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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."
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.
"Oh no... he found the
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.