Xbox Live lawsuit is worth 'pennies'
by Ross Miller 
{ Jan 9th 2008 at 2:30PM }
Of course, all the math is moot when you read the Xbox Live Terms of Use, specifically clause 16, which begins "We Make No Warranty: We provide the Service 'as-is,' 'with all faults' and 'as available.'" Just be happy you're getting a free game, fellas. As for the disheartened lawyers, don't fret, they can now spend more time trying to monetize the missing Halo 3 pixels.
Reader Comments (Page 1 of 2)
LilCo187 (NDF - Hit a ho with a school bus Ring) @ Jan 9th 2008 2:36PM
C'mon guys, we're talkin about Microsoft's lawyers here. You know they got this type of crap covered with Vista alone. 'as-is,' 'with all faults' and 'as available.'
Marty @ Jan 9th 2008 2:58PM
What does this have to do with Vista?
The1 @ Jan 9th 2008 2:59PM
No, these lawsuits are freaking crazy, the Lawyers are the idiots who are getting paid.
Agathos @ Jan 9th 2008 2:40PM
Funny thing is I saw this post just after reading that of the thousands of Katrina victims suing for damages, 240 of which are tryng to get 1billion or more, there's now an official 3-QUADrillion dollar suite:
http://news.yahoo.com/s/ap/20080109/ap_on_re_us/katrina_flood_lawsuits
Hey hey hey, I'm just delivering the news...
DangerMouse @ Jan 9th 2008 2:40PM
82 cents can't even get me a jr bacon cheeseburger.
Jerk Face @ Jan 9th 2008 2:49PM
Holy CRAP how I want one of those now!
Secre @ Jan 9th 2008 5:21PM
At the Wendy's where I work, I believe it can get you a junior hamburger. No, wait... You'll need three more cents... Well, you can get a cup of coffee with it, that's for sure xD...
Ed Picchi @ Jan 9th 2008 2:44PM
The facts are correct, PER USER. However, taking his .82 cents and multiplying it by 10 million, the number of LIVE GOLD accounts MS claims to have, that calculates out to $8.2 Million that MS gets to keep having provided almost zero service during the dates in question. I don't know about the rest of you, but "something" tells me a company should not be able to pocket that kind of cash without providing something in return. Oh, and as others are surely going to point out, the service STILL isn't back to 100%.
vidGuy @ Jan 9th 2008 2:52PM
Bingo. $9+ million of actual damages here that MS should have to pay back. Maybe others are keen at throwing their money away for an empty service but I'm not.
Korova @ Jan 9th 2008 3:02PM
But but but 800 MS points times 10 million users is like 8 BILLION MS points and that is many more than 8.2 million Lincoln points, so what is your point, if I may ask, good sir.
vidGuy @ Jan 9th 2008 3:06PM
MS Points are not legal tender and have no monetary value. It costs MS nothing to allow those downloads since they wouldn't have received those sales otherwise.
schmitz.m @ Jan 9th 2008 3:26PM
Not to mention the value if you figure the conversion rate of Stanley Nickles to Schrute Bucks!! (It is the same as the ratio of unicorns to leprechauns )
Lars @ Jan 9th 2008 8:50PM
I think the cost-per-day thing is off, because the value isn't divided among the days it's available. The whole reason for having a 24-7 service is so that people can use it when *they* have time. So let's say your free time for gaming is only on Saturday nights. $50 / 52 Saturdays a year, means a day outage is worth about a dollar to you. My point is that there's more to be considered than just dividing the dollar amount by days in a year.
Lars @ Jan 9th 2008 4:03PM
I think the cost-per-day thing is off, because the value isn't divided among the days it's available. The whole reason for having a 24-7 service is so that people can use it when *they* have time. So let's say your free time for gaming is only on Saturday nights. $50 / 52 Saturdays a year, means a day outage is worth about a dollar to you. My point is that there's more to be considered than just dividing the dollar amount by days in a year.
killploki @ Jan 9th 2008 4:08PM
you are also assuming every single user on the live network has not been able to use the service at all. the problems dont affect every single player at the same time, the worst i've had to deal with is a little slower login and wait a little longer for matchmaking games. i havent had live not work for me at all, and i have been playing everyday since before christmas.
NATO_Duke @ Jan 9th 2008 4:14PM
OK, so you think that the 9 million needs to be paid back - fine. Much of it goes to the attorneys for their fees and costs. (We all generally get 1/3 of a plaintiff award as a contingency.)
Then you have the penies that are to be sent to everyone who joins the suit. So, I bet you will feel championed by getting a check for a few cents.
The wiser choice would have been to wait and see what MS would do for the users without such a weak suit.
vidGuy @ Jan 9th 2008 7:16PM
It's not about the money, it's about the principle. Would you hold the same position if you paid for a year of LIVE and the service wasn't able for 364 of those days? You'd still say, "hey, they said it might not be available and I agreed to it..."?
343 Guilty Fart @ Jan 9th 2008 2:47PM
MOAR Halo pixels pleez!
vidGuy @ Jan 9th 2008 2:48PM
A few pennies per user isn't much damage, but a hefty charge for downtime would at least give Microsoft an incentive to keep the service running smoothly. And if they could impose a $5m charge for downtime on a service that rakes in about $9m a year, that's quite the kick in the mouth to MS. One must remember that many lawsuits seek remedies other than actual monetary damages. My last microwave didn't blow up and burn MY house down, but a few did. The class-action suit net me $5, but at least the company didn't keep selling faulty microwaves.
You may hate lawyers and lawsuits, but there's a case for one here. Though with that clause in the Terms there real isn't a shot to win as users were already put on notice of potential problems and agreed to accept them.
vidGuy @ Jan 9th 2008 2:49PM
Doh, that's $9m per the 6 days of downtime.
Zertoss @ Jan 9th 2008 2:49PM
God, people need to learn that shit happens and there's nothing you can do to stop it from happening. All you can do is put your gloves on and clean up the mess.
And there's no way anyone could tell me with a straight face that they had nothing else to do. Found all those flags in Assassin's Creed? Saved/Harvested all the Little Sisters in Bioshock?
Seen the sun today?
FOXHOUND @ Jan 9th 2008 2:51PM
...I really hope those 3 Texas residents lose the case. :\
HC @ Jan 9th 2008 3:08PM
A few points worth mentioning.
- The outage is in its 19th day now.
- "36.5 million Xbox Live Gold users" - MS says it has about 10 mil Live users.
- The kind of language MS has in its EULA is there in every product today. Even amusement parks don't take any liability for safety related accidents. But if you are injured at a park, sure as hell you will receive compensation.
- Since when did consumers demanding their rights to paid for services become so wrong? Since when did a multi-billion dollar corporation, a convicted monopolist that does not even deliver on services it charges for become the good guy. Sheeh!
Captain Obvious @ Jan 9th 2008 3:33PM
FYI, I think the law is different with contractual disclaimers of monetary damages vs. contractual disclaimers of personal injury. The law disfavors the latter.
FOXHOUND @ Jan 9th 2008 3:47PM
"Since when did consumers demanding their rights to paid for services become so wrong? Since when did a multi-billion dollar corporation, a convicted monopolist that does not even deliver on services it charges for become the good guy. Sheeh!"
...you're missing the point. It's not wrong at all to demand rights on paid services. Hell, it's your duty as a consumer to not only have "buyer beware"-mentality; however what is going on here is that in purchasing anything with a contract/terms of service agreement eases their liability to provide flawlessly perfect service... because it isn't possible in the first place.
NATO_Duke @ Jan 9th 2008 4:40PM
Keep in mind that while people may get compensation in suits when liability is waived on a form, the defendant will pay nuisance value on the claim to get rid of it. In a case like this the nuisance value would only be of assistance to the attorneys handling the case – and the consumers would get very little if anything. I would expect them then to say part of the nuisance settlement is to give every user some points on their accounts and no money at all.
NATO_Duke @ Jan 9th 2008 4:40PM
Keep in mind that while people may get compensation in suits when liability is waived on a form, the defendant will pay nuisance value on the claim to get rid of it. In a case like this the nuisance value would only be of assistance to the attorneys handling the case – and the consumers would get very little if anything. I would expect them then to say part of the nuisance settlement is to give every user some points on their accounts and no money at all.
xFenixKnightx @ Jan 9th 2008 2:57PM
Whatever just fix it damnit! It was almost impossible to get on COD4 yesterday so I gave up =( I ended up playing my sons PS3 cod4 copy on PSN, man I just cant get used to that controller!! >:(
Trev @ Jan 9th 2008 3:27PM
If you end up doing it again, try setting the controls to Tactical Flipped. I found that was a lot more comfortable and given the very binary control of grenades, even so much as touching a trigger liked to throw one. Tactical flipped puts fire and aim on the triggers and grenades on R1/L1. If it's the shape, there's not much you can do about that... except for this:
http://benheck.com/04-14-2007/ps360-controller/
I've been considering it for the benefit of a 360 owning friend that likes to get in on Warhawk on an increasingly regular basis.
lothar @ Jan 9th 2008 3:31PM
Yeah one of the guys here plays COD4 on PS3 he was complaining that it took so long for matches to start because there wasnt enough people playing the game LOL.
Back to the topic.
For the people that think MS should pay out 9M have you really given that much thought. What happens when you make a claim on your insurance, your rates go up. You want them to pay that 9M be prepared to pay way more for your Gold Live accounts.
As stated there were plenty of other things to do when Live was down with your 360.
Another note we're all getting money back in the form of MS points yes its not legal tender but they're paying you back way more than what you really loss and seeing everyone is crying about not being able to play their video games why should you be crying about getting video game money?
xFenixKnightx @ Jan 9th 2008 3:55PM
Thanks Trev Ima try that today if Live is acting up again. Also yea the shape is sorta uncomfy since Im used to the big 360 monster lol, I feel like its so small and light since it has no rumble and my hands get cramped. Cmon Dualshock3. That Controller mod is damn sweet =) but he himself said it would cost hundreds =(
punkasscrab @ Jan 9th 2008 3:01PM
Mine still doesn't work right. Nobody cares about the lawsuit we just want it fixed. Chew on this: Microsoft has OVER 1/2 a billion dollars a year revenue from Gold subscriptions alone. To the earlier poster, that will buy you enough jr. bacon cheesburgers to line up single file to the moon and back many times. WTF are we paying for?
jaybird1905 @ Jan 9th 2008 3:13PM
A gamercard
lothar @ Jan 9th 2008 4:43PM
345 days of up time
John Morgan @ Jan 9th 2008 4:49PM
Two points to make here:
1) Microsoft has 10 million LIVE subscribers, an unspecified percentage of which are Gold subscribers.
2) Even if all 10 million pay for the service, it could only feasibly generate enough Jr. Bacon Cheeseburgers to make it 1.1% of the way to the moon, or almost 2625 miles. If you count the cost of running the service, it would be even less.
It would take approximately 45.3 Billion Jr. Bacon Cheeseburgers, lined edge to edge to reach the moon.
dark54555 @ Jan 9th 2008 3:08PM
Law of the Game made the same point the day before Gaming Steve did, with some other leagl-type commentary.
http://lawofthegame.blogspot.com/2008/01/xbox-live-class-action.html
FOXHOUND @ Jan 9th 2008 3:49PM
Er, the reply earlier was for HC... but I guess it could work here too.
NATO_Duke @ Jan 9th 2008 4:42PM
So my comment was to HC as well - and it double posted. WTF, lets sue Joystiq!!!!!
rc @ Jan 9th 2008 3:13PM
Depite the fact that Joystiq keep their lips firmly planted on Microsoft's ass, it's not acceptable to have a paid for service down for a month at a time.
FidliousWong @ Jan 9th 2008 3:31PM
Actually, I remember when I played WoW. Server would go down for six hours and the boards would flood with "we demand refunds" and other such nonsense.
I mean, if people are this made about Live not functioning, just wait until the whole missing achievement points gets pointed out.
My stance is this, with any online service, it's hard to predict. Companies work hard to get it stable again. I have no doubt MS is working hard on this issue. Now if they just said "fuck off," then yeah, nows the time to get pissed.
So far, MS has been VERY apologetic about the entire situation and they keep updating the people. And they are giving you a free game. As much as it sucks that the service is not working right currently, they are TRYING to take corrective actions.
Only thing I ask is that you remember this annual event (second year in a row, just much longer this time) next time you rag on "you get what you pay for" PSN or WiFi.
ThornedVenom @ Jan 9th 2008 3:24PM
Give those cents to the Guild of Writers of America (forgot the exact name).
DeadPlasmaCell @ Jan 9th 2008 3:26PM
The Xbox Live Terms of Use states:
"16. WE MAKE NO WARRANTY
We provide the Service "as-is," "with all faults" and "as available." The Microsoft Parties give no express warranties, guarantees or conditions. You may have additional consumer rights under your local laws that this contract cannot change. To the extent permitted by law, we exclude the implied warranties of merchantability, fitness for a particular purpose, workmanlike effort and non-infringement."
And right after that it says:
"17. LIABILITY LIMITATION; YOUR EXCLUSIVE REMEDY
You can recover from the Microsoft Parties only direct damages up to an amount equal to your Service fee for one month. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages."
so it seems like they're foobar and at most they'll get a month free of Xbox Live.. but MS has already stated that all users will get a free XBLA game (to be decided) so it's not like they're not trying to compensate already. Personally the service has been up the last week, the first week was buggy, but after the first fix it's been fine.
Crono (NDF - Knight of the Old School) @ Jan 9th 2008 3:46PM
Except a judge can say "Pay more", and they have to. TOS or not.
DeadPlasmaCell @ Jan 9th 2008 3:48PM
I doubt it will happen.. If MS wasn't doing anything to remedy the situation or never offered any compensation it would be a different story, but it's not like they're sitting around doing nothing about it.
PhoenixSS @ Jan 9th 2008 3:26PM
Yeah I don't know about you all, but it's been 3 weeks now and live is still at about 60% efficiency. The Dashboard locks up constantly, connecting to online matches is a joke, friend requests are not being sent, problems signing in, I can't access Marketplace or XBL Arcade, etc. etc.
The list goes on.
And you know what, for the first week I was pretty good about not making a big deal out of it. I scoffed at those who made a huge fuss and just said; "Meh, shit happens. They'll get it fixed." But now I'm getting pretty goddamn irritated.
Durandel @ Jan 9th 2008 3:49PM
I've certainly had plenty of other things to do, but it HAS been too long.
Microsoft, we don't want monetary compensation. We just want it to WORK!
DeadPlasmaCell @ Jan 9th 2008 3:27PM
"They" as in the 3 chumps suing.
jsn @ Jan 9th 2008 3:28PM
Welcome to the real world where paid services do actually go down and experience problems from time to time. Your cable or phone providers don't give you anything when their service is down for a time or spotty for an extended period. Unless you're paying a premium for SLA's that guarantee you a certain level of service, don't make stupid demands.
It's hilariously absurd how much people think they're entitled to because the company on the other side happens to be a really big one like Microsoft.
punkasscrab @ Jan 9th 2008 3:37PM
Damn dood, if my cellphone or satellite tv or landline went down for 3 weeks i'd sure be pissed. What is it about Microsoft that makes you want to give them a free pass? This is not a free service. Microsoft collected billions in fees for Live. I don't want compensation, I want it fixed!
Ed @ Jan 9th 2008 3:44PM
Actually, both cable and phone providers DO give you a refund when their service goes down. All you have to do is call them.