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Microsoft's bricking of modified Xbox 360 consoles may bring the company its latest class action suit. Microsoft tells the over 1 million banned customers to buy a new Xbox 360 or deal with their crippled unit.
Legal firm is looking for banned Xbox owners to participate in suit

Gamers are really into tweaking their gear for fun and to achieve the best performance during gameplay. PC gamers overclock their hardware to get more performance for less money and console gamers have modded their Xbox 360 consoles for many reasons (some for innocent reasons, some for nefarious reasons).

Microsoft appears to feel that the only reason to mod an Xbox 360 is to allow the console to play pirated download software. A law firm based in Texas that specializes in IP has launched a new website to gather Xbox 360 users who have been banned for modding their consoles. The main goal of the firm is to find out whether there are enough console owners that were banned to start a class action suit against Microsoft.

The law firm wrote on its website, "Microsoft has chosen to use one of the most indiscriminate "weapons" in its arsenal in an effort to combat piracy -- as a result, use of this "weapon" has resulted in a great deal of collateral damage -- many people were affected who had nothing to do with piracy."

According to the law firm, AbingtonIP, the bans were strategically timed so that they didn’t interfere with the sales and new Xbox Live registrations that were seen around the launch of HALO ODST and the recent launch of Modern Warfare 2. AbingtonIP states that had the bans happened before the launch of these games the profits reaped by Microsoft would have been diminished.

So far the Xbox 360 ban has led to more than 1 million consoles being banned from the network with the official recourse for the banned players being to buy a new console and not mod it this time around. A potential fix for banned consoles that doesn't involve buying a new Xbox 360 surfaced. The workaround is called iXtreme LT and the goal of the workaround is to provide a minimum amount of security checks and make the firmware as close to stock as possible to avoid detection and the resulting ban.

The fix arrived but was rather complex and required that the Xbox 360 not have been updated or the player to have access to the CPU key of the console. DailyTech has also spoke with an attorney -- Jeffrey Johnson -- about the banning of Xbox 360 console form the Xbox Live network.

Microsoft's official statement on the banning of certain consoles reads, "Our commitment to combat piracy and support safer and more secure gameplay for the more than 20 million members of our Xbox Live community remains a top priority,” he wrote. “All consumers should know that piracy is illegal, and that modifying their Xbox 360 console to play pirated discs, violates the Xbox Live terms of use, will void their warranty and result in a ban from Xbox Live."



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RE: Bunch o' babies
By Brainonska511 on 11/23/2009 10:46:43 AM , Rating: 5
Not all things in a EULA are legally enforceable.


RE: Bunch o' babies
By bighairycamel on 11/23/2009 11:28:43 AM , Rating: 5
What about this one stands out as illegal? You agree to terms and conditions which require you to play with an unmodded console on MICROSOFT's personally owned Live servers. Corrupting data was a kick below the belt, but when talking specifically about the banning action there really is no argument. Seems pretty open/shut if you ask me.


RE: Bunch o' babies
By AyashiKaibutsu on 11/23/2009 11:36:02 AM , Rating: 5
There's lots of things companies would like to be enforcable that they put in all sorts of shrinkwrap/pizza box licenses, but in a court room very few of those things actually are. I'm no law expert, but I'd guess the case could go either way.


RE: Bunch o' babies
By steven975 on 11/23/2009 12:56:35 PM , Rating: 4
Those issues are usually concerning software where there is a separate license agreement (usually for a large customer). Often the "click-wrap" agreements are still there, but the enterprise agreement usually is enforced, even though the "click-wrap" was agreed to later in order to use the software.


RE: Bunch o' babies
By omnicronx on 11/23/2009 2:44:20 PM , Rating: 5
I agree and disagree.

A company can write pretty much anything in their EULA, and you are perfectly correct when saying that half the stuff in there probably is not enforceable. That being said, when talking about usage of company owned servers, this is just not the case.

The reason that most things in the EULA are not enforceable is because the rules try to tell you what you can and cannot do with your own personal property. When talking about online gameplay, you are using THEIR servers, you are paying for the rights to access these servers and in doing so, you are agreeing to adhere to the rules of THEIR personal property.

This case will never go through for the reason of Xbox Live accounts being banned alone. Nobody wants to open that can of worms, (even a crazy texas judge).


RE: Bunch o' babies
By AyashiKaibutsu on 11/23/2009 2:51:15 PM , Rating: 5
I imagine the disabling of other offline functionality is what they'll push in the lawsuit.


RE: Bunch o' babies
By dark matter on 11/24/2009 5:04:49 AM , Rating: 4
Exactly. There is no justification to prevent the XBOX acting as an extender in order to prevent it playing copied games.


RE: Bunch o' babies
By BruceLeet on 11/24/2009 6:53:35 AM , Rating: 4
Being the large company MS is I'm willing to say they have had hundreds of lawyers and thousands of hours to review this EULA before they made it official.

You people are right though some EULA's are not 100% legal and can be brought to court with merit. I just doubt a company as large as Microsoft would create a dodgy EULA.


RE: Bunch o' babies
By rs1 on 11/23/2009 5:31:57 PM , Rating: 5
quote:
What about this one stands out as illegal?


You said it yourself:

quote:
Corrupting data was a kick below the belt


And also the fact that the update disabled hardware features built-in to the Xbox itself.

Microsoft can police its network however it wants. Nothing, however, gives them any right to damage, cripple, or disable consoles that they do not own. It doesn't matter what garbage they put in the EULA, if MS no longer owns the console, then they have no right to touch it. They can block it from their network if they want, but everything else they did was very legitimately questionable.


RE: Bunch o' babies
By lexluthermiester on 11/24/2009 6:10:50 AM , Rating: 4
quote:
They can block it from their network if they want, but everything else they did was very legitimately questionable.


Not to mention very illegal. It seems to me they are once again testing the legal waters to see how far they can go without being put in their place. But Microsoft is not alone in this area. There are many companies out there who would like us all to think that we really don't own our hardware or the software that we use with it. How wrong they are. Ownership statues clearly state that when a person pays money for something, they own it[in the case of rental agreements they own it for a time] and it is legally theirs to do with as they see fit within the realm of their personal use. These rights over-ride and supersede the DMCA and it's ilk.

This is why I personally have no problem with people who buy a copy of Windows[or any other software] and then install it on every pc they own through various methods. Microsoft has, in the past, been proven to be thieves, copyright and patent infringers and have very little room to cry "wolf". Now I want to be clear, if you don't own a legitimate copy of a peace of software that you use than you really are just stealing. But if you rightfully own a copy, then use it as you like. That's my opinion based on nearly a decade of research into copyright and fair-use laws.


RE: Bunch o' babies
By Yames on 11/24/2009 5:09:36 PM , Rating: 2
And even if a suit is brought and won what, those 1 million console owners will still own crippled units and will receive maybe $20 in a year or two. Any way you slice it MS wins.


RE: Bunch o' babies
By Samus on 11/24/2009 3:54:59 AM , Rating: 1
No where in the EULA does it state Microsoft will have authority to destroy your hardware.

And I also find it extremely difficult to believe that there are over 1 MILLION hacked XBOX360's. It isn't exactly an easy to modify console, and feel that not most, but many of the banned consoles are legitimate.


RE: Bunch o' babies
By omnicronx on 11/23/2009 2:16:37 PM , Rating: 5
We are talking about online gameplay here, this is one of the rare instances in which pretty much everything in the EULA is legally enforceable.

That being said, as I've previously stated, some were previous pointing out that MS actually disabled offline features such as Media center, this is where they could get in trouble if it turns out to be true.

On the otherhand anyone using any kind of mods whatever it will be during online gameplay is cheating, there is no such thing as a 'good' mod. A mod is there to give you an advantage where there previously was not one, thats called cheating my friends. If you want to do this offline, all the power to you, but the second you come online, thats where the line has to be drawn.


RE: Bunch o' babies
By dark matter on 11/24/2009 5:06:55 AM , Rating: 2
Remember GTA san andreas. That did not have online play. There was a mod for it that allowed online play. I fail to understand how that can be cheating as without it you couldn't even go online.


RE: Bunch o' babies
By Nik00117 on 11/24/2009 7:41:24 AM , Rating: 2
Great point, he got owned.

A mod doesn't have to entail cheating. Example of a Mod that isn't cheating, let's just supposing you want your game to scream OWNED each time you kill someone is that really giving you an unfair advantage?


RE: Bunch o' babies
By Reclaimer77 on 11/23/09, Rating: 0
RE: Bunch o' babies
By xmichaelx on 11/23/2009 4:08:12 PM , Rating: 5
quote:
I'm pretty sure all EULA's are reviewed by some legal authority or commission.

This may shock you, but the entire world does not abide by U.S. law.
quote:
X-Box Live's EULA has been around for years and nobody has ever made a fuss over it

No one has made a fuss because this is the first time MS has done this. Perhaps you comb through EULAs looking for unenforceable clauses, but the average person has no reason to until something detrimental happens.

Also, several people on various lists who saw their machines get screwed up hadn't modded it, and so were already following the EULA.


RE: Bunch o' babies
By Reclaimer77 on 11/23/09, Rating: 0
RE: Bunch o' babies
By Etern205 on 11/23/09, Rating: -1
RE: Bunch o' babies
By Reclaimer77 on 11/23/2009 11:55:12 PM , Rating: 3
Wait, what !?? I'm NOT in support of people modding. I'm clearly siding with Microsoft on this issue. What are you talking about ??

And lol@bringing up someones ratings on Daily Tech. As if that in any way reflects the quality of the poster.


RE: Bunch o' babies
By dark matter on 11/24/09, Rating: -1
RE: Bunch o' babies
By callmeroy on 11/24/2009 8:28:39 AM , Rating: 3
No he's right -- it doesn't....

As a very long time user of this site (this user name is my 3rd through the years -- and btw, not because of hidding but my own forgetfulness has caused me to need to make new ones), you get a feeling that many times posts are mod in a knee jerk reactions or to align with the popular trend of a thread - rather than well thought out personal view conflicts or reasoning.

Reclaimer 77 has pissed me off in posts in the past where I thought it was a jerk...but you know what other times I've agreed with his views as well....like this one -- he's right.

The mod system is a joke here the only think that makes it annoying is when you actually really aren't trying to be a smart ass but instead to really give a reasoned view point based on either research or experience in something and some putz mods it down because they just feel like it.

(much like this one will be if my experience here has taught me anything...lol)


RE: Bunch o' babies
By eegake on 11/23/2009 5:25:05 PM , Rating: 1
You don't understand the practice of law. EULAs are manufactured out of whole cloth by bozo-nosed greed clowns and may contain nearly anything they fancy. Lawyers use the law to extract money from said bozo-nosed clowns by helping them with their avarice.

There are no authorities, there is no truth, goodness, or decency. I hope I'm not the first one to point this out to you.


RE: Bunch o' babies
By tmouse on 11/24/2009 7:57:52 AM , Rating: 2
Sorry but you are wrong. The EULA is simply a contract, nothing more. You could put anything you want into a contract, BUT local laws could render the contract invalid. MANY things are put into contracts that run counter to laws, as long as no one complains its considered OK. That's why all EULAs have some form of disclaimer at the end stating unless counter to local laws, or words to that effect. Here there could be at least two venues for action first is limiting access to 3rd parties for standard parts, like hard drives and DVD players, thus forcing people to purchase only parts Microsoft has financial interests in. Second there is no reasonable expectation that offline functionality would be effected when online ability is removed. So while it's their sandbox they can block you from playing in it BUT they cannot break your shovel and put a hole in your pail.


RE: Bunch o' babies
By jonmcc33 on 11/23/2009 4:22:11 PM , Rating: 3
When it comes to playing online on Xbox Live it is. It's a service that can be denied by the service provider. Microsoft hasn't prevented anyone from using their Xbox 360 at all. No laws broken.


RE: Bunch o' babies
By dark matter on 11/24/2009 5:11:33 AM , Rating: 2
Erm, they have removed a whole bunch of functionality from the XBOX. There appears to be no method of challenging that decision. And what is the accuracy rate of detecting modded consoles. How does disabling the XBOX as a media extender got to do with stopping people playing copied games online?


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