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'

[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'

[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'

[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'

[csartanis]

Microsoft has done much more than prevent access to the service. These are other features that have been blocked:

* Cannot install games to the HDD
* Cannot use Windows Media Centre extender
* Cannot access netflix rentals
* Cannot download game updates and extra content that are used in offline play

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'

[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'

[Lulfas]

Incorrect. Your Xbox live account works just fine, it just does not work on that specific console anymore. If you go buy a new console, your live account will log right back in all hunky-dory.

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'

[Bakkster]

>>>They booted you off THEIR NETWORK.

And failed to refund upto 2 years of Xbox Live subscription, or refund dollars for games that no longer work without the online connection.

As a clarification, they did not boot you off of Live, they booted the console off of Live. You still have a subscription, your modified hardware just can't use it. Your subscription will still work on a legitimate device.

Re:lol @ 'finally standing up'

[ObsessiveMathsFreak]

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.

This is akin to Linksys deciding that installing Linux on your router means they can disable it from connecting WAN's anymore. Sure, you can use it in a LAN, but is this the product you paid for?

I'm sympathetic to Microsoft's position with regard to cheating and glitching on their network(Though I'm sceptical modded consoles are a major player here). I'm also sympathetic with regard to piracy on modded consoles. But they dug themselves into a hole here when they locked down the online capabilities of their machine without advertising that fact.

Personally, I feel that paying to play online is a rip off anyway. Perhaps this will convince people that subscribing to a game service that treats you like a consumer instead of a player isn't in their long term interest. If you're relying on someone else's servers to play your games, then it's only a matter of time before you won't be able to play those games anymore.

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'

[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'

[jim_v2000]

But how do they stop you?

There isn't really any homebrew on the 360

[wernox1987]

The DVD drive mods that people got banned for were all about playing 'backups' which really means pirated games in 99% of these cases.

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!

[radish]

No, they haven't terminated any agreement. The accounts are still live and valid, and if the modders want to log in from an unmodded console they're still welcome. Remember: it's the CONSOLE that's banned, not the user.

Re:Worry? About what?

[Anonymous Coward]

Yes, Microsoft should be worried.

"The Xbox360 will still work, but the Xbox Live service will not." --- False. Parts of offline play are disable.

If you READ the class action lawsuit, it has nothing to do with the banning from XBL, but rather the offline features that were disabled/modified as a result.

Very interesting article regarding the bannings: http://www.associatedcontent.com/article/2397134/analysis_why_microsofts_plan_to_ban.html

"I was at GameStop the other day and listened to a customer's questions about Microsoft's banning of modded X-Box 360s. The worker tried to explain that this banning was for those people that hacked their X-Box 360. The customer was worried that if her child downloaded any kind of content through the X-Box 360 that this might constitute a reason for a banning for her son's system. She was confused, so she decided to purchase a PS3 instead. I was told by the manager at that GameStop that this was not an isolated incident. They had received over 50 calls that day about the banning.

What Microsoft appears to have forgotten by earmarking this time of year for the banning of modded X-Box 360s is that most of the systems that are purchased this time of year is by parents and grandparents. The game systems that are purchased this time of year are usually done by those that do not have a firm grasp on the industry. Simply put, the systems are usually purchased by people that are fairly clueless about video games."

Not just banned from XBox Live...

[Loibisch]

I've been reading the argument that people have just been banned from XBL, because modifying your console somehow violates the TOS of XBL.

However, this time the ban does not just kick you off online multiplayer, it also disables functionality to install games on the included HDD! Games already installed on that HDD will not be accessible anymore. Also, any savegame you continue playing with on the banned console will get tagged with the result that you can't copy it to any other (banned or unbanned) consoles anymore.

Since a lot of people bought the Xbox360 with the ability to install games on the internal HDD right out of the box it can be argued that MS impaired the users' hardware in some way.
Also: it is rumored that it is possible for MS to band your console through future (mandatory) updates on game discs, even if you never played online. The technical capabilites are there, but if they ever start doing that their XBL-TOS-argument will be seriously flawed.