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

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..

[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..

[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..

[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?

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.

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

[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

[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: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.

[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?

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.

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.

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.

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.

 

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."