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

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.

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?

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: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.

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."