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Modded Xbox Bans Prompt EFF Warning About Terms of Service

Soulskill posted more than 4 years ago | from the by-reading-this-you-bequeath-me-all-your-possessions dept.

XBox (Games) 254

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."

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254 comments

Growth area for lawyers (2, Insightful)

ServerIrv (840609) | more than 4 years ago | (#30321114)

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 (3, Insightful)

Anonymous Coward | more than 4 years ago | (#30321624)

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 (3, Insightful)

Anonymous Coward | more than 4 years ago | (#30321712)

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.. (3, Insightful)

Renraku (518261) | more than 4 years ago | (#30321128)

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.. (3, Insightful)

palegray.net (1195047) | more than 4 years ago | (#30321168)

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.

Well..Term limits. (0)

Anonymous Coward | more than 4 years ago | (#30321180)

The important thing is that those terms obey not only the letter, but the spirit of contract law.

Re:Well..Term limits. (3, Insightful)

palegray.net (1195047) | more than 4 years ago | (#30321198)

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:Well..Term limits. (1)

ustolemyname (1301665) | more than 4 years ago | (#30321272)

I paid them money?

Re:Well..Term limits. (3, Insightful)

palegray.net (1195047) | more than 4 years ago | (#30321286)

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. (5, Insightful)

mwvdlee (775178) | more than 4 years ago | (#30321342)

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:Well..Term limits. (1)

Z34107 (925136) | more than 4 years ago | (#30321394)

Or, to not purchase an Xbox 360, for the same reasons.

Except of "exclusive titles". (1)

SharpFang (651121) | more than 4 years ago | (#30322250)

These are strictly monopolistic practices: console maker getting a game maker to take part in conspiring against competition from other console makers.

Re:Well..Term limits. (0)

palegray.net (1195047) | more than 4 years ago | (#30321400)

That's as ridiculous as your first argument. Please go start your own company, build your own network, design your own console, have it manufactured/distributed/sold/supported, build your own customer base, compete effectively in the market, and write your own terms of service. Then, sir, you will be absolutely within your rights to permit any given device to operate on your network, and your customers will enjoy complete gaming platform independence.

Re:Well..Term limits. (1)

Richard_at_work (517087) | more than 4 years ago | (#30321992)

If your Xbox is modded, and as you've been banned from Live then thats probable, then sure - there is nothing stopping you from connecting to another service provider. Whether anyone is providing such a service is another question.

Re:Well..Term limits. (1)

Gerzel (240421) | more than 4 years ago | (#30322214)

No it isn't a question just ask MS if they will let another network work with their systems. Cease and Desist will be the first thing that happens.

Re:Well..Term limits. (1)

RockoTDF (1042780) | more than 4 years ago | (#30321444)

People have a right to fair use. By putting these restrictions on Live (although you don't *have* to use it, I know) MS is stepping on my right to make backup copies of games. (Note: I don't own any video game consoles at this point)

Re:Well..Term limits. (1)

palegray.net (1195047) | more than 4 years ago | (#30321476)

I'm a huge fan of fair use and being allowed to make backups of purchased items. Let's be honest here, though; couldn't a backup be made by simply making an exact copy of the hard drive's contents? Modding seems to be the issue here, not backups.

Re:Well..Term limits. (1)

RockoTDF (1042780) | more than 4 years ago | (#30321524)

True, but can you do that? What kind of filesystem does the 360 use? I have no idea myself.

Re:Well..Term limits. (1)

palegray.net (1195047) | more than 4 years ago | (#30321534)

That's the beauty of dd [wikipedia.org] ; it creates an exact binary image of the drive. It doesn't matter what filesystem is in use, and you can restore the resulting image to a brand new drive with dd as well.

Re:Well..Term limits. (0, Flamebait)

Cryacin (657549) | more than 4 years ago | (#30321280)

Okay, seriously. They own and operate their network. Let's reverse this: what gives you the right to tell them how to operate it?

OK, I own and operate this gun. What gives you the right to tell me what to do with it?

Hate to say it, but your oversimplifying the issue, so enjoy my strawman.

Re:Well..Term limits. (2, Insightful)

palegray.net (1195047) | more than 4 years ago | (#30321290)

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. (0)

Anonymous Coward | more than 4 years ago | (#30321282)

Yeah, why should Ma Bell allow you to use any old phone you want instead of forcing you to rent one from them? After all, it is their network!

Re:Well..Term limits. (0)

palegray.net (1195047) | more than 4 years ago | (#30321334)

It's a completely ridiculous proposition to compare the public telephone network to a gaming network. Are you going to die if you can't use the latter? Surely you can't be serious.

Re:Well..Term limits. (1, Funny)

Anonymous Coward | more than 4 years ago | (#30321352)

It's a completely ridiculous proposition to compare the public telephone network to a gaming network. Are you going to die if you can't use the latter? Surely you can't be serious.

I would

Re:Well..Term limits. (0)

Anonymous Coward | more than 4 years ago | (#30321380)

I'm not going to die either way, and don't call me Shirley.

Re:Well..Term limits. (2, Funny)

palegray.net (1195047) | more than 4 years ago | (#30321410)

In deference to your request, I shall call you Sally instead.

Re:Well.. (1, Insightful)

Anonymous Coward | more than 4 years ago | (#30321204)

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.. (3, Insightful)

palegray.net (1195047) | more than 4 years ago | (#30321218)

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.. (0)

Anonymous Coward | more than 4 years ago | (#30321936)

I could create an arbitrarily complicated situation in which someone would indeed die as a result of not being able to log on to some gaming network.

Re:Well.. (0)

Anonymous Coward | more than 4 years ago | (#30322258)

well, for one, I'm _not_ against the bans microsoft imposes on modded systems. (the last ones coming to players using pre release leaked pirated version of modern warfare 2 on the live network totally assuming they're safe, go figure)

but a real problem is for those poor fellow which send an xbox to be repaired an the returned one is banned. there is no way to lift such a ban, even if it's not the customer fault.

Re:Well.. (0)

Anonymous Coward | more than 4 years ago | (#30321518)

Actually in some non US country you cannot refuse service once you have made an offer by putting an object for sale and attaching a prize to it.

Re:Well.. (1, Insightful)

Anonymous Coward | more than 4 years ago | (#30321258)

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.. (0)

Anonymous Coward | more than 4 years ago | (#30321266)

"If the customer doesn't think so, s/he can choose not to give that company money. It's very simple."

Yes, that is a brilliant idea. Because you just have to look a little bit to find a company that actually cares about you and not gouging as much money as possible. It's certainly not as though every company will demand that you agree to a completely one-sided relationship where they have all the power and set all the rules.

Just don't use their service, how brilliant. Enjoy your life of never using any service from any company ever because no company offers a truly fair shake in the form of a TOS.

Customers are essentially choosing which leech-like or parasitic organism that they want to suck their blood. The notion "if you don't like it, then don't buy it" mentality would essentially mean that you couldn't ever buy or consume anything at all. Since consumers are faced with two options: deal with jackals or don't own or consume anything, then it ought to be the duty of one's government to set and enforce reasonable regulations. IE, companies gets money for providing a services wherein there is a reasonable balance of power in the relationship between the company and the customers.

Re:Well.. (-1, Troll)

palegray.net (1195047) | more than 4 years ago | (#30321306)

I don't get the impression you're a big fan of capitalism. Please don't try to claim you are, because you can't have it both ways. Go start your own company and establish these glorious terms of service you so dearly want.

Re:Well.. (-1)

Anonymous Coward | more than 4 years ago | (#30321348)

I get the impression that you are a big fan of straw-man debating tactics. You chide me for claiming to be a big fan of capitalism before I even have a chance to make such claims.

Don't worry, though. I wouldn't dare try to give you the impression that I'm a big fan of capitalism. I am, in fact, not a fan of a glorified system of mob-rule and anarchy.

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.

It's really a sign of how bad things are when a fair agreement between a company and its customers is viewed sarcastically as "glorious" and not simply as the norm it should be.

Re:Well.. (3, Informative)

palegray.net (1195047) | more than 4 years ago | (#30321438)

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.. (0)

Anonymous Coward | more than 4 years ago | (#30321556)

"Here's the deal: we live in a society that operates under rule of law. If something isn't specifically forbidden, it's permitted."

Here's the deal: what you just said couldn't be farther from the truth. There are limitless things that are not specifically forbidden that are still forbidden. Countless laws are vague and open-ended.

I get the impression that you don't know how case law or precedent works in the slightest. Courts generally follow two precedents when considering enforceability of certain clauses of contracts.

Is the clause in question unconscionable? Is the contract, as whole, presented in a "take it or leave it" manner with no room for negotiation? If these two are met, then a court is compelled to not enforce that clause of a contract. And someone really shouldn't need to take such thing to a court to get a proper result. It's not unreasonable to expect that people shouldn't do illegal things even if you don't take them to court.

"You can ramble on about supposed morality considerations all day..."

Since when is wanting to be dealt with fairly a "supposed morality consideration"? Again, why is expecting that a company deal with you in a fair manner such an outrageous request?

"You aren't going to die if you can't log on to a gaming network and your civil rights aren't being violated"

I get the impression you like beating up straw men. Did one abuse you as a child? I never said anyone would die or anyone's civil rights were violated. I'm merely saying that TOSs are one-sided, unfair agreements that companies should not have the right to enforce.

Re:Well.. (2, Insightful)

Firehed (942385) | more than 4 years ago | (#30321838)

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.. (0)

Anonymous Coward | more than 4 years ago | (#30321912)

"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."

Wait, you mock "whining on a blog" but then say that whining on a microblog is more productive? Oh, and look at that, I glance over and there's a gremlin destroying my computer but no one will believe me because I'm in the fucking twilight zone.

"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."

Again, I should Twitter? Are you really going to tell me that Twittering is NOT crying in a corner? Why exactly is a Twitter post more meaningful than a /. post. Wait, don't answer that. I don't think I want that answer....

Re:Well.. (1)

Gerzel (240421) | more than 4 years ago | (#30322204)

Aye and with all networks playing by the same basic tos and the internet and other networks increasingly becoming part of everyday life and an increasing requirement for employment and business allow said companies to arbitrarily dictate who/how/when their services are used is completely fair.

Re:Well.. (1)

mark-t (151149) | more than 4 years ago | (#30321244)

"What also angers me is how it would be easily within the law to ban for almost ANY reason"

That's always been true, whether they explicitly say so or not. They seem to exercise this prerogative rarely enough, however, that a vast majority of people don't care just how much control Microsoft wields in this matter, or at least don't care enough to stop using that system.

Re:Well.. (1)

dagamer34 (1012833) | more than 4 years ago | (#30321294)

The important thing to realize is that Microsoft has actually REMOVED functionality from a banned console. It cannot be used as an extender for Windows Media Center. What is to stop them from crippling your device completely if they feel like it? While Microsoft doesn't have to let you use their service (a separate issue all together), I've never seen a company allowed to cripple your hardware after you've purchased it, no matter what you've done.

Re:Well.. (1)

TrancePhreak (576593) | more than 4 years ago | (#30321392)

You obviously don't remember early TiVo's getting cripled.

3. Changes to your TiVo Basic service. TiVo may at its discretion and from time to time change, add or remove features and functionality of the TiVo Basic service or the TiVo DVR without notice.

http://www.tivo.com/abouttivo/policies/tivobasicandtivoplusserviceagreement.html [tivo.com]

Re:Well.. (1)

Richard_at_work (517087) | more than 4 years ago | (#30322006)

I have an Xbox 360 thats never been connected to Live, and I can't use it as a Windows Media Center. They haven't removed any functionality from a banned console...

Re:Well.. (1)

Richard_at_work (517087) | more than 4 years ago | (#30322010)

Sorry, I meant 'Windows Media Center extender'.

Re:Well.. (1)

entoke (933113) | more than 4 years ago | (#30322164)

The annoying part can be how those arcade games you bought seem to revert to being demos when the xbox knows it's been banned.

anything goes (1)

muphin (842524) | more than 4 years ago | (#30321140)

its true, whatever they write on the ToS they feel that as long as its written down they have the right to do anything.
they disconnect you for some arbitrary reason they point to section 57 paragraph 3, blah blah blah smurfs from monday to wed aren't allowed to be blue, except on a full moon and only if you sacrifice a small child.....
I really hope the EFF peruses this and establishes a positive precedent so future legal battles and gauge on this and finally get some rights back.

Re:anything goes (2, Interesting)

palegray.net (1195047) | more than 4 years ago | (#30321178)

Rights? What "rights" do you have here aside from choosing whether or not to give a company money? Your basic human rights aren't being violated here, and I don't see anything illegal happening with respect to a company's right to set terms of service for the use of their network.

Re:anything goes (1)

atheistmonk (1268392) | more than 4 years ago | (#30321220)

Sure. Unfortunately I have no choice but to accept the ToS if I want to play Fable 2 as last I heard there was no PC version in the works :(

Re:anything goes (0)

Anonymous Coward | more than 4 years ago | (#30321240)

And accessing the Live network is in no way a requirement to play this game. I don't see the conflict here.

Re:anything goes (0)

Anonymous Coward | more than 4 years ago | (#30321288)

There's a key "if" in your statement there. You can always choose to not play Fable 2.

Re:anything goes (0)

Anonymous Coward | more than 4 years ago | (#30321704)

The best thing to do is not use an xbox. Vote by purchase (or non-purchase).

less xbox's more games for PCs. period.

Re:anything goes (1)

arbiter1 (1204146) | more than 4 years ago | (#30321254)

They have the right to run their service the way they want to. they also have the right to change their terms of service when ever they want to and don't even have to tell you. if you thought modding a console and never would get banned well they you were ignorant and its no excuse to take it out on them for it, just like the law you are still guilty

Re:anything goes (1)

palegray.net (1195047) | more than 4 years ago | (#30321268)

I guarantee that the vast majority of terms of service publications include a clause that the customer agrees to be bound by future versions of the TOS. It's my opinion that notifying customers each time a substantive change to the TOS is made is the right thing to do, but there's no real requirement for companies to do so (unless applicable law requires such notification).

Re:anything goes (0)

Anonymous Coward | more than 4 years ago | (#30321850)

(unless applicable law requires such notification).

It does in many countries

Re:anything goes (1)

shutdown -p now (807394) | more than 4 years ago | (#30321718)

They have the right to run their service the way they want to. they also have the right to change their terms of service when ever they want to and don't even have to tell you.

Actually, if ToS were changed, and users were banned under the changed clauses, I think there would be a point here. It may be legal, but personally, I find contracts that can mutate like that abhorring, especially when you pay dearly for the privilege of entering one in the first place (i.e. ToS change, you don't like the new ones, but if you drop out now your Xbox is useless and you've paid for it... and the only information you had when you paid the money was the original ToS).

In this case, however, I don't see how that applies. So far as I know, modding restrictions were always in the ToS, so people who bought Xbox originally knew exactly what they were buying, and what the conditions are (or at least they have no excuse for ignorance).

Re:anything goes (1)

Shadow of Eternity (795165) | more than 4 years ago | (#30322126)

You forgot that most ToS', unlike contracts, can't (reasonably*) even be read until you're no longer able to back out of the deal.

*insert Hitchhikers Guide reference here.

Re:anything goes (0)

Anonymous Coward | more than 4 years ago | (#30321530)

What "rights" do you have here aside from choosing whether or not to give a company money?

The right to complain about crappy product characteristics as much and as long as he feels like it.

While ignoring lying astroturfers pushing company propaganda who dishonestly try to imply that any alternative point of view not in keeping with the company's propaganda is somehow not okay.

It is their right, but aggressive move nonetheless (4, Interesting)

Snatch422 (896695) | more than 4 years ago | (#30321202)

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:It is their right, but aggressive move nonethel (1)

palegray.net (1195047) | more than 4 years ago | (#30321236)

I wholeheartedly agree with this. Terms of service are supposed to be the "teeth" that allow a company to take actions they believe are in the best interest of the network, other customers, and the company in general. That said, companies should do as much as possible to work through issues with customers before taking "final action" on any case. Exceptions would certainly need to be made for extreme cases, but immediate permanent action shouldn't be the rule. That's just awful customer service.

Re:It is their right, but aggressive move nonethel (2, Insightful)

cbensinger (127227) | more than 4 years ago | (#30321242)

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:It is their right, but aggressive move nonethel (1)

dagamer34 (1012833) | more than 4 years ago | (#30321316)

They also can't act as Windows Media Center extender, which means it's LOST functionality, compared to a 360 that will never connect to the Internet.

Re:It is their right, but aggressive move nonethel (2, Informative)

cbensinger (127227) | more than 4 years ago | (#30321350)

Yeah, and they also can't install games to the hard drive, nor move accounts back and forth from a banned system to a non-banned system from what I understand. So yes there is a loss of functionality as well.

Re:It is their right, but aggressive move nonethel (1)

Richard_at_work (517087) | more than 4 years ago | (#30322020)

You can't do any of those things on an Xbox that has never been connected to Live - I know, I have one (6 months old, never bothered plugging in the ethernet cable).

Re:It is their right, but aggressive move nonethel (1)

Kryptonian Jor-El (970056) | more than 4 years ago | (#30321644)

It was never to stop piracy, it was to sell more consoles! I don't think that the console division and the live division should be so interlaced. Banning live on modded xboxs doesnt stop piracy obviously, but sells more consoles.

I can't believe people are OK with this!

Re:It is their right, but aggressive move nonethel (1)

Firehed (942385) | more than 4 years ago | (#30321872)

How so? If a company banned me from a subscription service, the LAST thing I would do is go out and buy new hardware so I can continue paying monthly fees. Anyone that would do otherwise either has way too much disposable income or needs to get their head on straight.

Re:It is their right, but aggressive move nonethel (1)

bit01 (644603) | more than 4 years ago | (#30322048)

I can't believe people are OK with this!

They're not. Probably astroturfers [womma.org] trying to manipulate public opinion. Ignore them, they're lying POS.

---

Astroturfing "marketers" [wikipedia.org] are liars, fraudulently misrepresenting company propaganda as objective third party opinion. Anonymous commercial speech should be illegal.

Re:It is their right, but aggressive move nonethel (1, Insightful)

Anonymous Coward | more than 4 years ago | (#30321460)

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.

You made your choice, now live with it. (1)

westlake (615356) | more than 4 years ago | (#30321550)

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

The only thing irreversible is that the modded box goes off-line and stays off-line. It cannot be used as a licensed Microsoft "media extender."

Your warranty is voided.

psychologically speaking they are angering a great many customers

Microsoft couldn't care less.

The cheaters are given the boot - to a loud round of applause.

The more attractive and desirable the online experience, the less valuable the pirated game. Windows and Office are headed in the same direction.

Re:It is their right, but aggressive move nonethel (1)

Swanktastic (109747) | more than 4 years ago | (#30321630)

Warnings are an interesting idea, but I wonder how they would play out in the real life? If people are aware they get 1, 2, 3 "Get out of jail free" cards, they do adjust their behavior accordingly. If you tell folks that mods are not permitted, and then allow them to get away with it, are you just pushing the problem further down the road? They're still going to raise hell when they get banned after a warning. Perhaps warnings just give folks more incentive to experiment with signatures that won't be detected?

Some of the issue comes down to technical feasibility which I can't really speak to. If I detect a mod on a box, give them an ultimatum, and see the mod go away, can I be confident that the box is back within the terms of service?

The most interesting factor in all of this is that I keep seeing this story pop up over and over, and every time the folks pushing the story seem to be misgauging the community reaction. I think the writers think this will spark a real outcry against MS, but most of the response I have seen boils down to "you should have known better."

get a Gaming PC (1)

Dan667 (564390) | more than 4 years ago | (#30321214)

and avoid vendor lock-in problems like this and crap quality (red ring of death)

Re:get a Gaming PC (0)

Anonymous Coward | more than 4 years ago | (#30321674)

The problem with that, is that game producers are gaga over consoles. The reason for this is that there is a lot more control the manufacturer has, and far less control a user has. This allows for more chargable mechanisms, be it DLC, subscriptions to keep access to multiplayer content.

Consoles are easy to debug for. You know that if you write code for the XBox 360, it will work on every machine out there, unless there is some subtle revision glitch, or that one model might have a bigger hard disk than another. PC game development is harder because there are so many hardware combinations, OS revisions, and other software that might get in the way. Thus relatively lengthy betas.

Finally, it used to be with consoles that the CD/DVD/cartrige of a game had to be 100% perfect. You had to have everything completely debugged, because there would be no second spin of a cartridge if there were any mistakes. However, newer consoles allow for updates. This completely changes the development cycle for consoles. Now the console game makers can spin essentially betas, and fix it in an update after the rush for sales numbers is over, or just not bother to fix it at all if the game doesn't sell well. So, a company in theory can just get a game to build, have it mostly work, ship it and during the interim time before it hits the stores, push out an update to get it to some sort of playability.

There is also the fact that people who have the cash to buy consoles generally will have the cash to buy games, be it new or used. PCs, someone might just buy it for browsing the web, running WoW, and nothing else.

Of course, if the large PC gaming companies move away from the PC market in toto, this leaves a vacuum, and it will be almost certain that it will be filled by either new indies, or older companies like Blizzard who do write for the PCs will further lock down their segment of the market.

Re:get a Gaming PC (2, Insightful)

cbhacking (979169) | more than 4 years ago | (#30322022)

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 they believe (1)

arbiter1 (1204146) | more than 4 years ago | (#30321222)

MS believes that if you mod your console it is sole purpose for playing pirated games even if you only use backup legit games, they have no way to tell the difference if you own the game legit or pirated it, or if you even download games at all. Its a case of Collateral Damage. Since you remote the copy protection coding outta the console they actually have a case against you like mpaa had against programs that removed the protection on dvd's for making backup's

Ooo... now contracts must not matter to EFF (3, Informative)

sl3xd (111641) | more than 4 years ago | (#30321238)

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 (1, Informative)

Anonymous Coward | more than 4 years ago | (#30321310)

Last time I checked, the enforceability of EULAs are nebulous at best. I would rarely call a EULA an Iron-clad contract.

Re:Ooo... now contracts must not matter to EFF (0)

Anonymous Coward | more than 4 years ago | (#30321318)

You are conveniently ignoring the fact that typical service provider contracts can be changed at any time and in any way by the service provider. Only one party has to abide by the contract. That is no kind of contract at all.

Re:Ooo... now contracts must not matter to EFF (5, Insightful)

DNS-and-BIND (461968) | more than 4 years ago | (#30321386)

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 (1)

Nithendil (1637041) | more than 4 years ago | (#30321768)

Isn't that par for the course for nearly all software? Or does Ubuntu not have a "we're not responsible for anything" clause?

Re:Ooo... now contracts must not matter to EFF (1)

10101001 10101001 (732688) | more than 4 years ago | (#30322072)

Or does Ubuntu not have a "we're not responsible for anything" clause?

IIRC, Ubuntu doesn't have an EULA. Having said that, if you end up redistributing parts of Ubuntu, just about every part of Ubuntu comes with a redistribution license containing a "we're not responsible for anything" clause. Ie, you become the person responsible to others if you redistribute. I don't think sharing an Ubuntu CD counts, so long as it's a copy from Canonical.

Thinking about it some more, that possibly means whatever mirror you might use would be the one you'd sue. I'm not sure what the legal precedent is in this area, since I've never heard of anyone being sued over generally available software. I don't think EULAs really have anything to do with that, though.

Re:Ooo... now contracts must not matter to EFF (3, Funny)

SharpFang (651121) | more than 4 years ago | (#30322272)

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:Ooo... now contracts must not matter to EFF (0)

Anonymous Coward | more than 4 years ago | (#30322322)

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.

Are you honestly dim enough to believe that an "agreement" like that would hold up in a court of law? If you don't agree with the terms, you don't click the "I agree" button. Simple as that. Now, if you want to take your employer to court for attempting to make you agree to terms with which you don't agree, that's another matter entirely, and one where you may actually have some recourse. But arguing that "an inanimate object had an opportunity to respond but didn't" is just plain daft.

Re:Ooo... now contracts must not matter to EFF (1)

selven (1556643) | more than 4 years ago | (#30322328)

Well, you've voluntarily decided to do business with Microsoft. Clearly since you're not willing to change your job that "never, ever" isn't strictly accurate.

Re:Ooo... now contracts must not matter to EFF (3, Informative)

bwcbwc (601780) | more than 4 years ago | (#30321388)

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 (1)

SharpFang (651121) | more than 4 years ago | (#30322280)

EFF just says "Caveat Emptor".
People have willingly signed the contract. They can now be screwed left and right to the company's desire. So beware what you do because you can be next.

Re:Ooo... now contracts must not matter to EFF (1)

superandy47 (941362) | more than 4 years ago | (#30322362)

I don't doubt that MS is in the (legal) right here - XBL is their network, and they can do whatever the hell they want with it. Personally, my main problem is in the way that console games have become more like PC games in the way that they are commonly shipped full of bugs, which are lately 'fixed' via patches.

My 360 was banned from XBL for having modded firmware. Even though I don't doubt that the majority of modded consoles were modded to play pirate games, mine wasn't, and I'm sure that anyone who has ever had a kid destroy a NZ$100 disc will agree that backing up legitimately-purchased games will agree is fair.

Now I'm stuck with a bunch of purchased retail games shipped with game-breaking bugs, which will -never- be fixed. In FIFA 10, a massive bug (among hundreds of others) causes a manager mode save to be stuck with a club having negative $2.4 billion, ruining the game completely. This will never be fixed for me, and presumably thousands of others. Similar game-breaking bugs in other games, such as Lips (permanently stuck on 'incredibly easy' mode) pre-patch will never be solved for people like me with modded firmware and legitimate retail games.

Re:Ooo... now contracts must not matter to EFF (0)

Anonymous Coward | more than 4 years ago | (#30321896)

Shrink-wrap contracts are not enforceable. Ever. You can't read the contract in the box, BEFORE you buy the product. And contract law has only existed for about 1,200 years, not "millenia." I avoid shrink-wrap contracts whenever I can, simply because I'm not a lawyer, and could not understand every possible stipulation that MS or other corporate money machines could put in them (and nobody ever reads them in detail to begin with; did you take your Windows license to your lawyer before you installed it? Did you make your lawyer read the screen of your new Dell PC before you clicked "Accept"? Think not.) I certainly didn't pore over the paperwork with a fine tooth comb when I bought my (USED!) PS2 (no paperwork in the box!).

Just saw something interesting with Borderlands... (3, Interesting)

Anonymous Coward | more than 4 years ago | (#30321362)

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:Just saw something interesting with Borderlands (1)

RockoTDF (1042780) | more than 4 years ago | (#30321472)

"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."

Yep. This is why I pirate MS products, buy Apple products and download linux for free. Because MS are still the evil empire.

Re:Just saw something interesting with Borderlands (2)

Khyber (864651) | more than 4 years ago | (#30321540)

"You can't even properly lend or swap games with friends anymore"

"Yep. This is why I pirate MS products, buy Apple products"

Logic fail.

Re:Just saw something interesting with Borderlands (1)

RockoTDF (1042780) | more than 4 years ago | (#30321594)

Never said I played their games, did I? Besides the point, I don't get treated like a criminal for using their products legally.

Re:Just saw something interesting with Borderlands (1)

cbhacking (979169) | more than 4 years ago | (#30322056)

Um... what was that about upgrade installs? I've certainly used those on non-OEM images. In fact,t he very first thing I do with an OEM image, after booting it to make sure the computer works, is reformat that shit right off.

Mind you, the previous copy of Windows was legit, but it was certainly not OEM and I had no problem using an upgrade copy. Installer checks, sees an old version, then goes ahead and reformats the drive for a clean install.

It's possible that the installer checks to see if your copy is legit, and fails if it isn't. Considering you're getting a discount (upgrade vs. full install) on the basis of having paid for a previous version of the software, this sounds perfectly reasonable to me.

Online services? That's all? (1)

bwcbwc (601780) | more than 4 years ago | (#30321372)

While they're at it, they should get with Consumers' Union and go after the wireless providers, credit card lenders and all those other services where the terms of service are basically "we've got the gold, we make the rules". Onerous contract terms and gullible consumers that think they have to have these services are the root of all evil in our service/consumer based economy (speaking for the US).

Oh, FFS. (1)

awyeah (70462) | more than 4 years ago | (#30321442)

Did I read that correctly? "rely on them to get on with our everyday lives"? I think my life would go on just fine if I never connected to Xbox live again.

wat? (1, Interesting)

Anonymous Coward | more than 4 years ago | (#30321604)

if you are going to step foot in my house you will not shit on my kitchen floor
if you do, you will be made to leave.
how is this any different?

if you don't like the rules then don't agree to them. if you agree to them and break them then, tough for you.

Buy a second box (3, Interesting)

Baby Duck (176251) | more than 4 years ago | (#30321760)

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.

Re:Buy a second box (1)

MrNiCeGUi (302919) | more than 4 years ago | (#30322138)

Except that there are no cheats for online games, since modded consoles can only run backups, which must be signed, so any modification to the game would make it not run. So do hold on a bit to those applauds, at least until you can find a better argument.

This has not been the first time that Microsoft has banned users that broke the TOS. What's different now is the disabling of other functionality besides access to Live. That's the part that most people are objecting to.

FIRsbT POST (-1, Troll)

Anonymous Coward | more than 4 years ago | (#30322228)

by fuNdamental [goat.cx]

It's a net loss (5, Interesting)

NitroWolf (72977) | more than 4 years ago | (#30322242)

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.

 

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