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

[Frankie_Says_Relax]

I removed the tabs from my Super Nintendo so that I could play Super Famicom games.

According to Porksta I should be lynched for breaking Nintendo's license agreement.

But if you observe the way Sony destroyed Lik Sang, these companies don't even want you importing a foreign console to play these games. In essence, the major video companies want their cake and eat it too. There are legitimate reasons to mod your consoles (for example to play imports or in skaar's case, to cheaply add in a larger hard drive). These purposes are not illegal in Canada, although the DCMA in the US makes this a greyer area. You can be all boy scoutish about this and say that "you broke the agreement, therefore you shall pay the price". And certainly MS has the right to disable the modded consoles from connecting to their network. However, that is not an excuse to destroy your data. That is a dangerous legal precedent, and if you remember the debacle with Sony selling music CDs with trojans on them, probably would be deemed illegal.

While NO company wants consumers importing at lower prices due to differences in currency values of other countries - Perhaps Sony saw the error of their ways in past generations when they realized that people taking steps to mod for imports in almost every case opens the door to play pirated games, as the PSP and PS3 are both region free devices for current gen software. (Though not for movies.)

Just speculation, but maybe it was an experiment that worked out for them (at least in the case of the PS3) in preventing piracy.

[Ryaan1234]

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.

This bothers me.

I love the idea of a game system that you can upgrade. When you buy a computer you can upgrade the RAM to a larger amount, you can put in a better graphics card, and you can do a lot of other stuff to improve a computer's performance. Why doesn't Microsoft just treat the Xbox 360 like a computer? What is the problem with upgrading your Xbox if you just want it to store more games and music and things like that? I've never pirated a game, but I think it would be a good idea to up the storage space of my Xbox from 20GB to 160GB. What's the problem with that?

I understand the problem with Microsoft being angry, or quite possibly litigious about someone using burned or pirated games, but it annoys me that Microsoft will ban an Xbox if you do something it improve it. You may even want extra space to download more games from them. Not everyone mods their game system to do illegal things.

(OMG I added new pins in my NES. I hope Nintendo doesn't ban my system!)

[Bojay1997]

This bothers me.

I love the idea of a game system that you can upgrade. When you buy a computer you can upgrade the RAM to a larger amount, you can put in a better graphics card, and you can do a lot of other stuff to improve a computer's performance. Why doesn't Microsoft just treat the Xbox 360 like a computer? What is the problem with upgrading your Xbox if you just want it to store more games and music and things like that? I've never pirated a game, but I think it would be a good idea to up the storage space of my Xbox from 20GB to 160GB. What's the problem with that?

I understand the problem with Microsoft being angry, or quite possibly litigious about someone using burned or pirated games, but it annoys me that Microsoft will ban an Xbox if you do something it improve it. You may even want extra space to download more games from them. Not everyone mods their game system to do illegal things.

(OMG I added new pins in my NES. I hope Nintendo doesn't ban my system!)

Because it's not an open system. If you want the flexibility of a PC, the solution is to just go and buy a PC. Standardizing every unit out there is one of the few strong means of detecting and preventing piracy. Yes, there is a profit motive and it sucks that the 360 hard drives cost far more than comparable PC units, but there are other console and gaming options out there for people who don't like the restrictions.

Other consumer product manufacturers void your warranty if you make modifications to their products. Heck, if you were to change the gas tank on your car in the way someone posted above, the manufacturer would refuse any further warranty repairs on the fuel system and likely any fuel system related component including the engine and emissions system. Is that fair? Part of the purchase price of a car includes the warranty, so should consumers be able to file a class action about that?

The 360s which were banned still function as gaming systems, so I'm still not understanding why everyone is so up in arms. It's unfortunate that game saves and downloads were lost, but they were being stored in an improperly modified device which were being used on a network that made it clear up front that to do so was against the terms of service. It's the risk the modifier took, plain and simple.

[s1lence]

While NO company wants consumers importing at lower prices due to differences in currency values of other countries - Perhaps Sony saw the error of their ways in past generations when they realized that people taking steps to mod for imports in almost every case opens the door to play pirated games, as the PSP and PS3 are both region free devices for current gen software. (Though not for movies.)

Just speculation, but maybe it was an experiment that worked out for them (at least in the case of the PS3) in preventing piracy.

Modding a 360 doesn't make it so you can play imports, only burned region free or region specific titles to the region the 360 is from.

[portnoyd]

The concern here is they kinda squashed a bug with a dump truck. If they could have left game saves and downloads alone, they should have. Of course, they didn't have to, it's their ball, they can take it and go home if they please.

Just would have been nice. But the business world is not. Which is why Porksta's lawful pride is foolish. When they make the rules as they see fit without your say, then why should you always play by their rules especially if you find them unreasonable? Reasonable is paying for game you're going to spend hours playing. Unreasonable is paying 3x the price for something that doesn't cost 3x the price.

[Raedon]

he is lawful good and we're all neutral good.

I'm Chaotic Neutral ... for the record.

[TonyTheTiger]

Other consumer product manufacturers void your warranty if you make modifications to their products. Heck, if you were to change the gas tank on your car in the way someone posted above, the manufacturer would refuse any further warranty repairs on the fuel system and likely any fuel system related component including the engine and emissions system. Is that fair? Part of the purchase price of a car includes the warranty, so should consumers be able to file a class action about that?

Yes, that is perfectly fair. And, no, that wouldn't justify a lawsuit. But that doesn't give the manufacturer the right to pop your tires in the process of voiding the warranty.

[98PaceCar]

Yes, that is perfectly fair. And, no, that wouldn't justify a lawsuit. But that doesn't give the manufacturer the right to pop your tires in the process of voiding the warranty.

If it's written into the TOS that in the event of an unauthorized change to the gas tank they can pop your tires, then yes, they can pop the tires if you change the gas tank. Doesn't make it right or even logical, but in a closed system like XBL, the TOS clearly(?) defines the rules and the penalties for breaking said rules. Every user on XBL agreed to those rules whether they read them to the end or not.

As it stands right now, the only question in my mind is what is in the TOS and did MS overstep their bounds in destroying the user data as part of the banning. If they did, this may have some teeth but my guess is the lawyers at MS were very much on top of the potential consequences from this banning and have already planned for the backlash.

[TonyTheTiger]

If it's written into the TOS that in the event of an unauthorized change to the gas tank they can pop your tires, then yes, they can pop the tires if you change the gas tank.

No they can't. There are limits to what can be written into a contract. Not saying that this in particular qualifies as such but, for instance, a court might say that the terms of a contract are unconscionable. The problem is that, in the case of TOS, EULAs, etc. regarding contemporary electronics and computer data, since they've not seen extensive testing in the courts we don't know what those limits are.

[skaar]

No they can't. There are limits to what can be written into a contract. Not saying that this in particular qualifies as such but, for instance, a court might say that the terms of a contract are unconscionable. The problem is that, in the case of TOS, EULAs, etc. regarding contemporary electronics and computer data, since they've not seen extensive testing in the courts we don't know what those limits are.

Hence, we come full circle to the point of the thread... the lawsuit

[98PaceCar]

No they can't. There are limits to what can be written into a contract. Not saying that this in particular qualifies as such but, for instance, a court might say that the terms of a contract are unconscionable. The problem is that, in the case of TOS, EULAs, etc. regarding contemporary electronics and computer data, since they've not seen extensive testing in the courts we don't know what those limits are.

Sure they can. In the case of the user's data being corrupted, it could simply be eliminating data that cannot have it's digital signature validated properly. XBL and the 360 are closed systems, so any data that is there without a valid signature was more than likely put there by means excluded by the TOS and I'm sure there is a provision for removing it. It is possible that a court may actually rule that this was a step too far, but again, you are not giving the MS lawyers much credit. They know what's going on because they are the best that money can buy. MS wouldn't have made this move without knowing exactly where it could and likely will go.

Regardless, people need to understand that their actions have consequences. The OP is being a big man about it and taking the fact that after breaking the rules, he got his hand slapped and his toy taken away, in stride. I applaud him for that. To the rest of the folks that feel so entitled to their illegally modified systems, sometimes you have to pay to play and litigation after the fact only makes you look foolish. Sadly though, this is where America is rapidly heading.

[Bojay1997]

No they can't. There are limits to what can be written into a contract. Not saying that this in particular qualifies as such but, for instance, a court might say that the terms of a contract are unconscionable. The problem is that, in the case of TOS, EULAs, etc. regarding contemporary electronics and computer data, since they've not seen extensive testing in the courts we don't know what those limits are.

There are limits, but I'm not seeing anything in the stories about the purported lawsuit which make that claim. It seems like they are taking some type of timing conspiracy approach to the lawsuit that Microsoft somehow did this on the eve of MW2 launching so they could force people to pay to rejoin Xbox Live. I don't do antitrust or much corporate work, so I don't even know what possible legal theory they are trying to establish with this claim. They foolishly have already conceded in part that the Microsoft TOS prevents console mods and that Microsoft has the right to ban accounts. I agree with you that if they had argued unconscionability or that there was a provision in the TOS or the law that allowed for modification which did not result in piracy than the issue would have been more interesting and potentially precedential. As it stands, it just sounds like another law firm over its head trying to grab some headlines before the inevitable Motion for Judgment on the Pleadings.

[skaar]

Also, check this out. A ban waiting to happen. I'd bet good money these are "flashed" hard drives in generic enclosures.

http://www.dealextreme.com/details.dx/sku.30815

[Shadow Kisuragi]

Those look like 20GB HDD enclosures. Microsoft is coming out with larger HDDs, but they are branded like the new ones with the size printed in the chrome.

[LaughingMAN.S9]

If you don't break the rules you have nothing to fear. The only ones who fear/condemn punishment are the ones violating the rules.

wow, i sure wish i could visit that black and white world of absolutes that you live in, you'd probably shoot a child in the face, point blank range just for stealing gum.


the law and justice are 2 different things, close minded bigots tend to be color blind to moral shades of gray, so i wouldnt expect you to understand.

[Pikkon]

It's not a matter of being "better than everyone else" - I think you've somehow inferred that on your own here. I was playing legit games on a modded console.

My point is I did something that was technically feasible but that they didn't want me to do - upgrade my hard drive on my own. And yes, they have a "rule" about me doing so. I still don't feel the rule is fair, however. But what can you do?

Well MS does not ban a 360 for a homemade hdd,from you other post it sounds like you flashed your dvd drive,if so thats why you got banned,it doesn't matter if you play legit games or not.

[skaar]

Well MS does not ban a 360 for a homemade hdd,from you other post it sounds like you flashed your dvd drive,if so thats why you got banned,it doesn't matter if you play legit games or not.

Yep, that might well be what did it. I don't think I'll ever know for sure though.

[j_factor]

I never said he was using the larger hard drive to play pirated games. I just said that by installing a larger hard drive he was violating the TOS. Do I think people should be able to use any hard drive they want? Sure. However Microsoft does not, and since it is their system, why are they not allowed to set the rules?

(this is in response not just to the above, but to all invoking the TOS in discussion)

Correct me if I'm wrong, but I'm pretty sure there's only a TOS for Xbox Live, not the Xbox 360 itself, which isn't a service. It is improper for a TOS violation to incur consequences that reach beyond the service to which it relates -- in other words, the 360 hardware is out of its bounds. For certain products this is not the case, when it's a device purchased for a service as its primary purpose, but Live is secondary on the 360. I also find it a bit thorny that Microsoft requires any online connection to go through Live (with a membership), even if you have no intention of subscribing to their service.

I wonder if you'll get the same effect if you install a 360 firmware update off a CD-R to a modded console.

As an aside, does the TOS even say "we'll gimp your console in various and sundry ways if you modify it in any way"? When the news of this first broke, their spokesperson only acknowledged that they were "suspending these modded consoles from Xbox LIVE", they did not say they were taking additional punitive action. Where in the TOS does it say they will take such action? I find it hard to believe that such a thing could be contained in the TOS without there having already been a big stink about it on the internet.

If you don't want to pay the prices Microsoft has set, then do not buy a hard drive for your 360.

This almost sounds like an anti-trust violation. I don't believe Microsoft actually has a right to lock out competitors from the Xbox 360 accessory market. They can manufacture their console in such a way that unlicensed accessories are more difficult to produce, but they shouldn't be able to "zap" unapproved hard drives or disable the console's functionality (they can, however, void the warranty). This really seems contrary to the spirit of Atari v. Activision, Atari v. Nintendo, Sega v. Accolade, et al.

[Rob2600]

If you don't want to pay the prices Microsoft has set - then don't. Speak with your wallet. The fact that people are using illegal hard drives just shows Microsoft that people want to play their 360.

I agree, but this seems to be an extremely difficult concept for many people to grasp.

[TonyTheTiger]

Sure they can. In the case of the user's data being corrupted, it could simply be eliminating data that cannot have it's digital signature validated properly. XBL and the 360 are closed systems, so any data that is there without a valid signature was more than likely put there by means excluded by the TOS and I'm sure there is a provision for removing it. It is possible that a court may actually rule that this was a step too far, but again, you are not giving the MS lawyers much credit. They know what's going on because they are the best that money can buy. MS wouldn't have made this move without knowing exactly where it could and likely will go.

I'm not saying that what Microsoft is doing would constitute unconscionable behavior in the courts. I was responding to your assertion that a car dealership could slash somebody's tires because they changed the gas tank. I actually don't know if what Microsoft did is 100% within it's rights. The problem is that nobody really does. That's my point. Lawyers can only pontificate on what may or may not be legal based on the precedent already established. But in this area very little has been written in stone.

There are limits, but I'm not seeing anything in the stories about the purported lawsuit which make that claim. It seems like they are taking some type of timing conspiracy approach to the lawsuit that Microsoft somehow did this on the eve of MW2 launching so they could force people to pay to rejoin Xbox Live.

You're absolutely right. Even if a lawsuit could have merit I don't think this one in particular does. At least not based on how it's presented in the article. I've just been saying that for everybody arguing that what MS did is 100% absolutely correct under every possible legal avenue, well, we don't know.