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Xbox Live Class Action Being Investigated 453

Posted by kdawson
from the modders-unite dept.
eldavojohn writes "Were you negatively affected by the recent ban on Xbox Live for modifying hardware you own? Did you modify yours for homebrew or altering things you paid for and not to engage in piracy? Abington IP would like to hear from you and may be able to help. From that page: 'If you are an Xbox Live subscriber, had your modified Xbox console banned from Xbox Live, were not refunded a prorated sum for the time left on your subscription, or have experienced other problems as a result of being banned, and would like to participate in a class action against Microsoft, please submit your information below.' Someone is finally standing up for the legitimate hobbyists. Should Microsoft worry?"
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Xbox Live Class Action Being Investigated

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  • by mnslinky (1105103) * on Friday November 20, 2009 @01:56PM (#30173826) Homepage

    These class-action lawsuits only serve one purpose - to make the lawfirm originating the class action a boatload of cash.

    • by LWATCDR (28044) on Friday November 20, 2009 @02:00PM (#30173900) Homepage Journal

      Yep those that where banned may get $5 if that. The law firm will get a private jet and maybe an island out of it.
      Please folks the rules are you can not get on live if you mode your box. You still have your XBox you just can not play it on line anymore.
      I hope this gets tossed out so fast your head spins.

      • by v1 (525388) on Friday November 20, 2009 @02:12PM (#30174126) Homepage Journal

        and $5 more in my pocket for shooting off an email or signing a paper is fine by me, even if someone else thinks maybe I'm entitled to $50.

        • by GaratNW (978516) on Friday November 20, 2009 @02:38PM (#30174604)
          $5 in my pocket from supporting a spurious, ludicrous lawsuit is $5 I wouldn't take. I hope the originators of the lawsuit get slapped with all the defendant's legal fees on top of their own. "We broke the terms of service but.. waaaaahhhhh.. pay us anyway!". And ultimately parent is right. This is nothing about "protecting the rights of legitimate modders", and entirely about lining the pockets of the law firm with other people's money.
        • Re: (Score:3, Insightful)

          by maharb (1534501)

          And you are what is wrong with America. Many of these lawsuit are unjustified and cost the companies millions to fight. Essentially we pay more for every product and service because companies have to build the cost of fighting litigation in, the only problem is the LAWYERS collect that extra built in cost, not the consumer. Your short sightedness is amazing. Have fun paying $50 more for the next X-box so you can get your $5 class action settlement on the next infraction, years after paying the extra $50.

        • Re: (Score:3, Insightful)

          by CodeBuster (516420)
          The problem with that line of thinking is that it lacks sophistication. Sure, you may eventually get your $5 settlement check, but in the meantime you have paid many times that amount in higher costs for a broad range of consumer goods and services due to the excessive number of class action lawsuits whose costs have been passed on to you the consumer in the form of higher prices. Most class action lawsuits are simply tools which attorneys use to extract uncompensated value from society rather than the impl
      • by Chyeld (713439) <chyeld@gmai l . c om> on Friday November 20, 2009 @02:13PM (#30174152)

        I don't care if they get to buy Fantasy Island out of the settlement money, if a law firm is able, via class action or any other means, to make it illegal for a company to screw with my console and remove functionality from it simply because it was modded (i.e. not because I was cheating, pirating, or because my mod 'broke it') then I say full steam ahead and find someone to yell "Ze Plane! Ze Plane!" cause it's worth it to prove that what I buy is MINE.

        • by LWATCDR (28044) on Friday November 20, 2009 @02:20PM (#30174286) Homepage Journal

          They didn't take any functionality from your XBox at all. They booted you off THEIR NETWORK.
          When you first got on the network the agreement was that if you mod your XBox your booted off.
          You AGREED TO THAT and now it has happened.
          It is COMPLETELY legal and frankly fair.

          • by bryansj (89051) on Friday November 20, 2009 @02:30PM (#30174448)
            So disabling Media Center Exender and hard drive game install functionality as well as the ability to transfer game saves from a banned 360 to an unbanned one didn't take anything away? * A recently banned 360 now has its data appear corrupt to non-banned units so you have now lost all game saves and any gamerscore earned since the ban. You also cannot install games to the hard drive or play previously installed games. You can still stream to the 360, but the Media Center Extender is now disabled.
            • Re: (Score:3, Informative)

              by radish (98371)

              The data on the HDD is now tainted, as a lot of what modders do is around cheating achivements by trading hacked save games, this seems reasonable to me.

              And gamerscore has nothing to do with the data on the drive - I could wipe out all my saves tonight and I'd still have all my earned achievements and gamerscore - they're stored on the XBL servers.

              • Re: (Score:3, Informative)

                by bryansj (89051)
                I said that the gamerscore earned "since the ban" is lost. Your gamerscore/gamertag is now frozen at the point of your last Live connection prior to the ban. You can't officially earn any more points until you recover on a legit console. Anything that you do on your banned console is now stuck on your banned console.
                Not that this is the end of the world, but it is to some people. If you earn 5,000 GS points since being banned the only way to show it off is to bring your buddies to your house and show th
                • Re: (Score:3, Insightful)

                  by Nick Ives (317)

                  That's because it's possible to use hacks to artificially inflate your gamerscore. It's quite right that MS should be booting pirates off their network in this manner.

            • by Duradin (1261418) on Friday November 20, 2009 @02:34PM (#30174534)

              I'd wager that those functions have "*requires an active connection to Xbox Live" somewhere near them in the manual.

            • Re: (Score:3, Insightful)

              by fyrewulff (702920)
              But if you're running custom code anyway, you'll have replacements for both of those. Right?
          • by commodore64_love (1445365) on Friday November 20, 2009 @02:38PM (#30174598) Journal

            >>>You AGREED TO THAT and now it has happened.

            P.S.

            In the Paypal case the paypal lawyers made that same argument ("users signed the end user agreement and license"), which the Federal judge negated by saying citizens can Not sign-away legally-protected rights. In effect he nullified paypal's EULA. I fully-expect the same to happen with Microsoft's Xbox Live EULA.

          • by geekoid (135745)

            No it's not.

            EULAs have gotten out of hand, and they are not reasonable to read. The only way to change the industry so it is reasonable is through lawsuits. Sad, but true. They also disable other non network related features as well.
            Plus they advertise it as part of the system.

            • by mea37 (1201159) on Friday November 20, 2009 @03:07PM (#30175160)

              Yeah, because the years of lawsuits up till now have done a lot to make EULA less obnoxious.

              Oh, wait, quite the opposite is true. Inconceivably, industry has built so much around the idea of EULA that now courts have been siding with them apparently out of fear of the disruption that would be caused by forcing a change, even in cases where the EULA is being blatantly used to abuse the customer.

              If you want to reform EULA, take it to the legislature. Trying to change the law through the judicial system is folly.

          • They booted you off THEIR NETWORK.

            Perhaps. But the kicker here is that the Xbox 360 is unable to be used on any other network. Microsoft has taken key steps to ensure that 360s cannot be used over VPNs or any other network other than a local LAN. Individual 360s pass encrypted keys to one another upon first connection and if they do not receive an appropriate replay in 30ms, a connection is not made. It was a blatant attempt to disable alternative services like Xlink Kai and completely lock down online play on the console.

            We are dealing with a Walled Garden here. Microsoft is exerting complete control over 360 consoles regardless of who owns them. If it were possible to connect to VPNs like Xlink Kai or others, this ban would be a problem. But it's not. Microsoft sold these guys a console which they said could be used to play online games, and now these console can't be used to so much as send a private message.

            This is akin to Linksys deciding that installing Linux on your router means they can disable it from connecting WAN's anymore. Sure, you can use it in a LAN, but is this the product you paid for?

            I'm sympathetic to Microsoft's position with regard to cheating and glitching on their network(Though I'm sceptical modded consoles are a major player here). I'm also sympathetic with regard to piracy on modded consoles. But they dug themselves into a hole here when they locked down the online capabilities of their machine without advertising that fact.

            Personally, I feel that paying to play online is a rip off anyway. Perhaps this will convince people that subscribing to a game service that treats you like a consumer instead of a player isn't in their long term interest. If you're relying on someone else's servers to play your games, then it's only a matter of time before you won't be able to play those games anymore.

            • by JSBiff (87824) on Friday November 20, 2009 @03:36PM (#30175726) Journal

              "Perhaps. But the kicker here is that the Xbox 360 is unable to be used on any other network."

              Which is why I don't own one.

              Nobody put a gun to your head and made you buy an XBox. I'm a PC gamer because I appreciate the freedom to use the FULL INTERNET, and not be locked down to some service like XBox Live. When the orig. XBox was first coming out with online functionality, I thought "Oh, cool. Consoles are finally catching up to what PCs have been able to do for 5 or 6 years now. Better late than never, I guess". Then I read that even though it used the Internet, it would only connect to Microsoft's servers, and I thought, "That's just like Microsoft - use an Internet connection which can connect to the whole world, but then lock you to connecting to 1 server."

              Seriously, people need to start taking responsibility for their buying decisions. You know what Microsoft and Apple are like, yet people moan and whine about how they lock what their users can do with the XBox or iPhone. If you don't like the restrictions the seller is putting on you, just don't buy what they are selling. If enough people do that, the problem will fix itself. But, too many people want to run to the government after the fact and complain.

              Do I think this is kind of bone-headed on the part of Microsoft? Yes, I do. But, I agree that it's their network, and they can basically set the terms of use for it. Caveat emptor.

            • Re: (Score:3, Insightful)

              by Bakkster (1529253)

              They booted you off THEIR NETWORK.

              Perhaps. But the kicker here is that the Xbox 360 is unable to be used on any other network. Microsoft has taken key steps to ensure that 360s cannot be used over VPNs or any other network other than a local LAN. Individual 360s pass encrypted keys to one another upon first connection and if they do not receive an appropriate replay in 30ms, a connection is not made. It was a blatant attempt to disable alternative services like Xlink Kai and completely lock down online play on the console.

              We are dealing with a Walled Garden here. Microsoft is exerting complete control over 360 consoles regardless of who owns them. If it were possible to connect to VPNs like Xlink Kai or others, this ban would be a problem. But it's not. Microsoft sold these guys a console which they said could be used to play online games, and now these console can't be used to so much as send a private message.

              Isn't that kind of the point? You buy into the entire system, both their hardware and their network are linked. If you don't like it, nobody's forcing you to enter their walled garden. The Xbox isn't a monopoly (where this argument might hold water), play your games on PC or a different console.

          • by TiberSeptm (889423) on Friday November 20, 2009 @04:00PM (#30176066)
            "It is COMPLETELY legal and frankly fair."

            Some of what Microsoft did here may not be all that legal, no matter how many capital letters you use.

            In many states, like Washington state where Microsoft is incorporated, this is what is called "self help" in regards to contract law. One party can not deprive another party of their property because they have decided that there was a breach of contract. If they think the other party is in violation of an agreement then they can take them to court or arbitration. A cable company could not seize your DVD player because you had not payed your cable bill- even if they had originally sold you the DVD player in whatever strange universe that would happen.

            The Xbox 360 was purchased outright and in full with no outstanding debt to Microsoft. Now, I agree that access to the Xbox live services and network are rightly subject to the whims of Microsoft. That's absolutely fine with me. The problem is that they disabled unrelated functionality to punish large swathes of people for possibly being pirates. My roommate had installed a much larger hard disk in his Xbox 360 several months back. He did this because he owned several games with long load times and had also purchased hours upon hours of movies off of the xbox live marketplace. His reward for upgrading the device he owned and purchasing what I thought were stupid amounts of product off of the marketplace, his machine now has had its functionality reduced in a significant way.

            Yeah, I think a class action suit sounds about right. Granted only a minority of those people affected have any moral legs to stand on- I would expect there to be enough of them for a class action. The fact that functions which had nothing to do with piracy concerns, and in some cases nothing to do with the Xbox Live service, were disabled is pretty damning here. They could have probably accomplished their goals by simply banning people from Xbox Live- which is what it seems that a lot of people here think is all they did. That would have been fine by me and fine by the law. It's not the extent of what they did and they may have to pay for it in the form of a large settlement.
        • by eln (21727)

          a law firm is able, via class action or any other means, to make it illegal for a company to screw with my console

          Are you new? Class-action suits don't make anything illegal. In nearly all cases, the result of a class-action is a settlement in which the defendant gives an assload of cash to the plaintiff's lawyers, those lawyers give out coupons for 50 cents off the defendant's products to all of the class members, and the defendant admits no fault. Since no fault was admitted, and the case never actually went to trial, there's no precedent set, and the defendant and everyone else can keep doing whatever it was they

      • Re: (Score:3, Insightful)

        by omeomi (675045)
        I haven't really been following the story, so maybe I'm missing something, but on the surface, I think I may actually agree with Microsoft here. While I do think modding your 360 should be _legal_, I don't see why they should have to let you onto their network if you've done so. And if the Live service agreement states that you cannot use modded hardware (maybe it does, maybe it doesn't, I don't know), I don't see why they should have to refund your subscription fee, either.
        • by Knara (9377)

          And if the Live service agreement states that you cannot use modded hardware (maybe it does, maybe it doesn't, I don't know), I don't see why they should have to refund your subscription fee, either.

          Exactly. While people should be able to mod their consoles, Microsoft's TOS clearly stated that modded consoles were not allowed on XBL. Dunno how one can see this lawsuit succeeding.

          • by EggyToast (858951)
            Especially with the whole "Did you mod but not pirate games?" aspect. Good luck finding those.
        • by csartanis (863147) on Friday November 20, 2009 @02:21PM (#30174308)

          Microsoft has disabled features of the console that are used during offline play. This is the problem. They are doing more than just banning you from using the service.

        • by Duradin (1261418) on Friday November 20, 2009 @02:23PM (#30174350)

          And isn't it that the particular xbox 360 is banned from Live, not your account?

          So your subscription is still valid. Your 'hobbyist' xbox is banned but you could sign up a clean one and continue on with life.

          I'm no fan of MS but I hope they crush this class action lawsuit. They provide a service. 'You' did something that broke the terms of the service agreement. They boot the offending hardware off of the service. It doesn't take a rocket surgeon to pick out the guilty party here.

        • I agree that it is their right on the part of banning from Xbox Live specifically. However, the machines also had some other functionality removed. There may be others, but one function reportedly removed from banned xboxes was the ability to install games to the hard drive.

          In my eyes, this would be akin to Nvidia remotely disabling the S-video port on your video card for overclocking it. Just banning you from Xbox live would have been more like banning you from a Team Fortress 2 server for using hacked map

      • I got over $50 from the Paypal lawsuit, and $20 from the CD/record company lawsuit. That seems reasonable to me, considering I didn't really lose that much money in the first place.

        Also class action lawsuits are more about punishing the company. For example if Paypal and the CD Cartel has not been sued, then they would have continued business-as-usual, stealing money from customers' accounts and price-fixing CDs to be $18 or more.

    • Re: (Score:3, Insightful)

      by thue (121682)

      But even if the law firm gets 90% of the cache, the money still comes from the defendant. So a class-action still have the effect of discouraging future sleaze. So in that way, a lawsuit such as this is better than nothing (as long as you think the defendant's behavior should be discouraged).

    • by debrain (29228) on Friday November 20, 2009 @02:20PM (#30174274) Journal

      Sir - With respect,

      Class actions typically serve three purposes, none of which is making lawyers rich (though that may sometimes happens, sometimes it bankrupts law firms, too). These purposes are:

      1. Modify corporate / government behaviour

      2. Increase the efficiency of the resolution of a dispute

      3. Increase the access to justice of those who would not be able to afford any

      It is not insightful to say that class-action lawsuits serve one purpose: to make a "lawfirm (sic) a boatload of cash". It is uninformed, misleading, pejorative, and unsubstantiated - which in my opinion is the opposite of insightful.

      There are innumerable examples of class actions fulfilling their purposes, from recognizing the rights of veterans to appropriate levels of compensation, to deterring irresponsible behaviour likely to cause man-made environmental disasters, through compensating multitudes of individuals for small wrongs that would be otherwise incomprehensibly uneconomical to litigate.

      Further, a class action is simply a vehicle for resolving the rights of many individuals who would otherwise be forced to engage in individual litigation. It does not change substantive rights to any sort of compensation, though it may change (and generally eliminate, for beneficiaries in a plaintiffs' class) the cost of resolving a legitimate dispute that would otherwise simply never be addressed.

      • Re: (Score:3, Insightful)

        by shentino (1139071)

        The problem with class actions is that they are opt-in for restitution, but opt-out for forfeiture of private cause.

        If a class action comes along and you don't get wind of it until it's settled, then you're out BOTH your share of the settlement AND the opportunity to pursue a private claim.

      • by mea37 (1201159) on Friday November 20, 2009 @02:48PM (#30174824)

        "does not change substantive rights to any sort of compensation"

        In theory, that's true. In practice, it's completely false.

        First of all, if the court figures you fit the definition of the class and you do nothing (say, because the notice of the suit gets misplaced and you never hear about it), then you lose your right to sue over the matter - after all, you were supposedly already represented - and yet you get zero compensation. But let's ignore that and assume we're talking about people who knowingly participate in the class ...

        Assuming there is a settlement paid (and by the way, in this instance I agree with those who think there shouldn't be, but I've seen a lot of bogus "consumer protection" class actions get paid off so I'm guessing this one will be too), we could debate whether the lawyers' share of such settlement will be fair. I believe the typical split is excessive, just as you'd expect when the class members aren't at the negotiating table.

        But more interesting than that, the plaintifs' cut will not be allocated to guarantee that everyone gets paid. Instead a fund will be set up, and paid on a first come first served basis until it runs out. If you're part of the class and the fund runs out before you get paid, then your right to compensation damned well does get changed.

        Plus, if you do get paid, you're unlikely to get paid in cash. When Apple lost a class action, the court let them get by with giving out coupons, driving business to them from customers that otherwise might have been pissed enough to walk away. Same deal when Columbia House lost. It's pretty much the typical structure of the payout. That's not a settlement; it's a marketing promotion. Yeah, that deters bad behavior. You bet.

      • Re: (Score:3, Insightful)

        by JSBiff (87824)

        I have a serious problem, though, with the Class action system in our country today. The things you list are indeed the 'benefits' of the class action, but I've seen too many class action settlements in which the 'compensation' not only was worth only about $5, but it wasn't even $5 *cash*. I've seriously received mailing (one about a Verizon Wireless class action) where the 'compensation' was a *coupon*. That's right, to get my 'share' of the settlement, I'd have to *spend more money* with the party which

    • by csartanis (863147) on Friday November 20, 2009 @02:27PM (#30174392)

      Microsoft has done much more than prevent access to the service. These are other features that have been blocked:

      * Cannot install games to the HDD
      * Cannot use Windows Media Centre extender
      * Cannot access netflix rentals
      * Cannot download game updates and extra content that are used in offline play

  • by wernox1987 (1362105) on Friday November 20, 2009 @01:56PM (#30173844)
    The DVD drive mods that people got banned for were all about playing 'backups' which really means pirated games in 99% of these cases.
    • by Icegryphon (715550) on Friday November 20, 2009 @02:12PM (#30174130)
      Yeah but, there where those who flash the Dvd Drives,
      Because they replaced the Drives that were crap.

      My Friend has a 20GB pro That I would never loan a DVD to because that thing is a scratch machine.
      Also there are collectors like me who like to play backups whenever possible.

      Hell there are even multiple copies of sealed old games I still have.
      I hope M$ pays the price for this massive b& and I was never even banned.
      It is not the pirates I care about it is those who hack and cheat the games, rage quit, etc.
      • Even more fuel to the fire is they could have avoided such issues,
        had they installed cheap pads that cost a few pennies in some of the older systems DVD drive
        Pads [llamma.com].
        There was an Article on the whole problem but I can't find it.
    • Re: (Score:3, Informative)

      In my case, I flashed the DVD drive because the old one didn't work any more. This was the cheaper option then sending it in for repair out of warranty. No different then I would of done if I had a bad DVD drive in my PC. I shouldn't be punished for fixing something that was broken.
    • by hawkbug (94280)

      You're wrong. Please research the kernel exploits that were found previous to the latest one that allow installation of new bootloaders, etc using jtag programming and reading methods.

      Also, are you aware that if your dvd drive dies and your console is out of warranty, that you can purchase a new DVD drive for about $25 on ebay and install it yourself by "spoofing" your old drive? Yet, this violates M$ policies as they want you to pay them $100 to fix it for you.

      Piracy is hardly the only reason people hack

    • >>>The DVD drive mods that people got banned for were all about playing 'backups' which really means pirated games in 99% of these cases.

      Which still leaves 1% that were playing legal backups. QUESTION: If my CD or DVD falls apart, will Microsoft, Nintendo, or any other company provide a free replacement at a nominal fee (say $2)? If not then they have ZERO right to stop per from making a backup to protect my investment (per the U.S. Court).

    • Re: (Score:3, Interesting)

      by wastedlife (1319259)

      Is that all there is to prevent pirated or "backup" copies? The DVD drive firmware?? I thought you had to chip the console to do that. It sounds more like they wanted to punish those who took it upon themselves to fix the crappy DVD drives that scratch discs all the time. Please correct me if I am incorrect about this.

  • by John Pfeiffer (454131) on Friday November 20, 2009 @01:57PM (#30173850) Homepage

    Hell, I know people who had their consoles banned for no reason and MS told them to go take a leap.

    • by Sporkinum (655143)

      That may be the case of someone buying a used/refurb console from a place like Gamespot. Gamespot plugs it in and tests it and it works fine. They then sell it. Caustomer take box home and hooks it up to the network. Seems to work fine for several months. Then one day they get banned. Turns out used Xbox had a mod in it, but was not caught in earlier sweeps. Customer is left with degraded functionality through no fault of their own.

    • You should not be surprised. Look at all the WGA false positives.
  • Worry? About what? (Score:5, Insightful)

    by Anonymous Coward on Friday November 20, 2009 @01:57PM (#30173856)

    No.

    They should not worry.

    Nothing will happen here. The terms of service clearly state that to play on Xbox Live, you are not allowed to modify your xbox360. The accounts are still present and valid. The consoles are simply banned from accessing the service. Hobbyists can still be hobbyists. The Xbox360 will still work, but the Xbox Live service will not.

    • by Khyber (864651)

      No, it states you are not allowed to modify ANY of the hardware.

      Third party battery pack? Modified hardware - banned - give us more money now to keep playing.

    • by Anonymous Coward on Friday November 20, 2009 @02:06PM (#30174020)

      Yes, Microsoft should be worried.

      "The Xbox360 will still work, but the Xbox Live service will not." --- False. Parts of offline play are disable.

      If you READ the class action lawsuit, it has nothing to do with the banning from XBL, but rather the offline features that were disabled/modified as a result.

      Very interesting article regarding the bannings: http://www.associatedcontent.com/article/2397134/analysis_why_microsofts_plan_to_ban.html

      "I was at GameStop the other day and listened to a customer's questions about Microsoft's banning of modded X-Box 360s. The worker tried to explain that this banning was for those people that hacked their X-Box 360. The customer was worried that if her child downloaded any kind of content through the X-Box 360 that this might constitute a reason for a banning for her son's system. She was confused, so she decided to purchase a PS3 instead. I was told by the manager at that GameStop that this was not an isolated incident. They had received over 50 calls that day about the banning.

      What Microsoft appears to have forgotten by earmarking this time of year for the banning of modded X-Box 360s is that most of the systems that are purchased this time of year is by parents and grandparents. The game systems that are purchased this time of year are usually done by those that do not have a firm grasp on the industry. Simply put, the systems are usually purchased by people that are fairly clueless about video games."

      • They also forgot that ebay will soon be flooded with cheap Xbox system that are only good for playing pirated games. Doh!
  • by davmoo (63521) on Friday November 20, 2009 @01:59PM (#30173888)

    Should Microsoft worry?

    Not in the least. Microsoft did not tell you that you cannot use your modded Xbox, nor did they do anything to it that prevents you from using it. All they did was said you can't use it on servers that they own. And there are rulings all the way up to SCOTUS that says he who owns the servers controls who is allowed to use them.

    • Re: (Score:2, Informative)

      by Conchobair (1648793)
      I think the problem that is being raised is that MS agreed to allow the users to use the servers for a set amount of time and cost. MS terminated that agreement without reimbursing some of the users for the time they already paid for. While they do have the right to control who has access, the lawsuit is saying that MS does not have the right to end their paid agreement early without returning the money they accepted.

      I didn't read the article and I'm not a lawyer, but I do pretend sometimes.
      • by radish (98371) on Friday November 20, 2009 @02:15PM (#30174180) Homepage

        No, they haven't terminated any agreement. The accounts are still live and valid, and if the modders want to log in from an unmodded console they're still welcome. Remember: it's the CONSOLE that's banned, not the user.

        • Re: (Score:3, Insightful)

          by geekoid (135745)

          Your argument would only be valid if they could still use the xbox for everything else except connecting to the MS network, they can not. Since they do NOT have a choice of networks, and can no longer play or activate many, if not all, single player games they have broken basic functionality of the xbox.

      • But the modders violated the XBL TOS agreement first by trying to connect with modded software.

        Typically if you break a contract first, you can't cry when the other side breaks it too.
        Especially if the agreement explicitly says they get to boot you without compensation, which it probably does.

        Throw in the fact that they probably violated the DMCA by modding the xbox OS/BIOS.

        Whether these particular plaintiffs/modders were engaged in piracy or not is irrelevant.

        This case is a loser. All it will do is (1) wa

        • This case is a loser. All it will do is (1) waste a bunch of money on legal expenses, thereby raising the cost of providing XBL, and (2) annoy MS and possibly encourage them to make it even harder to run homebrew.

          As this is a class action case, I'm betting that xbox users arn't wasting any money. That is is simply a lawfirm that thought they could make some money or gain some publicity (with the purpose of then making some more money).

          Other than that I agree with everything you said.

      • by Imagix (695350)
        Breach of contract. The user had contracted to use XBL with an unmodded XBox. The user then uses a modded XBox. The remainder of the XBL fee is forfeit. MS (in this case) isn't terminating the contract on a whim, the user broke the contract.
    • by Hatta (162192)

      Microsoft did not tell you that you cannot use your modded Xbox, nor did they do anything to it that prevents you from using it.

      Apparently this banning also disables your hard drive [zotaku.com]. If it were just Xbox live it affected, MS would pretty clearly be in the right. Sabotaging someones hardware is not justifiable any way you slice it.

  • Microsoft is not bricking your modded console. They are banning your modded console from their private network which they set the rules and the modded console owners broke. The reason for the modification is not relevant. Those 360s will stay play your games perfectly you just can't access Live. As an owner of an unmodded 360 who is a paying customer for live I appreciate and applaud this move since other people like to mod their boxes for making online experience worse for others (i.e cheating).

    As f
    • Re: (Score:3, Informative)

      by csartanis (863147)

      Yes, Microsoft basically "bricked" several offline features of the console. The lawsuit has nothing to do with access to the XBL service and everything to do with the additional removal of features totally unrelated to xbox live.

  • by Nakarti (572310)

    Hobbyist support my ass.
    As a lawyer he's thinking "Ooh! 100,000 people banned, that's a big target to profit from!"

    As a hobbyist, if I want to run whatever software, I pay: $100 for a motherboard, $130 for a small case and power supply, $50 for a hard drive, $30 for an optical drive, $0-200 for an operating system, $50 for a wireless keyboard and mouse, $80 for a wireless gaming controller, $15 for a DVI cable.

    Anybody guess what I bought to run homebrew software? A fecking computer!
    An xBox is not a computer

  • by sfbiker (1118091) on Friday November 20, 2009 @02:06PM (#30174018)

    The terms of use seem pretty clear:

    The Service may only be accessed with an original Xbox, an Xbox 360 console, a personal computer, or other device authorized by us, or by logging into your account via Xbox.com . You agree that you are using only authorized software and hardware to access the Service, that your software and hardware have not been modified in any unauthorized way (e.g., through unauthorized repairs, unauthorized upgrades, or unauthorized downloads

    Refund Policies. Unless otherwise provided by law or in connection with any particular Service offer, all charges are non-refundable and the costs of any returns will be at your expense. There are, however, certain circumstances under which you may be entitled to a refund for certain Services.

    So what part of that seems unclear enough that it warrants a lawsuit? If you don't agree with terms of use, don't sign up for the service then whine when they catch you violating the terms of service and terminate your account.

    • Re: (Score:3, Interesting)

      by Jaysyn (203771)

      What part about removing MS functionality not related to Xbox Live do you not understand?

  • by doug141 (863552) on Friday November 20, 2009 @02:06PM (#30174022)

    before signing a form admitting one's xbox was modded in the first place.

  • by Loibisch (964797) on Friday November 20, 2009 @02:11PM (#30174098)

    I've been reading the argument that people have just been banned from XBL, because modifying your console somehow violates the TOS of XBL.

    However, this time the ban does not just kick you off online multiplayer, it also disables functionality to install games on the included HDD! Games already installed on that HDD will not be accessible anymore. Also, any savegame you continue playing with on the banned console will get tagged with the result that you can't copy it to any other (banned or unbanned) consoles anymore.

    Since a lot of people bought the Xbox360 with the ability to install games on the internal HDD right out of the box it can be argued that MS impaired the users' hardware in some way.
    Also: it is rumored that it is possible for MS to band your console through future (mandatory) updates on game discs, even if you never played online. The technical capabilites are there, but if they ever start doing that their XBL-TOS-argument will be seriously flawed.

    • by svendsen (1029716)
      Somewhere in the EULA I will put good money on that it says something along the lines of using the install to HD feature, netflix, etc. All requires an active (i.e good standing) xbox live subscription and account, and depending on the service different levels (silver vs. gold).

      Now if MS sent out game discs that disabled 360s who were not on live and were not following XBL-TOS then I would think there would be a strong case to sue them. I myself would disagree with that 100%.
    • by radish (98371)

      However, this time the ban does not just kick you off online multiplayer, it also disables functionality to install games on the included HDD! Games already installed on that HDD will not be accessible anymore
      So what? The HD install feature only exists to speed up load times, you still need the original disc in the drive to play. That is, if you haven't modded the box. See where they're going with this? If you modded your box you're still perfectly able to play any legitimate game discs you happen to have.

      A

      • by bryansj (89051)

        So what? The HD install feature only exists to speed up load times, you still need the original disc in the drive to play. That is, if you haven't modded the box. See where they're going with this? If you modded your box you're still perfectly able to play any legitimate game discs you happen to have.

        No, I don't see where you are going with that. You can continue to play pirated or legitimate games with a banned 360, but you can no longer use the HDD install feature. IMO, the HDD install is primarily used to silence the jet engine DVD drive. Not a big lose, but just something else to annoy those that got banned. Prior bannings simply kicked your console off of Live.

    • ...it also disables functionality to install games on the included HDD! Games already installed on that HDD will not be accessible anymore....

      (Assuming I'm reading this correctly) This would be a huge deal if it weren't for the fact that you can still play these games on any non-modded Xbox360 by signing in and re-downloading them.

      That being said, while I understand banning them from signing into xbox live with that modded xbox, I really don't understand locking out the HDD.

  • Should Microsoft worry?"

    No...they will just hire Johnny Cochran and use the Chewbacca defense....nothing to see here folks.

  • I love the way they ask "Did you modify yours for homebrew or altering things you paid for and not to engage in piracy?"

    Thats a laugh. Now that they have been booted off live I bet everyone is claiming they did not do it for piracy. When they were paying the money for someone to modify a new $200 piece of hardware and void its warranty were they so sure they were never going to play a cheap knock off game then.

    I know if I was going to risk someone trashing a new console under those circumstances I would jus

  • The only reason for modifying your Xbox is to engage in acts of piracy, obviously.
  • by A.Bettik (989117) on Friday November 20, 2009 @03:41PM (#30175784)
    It's worth noting that the features that were revoked *ARE* connected to the Live service. You need a Live connection to install a game to the hard drive, to use the media extender, or to check your Netflix queue. If you don't believe me, please unplug your xbox from your network and try to use these features. They haven't removed any functionality from your console that you had when your ethernet cable was unplugged. Whether or not those features should be gated on being connected to Xbox Live is a totally different discussion. However, after the 'loss of these unrelated features' argument has been dissolved, the overall case is sincerely weakened. Corrupted save games are a valid concern, as are unrefunded subscriptions (though it's possible that TOU handle the latter with ease).

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