IANAL
The FTC needs to step into this. I filed a complaint with the FTC earlier this week, it only takes a few minutes, so please do the same if you are a PS3 FAT owner unless you enjoy losing features you paid for. Judging that any post I make on the playstation blog containing the word FTC is instantly censored by string matching, I believe this is what Sony is afraid of.
From the FTC statement on unfairness, "To justify a finding of unfairness the injury must satisfy three tests."
source: http://www.ftc.gov/bcp/policystmt/ad-unfair.htm
1. must be substantial - otheros was #2 reason why I purchased the PS3. #1 was bluray. Launch games for the PS3 pretty much sucked. I wanted an all-in-one media box. I figured if media didn't work well in PS3 os, Linux was my backup plan.
2. not be outweighed by other benefits - Prior to firmware 3.21, I could run Linux and connect to PSN. Today I cannot connect to PSN, play Warhawk, or be assured that future BD's or games will work. No benefits were added with firmware 3.21, much less benefits that would outweigh the loss of otheros. System security as a benefit is hypothetical. Hotz created a proof of concept, not a mod chip or a virus.
3. could not be avoided - Due to Sony's use of DRM, I cannot avoid losing features... either otheros or the use of current and future software and BDs. (I am still running 3.20, by the way.)
For more recent FTC statements regarding DRM....
"Mary Engle, an FTC Acting Deputy Director, .... referenced the Sony BMG rootkit debacle, saying that "sellers who use DRM technology to enforce the terms of bargains with consumers need to be particularly careful to disclose in advance" what those bargains are.
And just stuffing the disclosure into the fine print of an End User License Agreement (EULA) isn't good enough. "If your advertising giveth and your EULA taketh away," she said, "don't be surprised if the FTC comes calling."
She stressed that it was not permissible for companies to play Lucy to consumers' Charlie Brown, holding the football and promising that this time she won't yank it away at the last minute. "
source: http://arstechnica.com/tech-policy/news/2009/03/ftc-well-come-calling-about-deceptive-drm.ars