The PlayStation Network is still down, and Sony isn't giving the press or customers any idea of when we can expect to play online. While this doesn't make the gamers happy, the only thing we have on the line is the cost of the games and our time. For third-party developers it's a matter of business, and selling games that rely on online support on a system where the online play has been disabled is an uphill battle.

Third-party publishers are losing out, and it's hurting their bottom lines. Would they have a case against Sony?

The damages are real, but a (winnable) lawsuit is unlikely

We reached out to Michael Pachter, who is an analyst at Wedbush Securities. He also happens to have two law degrees, so I knew he would have some insight into the situation.

So, could a third-party sue Sony and win? "That's a great question, and while it is possible that they could claim some kind of 'detrimental reliance' on Sony's keeping the network up and running, Sony could likely argue 'force majeure' (a major catastrophe beyond their control) as a defense," Pachter told Ars. "Nobody could seriously argue that Sony took the network down to spite Valve or Bethesda, but rather to deal with a serious security breach that was unwelcome and unexpected."

Besides, Pete Hines at Bethesda—the publisher of Brink—is putting a positive spin on things. You may not be able to play Brink online if you buy the PlayStation 3 version, but that doesn't make the game useless. "Fortunately, Brink is a game that allows you to seamlessly move between all modes of gameplay: single-player, co-op, and multiplayer," Hines explained. "So all the experience and unlocks you get while playing single-player will carry over to multiplayer once PSN is back up."

While you can't play with or against friends, you can learn the game, gain some experience, and hopefully have a good time. "So the good news is that PS3 fans can still enjoy the game and learn about the teamplay aspects, objectives, maps, the different roles, and continue to customize their character and unlock new items, and then take all of that with them as soon as multiplayer is available," Hines said.

We also tried to contact Valve to discuss the performance of Portal 2 on the PlayStation 3 and did not hear back. The Steam integration and free PC copy was supposed to give Sony a competitive advantage against Microsoft, but as of this writing gamers can't connect their PSN account to their Steam account in order to take advantage of the integration. What should have been a big win for both companies ended with a fizzle due to the outage.

Christian Svensson is the senior vice president of Capcom, when someone asked about the outage on the Capcom forum, he gave a surprisingly candid answer after saying he was unhappy as a consumer who likes to play games on the PlayStation. "...[A]s an executive responsible for running a business, the resulting outage is obviously costing us hundreds of thousands, if not millions of dollars in revenue that were planned for within our budget," he said. "These are funds we rely on to bring new games to market for our fans."

He said that if the hackers wanted to punish Sony, they have certainly succeeded. "But they're also punishing millions of other consumers and businesses which makes it impossible to be sympathetic to their 'cause'," Svennson said.

Sony won't get sued, but it will get hurt

This is a story that not many developers wanted to talk about, and that's the real reason Sony won't have this bite them legally. No one wants to make an enemy out of one of the three companies that controls console game, and it's likely the agreement Sony signs with publishers includes language absolving it of responsibility for downtime. But publishers are losing money, and customers are taking note. Sony may have a harder time attracting online games and gamers in the future, and that's the real damage here. Whether or not Sony will be hurt in a real way will only be discovered once the servers are back up, and publishers again have the choice of where to put their games.