Modded Xbox Bans Prompt EFF Warning About Terms of Service

Last month we discussed news that Microsoft had banned hundreds of thousands of Xbox users for using modified consoles. The Electronic Frontier Foundation has now pointed to this round of bans as a prime example of the power given to providers of online services through 'Terms of Service' and other usage agreements. "No matter how much we rely on them to get on with our everyday lives, access to online services — like email, social networking sites, and (wait for it) online gaming — can never be guaranteed. ... he who writes the TOS makes the rules, and when it comes to enforcing them, the service provider often behaves as though it is also the judge, jury and executioner. ... While the mass ban provides a useful illustration of their danger, these terms can be found in nearly all TOS agreements for all kinds of services. There have been virtually no legal challenges to these kinds of arbitrary termination clauses, but we imagine this will be a growth area for lawyers."

Comments

Growth area for lawyers

[ServerIrv]

Any place someone feels (correctly or incorrectly) they've been treated wrongly, it is a place for lawyers to grow and make money.

Re:Growth area for lawyers

[Anonymous Coward]

Any place someone with money feels (correctly or incorrectly) they've been treated wrongly, it is a place for lawyers to grow and make money.

fixed that for you.

Re:Growth area for lawyers

[Anonymous Coward]

Actually, that's not fixed at all. Thanks to bar associations allowing lawyers to work solely on commission, even people without money can go to court, no money down.

Re:Growth area for lawyers

[Archimagus]

And, because the lawyer only gets paid if they win, I would guess there would be a lot more lawyers willing to use more underhanded tactics than usual to get their point across.

Re:Growth area for lawyers

[StikyPad]

I believe the word you were looking for was contingency, not commission.

Well..

[Renraku]

Microsoft's network, Microsoft's rules. They're 100% in the right for banning modded consoles. Basically you can play your pirated games or you can play on Live, but not both with the same console. Now what angers me is how they'll send out replacement consoles for warranty repairs that are already banned from Live, and tell the recipient that they must have a modded console and refuse them any recourse. What also angers me is how it would be easily within the law to ban for almost ANY reason, leaving the user with little to no recourse.

I applaud Microsoft's banning of modded consoles, but condemn Terms of Service in general because they're 99.999% in the favor of the writer. I mean, the company.

Re:Well..

[palegray.net]

I applaud Microsoft's banning of modded consoles, but condemn Terms of Service in general because they're 99.999% in the favor of the writer. I mean, the company.

I don't get it. You start out with "Microsoft's network, Microsoft's rules." Note that this isn't specific to Microsoft; you could replace them with any company that operates a network and it'd be the same concept. You then say you're against TOS policies as a blanket statement... what do you actually believe? Any company has the right to set terms of service for the use of their network, and it's up to the customer to decide if those terms are reasonable. If the customer doesn't think so, s/he can choose not to give that company money. It's very simple.

Re:Well..

[Anonymous Coward]

Why is Virtual Life Different then Real Life. You can be asked to leave a store for any reason. Except those listed by the law.
If you do not live in a right to work state you can be fired as long as it is not a reason excluded by the law.
No one has to do business with you unless they are a Monopoly.

Re:Well..

[palegray.net]

That's pretty much my point. As long as the terms of service set forth by a company don't violate the law, the company absolutely has the right to enforce them. Those who complain about it seem to be taking a distinctly "think of the poor little guy who's getting beaten down" attitude, which I find amusing given the fact that nobody is going to die if they can't log on to some gaming network.

Re:Well..

[mark-t]

"What also angers me is how it would be easily within the law to ban for almost ANY reason"

That's always been true, whether they explicitly say so or not. They seem to exercise this prerogative rarely enough, however, that a vast majority of people don't care just how much control Microsoft wields in this matter, or at least don't care enough to stop using that system.

Re:Well..

[Anonymous Coward]

Any company has the right to set terms of service for the use of their network, and it's up to the customer to decide if those terms are reasonable. If the customer doesn't think so, s/he can choose not to give that company money. It's very simple.

The problem with this is that some people were following the rules. While I can believe that a vast majority of the banned consoles were modded, I can't believe that 100% of them were. Protections should be in place for those who did follow the terms of service, but were banned because of a mistake on Microsoft's part. The only practical way you are going to get those protections is by challenging them in court, and setting a precedent. Unfortunately, it will be too much of a financial burden to challenge MS in court unless you have deep pockets, or lawyers working pro bono for you. In addition to that, even if you "agree" (opening shrink wrap should never count as agreeing to any terms) to a contract or TOS, that doesn't make them legal or enforceable. Depending on your state, certain rights cannot be waived, even if the person agreeing to it fully understands, and accepts without coercion, what they are agreeing to.

Re:Well..

[Anonymous Coward]

"If the customer doesn't think so, s/he can choose not to give that company money. It's very simple."

Yes, that is a brilliant idea. Because you just have to look a little bit to find a company that actually cares about you and not gouging as much money as possible. It's certainly not as though every company will demand that you agree to a completely one-sided relationship where they have all the power and set all the rules.

Just don't use their service, how brilliant. Enjoy your life of never using any service from any company ever because no company offers a truly fair shake in the form of a TOS.

Customers are essentially choosing which leech-like or parasitic organism that they want to suck their blood. The notion "if you don't like it, then don't buy it" mentality would essentially mean that you couldn't ever buy or consume anything at all. Since consumers are faced with two options: deal with jackals or don't own or consume anything, then it ought to be the duty of one's government to set and enforce reasonable regulations. IE, companies gets money for providing a services wherein there is a reasonable balance of power in the relationship between the company and the customers.

Re:Well..

[dagamer34]

The important thing to realize is that Microsoft has actually REMOVED functionality from a banned console. It cannot be used as an extender for Windows Media Center. What is to stop them from crippling your device completely if they feel like it? While Microsoft doesn't have to let you use their service (a separate issue all together), I've never seen a company allowed to cripple your hardware after you've purchased it, no matter what you've done.

Re:Well..

[TrancePhreak]

You obviously don't remember early TiVo's getting cripled.

3. Changes to your TiVo Basic service. TiVo may at its discretion and from time to time change, add or remove features and functionality of the TiVo Basic service or the TiVo DVR without notice.

http://www.tivo.com/abouttivo/policies/tivobasicandtivoplusserviceagreement.html

Re:Well..

[palegray.net]

Here's the deal: we live in a society that operates under rule of law. If something isn't specifically forbidden, it's permitted. In contract law, unless jurisdictional restrictions exist that nullify a given provision, it's enforced. Even at that, severability clauses will likely keep other restrictive clauses in force.

You can ramble on about supposed morality considerations all day, but it doesn't change the fact that the law is the deciding factor, and the company that operates the network makes the rules unless otherwise constrained by the law. You aren't going to die if you can't log on to a gaming network and your civil rights aren't being violated, so I sincerely doubt any thinking person is going to care.

Re:Well..

[Anonymous Coward]

Actually in some non US country you cannot refuse service once you have made an offer by putting an object for sale and attaching a prize to it.

Re:Well..

[Anonymous Coward]

"Here's the deal: we live in a society that operates under rule of law. If something isn't specifically forbidden, it's permitted."

Here's the deal: what you just said couldn't be farther from the truth. There are limitless things that are not specifically forbidden that are still forbidden. Countless laws are vague and open-ended.

I get the impression that you don't know how case law or precedent works in the slightest. Courts generally follow two precedents when considering enforceability of certain clauses of contracts.

Is the clause in question unconscionable? Is the contract, as whole, presented in a "take it or leave it" manner with no room for negotiation? If these two are met, then a court is compelled to not enforce that clause of a contract. And someone really shouldn't need to take such thing to a court to get a proper result. It's not unreasonable to expect that people shouldn't do illegal things even if you don't take them to court.

"You can ramble on about supposed morality considerations all day..."

Since when is wanting to be dealt with fairly a "supposed morality consideration"? Again, why is expecting that a company deal with you in a fair manner such an outrageous request?

"You aren't going to die if you can't log on to a gaming network and your civil rights aren't being violated"

I get the impression you like beating up straw men. Did one abuse you as a child? I never said anyone would die or anyone's civil rights were violated. I'm merely saying that TOSs are one-sided, unfair agreements that companies should not have the right to enforce.

Re:Well..

[Firehed]

And the fact that I'm not running a company doesn't change the fact that everyone who is running a company only offers one-sided, unfair, and unconscionable TOSs. And it doesn't change the fact that an individual's choice to "not give this company any money" will not change TOSs one bit unless every consumer decides to stop consuming anything and everything.

That's simply not true, provided that you make your reasons clear to the company. Of course when you're dealing with companies as monolithic as Microsoft it's easy to feel ignored. But you get ten thousand people who cancel their Xbox Live subscriptions and indicate their reasons for doing so, MS will start to listen. I'm not talking about signing an online petition, but actually sending an email (or, gasp!, a letter) to Redmond. Obviously this applies beyond MS/XBL, and the number of people needed to make change is proportional to the total number of users. But even a tenth of a percent is going to get at least some notice.

Hell, companies are starting to get a lot more helpful simply by having your complaints reaching a large audience. Whining on your blog (do people still blog?) isn't going to get much done these days, but Twitter seems to be the latest trend in making at least a vague attempt at improving customer satisfaction. Got me a call from customer service and a $10 refund when trying to go through normal email support was a dead-end. (Of course, I'm certainly not impressed that I have to complain in front of hundreds of people to get one to actually help me out, but it DID get me the result I wanted)

Also, for what it's worth, the reason TOSs are so absurd is because companies have to cover their asses against every situation that's ever been tested in a court of law. 95% of that stuff is generic boilerplate that's been refined to legal perfection, and that same 95% will go unused by 99% of the companies in 99% of the situations. What their intentions are and what has to get covered in the TOS to keep the lawyers happy are pretty much unrelated.

At the end of the day, companies want your money. If you tell them why they can't have it and/or what they can change to get it, they'll listen. But if all you do is cry in a corner about it, you'll accomplish absolutely nothing.

Re:Well..

[Anonymous Coward]

"Hell, companies are starting to get a lot more helpful simply by having your complaints reaching a large audience. Whining on your blog (do people still blog?) isn't going to get much done these days, but Twitter seems to be the latest trend in making at least a vague attempt at improving customer satisfaction."

Wait, you mock "whining on a blog" but then say that whining on a microblog is more productive? Oh, and look at that, I glance over and there's a gremlin destroying my computer but no one will believe me because I'm in the fucking twilight zone.

"At the end of the day, companies want your money. If you tell them why they can't have it and/or what they can change to get it, they'll listen. But if all you do is cry in a corner about it, you'll accomplish absolutely nothing."

Again, I should Twitter? Are you really going to tell me that Twittering is NOT crying in a corner? Why exactly is a Twitter post more meaningful than a /. post. Wait, don't answer that. I don't think I want that answer....

Re:Well..

[Anonymous Coward]

I could create an arbitrarily complicated situation in which someone would indeed die as a result of not being able to log on to some gaming network.

Re:Well..

[Richard_at_work]

I have an Xbox 360 thats never been connected to Live, and I can't use it as a Windows Media Center. They haven't removed any functionality from a banned console...

Re:Well..

[Richard_at_work]

Sorry, I meant 'Windows Media Center extender'.

Re:Well..

[entoke]

The annoying part can be how those arcade games you bought seem to revert to being demos when the xbox knows it's been banned.

Re:Well..

[Gerzel]

Aye and with all networks playing by the same basic tos and the internet and other networks increasingly becoming part of everyday life and an increasing requirement for employment and business allow said companies to arbitrarily dictate who/how/when their services are used is completely fair.

Re:Well..

[Anonymous Coward]

well, for one, I'm _not_ against the bans microsoft imposes on modded systems. (the last ones coming to players using pre release leaked pirated version of modern warfare 2 on the live network totally assuming they're safe, go figure)

but a real problem is for those poor fellow which send an xbox to be repaired an the returned one is banned. there is no way to lift such a ban, even if it's not the customer fault.

Re:Well..

[Anonymous Coward]

"I applaud Microsoft's banning of modded consoles, but condemn Terms of Service in general because they're 99.999% in the favor of the writer. I mean, the company."

But of course they're in favor of the company. After all, this is capitalism, right? And that's good, right?

Re:Well..

[samurphy21]

I agree with the first statement. However, this recent round of bans has not only booted banned users from the microsoft network, but also reduced the OFFLINE capabilities of the console. The banning corrupts the NAND on the console, removing the ability to install games, purchased or otherwise, to the hard drive. Those who bought a large hard drive in order to install games to it to speed up load times (a function supported by the console, not something you get through modding) are now unable to do so.

I agree that kicking us off the network is WELL within their rights, but changing the capabilities of my console is not. I should be able to do what I want with my hardware, since I bought it. If I choose to mod it then, yes, I'm violating EULA and Microsoft no longer has to offer me support or access to their network, but they do not have the right to modify my hardware's offline capabilities.

Re:Well..

[KibibyteBrain]

The TOS for Xbox Live hardly counts as a shirk wrap license, they are literally a Terms of SERVICE that you pay for every month. Good luck contracting any service that exists in the world without any terms that define what the expectations of that service actually are. I don't think there exists a harder agreement in law other than literally exchanging payment for an object rather than a service.

Re:Well..

[LordKronos]

No, it's in there somewhere. I don't remember how or where, but I do remember experimenting when I first got my xbox 360, and there is a media center setup screen where it asks you to input an auth code from WMC, and I remember going to my desktop, starting up WMC and authorizing the device and getting the code. I never used it beyond that, so I can't tell you exactly what it does, but it definitely has some sort of WMC interaction.

Re:Well..

[LordKronos]

Not that I'm condoning it, but I think the reasoning there is DRM and maintaining a controlled path to the display. If you hacked the 360, you can compromise that path. Not sure that it makes sense, because I'd think anything you could do to the 360 to compromise it could just be done to the PC running WMC to begin with, but maybe that's not so. Maybe the 360 has some really weak ass DRM implementation that they are afraid you'll exploit.

Re:Well..

[nurb432]

While i hate microsoft as much as the next guy, i have to side with them on this one.

Now, if they reached out and bricked your console we would have troubles, but they can ban you from THEIR network for having blue hair if they wanted.. Banning people may not be a good business/PR move, but its well within their rights.

Re:Well..

[LordKronos]

They're 100% in the right for banning modded consoles. Basically you can play your pirated games or you can play on Live, but not both with the same console.

Well, I haven't actually seen this confirmed in a media source, but I've read that people were banned for performing an unofficial hard drive upgrade. MS charges an insane amount for a larger HD for the 360, but people have found you can buy specific model drives, image the new drive with the proper firmware, and swap it into the HD case. That way you get a bigger HD for $50 instead of $200. This has no effect on a persons ability to do anything with the console except have a bigger hard drive (no copying games or anything). The only thing that is different, which allows MS to detect this, is that the firmware has an embedded serial number, which MS can detect remotely and validate. Since the firmware was imaged from a legit 360 hard drive, your HD firmware will have the same serial number as the drive the firmware was imaged from.

If these reports I've read are actually true (and not a case of a pirate simply CLAIMING that a HD upgrade was all they did), then I don't think that's 100% in the right at all. It affects nothing except for their ability to strongarm you out of an expensive HD upgrade. No piracy issue, and no compromising the quality of other people's online experience.

Re:Well..

[Bert64]

Terms of service usually place lots of burden on you, and very little on the company operating the service...

They will send out already banned consoles as warranty repairs, and your screwed...
They will ban you for things other than having a modded console, playing a game before release date will get you banned (people who work in game stores can often get games before release for example). Also using peripherals (like hard drives) which you bought in another region, or playing a console from another region are all things that have got people banned without any mods.

And the user is pretty much screwed, despite the unfairness of this.

Re:Well..

[mcgrew]

With Microsoft's history, anyone who would enter into any kind of agreement with them at all is foolhardy.

Re:Well..

[Montezumaa]

It is not the case that all modified Xbox consoles are to play "pirated" copies of games. There are many people that make backups of games, which courts have held that people have a legal right to do. I find it beyond ridiculous that Microsoft does not offer a means for people to back up the media that they paid $60 for. I was the EFF and others to sue Microsoft and force them to offer us the ability to make backups of our games.

Re:Well..

[Anonymous Coward]

If you moded it then YOU should be able to RESTORE (remod) your consoles capabilities. You assumed the right to mod then ASSUME the right to repair....! if you figure it out, post to ebay that you can fix others consoles and make a good old fashioned American buck.

Re:Well..

[Leafheart]

If I choose to mod it then, yes, I'm violating EULA and Microsoft no longer has to offer me support or access to their network, but they do not have the right to modify my hardware's offline capabilities.

So Sue them.

Re:Well..

[djrosen]

I love the AUTO jump to piracy every time this subject is broached. Frankly it's a load of crap. I don't have a modded Xbox but I do see that they have uses BEYOND pirating or cheating so why cant their be a happy medium that shows goodwill on the part of MS (or Sony or Nintendo or whomever?)

MS sees that there is a fan need/want for modding the hardware (Since I own it, I should be able to change it, blah, blah) why cant they figure out a way to detected modded CONTENT rather than modded HARDWARE and just not allow a modded game to be played while still allowing the hardware to connect to the network?

Surely this cant be that difficult, can it? It seems they took the easy way out and took some collateral damage with them. Just because you CAN, doesn't mean you SHOULD.

Re:Well..

[ukyoCE]

you could replace them with any company that operates a network and it'd be the same concept.

You could also replace it with any place of business. When I got off the old timey cars at the amusement park and ran around, I got kicked off the ride. Friends have also been kicked out of the park for misbehaving.

So what's the problem exactly? If a company does something egregious there will be a backlash and they'll pay for it.

This is only a problem in areas where a company has a monopoly (or near-monopoly) and users have no choice to go elsewhere for similar services. (eg. ISPs)

Re:Well..

[imaginieus]

Do you have any evidence that Microsoft has or is intending to send out banned consoles through warranty claims?

Banning a person who has done nothing but ask for warranty repairs seems like poor business practices that could easily be fixed with a quick database update. I doubt even Microsoft would use such underhanded techniques to exploit warranty policy into increased console sales.

Such practices would not only be blatantly illegal, but they would also lead to a strong backlash upon being perceived as scamming the average Joe Gamer.

Re:Well..

[psithurism]

Those who complain about it seem to be taking a distinctly "think of the poor little guy who's getting beaten down" attitude

Well, yeah. Most of us are the little guy, not a mega corporation. We are going to complain about it when we get the beat down.

nobody is going to die if they can't log on to some gaming network.

Correct, no EUL that I have bothered to read has caused my death, but it doesn't mean that I can't be annoyed by the fact that I'm expected to read hundreds (literally quite often) of pages of legalese to use the most mundane shareware or receive any service from just about any company. If you don't like the EUL then use a competitor you say? So now I have to compare several hundred pages of legalese and figure out which one reams me in the least painful way.

I for one am delighted that so much attention is being thrown on these obnoxious documents, maybe something will get done, because I am sick of new $1 charges appearing on my phone bill to be informed that if I had had my lawyer read page 35 of the online document referenced from one of the unannounced amendments on my phone contract I would know I was agreeing to it. There is just no escape from EULs if you want to live in the modern age and they are far too cumbersome for your average person to deal with.

Re:Well..

[Hatta]

As long as the terms of service set forth by a company don't violate the law, the company absolutely has the right to enforce them

Yes, this is strictly true but not the end of the story. Once upon a time it was perfectly legal for a provider of a service to refuse service to someone based on the color of their skin. As a society we decided that was unjust and passed laws to make it illegal. You see, it's not enough to say "well it's legal" and wash our hands of it. We also have to take into account whether it should be legal. That's what the EFF is doing here.

Re:Well..

[Hatta]

I should point out that I think that these bans are both legal and should remain legal. I just think that your "it's legal, so stfu" attitude is completely unhelpful. If we never questioned morality beyond legality, we would never enjoy as many rights as we do.

Re:Well..

[Anonymous Coward]

I wish this could be modded up more. So many people only hear about the live bans and don't realize what else was done to the consoles in addition to banning access. You can tell from pretty much every other comment on this page.

Re:Well..

[palegray.net]

I think it also goes without question that to compare the morality of refusing service based on skin color (a basic human rights issue) to this situation is absolutely ridiculous. No thinking person would ever arrive at that conclusion. What you've attempted to pull here is nearly as bad as invoking Godwin's law.

Re:Well..

[Hatta]

Oh please. I was merely illustrating a principle. The law is not always the last word, and it's worthwhile discussing morality. Do you disagree?

See, I agree with you, there is no rights issue here. But we should have the discussion about it. Trying to shut down discussion by 1)"the law's the law and that's that" and 2) invoking godwin's law, that's what's bad here.

Re:Well..

[Anonymous Coward]

Your post is slightly misleading. "Basically you can play your pirated games or you can play on Live, but not both with the same console." Although this is currently true- Previously, before they began detecting this firmware, you could indeed play pirated games online over live.

Perhaps you should take a moment to consider why all of these modded xbox360's were connected online in the first place.

Re:Well..

[BikeHelmet]

It's like driving a car.

If I want to use the roads, I need a license. If I break the rules by getting really drunk, speeding down the highway at 220kph, and hit someone, (impacting their experience) then that's bad.

Similarly, modding your console to play pirated games (or possibly cheat on XBoxLive) is bad, impacts other users experiences, and should result in the termination of your "license".

Look at the bright side. This violation doesn't stick to your name for eternity, or prevent you from getting a new "license" or other consoles.

Re:Well..

[samurphy21]

True, I assumed the right to repair, but by modding did I also give them the right to purposefully destroy capabilities of my hardware?

What you're saying is that, if you put a fuel management system on your Mustang, that Ford is well within their rights to come smash your windows out of your car, since you took on the right to repair when you modified your car.

Re:Well..

[geekoid]

Your consumer rights are being violated.

You would have a perfectly good argument if you get to read and agree to the terms before purchase. Since the software industry wants us simply purchasing an item equate to agreeing with the terms you can't read there needw to be balance.

If MS agree to buy back consoles that have been cut from their service, that would be fine.

Actions against companies screwing the consumer must be taken before anything can change.

Re:Well..

[geekoid]

They broke functionality to the Offline capabilities of the XBox.

Re:Well..

[palegray.net]

My rights weren't violated at all. Participation in their network requires agreeing to those terms of service. The console works just fine without that.

anything goes

[muphin]

its true, whatever they write on the ToS they feel that as long as its written down they have the right to do anything.
they disconnect you for some arbitrary reason they point to section 57 paragraph 3, blah blah blah smurfs from monday to wed aren't allowed to be blue, except on a full moon and only if you sacrifice a small child.....
I really hope the EFF peruses this and establishes a positive precedent so future legal battles and gauge on this and finally get some rights back.

Re:anything goes

[palegray.net]

Rights? What "rights" do you have here aside from choosing whether or not to give a company money? Your basic human rights aren't being violated here, and I don't see anything illegal happening with respect to a company's right to set terms of service for the use of their network.

Re:anything goes

[atheistmonk]

Sure. Unfortunately I have no choice but to accept the ToS if I want to play Fable 2 as last I heard there was no PC version in the works :(

Re:anything goes

[Anonymous Coward]

And accessing the Live network is in no way a requirement to play this game. I don't see the conflict here.

Re:anything goes

[arbiter1]

They have the right to run their service the way they want to. they also have the right to change their terms of service when ever they want to and don't even have to tell you. if you thought modding a console and never would get banned well they you were ignorant and its no excuse to take it out on them for it, just like the law you are still guilty

Re:anything goes

[palegray.net]

I guarantee that the vast majority of terms of service publications include a clause that the customer agrees to be bound by future versions of the TOS. It's my opinion that notifying customers each time a substantive change to the TOS is made is the right thing to do, but there's no real requirement for companies to do so (unless applicable law requires such notification).

Re:anything goes

[Anonymous Coward]

There's a key "if" in your statement there. You can always choose to not play Fable 2.

Re:anything goes

[Anonymous Coward]

What "rights" do you have here aside from choosing whether or not to give a company money?

The right to complain about crappy product characteristics as much and as long as he feels like it.

While ignoring lying astroturfers pushing company propaganda who dishonestly try to imply that any alternative point of view not in keeping with the company's propaganda is somehow not okay.

Re:anything goes

[Anonymous Coward]

The best thing to do is not use an xbox. Vote by purchase (or non-purchase).

less xbox's more games for PCs. period.

Re:anything goes

[shutdown -p now]

They have the right to run their service the way they want to. they also have the right to change their terms of service when ever they want to and don't even have to tell you.

Actually, if ToS were changed, and users were banned under the changed clauses, I think there would be a point here. It may be legal, but personally, I find contracts that can mutate like that abhorring, especially when you pay dearly for the privilege of entering one in the first place (i.e. ToS change, you don't like the new ones, but if you drop out now your Xbox is useless and you've paid for it... and the only information you had when you paid the money was the original ToS).

In this case, however, I don't see how that applies. So far as I know, modding restrictions were always in the ToS, so people who bought Xbox originally knew exactly what they were buying, and what the conditions are (or at least they have no excuse for ignorance).

Re:anything goes

[Anonymous Coward]

(unless applicable law requires such notification).

It does in many countries

Re:anything goes

[Shadow of Eternity]

You forgot that most ToS', unlike contracts, can't (reasonably*) even be read until you're no longer able to back out of the deal.

*insert Hitchhikers Guide reference here.

Re:anything goes

[inode_buddha]

Ya know, I still play pacman and chess just fine with no box and no network required. Plenty of fun too, especially chess against human opponents.

Re:anything goes

[couchslug]

I have a wonderful idea. Don't buy their products.

People crave games. movies and other utter trifles and then snivel when the trifle-makers take advantage of their craving. This perpetuates the very conditions they snivel about because they still hand their money to the trifle-maker.

Re:anything goes

[Anonymous Coward]

Perhaps we need to better define "mod". In this user's case I would say he did not modify his console at all, he *repaired* it. That's a pretty big distinction.

Well..Term limits.

[Anonymous Coward]

The important thing is that those terms obey not only the letter, but the spirit of contract law.

Re:Well..Term limits.

[palegray.net]

Okay, seriously. They own and operate their network. Let's reverse this: what gives you the right to tell them how to operate it?

Re:Well..Term limits.

[ustolemyname]

I paid them money?

Re:Well..Term limits.

[Cryacin]

Okay, seriously. They own and operate their network. Let's reverse this: what gives you the right to tell them how to operate it?

OK, I own and operate this gun. What gives you the right to tell me what to do with it?

Hate to say it, but your oversimplifying the issue, so enjoy my strawman.

Re:Well..Term limits.

[Anonymous Coward]

Yeah, why should Ma Bell allow you to use any old phone you want instead of forcing you to rent one from them? After all, it is their network!

Re:Well..Term limits.

[palegray.net]

That doesn't pass for justification. You paid them money in exchange for access to their network according to their terms of service. If you want the right to dictate how they operate their company, you'll need to be a shareholder (minimal influence unless you've got a hell of a lot of shares), on the board of directors, or a C-level employee.

Re:Well..Term limits.

[palegray.net]

Nothing gives me the right to tell you what to do with that gun. If you choose to do something illegal with it the courts will deal with you.

That's a terrible strawman, by the way. It doesn't even make sense as a counter-argument, and almost agrees with my point.

Re:Well..Term limits.

[palegray.net]

It's a completely ridiculous proposition to compare the public telephone network to a gaming network. Are you going to die if you can't use the latter? Surely you can't be serious.

Re:Well..Term limits.

[mwvdlee]

Exactly.
And it's not like you don't have the choice to just connect your XBox 360 to another service provider, right?
Right?

Re:Well..Term limits.

[Anonymous Coward]

It's a completely ridiculous proposition to compare the public telephone network to a gaming network. Are you going to die if you can't use the latter? Surely you can't be serious.

I would

Re:Well..Term limits.

[Anonymous Coward]

I'm not going to die either way, and don't call me Shirley.

Re:Well..Term limits.

[Z34107]

Or, to not purchase an Xbox 360, for the same reasons.

Re:Well..Term limits.

[palegray.net]

That's as ridiculous as your first argument. Please go start your own company, build your own network, design your own console, have it manufactured/distributed/sold/supported, build your own customer base, compete effectively in the market, and write your own terms of service. Then, sir, you will be absolutely within your rights to permit any given device to operate on your network, and your customers will enjoy complete gaming platform independence.

Re:Well..Term limits.

[palegray.net]

In deference to your request, I shall call you Sally instead.

Re:Well..Term limits.

[RockoTDF]

People have a right to fair use. By putting these restrictions on Live (although you don't *have* to use it, I know) MS is stepping on my right to make backup copies of games. (Note: I don't own any video game consoles at this point)

Re:Well..Term limits.

[palegray.net]

I'm a huge fan of fair use and being allowed to make backups of purchased items. Let's be honest here, though; couldn't a backup be made by simply making an exact copy of the hard drive's contents? Modding seems to be the issue here, not backups.

Re:Well..Term limits.

[RockoTDF]

True, but can you do that? What kind of filesystem does the 360 use? I have no idea myself.

Re:Well..Term limits.

[palegray.net]

That's the beauty of dd; it creates an exact binary image of the drive. It doesn't matter what filesystem is in use, and you can restore the resulting image to a brand new drive with dd as well.

Re:Well..Term limits.

[Richard_at_work]

If your Xbox is modded, and as you've been banned from Live then thats probable, then sure - there is nothing stopping you from connecting to another service provider. Whether anyone is providing such a service is another question.

Re:Well..Term limits.

[Gerzel]

No it isn't a question just ask MS if they will let another network work with their systems. Cease and Desist will be the first thing that happens.

Re:Well..Term limits.

[DJProtoss]

not if the drive's serial number no longer matches. plus the original xbox (don't know about the 360) used a little used feature of the ide spec involving a HDD password that was encoded into the bios - drive ignores any read/writes until someone transmits the correct code, making it somewhat difficult to dupe the drive

Re:Well..Term limits.

[gmrath]

Up until the mid- to late- 70s or early 80s - I can't remember exactly - that's exactly what Ma Bell did. You could not attach ANY device or install ANY wiring that was not approved by and/or not installed by Ma Bell's folks. And they did random impedance checks on your phone line at the main switch to make sure you didn't. The Bell system was, after all, a government-sanctioned monopoly, at least until the Great Break Up. Sorry. Couldn't help feeding the troll.

Re:Well..Term limits.

[tepples]

Or, to not purchase an Xbox 360, for the same reasons.

Then what set-top video game machine do you recommend for people who prefer to play indie games? Even with XNA's limitations, Nintendo and Sony don't offer anything remotely close to XNA.

Re:Well..Term limits.

[Bert64]

You can backup the drive, but only onto another branded xbox drive (which cost several times as much as a generic sata drive of the same capacity)...

But the games, even if they let you install the game to the hd you usually can't actually play it without having the original media in the drive. If you let kids play on the console, and a lot of kids play games consoles, the risks of damaging the games increases massively.

Re:Well..Term limits.

[tangelogee]

I paid them money?

OOH, OOH! Car Analogy time!

So you're telling me that since you pay the tolls on a toll road, you're allowed to take a NASCAR stock car on said road, which may look exactly like a regular car, (I know not really, but close enough for this analogy) but is modded to "improve performance"?

Or since you pay for the SAT/ACT/whatever college test you take/took/etc, you should be allowed to bring a calculator "modded" to allow it to cheat on the test in some way? Hey, you paid for it, right?

Re:Well..Term limits.

[Anonymous Coward]

That would back-up the files from the disc, but it would not back-up your ability to play this discs if the discs get broken/lost. You still need them in the console for the game to play - even if you have the game files on the hard drive.

Re:Well..Term limits.

[ViViDboarder]

Well... They are not really. First, it doesn't effict you "making" the copies. Also it doesn't even effect you playing them. The consoles still fully function. It only effects you using their Live service.

Like it's been said before, if it was your service you could make the rules.

In fact, I have 2 Xboxes. One modded for backups and one for Live.

Re:Well..Term limits.

[ViViDboarder]

If you go to a movie theater and you start filming or bring in your own food or break any other rules, you'll be kicked out.

When you are using a service provided by ANYONE, digital or not, you agree to the terms of the service. If you don't like the TOS you shouldn't agree to them.

Anyone with a modded Xbox should NOT have agreed to the TOS. They would then not have access to the service and if they wanted to petition M$ to change their TOS they'd be fully within their rights to. What they can't do is claim that each one of them is so important that M$ must bow to their every whim and allow the customers to run their network.

Re:Well..Term limits.

[Bakkster]

Or, to not purchase an Xbox 360, for the same reasons.

Then what set-top video game machine do you recommend for people who prefer to play indie games? Even with XNA's limitations, Nintendo and Sony don't offer anything remotely close to XNA.

You could, you know, not modify the console, since you can play homebrew without a mod.

I would argue that just because you don't like the gaming offerings out there, it doesn't give the 'right' to get what you want. There are three competitors in the space, you can pick one, more, or none of them depending on your preference. I think this was a clear cut case, I might be singing a different song if they were banning for fleeting explitives or because you didn't buy enough MS points.

If you don't want to play by the common sense rules, you can deal with it. Though I do have sympathy for those who were not aware their console was modified (refurbs or pre-owned).

Re:Well..Term limits.

[tepples]

you can play homebrew without a mod.

Say I want to develop a game that uses speech synthesis instead of having every line by every character voice-acted. XNA doesn't let me do this because XNA provides no way to generate audio at runtime.

Say I want to develop a game with a fantasy setting that includes words written in a made-up language. This page states that Microsoft has banned all languages from Xbox LIVE Indie Games other than those for which the Xbox 360 system menu has been localized.

Re:Well..Term limits.

[RMingin]

While I'm reasonably sure you meant the DVDs, you can't back those up without a proper press. Simple DVDRs will NOT cut the mustard without a modded console (the whole point of modding the console, in fact!).

If you meant the hard disk, the answer is equally "no". The X360 uses a custom firmware (copyrighted) on a mildly modified WD 2.5" hard drive. The contents are both obfuscated and lightly encrypted, so you can not meaningfully backup up the disk as a whole, or the contents, without MS sanction and assistance.

Re:Well..Term limits.

[Bakkster]

Point taken. You can do some homebrew on an XBox, not all.

Regardless, that's the trade-off. If you want to run on the XBox, you need to follow their rules. If you don't like their rules, go somewhere else (PC, for example), but be aware you might not get exactly the combination that you prefer, just because all the companies operating in the space don't offer it (or did and went out of business).

Of course, the big thing here is it was the XBL terms of service that were violated, not the hardware terms. So, if you REALLY want a modded XBox, just don't use it on Live or use any Live-enabled features. Problem solved?

Re:Well..Term limits.

[Xest]

Yes, you're welcome to setup your own VPN with your router and play multiplayer via system link.

Re:Well..Term limits.

[palegray.net]

This is just not true. The useful data on the drive is separate from the firmware, and running dd against it produces an exact binary copy. If your console needed a replacement drive, you could easily dd the backup image back onto it.

Re:Well..Term limits.

[RMingin]

The partition has an obfuscated copy of the drive's serial number. Data on drive doesn't match drive itself = you can be banned.

Re:Well..Term limits.

[palegray.net]

Well, that's thoroughly jacked up. Thanks for the info, and I summarily withdraw my earlier point that you can just image the drive for backup purposes.

Re:Well..Term limits.

[Anonymous Coward]

Not only that, it contains a security sector that is written with the serial number of the console it came in, and a hash of the firmware and HAL, and new drives that are added to that particular console get that data also written to them, so long as they are official drives. An unofficial drive won't, because it doesn't contain A) the proper firmware B) the proper hashes (hash mismatch, the easiest way to find a modded console) C) serial mismatch.

Quite easy for them to detect when all of the modded drives have identical inserted serials on them. I don't know what possessed the mod tool makers to do such a thing as use identical identifiers. This security sector also can't be written to or read from by any stock software such as dd, or even by the modkit software out there. The sector is encrypted and signed with MS Authenticode, and not just lightly. Software like dd would choke on reading it and just give error messages saying it's unrecoverable.

We won't even get into the entire mess that is an ex-FAT filesystem.

Re:Well..Term limits.

[Primevilkneivel]

I am unaware of anyone's right to make a backup copy of a game. Yes game disks break and wear out with use but that does not endow anyone with the right to duplicate the media at will. Lots of products break and wear out with use, beyond basic warranties no one has the right to demand replacements.

Re:Well..Term limits.

[tsm_sf]

I would argue that just because you don't like the gaming offerings out there, it doesn't give the 'right' to get what you want.

I think this is the central point of this argument. I believe we're being placed in a position where different definitions of 'ownership' are being tested on us.

What is needed, IMHO, is a proactive declaration of the rights and expectations that digitally connected citizens and consumers of electronics enjoy. The EULA system we currently use is fundamentally flawed.

Re:Well..Term limits.

[Anonymous Coward]

Okay, seriously. They own and operate their network. Let's reverse this: what gives you the right to tell them how to operate it?

I own and operate my xbox360. What gives Microsoft the right to cripple my machine remotely, thus limiting how I operate it? Sure I think they should ban modded 360's from XBL, but when they cripple the machine remotely through a dashboard upgrade I think that's malicious.

In other words I think they have every right to ban a modded 360 if they detect it. It would be nice if they gave you a warning, and offered to flash your firmware back to unmodded (is that even possible?). Their rights to cripple your hardware are non-existent (actually I've never read the XBL ToS, do you give them the right to cripple your 360 by connecting/agreeing?), and unless the reports I've heard of crippled dashboards are false, I'm surprised no one has sued and won yet.

I also think it might set some sort of precedence for ISPs installing rootkits on your PC to cripple your OS because they caught you p2p'ing. They could easily change their ToS to say they have the right to ban you, and by ban that could mean remotely cripple your PC and block your MAC from being provisioned, etc.

Re:Well..Term limits.

[Anonymous Coward]

But it does - I dont use live no interest in it - my dash box gets upgraded when some game demands it and I click ok from the controller.

I dont know know if my modded box is banned or not but a banned box cant play from the hd. Not sure about you but I agreed a TOS that stated Xbox live not what I do in my own home offline.

In the uk there may be a legal case they have deliberately borked your box.

Re:Well..Term limits.

[C0R1D4N]

I am a customer, I pay them. I vote with my dollar, but before that I bitch and complain. Companies that don't want to lose my dollars from them acquiesce. In this case of course, I support what they're doing. In other TOS situations, such as the banning of Mystere in Everquest, I did not.

Re:Well..Term limits.

[RockoTDF]

No one has the right to demand replacements, but making backup copies of your own media is a right called fair use. The fact that you don't know this shows just how good a job the various corporations have done in brainwashing us to think that all copying is piracy.

Re:Well..Term limits.

[badkarmadayaccount]

First analogy is closer. And I say, why not? If the car passes road specs (I doubt it wouldn't), then go nuts.

Re:Well..Term limits.

[Primevilkneivel]

Your reply shows how little you know about "fair use". Fair use is not to allow wanton duplication of media but to allow limited reproduction of copyrighted material, for use in a different manner than originally intended.

So fair use doesn't allow you to copy your game, but it does allow reviewers to create screen captures or show gameplay videos in their reviews. Almost never does it allow you to copy an entire piece of work.

To paraphrase your post, The fact that you don't know this shows just how good a job the various piracy advocate groups have done in brainwashing us to think that all piracy is justifiable.

See, me saying it doesn't make it true, same goes for you. But your Ad hominim characterization of me says more about your biases than my 'brain washing'. I don't care what 'various corporations' think any more than what anonymous internet posters do. What I care about is knowing the actual meaning of terms like 'fair use' so when its used as a bullshit excuse to copy a product that people worked hard to create, I can call bullshit.

I don't care if you sit in your little room copying your games and modding your console. If that's the best you can do with your time so be it. But don't claim you have some legal right to do it and if you do at least read the Wikipedia page for the right you are citing in your defense.

Re:Well..Term limits.

[RockoTDF]

I don't mod any consoles mainly because I don't own any, thank you very much. Actually, I have looked this stuff up and yes, it is legal for me to back up software I have legally bought for personal use. And I didn't read that on wikipedia. I read it on the patent office website. http://www.copyright.gov/help/faq/faq-digital.html#backup

The best I'm doing with my time is getting a Ph.D. in a time when my country is very short of scientists.

Re:Well..Term limits.

[Primevilkneivel]

That is not fair use and arguably isn't the matter at hand. Yes there are provisions for creating backups of software but that doesn't extend to the modification of hardware. It also never states outright that anyone has the "right" to backup but rather says "under certain conditions" you may do so. Given that copyright cases are decided on a case by case basis and put the burden of proof on the defense, suggesting that this is a "right" is more exaggeration than fact.

While I do accept the abstract archival argument I have little patience for it. It's a statistically insignificant portion of the population. In truth the vast majority of modders are pirates and as a person that makes a living creating content I have no sympathy for their rights to archive games bought by other people. The idea that businesses that employ hundreds of thousands of people have no right to protect themselves from a claim for a group that is quite possibly apocryphal defies all logic. It always seems the pro copy/modding "archivers" end up not actually having a system, for them the argument is academic. Well there are a great number of us for which the argument is very real.

I don't deny the gaming industry has some serious structural issues. But to be fair the industry is still in it's infancy. No matter though, because the idea of fighting unfair prices with theft has no foundation in reason for a luxury entertainment service

Good luck with that Ph.D. Assuming you are from the US your country does need all the scientist it can get.

Re:Well..Term limits.

[Rexdude]

When you buy a gaming console, or an Apple product, you are already agreeing to opt into a closed system. This is why the PC platform absolutely rules. There's absolute flexibility in choosing hardware or operating system, and when it comes to games, you can connect to any server (if the game was made that way).

If you want to play an old game like HalfIife 1, or even Doom/Duke 3D/Quake with your friends, you can easily do so. Whereas if you were dependent on the whim of Sony or Microsoft, they would've shut these down long ago, calling them unprofitable.

Give me a PC any day- I can use any hardware/software I want, and play games too without shelling out subscription fees or being at the mercy of a company's ToS.

Re:Well..Term limits.

[tangelogee]

Maybe during the day. But the pesky lack of headlights and taillights may hinder night driving a bit...

Re:Well..Term limits.

[geekoid]

The same thing that gives people rights when they walk into a store. The same rights that says when you buy something, the seller can't change how it works when you get it home.

Creating a company doesn't mean you are exempt from the rules of society.

Re:Well..Term limits.

[geekoid]

too bad I have agree to then rules before I can even read them.

Re:Well..Term limits.

[geekoid]

except you don't know what you agreeing to until AFTER you bought it.

Re:Well..Term limits.

[palegray.net]

Again, nothing stops the console from working here. You simply can't play it on the network if you violate those terms of service. It works fine off the network.

Re:Well..Term limits.

[palegray.net]

Refer to my other replies, I'll save the bits here.

It is their right, but aggressive move nonetheless

[Snatch422]

I think Microsoft is being aggressive in it's strategy. Warnings, even many warnings and second chances, third chances, etc should be utilized before doing something irreversible like this (also an appeals process would be in order). It certainly is their right to ban people from their network based on a written policy but psychologically speaking they are angering a great many customers. By taking such extreme action, they are encouraging better hacks and workarounds in the future. Plenty of computer software is much more graceful and works well on a positive reinforcement encouragement system. Even Microsoft Windows and Office handle these types of situations much better. There will always be piracy but it should be discouraged and not challenged for the truly best end results. A lot less music is pirated now simply by offering it for sale in MP3 form and encouraging people to do the right thing.

get a Gaming PC

[Dan667]

and avoid vendor lock-in problems like this and crap quality (red ring of death)

Re:get a Gaming PC

[Anonymous Coward]

The problem with that, is that game producers are gaga over consoles. The reason for this is that there is a lot more control the manufacturer has, and far less control a user has. This allows for more chargable mechanisms, be it DLC, subscriptions to keep access to multiplayer content.

Consoles are easy to debug for. You know that if you write code for the XBox 360, it will work on every machine out there, unless there is some subtle revision glitch, or that one model might have a bigger hard disk than another. PC game development is harder because there are so many hardware combinations, OS revisions, and other software that might get in the way. Thus relatively lengthy betas.

Finally, it used to be with consoles that the CD/DVD/cartrige of a game had to be 100% perfect. You had to have everything completely debugged, because there would be no second spin of a cartridge if there were any mistakes. However, newer consoles allow for updates. This completely changes the development cycle for consoles. Now the console game makers can spin essentially betas, and fix it in an update after the rush for sales numbers is over, or just not bother to fix it at all if the game doesn't sell well. So, a company in theory can just get a game to build, have it mostly work, ship it and during the interim time before it hits the stores, push out an update to get it to some sort of playability.

There is also the fact that people who have the cash to buy consoles generally will have the cash to buy games, be it new or used. PCs, someone might just buy it for browsing the web, running WoW, and nothing else.

Of course, if the large PC gaming companies move away from the PC market in toto, this leaves a vacuum, and it will be almost certain that it will be filled by either new indies, or older companies like Blizzard who do write for the PCs will further lock down their segment of the market.

Re:get a Gaming PC

[cbhacking]

Anecdotal, of course, but I've seen a lot gaming PCs where one part or another has failed (in one case, the power supply went, taking with it the mobo, CPU, and video card - any one of which cost a good chunk as much as an Xbox 360).

In fact, as somebody who got his first gaming console after the release of the Xbox's Jasper chipset (I gamed on PC long before that), neither I nor anybody I know has had a RROD with the new chipset (and only one person in that time with an older one). Don't get me wrong, the first versions undeniably had problems and it's fair to blame MS for them back then, but to suggest (as your post does) that RROD is still substantially more likely than a gaming PC part failure is simply bullshit. Blame a company for its past errors, but don't pretend not to see when they learn from those mistakes.

Re:get a Gaming PC

[Dan667]

luckly the Customer still determines what game publisher will build games for. As people are losing their like of consoles they are migrating back to Gaming PCs.

Re:get a Gaming PC

[geekoid]

the Failure rat of the Xbox was just about 50% as of last august.

what they believe

[arbiter1]

MS believes that if you mod your console it is sole purpose for playing pirated games even if you only use backup legit games, they have no way to tell the difference if you own the game legit or pirated it, or if you even download games at all. Its a case of Collateral Damage. Since you remote the copy protection coding outta the console they actually have a case against you like mpaa had against programs that removed the protection on dvd's for making backup's

Re:what they believe

[SuiteSisterMary]

MS doesn't particularly care if you mod the console; if they did, they'd have bricked the modded consoles instead of simply banning them from Xbox Live.

Re:what they believe

[NewWorldDan]

Deliberately bricking the consoles would be a PR and financial disaster. It could also result in felony charges for whoever authorized it and knowingly aided in carrying out the bricking. That's not an answer. MS may not care if you mod the console, but they care very much if you pirate games (and that's what 99% of modded consoles are for [citation needed]).

Re:what they believe

[SuiteSisterMary]

Well, to be sure, were they of the mind to, they'd likey brick the console by doing a firmware check/upgrade with a new game. Or simply program new games to refuse to run on modded consoles. Point being, it could be done, but isn't.

Re:It is their right, but aggressive move nonethel

[palegray.net]

I wholeheartedly agree with this. Terms of service are supposed to be the "teeth" that allow a company to take actions they believe are in the best interest of the network, other customers, and the company in general. That said, companies should do as much as possible to work through issues with customers before taking "final action" on any case. Exceptions would certainly need to be made for extreme cases, but immediate permanent action shouldn't be the rule. That's just awful customer service.

Ooo... now contracts must not matter to EFF

[sl3xd]

I don't mean to sound like I'm defending Microsoft, but...

If you enter into any contract, you have to abide by the rules. There's NOTHING new here. Online service, game service (like Xbox Live), Phone service... even a lawn mowing service has terms to its contract.

Guess what kids? Your actions have consequences. You should have the maturity to own up to those consequences.

Contracts (and contract law) aren't anything remotely new. They've been thought out by many a great thinker for millennia. Calling contract law a "growth market" is about as far from the truth as it gets. Contracts are one of the oldest, most hashed-out, and most concrete aspects of law in any society. The entire point of contract law is to avoid lawsuits, specifically because there is so little wiggle room if both parties agree to the contract.

Re:Ooo... now contracts must not matter to EFF

[Anonymous Coward]

Last time I checked, the enforceability of EULAs are nebulous at best. I would rarely call a EULA an Iron-clad contract.

Re:Ooo... now contracts must not matter to EFF

[Anonymous Coward]

You are conveniently ignoring the fact that typical service provider contracts can be changed at any time and in any way by the service provider. Only one party has to abide by the contract. That is no kind of contract at all.

Re:Ooo... now contracts must not matter to EFF

[DNS-and-BIND]

In no event shall Microsoft be liable for any damages whatsoever, even in the event of fault (including negligence).
-- Windows XP Professional license agreement

What kind of contract is this? And the same contract allows Microsoft to change the terms of the contract at any time, without notifying me? I would never agree to such a thing. But, Windows is required in order to work. So I say out loud, "I disagree with these terms" and click the button to continue. Microsoft, having had a chance to respond and remained silent, can only be assumed to have agreed with my deal, since it clearly is continuing with the software installation. Obviously the whole thing was just a bluff to get me to agree to some ridiculously one-sided terms.

Terms like these I would never, ever accept in any deal, business or otherwise. Including negligence! Imagine a lease or even a parking stub with such language on it. It's basically admitting that they're negligent before the deal even starts...who on Earth would do business voluntarily with a party who says up front that you can expect negligence on their part?

Re:Ooo... now contracts must not matter to EFF

[bwcbwc]

EFF doesn't have a problem with contracts, they're just pointing out a few facts: a) courts can void contract terms for various reasons. Witness the Early termination fees on wireless phone contracts in California. b) The EFF isn't necessarily saying the contracts aren't enforceable. They're saying no one's gone to court to see if they're enforceable. c) The EFF is saying that consumers need to pay more attention to this crap before they get raked over the coals the way the XBox modders did.

Re:Ooo... now contracts must not matter to EFF

[Nithendil]

Isn't that par for the course for nearly all software? Or does Ubuntu not have a "we're not responsible for anything" clause?

Re:Ooo... now contracts must not matter to EFF

[Anonymous Coward]

Shrink-wrap contracts are not enforceable. Ever. You can't read the contract in the box, BEFORE you buy the product. And contract law has only existed for about 1,200 years, not "millenia." I avoid shrink-wrap contracts whenever I can, simply because I'm not a lawyer, and could not understand every possible stipulation that MS or other corporate money machines could put in them (and nobody ever reads them in detail to begin with; did you take your Windows license to your lawyer before you installed it? Did you make your lawyer read the screen of your new Dell PC before you clicked "Accept"? Think not.) I certainly didn't pore over the paperwork with a fine tooth comb when I bought my (USED!) PS2 (no paperwork in the box!).

Re:Ooo... now contracts must not matter to EFF

[10101001 10101001]

Or does Ubuntu not have a "we're not responsible for anything" clause?

IIRC, Ubuntu doesn't have an EULA. Having said that, if you end up redistributing parts of Ubuntu, just about every part of Ubuntu comes with a redistribution license containing a "we're not responsible for anything" clause. Ie, you become the person responsible to others if you redistribute. I don't think sharing an Ubuntu CD counts, so long as it's a copy from Canonical.

Thinking about it some more, that possibly means whatever mirror you might use would be the one you'd sue. I'm not sure what the legal precedent is in this area, since I've never heard of anyone being sued over generally available software. I don't think EULAs really have anything to do with that, though.

Re:Ooo... now contracts must not matter to EFF

[SharpFang]

I preferred the websites that present TOS in editable textarea. Textarea implies invitation to edit = negotiation.

I tend to edit these to my needs and save myself a copy. Of course by clicking "I Agree" I -am- sending these back to the originating server (if they don't get them, it's their negligence).
Since they accept the edited copy, I can safely assume they agreed to changes.

Re:Ooo... now contracts must not matter to EFF

[SharpFang]

EFF just says "Caveat Emptor".
People have willingly signed the contract. They can now be screwed left and right to the company's desire. So beware what you do because you can be next.

Re:Ooo... now contracts must not matter to EFF

[Anonymous Coward]

So I say out loud, "I disagree with these terms" and click the button to continue. Microsoft, having had a chance to respond and remained silent, can only be assumed to have agreed with my deal, since it clearly is continuing with the software installation.

Are you honestly dim enough to believe that an "agreement" like that would hold up in a court of law? If you don't agree with the terms, you don't click the "I agree" button. Simple as that. Now, if you want to take your employer to court for attempting to make you agree to terms with which you don't agree, that's another matter entirely, and one where you may actually have some recourse. But arguing that "an inanimate object had an opportunity to respond but didn't" is just plain daft.

Re:Ooo... now contracts must not matter to EFF

[selven]

Well, you've voluntarily decided to do business with Microsoft. Clearly since you're not willing to change your job that "never, ever" isn't strictly accurate.

Re:Ooo... now contracts must not matter to EFF

[superandy47]

I don't doubt that MS is in the (legal) right here - XBL is their network, and they can do whatever the hell they want with it. Personally, my main problem is in the way that console games have become more like PC games in the way that they are commonly shipped full of bugs, which are lately 'fixed' via patches.

My 360 was banned from XBL for having modded firmware. Even though I don't doubt that the majority of modded consoles were modded to play pirate games, mine wasn't, and I'm sure that anyone who has ever had a kid destroy a NZ$100 disc will agree that backing up legitimately-purchased games will agree is fair.

Now I'm stuck with a bunch of purchased retail games shipped with game-breaking bugs, which will -never- be fixed. In FIFA 10, a massive bug (among hundreds of others) causes a manager mode save to be stuck with a club having negative $2.4 billion, ruining the game completely. This will never be fixed for me, and presumably thousands of others. Similar game-breaking bugs in other games, such as Lips (permanently stuck on 'incredibly easy' mode) pre-patch will never be solved for people like me with modded firmware and legitimate retail games.

Re:Ooo... now contracts must not matter to EFF

[Anonymous Coward]

The kind of contract people signed in their own free will.

Re:Ooo... now contracts must not matter to EFF

[PsychoSlashDot]

If you don't agree with the terms, you don't click the "I agree" button. Simple as that.

Let's run with that thought for a moment. If I'm given a brand new copy of Windows 7 in Chinese, I won't be able to understand any written text on the screen. At the same time, it's entirely likely that I will manage to install the OS. If there's an "I Accept" and "I Decline" option presented, sooner or later I'll stumble upon the button that gets the OS installed. At no time will I have read or comprehended the EULA presented. How can my "agreement" be considered binding when a} I was never made aware in a manner I can possibly understand, b} nobody was around to witness the agreement?

From there, let's go further. What if I encourage my cat to walk on my keyboard during the EULA screen? Sooner or later he's going to step on "Y", at which time my feline is bound to the terms of the EULA, not me. I've got a working computer, Microsoft's got a contract with a pussy cat. You can view it that I clearly caused the "Y" key to be pressed, but you can more strongly view that I clearly don't agree to the EULA. I have caused the computer to become operational without agreeing to the terms myself.

Finally let's take a look at EULA text in general. One: they're next to incomprehensible to non-lawyers to start with. Two: I don't yet have an operational computer to allow me to look up the implications of the EULA's wordings despite having paid for one. I reiterate: my payment for the computer and its contents has been accepted and I now own it but am prevented from using my purchase after the transaction is complete. Microsoft has elected to attempt to limit and control my purchase after accepting my money (indirectly through the OEM).

So, I can't understand a EULA that's been added to my computer against my will and the only way I can make use of my expensive purchase is to bind my cat's soul to Microsoft. Sounds fair.

Re:Ooo... now contracts must not matter to EFF

[Anonymous Coward]

It's really sad that saying "But my cat agreed for me" is considered a rational argument around here.

Re:Ooo... now contracts must not matter to EFF

[Interoperable]

What Microsoft is saying, is that if a bug in Windows causes you to lose all your data they won't be held financially accountable for it. If that wasn't there, every time someone lost work due to a BSOD Microsoft would have to pay up. The fact is, there is no way they would ever agree to terms like that.

I don't think it's unreasonable for Microsoft to refuse to cover my data loss so I enter into the contract with them. If you don't like the terms, don't accept the contract; it's as simple as that. You'll have to install an operating system that will enter into a contract with you in which they agree to accept liability for that sort of thing. Until you can find that OS, save often.

Now, don't get me wrong, I hate EULAs because they're disclosed after the purchase is made. I think that the terms should be required to be disclosed, in simplified but accurate form, on the box prior to purchase, preferably requiring an actual signature, not a click-through. However, once you agree to them by purchasing and installing the software, you're bound by them. If you think they're unreasonable, you must uninstall the software and request a refund because disliking the terms gives you absolutely no moral or legal high ground if you continue to run the software.

Re:Ooo... now contracts must not matter to EFF

[CapnStank]

That is typically only true when the EULA does one of two things:

1) Contradicts itself; meaning the EULA both says something is allowed and is not whereas users can argue that they did follow EULA and companies cannot "pick and choose"
2) The contract conflicts with law in place. AKA The EULA tries to remove privileges provided by national law.

Modding your Xbox and accessing a company's network breaks neither of these and does not pose any threat to health or well-being of people. As the OP stated: you entered a contract and you broke said contract, play by the rules or get out.

Re:Ooo... now contracts must not matter to EFF

[Anonymous Coward]

You'd think that, but you'd be wrong. Contracts seem straight forward, until you take Contracts in law school. Absolute mess. Go grab a copy of the UCC and snuggle up with her for a few days and then tell me it's still black and white. Hint: courts will usually put more emphasis than you on the actual terms and words and not so much on "we have a contract. we win."

Re:Ooo... now contracts must not matter to EFF

[jgtg32a]

a Millenia is a thousand years and while yes 1200 is more a Millenia sounds a bit more impressive because 1200 isn't that big of a number and the word Millenia isn't used that often.

Re:Ooo... now contracts must not matter to EFF

[Anonymous Coward]

If you pay attention, you will notice the button you click doesn't say "continue"... it says "I agree".

Re:Ooo... now contracts must not matter to EFF

[PPH]

I would never agree to such a thing. But, Windows is required in order to work.

I've been in that situation. Where Windows is required, I've requested that my employer provide me with a fully configured PC/laptop to their specifications. If the damned thing prompts me for any sort of agreement, I'd just bring it back to the IT department and tell them, "Its broke. Give me another one."

I don't think an employer can make an employee enter into a contract with a third party as a condition of their employment. The coercive nature of such an arrangement would probably be basis for having the contract thrown out. So I, as a frequent party presenting such contracts to potential customers, avoid entering into them with individuals if I believe that my product/service is being required by an employer.

Re:Ooo... now contracts must not matter to EFF

[bryansj]

I just saw an offline game patch collection on Usenet (Newzbin / Console / Xbox 360) that includes most of the patches. You just have to transfer it over with one of those 360 hard drive to PC connection kits at Gamestop.

Re:Ooo... now contracts must not matter to EFF

[david_thornley]

If you encouraged your cat to walk on your keyboard, then the cat was doing things by your volition. That's not an argument you could get away with in court.

What interests me is that they don't determine whether the click is from a minor. At home, I tend to run Linux, my wife runs MacOSX, and my son has the XP box. He also does most of the console gaming in the house. Therefore, if Microsoft puts up a click box, it will almost certainly be clicked on by my minor son. (This situation will continue for a few years, at which point he will legally be an adult.)

If you take a look at written contracts for similar services, you'll notice there's a spot for parents or guardians to co-sign with their minor dependents. That's because a minor cannot in general sign a binding contract (I believe there are exceptions), and so they want an adult to sign. If I co-sign such a contract, they've got my signature as evidence that I, an adult, agreed to the contract.

I do of course agree with EULAs as being immoral and that they should be completely illegal.

Re:Ooo... now contracts must not matter to EFF

[Anonymous Coward]

I do of course agree with EULAs as being immoral and that they should be completely illegal.

You realize making them illegal could very easily cover things like Privacy Policies, too, right? After all, a privacy policy is basically just another license agreement.

Re:Ooo... now contracts must not matter to EFF

[DNS-and-BIND]

I say again: in what other field would a company negligently producing a faulty product be acceptable? Nowhere, nobody, no how, no way. Windows crashes? What would happen if dishes you bought started spontaneously breaking? Washing machines stopping in the middle of the cycle (oh but you can just restart)? And all due to negligent behavior on the part of the company who stated, up front, in the contract, that I would be receiving a defective part purely due to their error?

It's just the insanity of the software industry: people simply expect it to be like this, and lo it is so. In no other industry would this be tolerated. You realize that the idea that operating systems should be expected to crash was started by Microsoft?

Re:Ooo... now contracts must not matter to EFF

[david_thornley]

An EULA is a change to a contract already made, to the detriment of the purchaser. That's the problem I have with them. I have no particular issue with licenses that are agreed to before purchase, or which don't further restrict the other party.

Now, why would this extend to other license agreements? Licenses like the GPL grant additional rights, and take nothing away. A person who acquires software loses nothing by refusing the license. Similarly, privacy policies are usually up front. They're made available for examination, and they usually don't restrict the person making the purchase.

Re:Ooo... now contracts must not matter to EFF

[Anonymous Coward]

Terms like these I would never, ever accept in any deal, business or otherwise. Including negligence!

So if you installed a virus after clicking through several "Are you SURE you want to run this .exe file?" messages, Microsoft should be held accountable for your negligence?

Slashdot would be /.'ed with legal cases being filed against Microsoft if they didn't have a clause in their EULA protecting them from negligence. I'm not saying its fair or acceptable (I think its pretty heavy handed), but the reality is that a clause like this is ultimately necessary.

Re:Ooo... now contracts must not matter to EFF

[VeNoM0619]

The entire point of contract law is to avoid lawsuits, specifically because there is so little wiggle room if both parties agree to the contract.

The TOS is a constantly changing contract however, and the "little wiggle room" only applies to the person who is using the service. While the person changing the TOS has a near infinite amount of wiggle room. Oh, and whenever it changes, they don't even need to notify you.

A TOS should not even be considered a contract.

Re:It is their right, but aggressive move nonethel

[cbensinger]

I have no problems with what they did; but I question their logic. Those consoles that are banned from Live for being "modded" can still obviously play pirated games. What they *can't* do is go on live and among other things purchase things. So while they will undoubtedly sell some more consoles (Craigslist and eBay are full of banned consoles) and probably some more games - I don't really see this as doing much to stop piracy - I only see it stopping any legit spending from those consoles.

Seems to me that there must've been a better way to handle this; but that's just me.

Re:It is their right, but aggressive move nonethel

[dagamer34]

They also can't act as Windows Media Center extender, which means it's LOST functionality, compared to a 360 that will never connect to the Internet.

Re:It is their right, but aggressive move nonethel

[cbensinger]

Yeah, and they also can't install games to the hard drive, nor move accounts back and forth from a banned system to a non-banned system from what I understand. So yes there is a loss of functionality as well.

Just saw something interesting with Borderlands...

[Anonymous Coward]

When I installed it, it popped up an EULA that stated that the company reserved the right to modify the agreement from time to time (changes to be posted to their website) and that my continued use of the software 30 days after these changes constitutes my acceptance of said changes.

I should mention, this is a retail boxed version of a game that doesn't require any online service to run.

Then there's Windows 7. Bought the upgrade to put a legit copy on a new system. But apparently, and this was stated nowhere online at the time of purchase (including Microsoft's site, and I checked thoroughly), this upgrade is only properly licensed if I put it on the computer that had the OEM version of XP on it. Impossible, as its motherboard died, and even the OEM XP had no mention on its packaging or on the website that it would only be valid on the first system it was installed on (as indicated by the motherboard in said computer, even if the motherboard needs replacement).

You really are treated worse than a pirate when you pay for your software. You can't even properly lend or swap games with friends anymore, even on consoles like the Xbox 360 because of DLC.

Online services? That's all?

[bwcbwc]

While they're at it, they should get with Consumers' Union and go after the wireless providers, credit card lenders and all those other services where the terms of service are basically "we've got the gold, we make the rules". Onerous contract terms and gullible consumers that think they have to have these services are the root of all evil in our service/consumer based economy (speaking for the US).

Oh, FFS.

[awyeah]

Did I read that correctly? "rely on them to get on with our everyday lives"? I think my life would go on just fine if I never connected to Xbox live again.

Re:It is their right, but aggressive move nonethel

[Anonymous Coward]

This is nowhere a new thing. On PCs, Blizzard, SOE, and most MMO companies will instantly and permanently ban accounts if they trip the Warden (on WoW) or whatever hack detection is in use. If you play on Steam, Valve can remove your access to multiplayer services without having to give a justifiable reason other than a potential hack was detected.

Because of the rampant cheating, Valve learned that a 1 year ban did no good. Neither did a 2 or 5 year. The only thing that got people off of their networks with cheats was a delayed and permanent ban of that account. Blizzard also has learned that lesson with b.net. Any cheats will be "rewarded" with an instant and permanent ban.

Oh, good luck trying it in the courts. Look at how completely and utterly victorious Blizzard was over wowglider/mmoglider to see how well they can do in the legal system.

You got two options here: Play by their rules, or don't play in their game. There is no third option. Its just like a private house or store. Play by the owner's rules, face trespass charges if they are violated, or never enter in the first place.

Re:Just saw something interesting with Borderlands

[RockoTDF]

"You really are treated worse than a pirate when you pay for your software. You can't even properly lend or swap games with friends anymore, even on consoles like the Xbox 360 because of DLC."

Yep. This is why I pirate MS products, buy Apple products and download linux for free. Because MS are still the evil empire.

Re:Just saw something interesting with Borderlands

[Khyber]

"You can't even properly lend or swap games with friends anymore"

"Yep. This is why I pirate MS products, buy Apple products"

Logic fail.

You made your choice, now live with it.

[westlake]

I think Microsoft is being aggressive in it's strategy. Warnings, even many warnings and second chances, third chances, etc should be utilized before doing something irreversible like this

The only thing irreversible is that the modded box goes off-line and stays off-line. It cannot be used as a licensed Microsoft "media extender."

Your warranty is voided.

psychologically speaking they are angering a great many customers

Microsoft couldn't care less.

The cheaters are given the boot - to a loud round of applause.

The more attractive and desirable the online experience, the less valuable the pirated game. Windows and Office are headed in the same direction.

Re:You made your choice, now live with it.

[Anonymous Coward]

You sir have been misinformed. Allow me to educate.
When a console is banned, not being able to get online is not the only thing affected.
They also completely disallow playing from the hard drive or installing games to the hard drive.
This is a violation of the right of first sale. They are completely modifying your products interactions with hardware after you have purchased the system.
I can understand Microsoft banning your console from connecting to their network. It is their network and they can run it however they want.
However, they have broken some very basic functionality of the xbox. That just should not be allowed.
What would people think if you got caught speeding that from then on they broke your radio in your car and you had no chance of repairing it. It would not be allowed, no matter what terms of service was agreed to. It violates the fact that you purchased the hardware and it no longer belongs to the company you bought it from.

And one last thing, Mircosoft didn't ban cheaters. They banned modders. As in those who gave their console the ability to play burnt games. I will admit that I am one of those people. Microsoft is definitely missing out on money from here on out though. Me and several friends would download different games and burn them to try them out. We just prefer to try before we buy. And even if we buy, we tend to play our burnt games to save the originals. The discs themselves are quite sensitive to minor scratches that your average CD player would play over just fine. This is how we bought and loved Borderlands. Bioshock. Gears of War 2. All games with awesome replayability that we bought. After we downloaded. Now that we are done there, we may still play some, but since we can't play online, we will play system link or just buy them for the PC. No more buying Xbox games though.

Even though I was banned for modding, which I think is a dumb reason to ban simply for the reasons I stated above, I am all for banning cheaters. They just don't care about cheaters as much. As long as they get those greenbacks. Which they will be getting less of now ...

Re:You made your choice, now live with it.

[Khisanth Magus]

All of those features required you to connect to Live at least once. Your console is back to the way it was when you got it other than your mods.

Re:Just saw something interesting with Borderlands

[RockoTDF]

Never said I played their games, did I? Besides the point, I don't get treated like a criminal for using their products legally.

wat?

[Anonymous Coward]

if you are going to step foot in my house you will not shit on my kitchen floor
if you do, you will be made to leave.
how is this any different?

if you don't like the rules then don't agree to them. if you agree to them and break them then, tough for you.

Re:It is their right, but aggressive move nonethel

[Swanktastic]

Warnings are an interesting idea, but I wonder how they would play out in the real life? If people are aware they get 1, 2, 3 "Get out of jail free" cards, they do adjust their behavior accordingly. If you tell folks that mods are not permitted, and then allow them to get away with it, are you just pushing the problem further down the road? They're still going to raise hell when they get banned after a warning. Perhaps warnings just give folks more incentive to experiment with signatures that won't be detected?

Some of the issue comes down to technical feasibility which I can't really speak to. If I detect a mod on a box, give them an ultimatum, and see the mod go away, can I be confident that the box is back within the terms of service?

The most interesting factor in all of this is that I keep seeing this story pop up over and over, and every time the folks pushing the story seem to be misgauging the community reaction. I think the writers think this will spark a real outcry against MS, but most of the response I have seen boils down to "you should have known better."

Re:It is their right, but aggressive move nonethel

[Kryptonian Jor-El]

It was never to stop piracy, it was to sell more consoles! I don't think that the console division and the live division should be so interlaced. Banning live on modded xboxs doesnt stop piracy obviously, but sells more consoles.

I can't believe people are OK with this!

Buy a second box

[Baby Duck]

If you really, really, really care THAT DAMN MUCH about modding your XBox, you'd buy 2 -- one for online play on XBL, the other for souped-up media center purposes. Can't afford a second XBox? Then maybe modding and/or XBL isn't for you.

A modded XBox increases the probability the end user has a cheat enabled to give you an unfair advantage in an online competitive game. I applaud any service that wants to preserve purity in a competitive arena. It's just like every major competitive sport having regulations over the specifications of all equipment used in all games.

Re:Buy a second box

[MrNiCeGUi]

Except that there are no cheats for online games, since modded consoles can only run backups, which must be signed, so any modification to the game would make it not run. So do hold on a bit to those applauds, at least until you can find a better argument.

This has not been the first time that Microsoft has banned users that broke the TOS. What's different now is the disabling of other functionality besides access to Live. That's the part that most people are objecting to.

Re:Buy a second box

[Ash-Fox]

Except that there are no cheats for online games

Sure there are, see team fortress 2.

Re:Buy a second box

[MrNiCeGUi]

I found only cheats that are available for the retail version. Is there a hacked version that can be run online on the Xbox 360 that I can't find? If not my argument still stands: a modded Xbox doesn't run modified code on Live, because all code is signed, so it has no "unfair advantage", since it can't enable any cheats that an unmodded console can't.

Re:Buy a second box

[Anonymous Coward]

A modded xbox has nothing to do with game cheats. The only thing modified is the firmware for the dvd drive that the xbox uses. I'm not sure of any game cheats that have come from changing the firmware in your dvd drive.

Re:Buy a second box

[Anonymous Coward]

That is false. Modding the dvd-rom to trick it into playing off burnt discs does not allow the console to play modified code. You can read the HDD or memory cards if you are looking to modify your saves or other game data.

Re:Buy a second box

[Anonymous Coward]

That's bullshit ,we can't edit the .xex files (360 version of the exe) because theyre signed, the hack doesnt allow you to cheat in games at all USUALLY (PGR2 was a notable exception because the developers didn't sign the data files) so basically it doesn't give you ANY edge except allowing you to run free games.

Re:Buy a second box

[Rexdude]

People forget another point- a modded Xbox for cheats is also unfair to other legitimate paying players who have not modded their consoles in anyway. So to maintain a level playing field, it becomes necessary to block the modders.

Re:It is their right, but aggressive move nonethel

[Firehed]

How so? If a company banned me from a subscription service, the LAST thing I would do is go out and buy new hardware so I can continue paying monthly fees. Anyone that would do otherwise either has way too much disposable income or needs to get their head on straight.

Re:It is their right, but aggressive move nonethel

[Richard_at_work]

You can't do any of those things on an Xbox that has never been connected to Live - I know, I have one (6 months old, never bothered plugging in the ethernet cable).

Re:It is their right, but aggressive move nonethel

[bit01]

I can't believe people are OK with this!

They're not. Probably astroturfers trying to manipulate public opinion. Ignore them, they're lying POS.

---

Astroturfing "marketers" are liars, fraudulently misrepresenting company propaganda as objective third party opinion. Anonymous commercial speech should be illegal.

Re:Just saw something interesting with Borderlands

[cbhacking]

Um... what was that about upgrade installs? I've certainly used those on non-OEM images. In fact,t he very first thing I do with an OEM image, after booting it to make sure the computer works, is reformat that shit right off.

Mind you, the previous copy of Windows was legit, but it was certainly not OEM and I had no problem using an upgrade copy. Installer checks, sees an old version, then goes ahead and reformats the drive for a clean install.

It's possible that the installer checks to see if your copy is legit, and fails if it isn't. Considering you're getting a discount (upgrade vs. full install) on the basis of having paid for a previous version of the software, this sounds perfectly reasonable to me.

It's a net loss

[NitroWolf]

My console was banned for being modded. The thing is, it was modded because the DVD drive died and I replaced it... the only way I could do this "legitimately" was to buy a whole new console, since MS claimed it was no longer under warranty. I wasn't about to spend $250 or whatever it was at the time (this was a couple years ago) to buy a whole new console when I could buy a new drive online for less than $60.

So I had a modded console... I played exactly 2 games that entire time, Rock Band and Rock Band 2. The original of Rock Band worked perfectly and when Rock Band 2 came out, I purchased it... well the original had trouble playing in the console, so I used a burned copy, which ironically played fine. During that time, I purchased nearly 100 songs for RB and RB2 and maintained a Live Gold subscription. My gamer profile confirms that I haven't played any other games than RB and RB2 since I replaced the drive.

So my console is banned. I will cancel my Live Gold account ($50+ a year or something) and I will no longer be able to purchase songs for RB2 or future RB games that come out. So by banning me, they've lost a continual revenue stream that has exceeded the purchase price of a console. Sure, they already have my money for the RB2 songs I bought, but they aren't able to get more, even if I wanted to pay them money.

What kind of stupid idea is this? Unilaterally cut off your customers who pay you money regularly and prevent them from being able to pay you any more money. Wow. What a brilliant business move.

 

Re:It's a net loss

[Ash-Fox]

My console was banned for being modded. The thing is, it was modded because the DVD drive died and I replaced it... the only way I could do this "legitimately" was to buy a whole new console, since MS claimed it was no longer under warranty.

Seems like a perfectly valid reason to me for Microsoft to ban you from xbox live. They did say no unauthorized modifications.

So by banning me, they've lost a continual revenue stream that has exceeded the purchase price of a console.

Problem is, most people are not like you, they will just buy a new xbox. So the fact you didn't buy a new one causes very little difference to Microsoft's profit margins.

Unilaterally cut off your customers who pay you money regularly and prevent them from being able to pay you any more money.

They were smart enough to keep people's xbox accounts still subscribed and paying. Either way, you're not the standard, you're the exception, most people would just buy a new xbox. Just checkout the various forums where people rage on about getting banned, few of them change consoles, but many of them buy a new xbox again.

Re:It's a net loss

[Turzyx]

While I sympathise with your situation, I think it's a little unrealistic to expect Microsft to investigate 600,000 cases on a case-by-case basis. You, ignoring whatever your motives were, modified your console and broke their ToS. I expect people could claim they modded their console to play a pirated version of a game they already own, when the original was somehow damaged.

It's not like Xbox360s are expensive by the way, they are cheap as hell second hand now, probably no more than twice the price of the DVD drive you purchased, and no, that won't be 'more money for them'.

Re:It's a net loss

[Anonymous Coward]

For everyone of you, there's 100 modders who were just using their modded xbox to play pirated games.

I don't care about pirates, or modders, but what REALLY got me about them was they were the only ones who could cheat while playing on Live. This made my experience playing CoD4 worse, because some jerk had a modded xbox and hacked game that let him use a pistol that could fire 10x faster than normal (among other cheats).

I paid for my Xbox, my Live service, and my games. I want a fair experience on Xbox Live, and if that means you can't play your modded xbox, I'm sorry, but too bad so sad. You knew what you were getting when you bought the damn thing.

Re:It's a net loss

[Anonymous Coward]

If you had been banned within the last couple of months, you would have also had your save data corrupted, and your hard drive permanently disabled. Interestingly, those two SMALL details were left out of the terms of service. If MS's Xbox 360 strategy is allowed, be prepared to have your hard drive nuked for using an non-licensed or modified program on your computer, because that's exactly what they're doing to 360 enthusiasts right now.

Re:It's a net loss

[MrNiCeGUi]

That wasn't a modded console. It was a modded controller or a third party one that has Rapid Fire built in. I have one of those for the original Xbox. The guy is probably still not banned, since AFAIK Microsoft can't scan for those. As for those other cheats, I'm sorry but I believe you just imagined them. I spent a lot of time in the Xbox Scene forums and I haven't heard any mention of a cheat. Modded consoles must run the exact same binaries as the rest of them. The original Xbox had indeed the possibility of running modded games. The 360 can't run anything but verbatim copies of originals and it doesn't allow cheating online.

Re:It's a net loss

[NitroWolf]

Seems like a perfectly valid reason to me for Microsoft to ban you from xbox live. They did say no unauthorized modifications.

One could argue that it's not a modification. It's a simple parts replacement, but none the less I doubt that argument would stand up so your point is valid.

Problem is, most people are not like you, they will just buy a new xbox. So the fact you didn't buy a new one causes very little difference to Microsoft's profit margins.

Indeed, that may be the case and your point is valid ... but only IF there was a recourse to contest the ban. Since there is not, your argument does not apply - Microsoft has lost and is losing a continual revenue stream, it does affect their bottom line. I can't get my console unbanned by any means according to MS, therefore there is no possible way for them to get any more money out of me.

They were smart enough to keep people's xbox accounts still subscribed and paying. Either way, you're not the standard, you're the exception, most people would just buy a new xbox. Just checkout the various forums where people rage on about getting banned, few of them change consoles, but many of them buy a new xbox again.

I agree, I may not be the standard, however, again... they have unilaterally cut off paying customers with no recourse to contest the issue. This is just a stupid move, plain and simple. It does nothing but hurt their bottom line ultimately/in the long run. The short term might see more console sales, but it was my impression that consoles themselves are sold nearly at cost or at a loss.

Re:It's a net loss

[NitroWolf]

While I sympathise with your situation, I think it's a little unrealistic to expect Microsft to investigate 600,000 cases on a case-by-case basis. You, ignoring whatever your motives were, modified your console and broke their ToS. I expect people could claim they modded their console to play a pirated version of a game they already own, when the original was somehow damaged.

It's not like Xbox360s are expensive by the way, they are cheap as hell second hand now, probably no more than twice the price of the DVD drive you purchased, and no, that won't be 'more money for them'.

I don't think it's unrealistic at all, since they aren't going to be investigating all 600k cases. They are investigating those that are contested. If they want to ban people for no good reason (and in my case, it literally is for no good reason), they should provide some means to contest the ban. They don't.

But again, I'm not pissed about being banned from Live - I never used it anyway and in retrospect that $50 a year I spent on it was completely wasted - I'm a little miffed I can't get more songs for RB2 and the fact that the songs I did purchase through the Marketplace were no longer accessible on the console... Nowhere in their TOS does it mention that they will steal my songs that I paid for by having a modified console.

Re:It's a net loss

[NitroWolf]

For everyone of you, there's 100 modders who were just using their modded xbox to play pirated games.

I don't care about pirates, or modders, but what REALLY got me about them was they were the only ones who could cheat while playing on Live. This made my experience playing CoD4 worse, because some jerk had a modded xbox and hacked game that let him use a pistol that could fire 10x faster than normal (among other cheats).

I paid for my Xbox, my Live service, and my games. I want a fair experience on Xbox Live, and if that means you can't play your modded xbox, I'm sorry, but too bad so sad. You knew what you were getting when you bought the damn thing.

Lord, I can never take people like you seriously, sadly. It's people like you that muddy the whole issue we are dealing with here with your ill informed and completely false information you continually propagate.

There is no possible way a modded console allowed someone to cheat in your game. A modded console only allows you to play copied games - the games on the disc must ABSOLUTELY be identical to the original or it won't run. If you got owned it was because you suck, not because someone was playing with cheats.

Except of "exclusive titles".

[SharpFang]

These are strictly monopolistic practices: console maker getting a game maker to take part in conspiring against competition from other console makers.

Re:Except of "exclusive titles".

[Dorkmaster Flek]

And the companies making the games have every right to choose only to release their game on the Xbox. I'm all for open platforms, but you can't force these companies to use them if they don't want to. All you can do is not buy their games/systems.

Re:Except of "exclusive titles".

[SharpFang]

One thing is a company choosing only one platform because it attracts their target audience, the hardware fits the needs, or simply the likely profits from the others aren't expected to be worthwhile.

Completely another is the platform owners coercing, bribing and otherwise discouraging the developers from developing for any other platform than theirs.

That is, the developers normally given choice between A, B and A+B are not being encouraged to "include A" but to "exclude B".

What is even worse is the hordes of fanbois touting and cheering their company getting yet another exclusive. This is not the nice kind of pride "I will have it, I'm no worse than you", this is the mean destructive "I am better because I will have it and you won't!".

Re:Except of "exclusive titles".

[Primevilkneivel]

One thing to support freedom of choice, completely another thing to only support it when it suits your rules. Game makers choose platforms based on how much money they can make.

Re:Except of "exclusive titles".

[SharpFang]

Look up basics of economy about monopolistic practices.

The game makers are in this case consumers of the goods of the console makers: they buy license to release a game for the console. Now if the console makers played fair, they would compete by giving lower price and higher quality product. And the customer (the game developer) would choose the better product or both if the prices are attractive and the products are similar.

But here you're getting a different scenario: the price of the product (the license) differs not only basing on details of contract between the developer and the manufacturer. It differs -negatively- basing on whether the developer is willing to buy competitor's product as well.

Imagine this: on daily basis you visit two competing grocery stores. One has good bread, the other sells superb eggs from a family farm. And one day you visit the first grocery store and the shopkeeper tells you "Look, you can have the bread for 10% cheaper and I will throw in a cheese for half the price, under condition that you don't buy any eggs from my competitor. If I see you entering the door of that shop, the deal is off." You are tempted by the offer, because the cheese at half the price is a real bargain. But you like eggs and you'd gladly buy the half-price cheese and the full-price eggs. And you can be sure the next time you come after refusing the offer, the bread will be 30% more expensive for you (and the next grocery that carries this kind of good bread is many miles away).

Re:Except of "exclusive titles".

[maggotbrain_777]

Really? And are you conspiring to play said game? Sounds like collusion to me.

Re:Except of "exclusive titles".

[Primevilkneivel]

Your analogy is flawed. The game maker is the egg farmer not the customer and he has two choices. 1. Sell his eggs in every store for wider customer base. 2. take advantage of his superior product and sell to a store that is willing to pay him more for fewer sales. After looking at his sales at all locations the egg farmer decides if he wants more sales for less or fewer sales for more. He has every right to make that decision for what ever reason he wants. Maybe Store 2 is guaranteeing a certain number of sales, maybe he doesn't wan the hassle of porting his eggs to the the other store or maybe the owner of store one is a douche bag and he doesn't want to deal with him any more. But that's his choice. Monopolies are bad because they remove choice. but exclusive deals are not monopolistic by definition, they are a way of making your service more desirable than your competitor. And if you have a competitor then there is no monopoly.

Re:Except of "exclusive titles".

[SharpFang]

You missed the point again. The deal includes two articles: your game and your choice of customer. You are artificially reducing supply to drive the demand -of a different product- up.

It's exactly the same evil as the evil side of patents and copyrights - excluding others from fair competition by reducing access to what could easily be a shared resource. In patents and copyrights the excuse is rewarding the author for creativity. But here the console makers did nothing to earn this exclusivity. They didn't make the console better than the competitors, they didn't do anything creative, they just offered a better monetary deal - for exclusion of others.

Re:Except of "exclusive titles".

[SharpFang]

If a deceitful ad campaign encourages you to buy an inferior product due to crooked magazines giving it positive reviews with falsified benchmarks compared to a superior (but falsely presented as inferior) competitor product, are you taking part in a conspiration against that inferior product or are you just being taken advantage of?

Re:Except of "exclusive titles".

[Primevilkneivel]

Exclusive titles are not the same as fraud which is what your last post is saying. I'm not interested in arguing any paranoid grand conspiracy arguments. They are small minded, foolish and serve no purpose other than making simpletons feel smarter than they really are.

Getting back to your original point

One thing is a company choosing only one platform because it attracts their target audience, the hardware fits the needs, or simply the likely profits from the others aren't expected to be worthwhile.

Completely another is the platform owners coercing, bribing and otherwise discouraging the developers from developing for any other platform than theirs.

What you are stating in this (and what I'm challenging you to prove) is that publishers can choose to be exclusive for reasons that suit your idea of what is right but if it's for money then they may not choose that.

You haven't shown why that is the case. I don't have the right to demand Uncharted on my 360 anymore than I do to demand to watch Weeds on my HBO subscription. You are making some kind of consumer protection claim that is simply unfounded. The customer has the right to choose what they want to buy, they have the right to limited protection from defect and they have the right to truthful advertising.

None of that pertains to exclusive content, that is between the publisher and distributor. The customer will choose to buy it or not but they have no sway on where it's sold and why.

Re:Except of "exclusive titles".

[CanHasDIY]

I'm all for open platforms, but you can't force these companies to use them if they don't want to.

Actually, you can, especially when said exclusion creates an unfair advantage in the market in question. Ever heard of the Sherman Anti-Trust Act? That said, there happens to be a mile-wide difference between being able to bring an anti-trust suit to court and actually doing it.

Re:Just saw something interesting with Borderlands

[neural.disruption]

Buy Apple products? Is that the same Apple that bricked a couple of IPhonys?

What good would a warning do?

[abigsmurf]

"we have dectected you have a modded consoles, if you do not travel back in time to prevent yourself from modding your console, you will be banned."

Re:What good would a warning do?

[Anonymous Coward]

Well, they could give you a second chance. If you were able to return your xbox to it's original state (original dvd firmware I believe), then you would once again get access to Xbox Live. If you get detected a second time, you'd be banned for good.
I suspect many many people would go straight. More money for Microsoft and game developers, and you'd be turning pirates into legit users. Oh well.

This people...

[neural.disruption]

So whats next? Being anger with PunkB*ster for not letting you cheat?

Modded consoles are used for:
Play pirated games(you don't need a chip to backup anything so sftu)
Cheat on online games
A few other not illegal or "immoral" activities.

So if you want more functionality(last of the above uses) on your XBox why not start a petition or something so M$ knows what you want?(I'm not saying they'll even consider it but at least you tried) Otherwise you're either engaging in illegal activities(the law is the law until its changed) that M$ can't tolerate because its bad for business and they risk themselves by allowing it, or you're an useless looser that likes to ruin everyone else experience on online games just because you can't figure out how to play tic tac toe.

Re:It is their right, but aggressive move nonethel

[Anonymous Coward]

Or they are gamers and like to play online. I know of at least 3 people that purchased new Xboxs because their old ones were banned.

It is a private network

[DaveV1.0]

XBoxLive is Microsoft's private network. Only Microsoft has a right to use it. For everyone else, the use is XBoxLive is a privilege.

Microsoft owns it. Microsoft runs it. Microsoft sets the rules. Microsoft says the service is for unmodified XBox systems and if you have a modified XBox, you can't use the service.

XBoxLive is a service and Microsoft does not have to provide the service to anyone it doesn't want to provide it to as long as it isn't discriminatory under the law.

The EFF needs to shut the fuck up until it dig it's collective head out of it's collective ass.

Re:It is a private network

[MrNiCeGUi]

These bans disable functionality not related to live and corrupt data on the console. That what this is about. I think it's you who should do the digging.

Re:It is a private network

[geekoid]

You need to actually read the article. How ever you can rant about something that isn't the EFFs point and continue to look like a jackass.

Completely ignoring the fact that the ban broke offline play as well. Also ignoring the fact that there are rules you need to play by even if you own the network.

Also ignoring the fact that my tax dollars is what made it possible for MS to have online play.

Re:It is a private network

[DaveV1.0]

And you, dumbfuck, and the EFF ignore the fact that you agree to the rules when you sign up.

Now, shut the fuck up and go back to school, shithead.

Microsoft is a government-sanctioned monopolist

[tepples]

The Bell system was, after all, a government-sanctioned monopoly

As is the company that makes the Xbox 360: it was found guilty of monopolizing the PC operating system market, and the United States government sanctions it by 1. continuing to enforce Microsoft copyrights and 2. licensing Windows from Microsoft.

at least until the Great Break Up.

Microsoft was scheduled for a breakup until the newly elected Bush administration intervened.

Small claims court

[tepples]

Unfortunately, it will be too much of a financial burden to challenge MS in court unless you have deep pockets, or lawyers working pro bono for you.

If you send in your Xbox 360 console for repair, and you get a Live-banned one back, take Microsoft to small claims court. It's amusing how often a big company will just not show up.

Monopoly? Of course.

[tepples]

No one has to do business with you unless they are a Monopoly.

Guess what the Xbox division's parent company is.

Re:Monopoly? Of course.

[hmar]

Microsoft was never even accused, let alone convicted, of holding a monopoly on console gaming. Monopoly in one market does not translate to monopoly in all markets.

Circumventing XNA limitations == piracy?

[tepples]

Basically you can play your pirated games or you can play on Live, but not both with the same console.

So are you saying any homemade game that uses speech synthesis is necessarily pirated? XNA, the "official" way to do homebrew on Xbox 360, lacks any way for a program to generate and play audio in real time.

They braking the law by locking out 3rd party stuf

[Joe The Dragon]

They braking the law by locking out 3rd party stuff like who wants to pay $149.99 for a 120gb HD? when you can buy your own for way less or why can't you replace the dvd on your own?

You can do the same with cars and they can't say you used a 3rd party lube place / auto shop and then have the dealer lock out your car. It's same thing dealer lube at a very high price vs jiffy lube or some other place at a much less cost. Not only that there is court case out there to force the car manufacturers to give out the full car diagnostic codes. It's your CAR and you should have the right to get it fixed where you want and not have the codes need to be only at a high priced dealer.

I am so happy to see you modding losers go away.

[node808]

If you want to mod your xbox, great. But stay the hell off XBL so the REAL players can have an enjoyable fair match. I am so tired of you cheating a**holes and I am so glad to see you get thrown out. So how did that ban hammer feel? I only wish I could be the guy swinging it....what an awesome job to have.

on owning a banned console

[Anonymous Coward]

you know what? I have a modded console that got banned. I have absolutely NO problem with microsoft banning consoles from xbox live. I DO have a problem with them manipulating our save games and destroying our data. If I were going in for a lawsuit I'd focus on the destruction of user data, which has been said in the past is illegal.

Re:on owning a banned console

[bryansj]

You can restore your banned console to its pre-banned state if you are handy with a soldering iron and have an old printer cable. Your console is still banned, but your NAND will be at its prior state so you can transfer saves, install to HDD, and use MCE. Just go to xboxscene.com and read about it.

The real problem...

[denton420]

It seems to me as if everyone is missing the point here.

Yes MS can do whatever they want with their network.

The problem is that they have no burden of proof to do whatever they want.

When you start affecting peoples lives with no due process it starts to become an issue.

XBox live is not a good example but I am sure there are services out there that people rely on for their lively hood and if someone were to commit an act on this network that the operator did not like they could be terminated.

What if this action was not so black and white? What if the banning from the network was unjust? Tough luck because the TOS basically screws you out of any recourse.

The user has to have some rights to protect their investment into the network from unreasonable operators.

Example, using a service within the guidelines of the TOS but cutting into the operators profit margins.

You can be damn sure that the TOS will change the next day and you will be promptly banned because there is a clause in the TOS that they may change at any moment with no warning.

But hey , I for one welcomed our corporate overlords along time ago.

Re:Just saw something interesting with Borderlands

[Yosho]

But the upgrade to put a legit copy on a new system. But apparently ... this upgrade is only properly licensed if I put it on the computer that had the OEM version of XP on it.

Well, your first mistake was buying the "upgrade" version and thinking that was the appropriate version to do a fresh install on a new system. What did you think the purpose of the non-upgrade version was?

Even at that, though, Microsoft's upgrade terms are incredibly lenient. The only requirement you have to meet when installing the upgrade version of Windows 7 is that the computer you're on must have a partition on some hard disk in it that has a previous version of Windows on it. So if you plugged your old XP drive into the new computer, Windows 7 would install just fine on the new drive, even if the old drive isn't even bootable.

Re:It is their right, but aggressive move nonethel

[CapnStank]

"It was never to stop piracy, it was to sell more consoles!"

And your proof to this claim is where? My honest opinion (See that? I'm not trying to pass it off as fact!) is that they were looking to improve the game experience for other customers. Sure not every modded box is used for cheating but many are, and those modded ones are open to doing it in the future. So by banning infringing consoles they 1) remove cheaters impacting the service to legit customers and 2) remove potential future threat to their customers.

I never bought a 360, but I did have a regular Xbox with Halo 2 back in the day. My worst experiences on XBL were competing with modded players who hacked the game. Companies aren't out there to screw every individual they can find. They do realize that a customer base grants them money. So when they take action that benefits the majority they're doing themselves a favor.

Re:It is their right, but aggressive move nonethel

[RicardoGCE]

When you are convinced that no one could possibly disagree with your pet cause and that anyone who claims to disagree is an astroturfer, you've lost the plot.

Banned XBox's no longer correctly.

[Anonymous Coward]

I have no issues with Microsoft banning modded XBox's from their network. However, banned Xbox's no longer function as media extenders. This hampers the XBox's ability to work when NOT connected to their network and this is wrong.

I do not own a single XBox, but when I heard of this ban the 1st thing that popped into my head was, "Cheap media extenders", but this is not the case.

Re:I am so happy to see you modding losers go away

[LuxMaker]

Mod parent up. He is so right. The online cheaters are losers and obviously feel the need to subsidize their self worth.

Re:I am so happy to see you modding losers go away

[Fdisk81]

How are people with pirated games not "real" players not playing fair? Granted, they didn't pay for the game; but that really doesn't affect you in the minnimum seeing as those pirated games don't have built-in cheats and play by the exact same rules you play by. Furthermore, they pay for XBox Live just like you do, just not for the games.

Re:I am so happy to see you modding losers go away

[mace9984]

If you want to mod your xbox, great. But stay the hell off XBL so the REAL players can have an enjoyable fair match. I am so tired of you cheating a**holes and I am so glad to see you get thrown out. So how did that ban hammer feel? I only wish I could be the guy swinging it....what an awesome job to have.

+1 for parent, my thoughts exactly! Even just 1 cheater in a game makes the entire game a loss for everyone. I buy these games to compete against other people, not someones auto-aim bot.

Re:Just saw something interesting with Borderlands

[RockoTDF]

My point was that if you use your equipment *legally* they won't treat you like a criminal.

Re:Just saw something interesting with Borderlands

[neural.disruption]

Is installing software on my IPhone Illegal?

Re:Just saw something interesting with Borderlands

[RockoTDF]

Touche.

Re:It is their right, but aggressive move nonethel

[bit01]

When you are convinced that no one could possibly disagree with your pet cause and that anyone who claims to disagree is an astroturfer, you've lost the plot.

If you think that astroturfers are not very active in these forums then I've got some prime Florida real estate to sell you. The fact that you pretend they don't exist, ignore my "probably" qualifier and create a straw man is telling.

I have no particular thing here other than making sure that people are aware of the lying POS that astroturfers are. Too many naive people here take them at face value and don't realize just how dishonest, manipulative and active marketers/advertisers are these days.

---

DRM is the #1 cause of software failure today.

Re:It is their right, but aggressive move nonethel

[Khisanth Magus]

Blizzard required the person who made wowglider to pay them the money he had made off of their product, after he insulted them in every way he possibly could. They were unjustified how?

Re:I am so happy to see you modding losers go away

[Anonymous Coward]

As a non console owner and long time quake player, I have to say, your an idiot and if you had spent a min reading the posts before spouting off you would know modding had NOTHING to do with cheats only for backups and pirates.

Just because you can't play don't blame your lameness on cheats that don't exist. Cheaters suck but your just looking for an excuse.

 

SYSOP

[Anonymous Coward]

Any One of you people EVER ran a BBS and offered your USERs Mail and GAMES?
yes it is the SYSOPS right and responsibility... to ban Flamers,Cheaters and etc....

No I guess NONE of you ever took on the responsibility....

Love to say this to you...

[Steeltoe]

Welcome to the world of DRM.

This IS what you get. You get to pay money AND be shafted for breaking TOS, even if you had reasonable reason to do so.. Reason doesn't ring with big corporations, only money and more money.

We've been saying this for far too long (10+ years now?), so it's not like you should act surprised or anything.

Some more functions on you XBox has also been crippled. However, there will probaby be some fixes for that in 1-6 months or so..

This is why I never left the PC platform and turned off Windows Update, although like you, haven't been gaming too much the last couple of years..

Re:It is their right, but aggressive move nonethel

[RicardoGCE]

Saying "They're not" to the GP discounts your own "probably" qualifier. You believe no one is sincere in approving of MS' measure.

Ooo... someone questioned American capitalism

[formfeed]

Know what, capitalism fan-boy: Contracts are fair between equal partners, or when you have the choice to say no without losing life or property, or when there is enough competition within an industry that you have alternatives - Or when you even had a f*ing choice, and you could lead a normal life without constantly signing away your rights.

Often you find uneven service contracts that allow providers to change terms of service, hike up fees, or terminate the contract unilaterally, because you might have acted differently from expected, or can't be milked any further, or are too much trouble, or don't act conform to their norms, or used free speech while not being on your own property.
Some examples:

• credit lenders preying on people with medical bills (there are countries where 100% APR is illegal, no matter what the contract says).
• all photo services have vague "good taste" even for private prints (Kodak even adds "blasphemy", so no naked baby Jesus cards this Xmas, I guess).
• user submitted content often gets licensed over to the company offering the blog/forum.
• broad "not liable for damages" disclaimers, even in cases where the company knew about the problem or created it (ok with a blog, not ok with a rental car)
• Walking through a mall with a peace button.
• ...

As far as the ban goes, the Xbox thing might not be the best example for uneven contract law. But by also disabling users' property it certainly is not the reaction of a fair business partner, but of someone who'd like to throw a chair at you. It is like you (probably) stole our city water, so the city will burn down your house. (You should have known, city ordinance says so, and you agreed to it by moving here)

You know, companies could behave differently, treat users with reason, fairness, and react appropriately and still do business. I recently posted to an online forum, that states : "Offensive comments might be moderated. (You can read everything, even moderated posts, by adjusting your threshold on the User Preferences Page)" (my italics) - Isn't that a much fairer way to treat people than to simply ban everyone (and destroy their computer) who mentions goats and how nice they can be as pets?

Re:Ooo... someone questioned American capitalism

[sl3xd]

I'm pretty far from a fan of pure capitalism. What I am a fan of is personal responsibility, and that one should honor the agreements they have willingly entered - regardless of the terms of the agreement. It has nothing to do with capitalism or any economic theory - it has to do with personal ethics and integrity.

Nobody forced anyone to join Xbox Live. It's purely for recreation.

While it's true that there are uneven contract laws, you admit that this isn't a good example of an uneven contract.

A lot of the so-called "disabling" comes down to this: EVERYTHING on an Xbox has DRM up the wazoo. And nearly everything requires the xbox to contact Xbox live to authorize the DRM - each and every time.

Why aren't the people who modded their xbox suing the companies who made the mods? The mod clearly is the source of their being banned; if the mod maker had done their job correctly, Microsoft wouldn't have been able to detect the modded xbox. It can be argued that the mod chips were defective products that ultimately caused the disabling of the customer's device.

Is it because the mod chips come with a blanket statement refusing liability for any damages? Why isn't anybody railing against the mod chip makers for having blanket statements that they can't be held responsible for damages?

Fuck you, you fucking lowlife loser thief.

[Anonymous Coward]

I'm sure the MPAA and RIAA would find some very interesting things if they got a subpoena for your isp records, using your comment as probable cause.

Re:It is their right, but aggressive move nonethel

[Primevilkneivel]

When it comes to modding your console there can only be one warning, after you've done it warnings are useless. I for one would despise a service that constantly sent me warning messages telling me to not do what I understand is wrong in the first place. That's the thing the haters are missing. For every person bitching about being banned there are 100 people that are glad they are gone. all this talk of backing up games is a strawman. 99% of consoles are being modded so people can pirate or cheat. As a content maker and user i have no concern for any of these people, in fact I'm glad they are gone. As someone pointed out here the laws are upheld by the people and the people support MS in this decision. And for those of you that are just backing up your games, take better care of your disks. Among the thousands that my friends and I have, none have suffered any unreasonable damage. Don't use accident or poor care to justify an insecure service.

Or as Lionel Hutz would say...

[Anonymous Coward]

"Works on contingency? No, money down!"

Re: No recourse is a problem

[gorbachev]

I think most reasonable people would agree with what you said.

I'm a heavy Xbox 360 user. I haven't been banned from XBL, because I don't go out of my way to break the TOS. I have been banned (for two weeks...once) from xbox.com, for posting something some unnamed moderator didn't like. A few of my friends have been (temporarily) banned from XBL for things like having "FFTW" in their motto.

In all cases it was impossible to get the exact reason for the ban. When I was banned from xbox.com I couldn't even send a private message to the moderators asking about why I was banned, because the ban removed my ability to PM the moderators. In all cases the bans were handed out anonymously, with no information about how to escalate if you felt you were banned erroneously. People were basically left guessing as to why they were banned with no way to find out what the reason really was. This is consistent across the board with Microsoft.

If I don't know why I was banned, how am I supposed to correct my behavior? Not knowing also often leads to all kinds of unhealthy speculation, paranoia and conspiracy theories.

Why can't Microsoft just tell people? They have all the information about why they banned someone after all.