A Tale of Woe
Imagine, if you will, that you purchase a videogame console for the princely sum of hundreds of dollars, even one-thousand. Then imagine that you treat said console with the utmost care and attention, taking time to tend to its whims and needs, wiping dust from its surface and allowing it space to breathe. Imagine that you form a bond with said console, that you come to rely on it, trust it and treasure it and, finally, imagine that the damned thing shuts itself off during a routine watching of Harry Potter and the Prisoner of Azkaban (hush you, it’s for adults too) and refuses to operate ever again. Imagine that your console has died before your very eyes.
Despite my promise to deliver a tale of terrors unknown, I dare say that the above scenario has played itself out before many gamers across the world and represents a familiar and unpleasant situation. The fact remains that as gaming consoles grow in power and complexity, the scope for things to go catastrophically wrong increases exponentially. The desire to pack as much power into the smallest possible box has resulted in many consoles literally melting themselves into oblivion. Similarly, a lazy laser might render the machine’s disc-reading capabilities moot. These sorts of mechanical maladies, whether they are the infamous 'Red Ring of Death' or a faulty power supply, are becoming more and more prevalent in the consoles of today with their complicated architectures and array of delicate components.
In addition to the feelings of shock, denial, anger and grief which accompany the death of a gaming console, a consumer then has to turn their mind to the next logical question: what now? The answer, of course, varies according to the individual circumstances in issue. Most gamers will be eager to have their machine replaced or repaired immediately, quickly assessing whether they are within the warranty period offered by the manufacturer. It is here that things become tricky.
Hello Dave. I can't let you do that, Dave.
Maladies and Malfunctions
The reliability of Microsoft’s Xbox 360 console has been in issue almost from the machine’s inception. The consequences of a fervent desire to beat the competition to market arguably manifested themselves in the form of the most notoriously unreliable console in gaming history. The prevalence and frequency of the dreaded ‘Red Ring of Death’ (an indicator of general hardware failure) has resulted in Microsoft offering consumers a three-year warranty in such cases. A similar issue, known as ‘E74’ (a video-related error) is also covered for three years, but other defects, such as failing disc trays, are covered only by the usual twelve-month warranty period.
Sony’s PlayStation 3 has typically been regarded as a reliable, stable machine with relatively few issues, and instances of catastrophic failure are certainly less-reported than with Microsoft’s console. Anecdotally, however, more and more reports are beginning to emerge about the ‘Yellow Light of Death’, whereby the console switches itself off before the power indicator light flashes yellow and then blinks red continuously. Similar to the ‘Red Ring of Death’, this is usually indicative of serious hardware failure, with many linking the issue to a problem with the console’s power supply. Whatever, the underlying cause, however, the ‘Yellow Light of Death’ has never been formally acknowledged by Sony and the standard twelve-month warranty applies.
The situation becomes tense and fraught when the consumer realizes that his or her console falls outside the warranty window offered by the manufacturer. The frustration is compounded by the fact that it may take up to three years for any manufacturing defect or weakness in a given component to reveal itself. The net result is that it is not uncommon for a gaming console to function properly and smoothly up until moments after the express warranty expires. The consumer is then faced with the prospect of footing the repair bill charged by the manufacturer for repairing a machine outside the warranty period, which can be costly indeed. For example, Sony Computer Entertainment Australia charges a flat rate of AUD $315.00 to repair a PlayStation 3 console which suffers from a defect after twelve months from the date of purchase.
The problem here is that manufacturers are keen to occlude the existence of statutory warranties in favour of espousing their own express warranties, and consumers are easily bullied into surrendering. Whether one chalks it down to ignorance, laziness, or an unwillingness to partake in a negotiation from such a disadvantaged position, very few take the time to exercise their rights as consumers. As we are all aware, knowledge is power and it pays to understand one’s rights when things go pear-shaped.
'E74' in action. This image is traditionally followed by manic screams.
Your Statutory Rights
When an Australian consumer is supplied with goods by a retailer or manufacturer, they are granted rights by legislation at both state and federal level which are designed to protect consumers. The Commonwealth legislation, known as the Trade Practices Act 1974 (‘the TPA’) contains provisions relating to consumer rights which are mirrored by most equivalent state laws. In short, the TPA provides that when goods are supplied to a consumer, they should be free from defects and do what they are supposed to do. To be precise, section 71 of TPA states that goods must be of ‘merchantable quality’ and ‘reasonably fit for [their] purpose’. That is, goods must achieve a fundamental standard of quality and performance and be free from defects which were not apparent or alluded to at the time of purchase.
This ‘implied warranty’ applies for no set time limit, and an assessment as to whether a product is of ‘merchantable quality’ relies on one giving regard to factors such as the price of the goods, the description of the goods, the intended purpose of the goods, and notions of ‘reasonableness’ as to how long the goods should continue to function properly. In the case of videogame consoles, it is arguable that a fatal hardware failure which occurs in the first few years of the machine’s life is an indicator that the said console was not of merchantable quality or fit for its proper purpose. Having regard to the PlayStation 3 in particular, it is arguable that the AUD $999.95 launch price tag implies that the product should be reasonably expected to last more than twelve months, and that a failure to do so represents a breach of the warranties implied by the TPA. It is important to recognise that any express warranty offered by a manufacturer or retailer is in addition to the rights conferred by statute; an express warranty cannot override, limit or refuse the basic rights and entitlements of consumers.
It follows then that when a retailer or manufacturer supplies to a consumer goods which are not of ‘merchantable quality’ or are unfit for their purpose, the consumer is entitled to a remedy, which might include repair, replacement or compensation (a refund). The most direct way for consumers to enforce the rights conferred on them by the TPA and the applicable state legislation is by writing letter requesting a refund or replacement from the retailer or manufacturer, free of charge, notwithstanding that the product may be outside the express warranty period. The letter should set out the particulars of the purchase, including the price paid, and set out the consumer’s argument as to why they consider the product’s failure to be a breach of the legislation entitling them to a remedy. A letter may be made more effective by the stipulation of a time limit for the retailer or manufacturer to respond, failing which the consumer will refer the matter to their applicable state body responsible for enforcing consumer protection legislation. The aforementioned bodies, which include the NSW Officer of Fair Trading and Consumer Affairs Victoria, ultimately have no power to compel retailers or manufacturers to offer a remedy, but will be able to encourage negotiation and if necessary, refer consumers to the appropriate small claims tribunal responsible for determining disputes arising from consumer protection legislation.
The 'Yellow Light of Death' renders this black beast the most expensive paperweight on the market.
Ultimately, relations between retailers, manufacturers and consumers of videogame consoles could be immeasurably smoothed by the provision of express warranties which afford adequate protection. There is little doubt that express warranties of twelve months are unrealistic and ineffective with respect to expensive pieces of technology whose weaknesses and defects may not become apparent until well after the expiration of these warranties. While Microsoft eventually saw fit to encourage consumer-confidence by offering a three-year warranty to effectively safeguard against the system’s endemic technical issues, such action is far from being standard in the industry. As the price and popularity of gaming continues to rise, disputes as to questions of ‘merchantable quality’ and fitness for purpose will only increase. Furthermore, as the costs of development continue to grow, manufacturers are seeking to prolong the market lifespan of their consoles; with some even espousing a ten-year console cycle. It seems that until such time that manufacturers see fit to reward consumers with express warranties on appropriate and realistic terms, it will remain up to the individual gamer to enforce his or her own rights as a consumer.
And if all this talk of statutory warranties, letter-writing and negotiation sounds difficult or ineffectual, consider this: when my PlayStation 3 suffered from the ‘Yellow Light of Death’ earlier this week, it took only a simple letter, setting out my rights, to convince Sony to offer me a free repair or replacement. In an age of expensive and complicated machines which are prone to failure, it pays to know where you stand.
For more information about your rights as a consumer, visit the website of the Australian Competition & Consumer Commission at www.accc.gov.au.
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