Xbox Live Class Action Being Investigated

eldavojohn writes "Were you negatively affected by the recent ban on Xbox Live for modifying hardware you own? Did you modify yours for homebrew or altering things you paid for and not to engage in piracy? Abington IP would like to hear from you and may be able to help. From that page: 'If you are an Xbox Live subscriber, had your modified Xbox console banned from Xbox Live, were not refunded a prorated sum for the time left on your subscription, or have experienced other problems as a result of being banned, and would like to participate in a class action against Microsoft, please submit your information below.' Someone is finally standing up for the legitimate hobbyists. Should Microsoft worry?"

Comments

lol @ 'finally standing up'

[mnslinky]

These class-action lawsuits only serve one purpose - to make the lawfirm originating the class action a boatload of cash.

Re:lol @ 'finally standing up'

[LWATCDR]

Yep those that where banned may get $5 if that. The law firm will get a private jet and maybe an island out of it.
Please folks the rules are you can not get on live if you mode your box. You still have your XBox you just can not play it on line anymore.
I hope this gets tossed out so fast your head spins.

Re:lol @ 'finally standing up'

[thue]

But even if the law firm gets 90% of the cache, the money still comes from the defendant. So a class-action still have the effect of discouraging future sleaze. So in that way, a lawsuit such as this is better than nothing (as long as you think the defendant's behavior should be discouraged).

Re:lol @ 'finally standing up'

[Chyeld]

I don't care if they get to buy Fantasy Island out of the settlement money, if a law firm is able, via class action or any other means, to make it illegal for a company to screw with my console and remove functionality from it simply because it was modded (i.e. not because I was cheating, pirating, or because my mod 'broke it') then I say full steam ahead and find someone to yell "Ze Plane! Ze Plane!" cause it's worth it to prove that what I buy is MINE.

Re:lol @ 'finally standing up'

[omeomi]

I haven't really been following the story, so maybe I'm missing something, but on the surface, I think I may actually agree with Microsoft here. While I do think modding your 360 should be _legal_, I don't see why they should have to let you onto their network if you've done so. And if the Live service agreement states that you cannot use modded hardware (maybe it does, maybe it doesn't, I don't know), I don't see why they should have to refund your subscription fee, either.

Re:lol @ 'finally standing up'

[debrain]

Sir - With respect,

Class actions typically serve three purposes, none of which is making lawyers rich (though that may sometimes happens, sometimes it bankrupts law firms, too). These purposes are:

1. Modify corporate / government behaviour

2. Increase the efficiency of the resolution of a dispute

3. Increase the access to justice of those who would not be able to afford any

It is not insightful to say that class-action lawsuits serve one purpose: to make a "lawfirm (sic) a boatload of cash". It is uninformed, misleading, pejorative, and unsubstantiated - which in my opinion is the opposite of insightful.

There are innumerable examples of class actions fulfilling their purposes, from recognizing the rights of veterans to appropriate levels of compensation, to deterring irresponsible behaviour likely to cause man-made environmental disasters, through compensating multitudes of individuals for small wrongs that would be otherwise incomprehensibly uneconomical to litigate.

Further, a class action is simply a vehicle for resolving the rights of many individuals who would otherwise be forced to engage in individual litigation. It does not change substantive rights to any sort of compensation, though it may change (and generally eliminate, for beneficiaries in a plaintiffs' class) the cost of resolving a legitimate dispute that would otherwise simply never be addressed.

Re:lol @ 'finally standing up'

[LWATCDR]

They didn't take any functionality from your XBox at all. They booted you off THEIR NETWORK.
When you first got on the network the agreement was that if you mod your XBox your booted off.
You AGREED TO THAT and now it has happened.
It is COMPLETELY legal and frankly fair.

Re:lol @ 'finally standing up'

[csartanis]

Microsoft has disabled features of the console that are used during offline play. This is the problem. They are doing more than just banning you from using the service.

Re:lol @ 'finally standing up'

[Duradin]

And isn't it that the particular xbox 360 is banned from Live, not your account?

So your subscription is still valid. Your 'hobbyist' xbox is banned but you could sign up a clean one and continue on with life.

I'm no fan of MS but I hope they crush this class action lawsuit. They provide a service. 'You' did something that broke the terms of the service agreement. They boot the offending hardware off of the service. It doesn't take a rocket surgeon to pick out the guilty party here.

Re:lol @ 'finally standing up'

[bryansj]

So disabling Media Center Exender and hard drive game install functionality as well as the ability to transfer game saves from a banned 360 to an unbanned one didn't take anything away? * A recently banned 360 now has its data appear corrupt to non-banned units so you have now lost all game saves and any gamerscore earned since the ban. You also cannot install games to the hard drive or play previously installed games. You can still stream to the 360, but the Media Center Extender is now disabled.

Re:lol @ 'finally standing up'

[Anonymous Coward]

They didn't take any functionality from your XBox at all.

Wrong. They also locked down the hardware. You can't play any games you installed to the hard drive. I'm not talking about XBLA games. I'm talking about games you installed from disc to the HDD. You should do some reading before you spout garbage.

Re:lol @ 'finally standing up'

[Duradin]

I'd wager that those functions have "*requires an active connection to Xbox Live" somewhere near them in the manual.

Re:lol @ 'finally standing up'

[fyrewulff]

But if you're running custom code anyway, you'll have replacements for both of those. Right?

Re:lol @ 'finally standing up'

[GaratNW]

$5 in my pocket from supporting a spurious, ludicrous lawsuit is $5 I wouldn't take. I hope the originators of the lawsuit get slapped with all the defendant's legal fees on top of their own. "We broke the terms of service but.. waaaaahhhhh.. pay us anyway!". And ultimately parent is right. This is nothing about "protecting the rights of legitimate modders", and entirely about lining the pockets of the law firm with other people's money.

Re:lol @ 'finally standing up'

[shentino]

The problem with class actions is that they are opt-in for restitution, but opt-out for forfeiture of private cause.

If a class action comes along and you don't get wind of it until it's settled, then you're out BOTH your share of the settlement AND the opportunity to pursue a private claim.

Re:lol @ 'finally standing up'

[jim_v2000]

There's a legal right to be able to used hacked consoles on XBox Live?

Re:lol @ 'finally standing up'

[mea37]

"does not change substantive rights to any sort of compensation"

In theory, that's true. In practice, it's completely false.

First of all, if the court figures you fit the definition of the class and you do nothing (say, because the notice of the suit gets misplaced and you never hear about it), then you lose your right to sue over the matter - after all, you were supposedly already represented - and yet you get zero compensation. But let's ignore that and assume we're talking about people who knowingly participate in the class ...

Assuming there is a settlement paid (and by the way, in this instance I agree with those who think there shouldn't be, but I've seen a lot of bogus "consumer protection" class actions get paid off so I'm guessing this one will be too), we could debate whether the lawyers' share of such settlement will be fair. I believe the typical split is excessive, just as you'd expect when the class members aren't at the negotiating table.

But more interesting than that, the plaintifs' cut will not be allocated to guarantee that everyone gets paid. Instead a fund will be set up, and paid on a first come first served basis until it runs out. If you're part of the class and the fund runs out before you get paid, then your right to compensation damned well does get changed.

Plus, if you do get paid, you're unlikely to get paid in cash. When Apple lost a class action, the court let them get by with giving out coupons, driving business to them from customers that otherwise might have been pissed enough to walk away. Same deal when Columbia House lost. It's pretty much the typical structure of the payout. That's not a settlement; it's a marketing promotion. Yeah, that deters bad behavior. You bet.

Re:lol @ 'finally standing up'

[ALeavitt]

Why should connecting to Microsoft's closed gaming network be a legally protected right?

Re:lol @ 'finally standing up'

[jacktherobot]

i bet you're a lawyer aren't you.

Re:lol @ 'finally standing up'

[mea37]

So, tell me - when you signed up for the subscription, did the terms you agreed to include language to the effect that if you modify your console you will be banned from the network without refund? If so, then you're going to have to modify your analogy a little.

Oh, and "I don't know, I didn't read the terms" is not a valid answer to the question. If you don't know, find out. If you don't know and the answer is "yes, it did", then you're failure to know is your own fault.

Only if the terms of the agreement didn't allow them to terminate the subscription without refund is it theft.

Re:lol @ 'finally standing up'

[mea37]

Yeah, because the years of lawsuits up till now have done a lot to make EULA less obnoxious.

Oh, wait, quite the opposite is true. Inconceivably, industry has built so much around the idea of EULA that now courts have been siding with them apparently out of fear of the disruption that would be caused by forcing a change, even in cases where the EULA is being blatantly used to abuse the customer.

If you want to reform EULA, take it to the legislature. Trying to change the law through the judicial system is folly.

Re:lol @ 'finally standing up'

[Anonymous Coward]

Just being in the TOS doesn't make it legal.

Re:lol @ 'finally standing up'

[mea37]

You paid a lot of money for a service and its add-ons without knowing the terms under which that service could be terminated? Why would you put yourself in that position?

Don't get me wrong, it's not just you. We've become a society of fools just waiting to be parted from our money. We're so addicted to convenience that we agree to pages of legalese without making the first effort to understand what we're agreeing to, just hoping that if it turns out to have a term we don't like the courts will take pity on us and overturn the agreement.

Of course, we get the full benefit of every agreement that doesn't come to that, which makes us no better than an insurance company that happily takes your premiums until you file a claim and then finds an excuse to retroactively terminate your policy.

Hell, when I bought my house the lender didn't put a copy of the mortgage agreement in my hands until signing day, and then acted surprised when I actually read it. For a freaking mortgage - an agreement that will be with me for potentially 30 years and will involve more money than any other agreement I've ever signed.

Yeah, the outcome for some people who modified their consoles sucks for them, I think everyone gets that. That alone doesn't make it necessarily wrong.

Re:lol @ 'finally standing up'

[holt]

"Severely limited fashion" is a bit of an exaggeration considering I haven't had my XBox360 hooked up to the internet in months, and it works perfectly fine. These people should have known that modding their boxes was going to lead to their being blocked from Live. The same thing happened to people that modded the original XBox.

Re:lol @ 'finally standing up'

[maharb]

And you are what is wrong with America. Many of these lawsuit are unjustified and cost the companies millions to fight. Essentially we pay more for every product and service because companies have to build the cost of fighting litigation in, the only problem is the LAWYERS collect that extra built in cost, not the consumer. Your short sightedness is amazing. Have fun paying $50 more for the next X-box so you can get your $5 class action settlement on the next infraction, years after paying the extra $50.

Re:lol @ 'finally standing up'

[Bakkster]

They booted you off THEIR NETWORK.

Perhaps. But the kicker here is that the Xbox 360 is unable to be used on any other network. Microsoft has taken key steps to ensure that 360s cannot be used over VPNs or any other network other than a local LAN. Individual 360s pass encrypted keys to one another upon first connection and if they do not receive an appropriate replay in 30ms, a connection is not made. It was a blatant attempt to disable alternative services like Xlink Kai and completely lock down online play on the console.

We are dealing with a Walled Garden here. Microsoft is exerting complete control over 360 consoles regardless of who owns them. If it were possible to connect to VPNs like Xlink Kai or others, this ban would be a problem. But it's not. Microsoft sold these guys a console which they said could be used to play online games, and now these console can't be used to so much as send a private message.

Isn't that kind of the point? You buy into the entire system, both their hardware and their network are linked. If you don't like it, nobody's forcing you to enter their walled garden. The Xbox isn't a monopoly (where this argument might hold water), play your games on PC or a different console.

Re:lol @ 'finally standing up'

[JSBiff]

I have a serious problem, though, with the Class action system in our country today. The things you list are indeed the 'benefits' of the class action, but I've seen too many class action settlements in which the 'compensation' not only was worth only about $5, but it wasn't even $5 *cash*. I've seriously received mailing (one about a Verizon Wireless class action) where the 'compensation' was a *coupon*. That's right, to get my 'share' of the settlement, I'd have to *spend more money* with the party which ripped me off in the first place.

I fail to see how a $5-10 coupon/credit or similar 'compensation' is in any form a justice. If they hadn't engaged in the behavior for which they were sued in the first place, I'd have had that 5 bucks as CASH IN MY POCKET to do whatever I wanted with, but with the settlement, I'm forced to spend that $5 (and you can't get *anything* for $5 with a cell phone company, so in reality, I'd have to spend substantially more) with that company. Basically, the lawsuit settlement *rewarded Verizon for misconduct*.

Of course, the lawyers made a lot of money in legal fees for that case. So, I rather think the Grandparent has a very legitimate point - the lawyers almost always make a lot of money, while the class members *often* get screwed.

Re:lol @ 'finally standing up'

[dissy]

Sorry, you're incorrect.

Why do you think that?

Personal experience? Or something you just read online? Or worse, something you read on slashdot?

My own personal experience shows GP to be 100% correct. Only the couple games downloaded from XBL disappeared from the HD. All the games copied from real game discs are still there and work.

You seem extremely passionate about saying "MS bans other stuff!" but not one of your 8 posts on this thread have said anything else, no description of what else is banned, nor any personal experiences or other peoples stories being related from you.

I am very curious why you think it is not possible to do what hundreds of people are still doing right this very second, and what exactly you are getting out of saying that.

I realize my own personal experiences are worth jack and shit to you, and yours of course would be worth the same to me/us, but you don't even give one! Nor any other reason you would say what you have been saying...

Re:lol @ 'finally standing up'

[pdabbadabba]

Oh, and "I don't know, I didn't read the terms" is not a valid answer to the question. If you don't know, find out. If you don't know and the answer is "yes, it did", then you're failure to know is your own fault.

This is true. But there is another avenue worth pursuing: even when parties explicitly stipulate what the remedy for a breach of contract is within the contract itself, courts can be persuaded to review it to make sure that the remedy is a reasonable one given the damage caused by the breach. If not, it might be deemed a "penalty clause" which courts do not like to enforce.

So, part of the inquiry will probably be: is being banned from the XBL network a remedy that is appropriately tailored to remedy the damages caused by the breach? Maybe the answer will be "yes" if it can be shown that most modded XBoxes are used to cheat and that kicking cheaters off is a reasonable remedy.

But a court might also be persuaded to look more closely; typically, they will require that the remedy be tailored to the degree of breach. So the fact that modding for innocent reasons is not distinguished from cheating/piracy might be grounds for no enforcement of the provision.

Judicial scrutiny will be all the more strict because they're looking at an EULA (or, generally, contracts of adhesion) than when the terms were actually bargained over.

Re:lol @ 'finally standing up'

[TiberSeptm]

"It is COMPLETELY legal and frankly fair."

Some of what Microsoft did here may not be all that legal, no matter how many capital letters you use.

In many states, like Washington state where Microsoft is incorporated, this is what is called "self help" in regards to contract law. One party can not deprive another party of their property because they have decided that there was a breach of contract. If they think the other party is in violation of an agreement then they can take them to court or arbitration. A cable company could not seize your DVD player because you had not payed your cable bill- even if they had originally sold you the DVD player in whatever strange universe that would happen.

The Xbox 360 was purchased outright and in full with no outstanding debt to Microsoft. Now, I agree that access to the Xbox live services and network are rightly subject to the whims of Microsoft. That's absolutely fine with me. The problem is that they disabled unrelated functionality to punish large swathes of people for possibly being pirates. My roommate had installed a much larger hard disk in his Xbox 360 several months back. He did this because he owned several games with long load times and had also purchased hours upon hours of movies off of the xbox live marketplace. His reward for upgrading the device he owned and purchasing what I thought were stupid amounts of product off of the marketplace, his machine now has had its functionality reduced in a significant way.

Yeah, I think a class action suit sounds about right. Granted only a minority of those people affected have any moral legs to stand on- I would expect there to be enough of them for a class action. The fact that functions which had nothing to do with piracy concerns, and in some cases nothing to do with the Xbox Live service, were disabled is pretty damning here. They could have probably accomplished their goals by simply banning people from Xbox Live- which is what it seems that a lot of people here think is all they did. That would have been fine by me and fine by the law. It's not the extent of what they did and they may have to pay for it in the form of a large settlement.

Re:lol @ 'finally standing up'

[bberens]

As others have pointed out your subscription is not canceled. A particular device is no longer allowed to connect. If you go out and buy a new 360, you will be able to access your account with no problem.

Re:lol @ 'finally standing up'

[CodeBuster]

The problem with that line of thinking is that it lacks sophistication. Sure, you may eventually get your $5 settlement check, but in the meantime you have paid many times that amount in higher costs for a broad range of consumer goods and services due to the excessive number of class action lawsuits whose costs have been passed on to you the consumer in the form of higher prices. Most class action lawsuits are simply tools which attorneys use to extract uncompensated value from society rather than the implements of consumer liberation (as they were originally sold to the public).

Re:lol @ 'finally standing up'

[cowscows]

And they're not stopping you from doing so here. They're just saying that once you've modified that hardware, you're no longer welcome to connect to their network. It might be a crummy and lazy way of dealing with some of the potential problems of modified hardware, but it doesn't make any sense that it should be illegal.

The obligatory car analogy follows:

You can buy a car and modify it in pretty much any way that you wish, but there are plenty of things that you might do to it that would then make it illegal to drive it on public roads. It's not illegal to make those modifications, but those modifications do have consequences.

Re:lol @ 'finally standing up'

[rockNme2349]

Stop the presses! If you earn gamerscore on a potentially compromised system it doesn't count.

Re:lol @ 'finally standing up'

[Nick Ives]

That's because it's possible to use hacks to artificially inflate your gamerscore. It's quite right that MS should be booting pirates off their network in this manner.

Worry? About what?

[Anonymous Coward]

No.

They should not worry.

Nothing will happen here. The terms of service clearly state that to play on Xbox Live, you are not allowed to modify your xbox360. The accounts are still present and valid. The consoles are simply banned from accessing the service. Hobbyists can still be hobbyists. The Xbox360 will still work, but the Xbox Live service will not.

Make way for the ambulance chaser!

[davmoo]

Should Microsoft worry?

Not in the least. Microsoft did not tell you that you cannot use your modded Xbox, nor did they do anything to it that prevents you from using it. All they did was said you can't use it on servers that they own. And there are rulings all the way up to SCOTUS that says he who owns the servers controls who is allowed to use them.

Re:Make way for the ambulance chaser!

[Anonymous Coward]

Cite please.

Re:Make way for the ambulance chaser!

[geekoid]

Your argument would only be valid if they could still use the xbox for everything else except connecting to the MS network, they can not. Since they do NOT have a choice of networks, and can no longer play or activate many, if not all, single player games they have broken basic functionality of the xbox.

Ooh look! A big target!

[Nakarti]

Hobbyist support my ass.
As a lawyer he's thinking "Ooh! 100,000 people banned, that's a big target to profit from!"

As a hobbyist, if I want to run whatever software, I pay: $100 for a motherboard, $130 for a small case and power supply, $50 for a hard drive, $30 for an optical drive, $0-200 for an operating system, $50 for a wireless keyboard and mouse, $80 for a wireless gaming controller, $15 for a DVI cable.

Anybody guess what I bought to run homebrew software? A fecking computer!
An xBox is not a computer, and if you want to change that, Microsoft is well within their rights to say they don't want xbox-like computers on Live!

Re:Ooh look! A big target!

[ground.zero.612]

Hobbyist support my ass. As a lawyer he's thinking "Ooh! 100,000 people banned, that's a big target to profit from!"

As a hobbyist, if I want to run whatever software, I pay: $100 for a motherboard, $130 for a small case and power supply, $50 for a hard drive, $30 for an optical drive, $0-200 for an operating system, $50 for a wireless keyboard and mouse, $80 for a wireless gaming controller, $15 for a DVI cable.

Anybody guess what I bought to run homebrew software? A fecking computer! An xBox is not a computer, and if you want to change that, Microsoft is well within their rights to say they don't want xbox-like computers on Live!

An Xbox has a CPU, a GPU, RAM, a motherboard, USB, wireless, game controller, dvd-rom, a custom OS, and a pretty spiffy custom case and external PSU. How, exactly, is the 360 (or the Xbox1) not just a PC with custom DRM tailor made for gaming?

One might want to think twice...

[doug141]

before signing a form admitting one's xbox was modded in the first place.

Re:There isn't really any homebrew on the 360

[Icegryphon]

Yeah but, there where those who flash the Dvd Drives,
Because they replaced the Drives that were crap.

My Friend has a 20GB pro That I would never loan a DVD to because that thing is a scratch machine.
Also there are collectors like me who like to play backups whenever possible.

Hell there are even multiple copies of sealed old games I still have.
I hope M$ pays the price for this massive b& and I was never even banned.
It is not the pirates I care about it is those who hack and cheat the games, rage quit, etc.

Re:Worry? About what?

[sl3xd]

Look - it comes down to this: To get on Xbox live, you have to agree to the terms of service. The terms of service is a contract. The banned users agreed to it. If anybody violates the terms of the contract by modifying their Xbox in any way, Microsoft is more than justified in enforcing its contract, meaning they can cut off violators of its TOS.

It's simple contract law. The service requires an unmodded xbox. If a consumer doens't hold up their end of the contract, Microsoft has no obligation to hold up its end.

It's no different for other services - Telephone, internet, Cable or sattelite TV, etc. If you violate the contract you made for the service, then you have absolutely no right to force the provider to continue providing the service.

Piracy AND Cheating

[Xocet_00]

There seems to be an overwhelming consensus here that Microsoft is trying to protect its interests by preventing piracy. This is, of course, true. However, someone above mentioned a mother buying a PS3 instead of an XBox 360 because she was concerned about the banning, etc. The argument then is that Microsoft loses revenue by scarying people away, while all the banned people continue to refuse to buy games. In other words, they see Microsoft taking a net loss on this.

However, aside from preventing piracy, Microsoft is trying to prevent cheating. People are throwing around a number like 99% of people are doing this to pirate games. However in my experience there are as many people who mod in order to cheat in multiplayer games as there are people who do it specifically to pirate. I'm sure that the cheaters ALSO pirate games, but for a large number of people it is not their primary goal.

Lots of gamers will be turned of XBox Live and buying 360 games in general if they encounter a large number of cheaters while playing online. I've encountered more than my fair share. Microsoft gains from protecting legitimate customers from cheaters, keeping those customers playing and buying new games (and XBL subscriptions).