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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 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
What about this one stands out as illegal?

You said it yourself:

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
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.

"The Space Elevator will be built about 50 years after everyone stops laughing" -- Sir Arthur C. Clarke

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