 owners on Internet websites containing chat rooms and message boards, regarding the PS3, the Other OS feature, and this litigation.8 But they fail to provide actual screenshots of those website pages, which include other comments made by PS3 users, many of which respond directly to the postings Plaintiffs quote and thereby contradict Plaintiffs' allegations. These screenshots of the website pages, and the postings displayed on them, are appropriate for judicial notice. Courts regularly take judicial notice of Internet websites, which necessarily would includes posts or comments made by visitors to chat rooms and message boards on such sites.9 In addition, judicial notice is appropriate of Exhibit Q to the Ott Declaration because the Consolidated Complaint references these website chat rooms and message boards, Plaintiffs have made them central to their claims, and no party questions their authenticity. B. The Court May Take Judicial Notice of Court Records

Federal Rules of Evidence 201 allows a court to take judicial notice of court records, including its own records from other proceedings and records of state courts. Specifically, Federal Rules of Evidence 201 permits a court to take judicial notice of, inter alia, adjudicative facts "not subject to reasonable dispute in that [they are] . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." It is axiomatic that courts may take judicial notice of documents filed and orders or decisions entered in any federal or state court.10 On this basis, the Court may take judicial notice of the underlying Elecs. Am., Inc. Blu-Ray Class Action Litig., 2008 WL 5451024, at *4 n. 2 (D.N.J. Dec. 31, 2008) ("In the Amended Complaint, Plaintiffs specifically acknowledge the existence of warranty information in each Player's packaging. Those documents are integral to Plaintiffs' Amended Complaint, as the warranty language serves, as a matter or law, to either support or erode Plaintiffs' claims. As a result, this Court will consider the warranty information, without converting Defendant's motion to dismiss into one for summary judgment."). 8 See Consolidated Complaint, ¶¶ 55 & 62. 9 United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Wible v. Aetna Life Ins. Co., 375 F. Supp. 2d 956, 965 (C.D. Cal. 2005); Caldwell v. Caldwell, 2006 WL 618511 (N.D. Cal. Mar. 13, 2006); O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007); Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969, 971-72 (N.D. Cal. 2005) (taking judicial notice of message posted on Internet message board); Ligotti v. Garofalo, 562 F. Supp. 2d 204, 212 (D.N.H. 2008) (taking judicial notice of four comments made on Internet blog). Chat rooms and message boards are generally considered "websites." See http://en.wikipedia.org/wiki/Websites. 10 See United States v. Warneke, 199 F.3d 906, 909 fn. 1 (7th Cir. 1999); Doran v. Eckold, 409 F.3d 958, 962 fn. 1 (8th Cir. 2005); Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (appellate court judicially noticed state appellate opinion and briefs); E.I. DuPont de Nemours & -5WEST\222449539.1

REQ. FOR JUD. NOT. ISO MOTIONS TO DISMISS AND STRIKE CASE NO. 3:10-CV-01811 RS (EMC)

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seven class actions that consolidated to the above-captioned matter. For the same reasons, the Court may take notice of the case filed in Wisconsin state court, Allee v. Sony Computer Entertainment America Inc., Case No. CV-10-12458. Accordingly, the Court may take judicial notice of Exhibits I through P to the Ott Declaration. Dated: September 10, 2010 DLA PIPER LLP (US) By: /s/ Luanne Sacks LUANNE SACKS Attorneys for Defendant SONY COMPUTER ENTERTAINMENT AMERICA LLC

Co., Inc. v. Cullen, 791 F.2d 5, 7 (1st Cir. 1986) (courts may take judicial notice of a complaint filed in a related state court action); see also Rothman v. Gregor, 220 F.3d 81, 92 (2nd Cir. 2000); Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1277 (5th Cir. 1978) (courts may take judicial notice of materials in its own files from prior proceedings); Lynch v. Leis, 382 F.3d 642, 648 fn. 5 (6th Cir. 2004). -6WEST\222449539.1

REQ. FOR JUD. NOT. ISO MOTIONS TO DISMISS AND STRIKE CASE NO. 3:10-CV-01811 RS (EMC)