H. Computer Fraud and Abuse Act (“CFAA”) Plaintiffs contend that Sony violated the CFAA by “knowingly caus[ing] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer.” 18 U.S.C. § 1030(a)(5)(A)(i). Sony argues that it did not act “without authorization” either because the terms of the software license permitted it to take the actions it did, or because plaintiffs’ “voluntarily” downloaded Update 3.21, knowing the effect it would have. At this juncture, Sony has not conclusively established that disabling a PS3 capability of the nature of the Other OS feature is within the scope of the license agreement provisions on which it relies, nor has it shown that those plaintiffs who downloaded the Update thereby necessarily “authorized” the removal of the feature within the meaning of the statute. Accordingly, this prong of the motion will be denied, without prejudice to Sony’s ability to challenge any CFAA claim in an amended complaint, based on the same or expanded arguments.
Plaintiffs’ proposed class definition includes: “All persons who purchased, in the United States and its territories, a new PS3 with the Open Platform feature for personal use and not for resale and continued to own the PS3 on March 27, 2010.” Complaint ¶ 70. This definition readily identifies a specific class, namely consumers that purchased a specific product, the PS3, and who still owned the PS3 on a specific date (March 27, 2010).
IV. CONCLUSION
Sony’s motion to dismiss is granted, with the exception of the claim under CFAA. The motion to strike is denied. Plaintiffs shall file any amended complaint within 20 days of the date of this order.
IT IS SO ORDERED.
Dated: 2/17/11
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