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

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

[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: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.