XBOX360 Ban (modded consoles) class action lawsuit - update - I got my stuff back :D

[skaar]

http://www.abingtonlaw.com/Xbox-Live-class-action.html

I thought I'd share. I don't see it going anywhere but I wish them all the best. They do raise some good points on the timing of this ban.

[Frankie_Says_Relax]

While the timing is certainly opportunistic for Microsoft, they still have every right to ban at their discretion.

While I haven't read the TOS for XBL, I'm sure that if you're banned for console modification or software piracy that you forfeit any right to a pro-rated refund of membership costs.

[Porksta]

IIRC they do not ban the gamertag, just the system so you shouldn't have to worry about losing your subscription.

Oh noez, my Xbox was banned right before the game of the year came out! How could you do that Microsoft?

Lol.

[kupomogli]

People know the risks of modding a console. Microsoft shouldn't be required to prorate your XBL account just because you're not following the rules. It's also a guarantee that many of these people with modded systems were pirating software(I'd say probably 90% were.)

[BetaWolf47]

"Oh no, we can't get Call of Duty Modern Warfare 2 for free! Let's sue Microsoft!" Yep, this isn't going anywhere.

[Porksta]

1) How would sales of the games been affected? Most of those people would not have been playing legit copies anyways.

2) Microsoft has made it clear that they only ban consoles (like they reset gamerscore) when they are 100% certain the TOS have been violated. In no way has any Xbox 360 owner been unjustly banned.

I like how the site uses quotes and italics in an effort to act like Microsoft is the bad guy.

[Clownzilla]

The real winner of this case will be the lawyers in charge of "being there for the downtrodden gamer".

[s1lence]

This lawsuit is fail as are 99.9% of all the people saying they are going to file a lawsuit against MS on xbox.com. It is THEIR service that you CHOOSE to use so they can have whatever TOS that they see fit.

[jcalder8]

The real winner of this case will be the lawyers in charge of "being there for the downtrodden gamer".

The lawyers won't be getting anything from this. The lawyers would only get payed if they won and there is no way any money will be coming from this useless lawsuit.

[dylan0228]

What a joke!

[TonyTheTiger]

The only legal avenue that may be possible is attacking Microsoft's interest in the user purchased console itself. Though that requires a concession in part that Microsoft is allowed to ban people on Live whenever the hell it feels like it. I can envision an argument that goes something like this. "Microsoft is fully within its rights to ban users from participating in its ongoing online service. But the extent of the ban in this case goes beyond that and cripples the console's ability to function in ways completely separate from the online component thus diminishing the value of the machine by causing irreparable damage to it."

The difficulty with this argument is that it would require a direct attack on the idea of a hardware license agreement and would in fact be implicitly arguing that the purchaser actually owns the machine and as such Microsoft, while allowed to restrict users from accessing an ongoing online service via that machine, cannot actually destroy the machine which is the private property of the consumer. It would have to be an argument comparing it to a situation like, oh, a message board not only banning you from posting but actually screwing up your computer in the process. Granted, this kind of thing with licenses is controversial and by no means set in stone either way. But a lawsuit would require more than just the standard "waah waah, u lamerz!"

[heybtbm]

[Porksta]

The only legal avenue that may be possible is attacking Microsoft's interest in the user purchased console itself. I can envision an argument that goes something like this. "Microsoft is fully within its rights to ban users from participating in its ongoing online service. But the extent of the ban in this case goes beyond that and cripples the console's ability to function in ways completely separate from the online component thus diminishing the value of the machine by causing irreparable damage to it."

The difficulty with this argument is that it would require a direct attack on the idea of a hardware license agreement and would in fact be implicitly arguing that the purchaser actually owns the machine and as such Microsoft, while allowed to restrict users from accessing an ongoing online service via that machine, cannot actually destroy the machine which is the private property of the consumer. Granted, this kind of thing is controversial and by no means set in stone either way. But a lawsuit would require more than just the standard "waah waah, u lamerz!"

The thing is, the consoles work fine. They just can't go online.

[TonyTheTiger]

Do they? From what I've heard there's other functionality not related to Xbox Live that's screwed around with.

[Bojay1997]

Do they? From what I've heard there's other functionality not related to Xbox Live that's screwed around with.

Nope. The only thing this ban did is prevent users from accessing Xbox Live. That's why the legal experts who have weighed in so far are fairly certain this case is a non-starter. Let's be clear here, courts have allowed cable and satellite companies to fire electronic "bullets" to destroy illegal cable and satellite descramblers and the police to destroy drug growing equipment, so this far more minimal ban on allowing 360 users engaged in illegal activity to access a paid subscription service which nobody has a right to access anyway without Microsoft's on-going permission is not an argument which can be won. The timing makes absolutely no difference and the fact that this law firm is focusing on that non-issue leads me to doubt that they really understand what is going on here. I suspect their "client" came to them and said Microsoft banned them from a paid subscription service and failed to mention they were engaged in felony software piracy.

[skaar]

I was banned on one of my consoles. I'd modded it a year or so ago and put a WD 160GB 2.5 SATA drive in there, flashed to look like a 120GB Microsoft official drive. I found out later that I didn't need to modify the firmware on the DVDROM to do it, but I assumed I did anyway.

This particular system never booted a burned game. It ran nothing but originals. It was also banned on The End Day.

By modifying my console (ie upgrading the hard drive myself) I violated the TOS and my console was banned from Live. Fair enough, I'll take the hit.

Where *I* got pissed off was all of the saved games on the hard drive were suddenly "corrupted" - I could not copy them to memory card and move them to another console. This was an issue for about two games where I hadn't moved stuff over. (this wasn't my main console and had moved most things off it ages ago)

Mainly I was choked I lost my Viva Pinata garden

Essentially, Microsoft destroyed data on my hard drive. I think this is where the lawsuit is coming from. All of my XBLA titles that were licensed to that console were also disabled and reverted to trials. I think this is where people have a legit beef. Ban the console from your service, fine. But fuck up all of my saved games? Kill all the stuff I actually spent MONEY on because the online service they don't require to run is no longer available? The hell with you, buddy.

Don't label everyone who's "modded" their Xbox as a pirate. Because I bet there are a lot of people out there getting fucked over on this too. I probably buy more of their software than a significant amount of their customers and I refused to bend over on marked up hardware... and I took a hit for it. Such is life. I've moved on - but I will cheer for anyone willing to stand up and drag them through the mud for what they've done... but I'll do it out of spite, not morality

The banned console is now making a family who could not have afforded a 360 very happy... along with a spindle of dual layer DVD-R blanks.

[Porksta]

^^Are you not allowed to redownload the Arcade games onto a legit HDD?

So basically if you illegally modify a car and it gets impounded, you should sue because all the driving, and gas, and work you put into all go to squat? Sorry, shouldn't have illegally modified it.

[TonyTheTiger]

Let's be clear here, courts have allowed cable and satellite companies to fire electronic "bullets" to destroy illegal cable and satellite descramblers and the police to destroy drug growing equipment

Which are either gray market or flat out illegal anyway. I've been hearing that the banned 360s are being damaged more than simply not being able to connect to Xbox Live. If that's true there might be some possible argument that Microsoft overstepped its authority. But, again, that depends on whether or not the user owns the Xbox. If he does then while MS can prevent this person from using the Xbox to access an online service, the company cannot destroy this person's perfectly legal private property. That was part of the argument over Sony's rootkit scandal. There was harm being caused to people's private property beyond piracy prevention.

^^Are you not allowed to redownload the Arcade games onto a legit HDD?

So basically if you illegally modify a car and it gets impounded, you should sue because all the driving, and gas, and work you put into all go to squat? Sorry, shouldn't have illegally modified it.

Is the modification itself illegal? Or, rather, should it be? That's at the heart of the current legal debate at the moment and we'll probably see more cases raising the issue. Let's assume MS went a step further and instead of banning the console they actually repossessed it because the licensee violated the license by modifying it. Would that be legal? Theoretically, under the same practice as I think is happening now it would be. But the legal battle there would be perfectly justified. It's still a controversial question. "How much of what I buy do I own?"

[Steve W]

Essentially, Microsoft destroyed data on my hard drive. I think this is where the lawsuit is coming from. All of my XBLA titles that were licensed to that console were also disabled and reverted to trials. I think this is where people have a legit beef. Ban the console from your service, fine. But fuck up all of my saved games? Kill all the stuff I actually spent MONEY on because the online service they don't require to run is no longer available? The hell with you, buddy.

How can Microsoft determine what files were from legitimate copies of games and which ones were from cracked downloaded games? They wanted to make it hard for you to move your data over to another machine and start up again pirating games, I'd guess.

What kills me is that nobody makes you go online with your 360, it's not necessary. I've never hooked mine up to the internet and have no interest in doing so. I don't like the kind of people I would be playing with (and on my own admission, I'm totally antisocial from working retail for so many years) and these people throwing a fit that they can't go on Xbox Live anymore because they were screwing Microsoft out of money by pirating games are exactly the type of people I don't want to interact with. Maybe with people actually paying for their games perhaps development studios can make a few more bucks and stay in business a little longer instead of dying off at an insane rate like they've been doing for the past few years.

[Buyatari]

Which are either gray market or flat out illegal anyway. I've been hearing that the banned 360s are being damaged more than simply not being able to connect to Xbox Live. If that's true there might be some possible argument that Microsoft overstepped its authority. But, again, that depends on whether or not the user owns the Xbox. If he does then while MS can prevent this person from using the Xbox to access an online service, the company cannot destroy this person's perfectly legal private property. That was part of the argument over Sony's rootkit scandal. There was harm being caused to people's private property beyond piracy prevention.



Is the modification itself illegal? Or, rather, should it be? That's at the heart of the current legal debate at the moment and we'll probably see more cases raising the issue. Let's assume MS went a step further and instead of banning the console they actually repossessed it because the licensee violated the license by modifying it. Would that be legal? Theoretically, under the same practice as I think is happening now it would be. But the legal battle there would be perfectly justified. It's still a controversial question. "How much of what I buy do I own?"

cicumvention of encryption is illegal