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.

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..

[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..

[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..

[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..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: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: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.

[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: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: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: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.

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: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.