That's not the point, though. The car was sold, as advertised, as "having the hardware necessary for FSD". Sure, I get it, that they later realized it's not possible on older hardware, so they said they'd do the "right" (obligated) thing and upgrade that hardware.

But many people tell tales of "Well, we won't upgrade your hardware unless you actually pay for FSD first", which is NOT what was sold. At that point you have a case against Tesla for a material difference. Having the hardware necessary for FSD is not in any way contingent on you having purchased or subscribed to the software.