Xbox Live class-action lawsuit lawyer speaks
by Alexander Sliwinski 
{ Jan 16th 2008 at 3:45PM }
Gibson says that others are joining in on the suit and that Microsoft put the cart before the horse this holiday with Xbox Live. He claims that the manufacturer took money for Xbox Live subscriptions without being able to provide the service promised, and that the service should have been ready to handle an influx of consumers. As much as we're happy that Microsoft is giving us a free game for all the drama, the infrastructure should certainly have been there to provide service by this point in Xbox Live's life.
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Reader Comments (Page 1 of 2)
vidGuy @ Jan 16th 2008 3:52PM
Microsoft made over $9 million during the time in question, providing spotty service to some and no service to others. I'd imagine that a $5 million settlement is warranted. It'll also encourage MS to have a backup plan for when things fall apart next time.
NATO_Duke @ Jan 16th 2008 4:57PM
Back-up plan is the contract itself. This is not a contract of adhesion - it was agreed to by the user and does not make a warranty of perfect service.
BTW, reading is fun.
"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.
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.
This limitation applies to:
-any matter related to the Service,
-any matter related to content (including code) on third party Internet sites, third party programs or third party conduct,
-any matter related to viruses or other disabling features that affect your access to or use of the Service,
-any matter related to incompatibility between the Service and other services, software and hardware,
-any matter related to delays or failures you may have in initiating, conducting or completing any transmissions or transactions in connection with the Service in an accurate or timely manner, and
-claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law.
It also applies even if:
-this remedy does not fully compensate you for any losses, or fails of its essential purpose; or
-Microsoft knew or should have known about the possibility of damages.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. They also may not apply to you because your province or country may not allow the exclusion or limitation of incidental, consequential or other damages."
jsn @ Jan 16th 2008 5:03PM
lets be realistic here. I fully understand and believe that Microsoft should compensate its paying customers in some way for the spotty or interrupted service, but lets not kid ourselves. If this were a company other than Microsoft, chances are nobody would even care. Because it's Microsoft people get dollar signs in their eyes and start calling lawyers and based on that reality I hope these guys get nothing. I'm sick of people thinking they're entitled to more than they would otherwise expect simply because the company or party at the other end has lots of money.
vidGuy @ Jan 16th 2008 5:08PM
The TOS doesn't save them from all liability or from the fact that they made money while not providing the purchased service. A good lawyer would be able to work around or through the TOS clauses. Specifically, did the consumers have actual knowledge that the service might not be available (what percentage read and understood those clauses)? If not, MS would still be liable.
Contract clauses don't act as an end-all-be-all decider of fault.
NATO_Duke @ Jan 16th 2008 5:44PM
Though you may not think I'm a good lawyer, I disagree with that last comment.
"Specifically, did the consumers have actual knowledge that the service might not be available (what percentage read and understood those clauses)? If not, MS would still be liable."
You think you are absolved of liability because you refuse to read a contract? It isn't that long of one, and it’s clear and unambiguous. There was no hand forcing you, and it’s not like this was for a necessary service – you had options to use this service or not. I don't see this as a contract of adhesion.
Did they know the service might not be available? Yes, the contract told them that right there in it.
Deciding fault is not an issue here and contract clauses are pretty much as close to an end-all-be-all that there is in a contract matter.
Jason @ Jan 16th 2008 5:46PM
All the more reason to stop bashing the PSN, it works and it's free. If it doesn't work, you're not out any money. Not a bad deal if you ask me.
GRANTED @ Jan 16th 2008 5:59PM
$5 mil settlement means a 1-2 figure bone to every eligible XBL user and 6-figure paycheck for the firm bringing suit.
in the end, some law firm which couldn't care less about gaming is the only party really coming out on top. that's what bothers me about class actions.
Firewall @ Jan 17th 2008 12:27AM
I was one of those people who decided to take the plunge on the 360 this Christmas.
I bought a "gently" used Elite off Ebay, so naturally, when I got it I wanted to check it out and take Halo 3 online. This of course meant that I had to spend some amount of time trying to connect to Xbox Live for the first time, and man did I have issues with that!
I messed with port forwarding for a bit and eventually just put it in the DMZ, and sporadically I would get a connection. My router is pretty old and spotty sometimes, so for a while I was pretty sure it was my setup at fault.
Mostly because I was convinced a company like Microsoft would be on top of a severe issue like a possible service outage, and put up at least a blurb on their website to inform their customers.
So for about 3 hours I worked on it assuming the problem was on my end because there was simply no information, and no acknowledgment on their website that the service was down. Even WoW has a server status site! How hard can that be? It was just a very frustrating experience I feel could have been so effortlessly avoided if they had just COMMUNICATED SOMETHING to me in a timely fashion.
A simple statement and I would have accepted that, "Ok the service is down, it was up long enough to take my money, but now its down, and I'll stop wasting my time trying to fix it and do something else instead."
But there was NOTHING for the first 6 hours? And after that some anecdotal evidence here and there. And then maybe 2 days after I first started on that whole ordeal, they finally say something.
My first week of having an Xbox (and subsequent 3 weeks or so of Live) has been positively dismal, but I haven't COMPLETELY given up hope yet. There is plenty of time for Microsoft to make things better.
FoxHoundADAM @ Jan 16th 2008 3:55PM
While I'm not sure a class action lawsuit was needed I think I deserve some type of payback weather is be 3 more weeks of Live I missed out on or the equivalent in money, not some crappy XBLA game I never wanted in the first place.
T3H WICKERMAN (FDF) @ Jan 16th 2008 5:13PM
Whether.sp. I do agree with you.
Zeus.:God @ Jan 16th 2008 3:55PM
Contrary to VidGuy, I feel this is a completely retarded case. This type of thing does not happen every time someone's ISP's or television provider's service gets spotty, and they are paid a hell of a lot more than 50 bucks a year.
This is a useless case, and shit happens. These guys need to realize that video games aren't everything.
vidGuy @ Jan 16th 2008 4:02PM
Unfortunately, you often have to call up and bitch out your ISP or television provider to get a refund for lost service, but they are legally obligated to give it to you.
I agree that the few days the service was down wasn't a big deal, and I'm certainly not concerned about getting $1 worth of my money back. My position though is about the principal.
You can always see the principal problem by exaggerating the circumstance. So I ask, would you be willing to say "shit happens" if you paid $50 for a year of Live and after one day, it was down for 364? Microsoft would make ~$500 million and everyone would just say, "shit, they deserve it"?
Intentless @ Jan 16th 2008 4:07PM
Per FCC regulations they are only obligated to compensate you for what you paid regardless of what you lost as a result... They do not compensate for time, or lost profits. Which a lot of people are complaining it was because it was Christmas week they should be compensated. Also only for 24 hour blocks.
With xbox live not everyone was affected all of the time or even completely.
Microsoft also has a clause in their TOS that states they essentially make no promises warranties or guarentees the service will be available all of the time...
This lawsuit has no merit and by giving us a free game they are already doing more than they are required to do.
Zeus.:God @ Jan 16th 2008 4:11PM
True, but if you read the Terms of Service, of which you must agree to when you sign up for Xbox LIVE, there is absolutely no guarantee of service, and they clearly state that; that means this lawsuit has pretty much nowhere to go, really, unless they try to fault them on something else.
They are being more than generous enough by giving out a free game, and this is just as much of a hassle for them as it is those who are missing out on their precious online play (fortunately I haven't really been affected). They don't want the possible frivolous lawsuits, all the spammed threads on their forums about refunds, and they certainly don't want a bad rap, so this is punishment for them enough. They will definitely plan better in the future, even without this lawsuit.
FidliousWong @ Jan 16th 2008 4:11PM
Actually, power companies and yes, ISPs and Cable companies have been sued via class action lawsuits in the past for not being able to provide a service. So the whole "this doesn't happen elsewhere" is bullshit.
I am with people thinking this isn't all that big of a deal on an individual standpoint... HOWEVER, isn't this going on three weeks now? Certainly you could look at the number of 360s sold, they were bragging the loudest, and accomidate for that in server and infastructure expansion.
I mean, after all, World of Warcraft spent tons of their initial time giving out free months of play during the beginning because they sold more copies of WOW than their servers could handle. People were mad, pissed, but ultimately didn't have to pay for it.
I think it's a tad much to ask for but also keep this in mind, Microsoft bought out several Class Action lawsuits against the 360 failure rate before finally extending the warranty. So it amuses me that they haven't simply "bought out" this one either.
Zeus.:God @ Jan 16th 2008 4:16PM
Even, so, Wong, you agree to the ToS if you sign up for LIVE, so the free game is more than they have to do for you.
Maybe you should check up on that.
FidliousWong @ Jan 16th 2008 4:23PM
There is a noticable difference between what is the legal thing to do and the moral thing to do.
Frankly, you pay for a service which wasn't there. Ragardless of it being in your clause or not (actually, under that clause, Xbox Live can brick your system and Microsoft is not responsible), the company has an obligation to "make it right." And frankly, Joust or Contra isn't going to cut it this time.
Yes, the TOS clearly dictates as-is. But every service does that. Unless they hand out the free game, they are talking about a PR nightmare. The game, I bet you, will likely be a $5 release and they'll hook it up to where they only pay $1 from the company for every copy given. I mean, hell, somewhere in my email, I have three codes for Joust.
Now, this lawsuit has no standing, really. Which is why this is actually the first time I haven't seen a class action against Microsoft suddenly disappear and the original plaintiff's suddenly "very happy" with their 360s.
BIGGEN @ Jan 16th 2008 4:30PM
"Frankly, you pay for a service which wasn't there."
mine was there, and so was millions of others. ya know how halo3 tells you how many are online? a couple million were on and we played for a few hours. spotty, yes, not there, no. i have never experienced a complete outage with LIVE that wasn't scheduled. that's worth my $50 a year. of course, if it was free........
Captain Obvious @ Jan 16th 2008 4:35PM
@FidliousWong
Jan 16th 2008
4:23PM "There is a noticable difference between what is the legal thing to do and the moral thing to do."
I don't understand how "the moral thing to do" is for M$ to make payments to customers, or give out free service as compensation. Doesn't M$ have an obligation to its shareholders (of which I am one)? If they make any payments, I think the shareholders (of which I am one) should make some noise. I just don't see how it is "the moral thing to do" for the company to give away money or free service.
FidliousWong @ Jan 16th 2008 4:41PM
Captain Obvious, let me ask you this.
If new users consider this the status quo of service on Xbox Live rather than the exception to the rule, do you really think they'll be paying for the service 1, 2, even three years down the road? Likewise, how many of those new users come to sites like this and discover, no, this isn't the usual way Live works?
Now, as a stock holder, I can see your issue with handing out compensation, no matter how small. However, as a consumer, I can see the side where Microsoft sends out apologies and says "this was our bad, let us make it better" can lead to long term service and ultimately, profitability.
vidGuy @ Jan 16th 2008 4:41PM
A man pays me because I promised to give him an apple. I didn't give him the apple. I gave his money to my mother who needed to buy food.
The man does not deserve the apple. My mother deserves the money.
That's pretty much your moral logic here, isn't it, Captain?
Intentless @ Jan 16th 2008 4:48PM
Gotta love corporations. Their obligations always lie with the stock holders not the consumers. They are compensating us with a free game. It may just cost them a dollar but it is valued at higher. Of course until this lawsuit dies no one knows what game they were going to give us or if maybe they were going to give us an option or any details.
And what lawsuit against a cable company are you refering to? The only one that I'm aware of that holds any merit is Comcast purposefully interfering with Internet connections. Although at the same time they were given clearence by the FCC to do what is needed to provide equal service to ALL consumers... meaning not letting the bit torrents whore the connections which happens at my apartment all the time...
jsn @ Jan 16th 2008 5:13PM
Fid:
you mentioned WoW, but as someone who was playing from the beta through the first year of its existence, they didn't just GIVE free months away. I think I might have gotten one month free, maybe, I can't say for sure. I don't really remember it, but I was so sucked into the game, I probably didn't care. Though I certainly remember bitching about the crappy service from almost day one.
The point is, their infrastructure was garbage from day one and was consistently spotty and they didn't make a habit out of giving free service away. While many service providers will give you some sort of compensation, most only do it after much complaining. And again, lawsuits are RARE.. It probably only took these guys a few days to file theirs because it was Microsoft on the other end and that shit is lame.
Zeus.:God @ Jan 16th 2008 6:25PM
Wong, I am a paying customer for Xbox LIVE. It comes out of my own pocket, and I have been having spotty service as far as connection to LIVE goes. HOWEVER, I DID agree to the Terms of Service, and that thereby makes an and all of my bitching about the issue MOOT.
This case has absolutely NO basis, and WILL fall through. EVERY XBOX LIVE CUSTOMER HAS AGREED TO THE ToS. If THEY feel like joining a non-guaranteed service, then it is THEIR CHOICE, and it is NOT Microsoft's obligation to provide an absolutely smooth and perfect service, as is clearly stated in the clauses that the consumer has completely agreed to before registration of said LIVE account.
NOTHING else matters here, and NOTHING can change the fact that there were issues, and ABSOLUTELY NO ONE ON GOD'S GREEN EARTH, IN HEAVEN, OR HELL DESERVES COMPENSATION. It is a service we pay for and enjoy, but it is OUR responsibility as the consumer, to READ WHAT WE ARE AGREEING TO. In other words, it is the consumer's responsibility to understand what they are purchasing/renting/paying for.
This outage is hurting them much more than it is hurting us, so how about you quit your bitchin', and shut up?
kthxbai
Dirt @ Jan 16th 2008 3:57PM
Hopefully this will result in them pushing a free service like their competition. I really haven't had too much "value" out of paying $50 a year when I can count the number of times I've played online on both hands. Halo 3 was about it, and when I found the multiplayer lacking it wasn't really worth it. Sure, I play some Live Games, but I paid for those as well. So you're getting nailed twice with payments. Ridiculous.
Zeus.:God @ Jan 16th 2008 4:07PM
Maybe you should start playing online, or forget about paying if you're not going to use the service.
Its your choice to pay, and if you're going to pay, don't bitch about it. PSN is free, at the moment, but will likely start to charge due to server costs and bandwidth, not to mention maintenance. Thats the exact reason you pay for Xbox LIVE, and with the losses Sony has been dealt on two fronts (three if you include the PSN itself), this can't go on for much longer.
FidliousWong @ Jan 16th 2008 4:17PM
Zues, out of curiousity, what server costs are Microsoft incurring. No game on Xbox 360 has dedicated servers. All of the games are handled p2p with hosting systems. So essentially you're paying for the right to let people log into your 360 to play a game. Now the service is all good and if I could stand the community of Xbox Live, I'd champion it all day for it's features.
However, PSN costs more to maintain, they DO run dedicated servers, and manages to get high player counts with virtually no lag. And for free, mind you. The only thing PSN is missing at this point is in game XMB and banner ads.
Intentless @ Jan 16th 2008 4:21PM
PSN relies on each company to maintain their own servers... Thats why we can all still play halo 2 on live but we can't play Syphon Filter Online anymore...
P2P still takes servers to connect the xboxes together and route them appropriatly. Not to mention they maintain our online accounts for friends lists and messenging systems for there are servers maintaining that.
Aside from EA you should be able to play any xbox or 360 game for a very long time. Even if only you and one friend are the only two playing it for the next three years.
With PSN if the game drops below a certain level of activity for a short duration of time they get taken off line...
Sean @ Jan 16th 2008 4:53PM
@Wong
Matchmaking is done through p2p, but the rest of the service sure as hell isn't run locally. They need servers to handle user account information *for real-time backups* and for content serving. That tv show and HD movie content doesn't come from thin air.
PSN is missing large amounts of content that XBL offers. They have just started serving video content and not any of it are full movies or tv shows.
I have both so the differences are very apparent.
MS does not have any obligation to supply anything for time down. But many companies, to satiate users with supplement large-length downtime with service time or other supplements. If anything MS should give an Xbox Original along with that free XBL game.
The lawsuit is meritless.
Beatz @ Jan 16th 2008 4:01PM
The judge should force Microsoft to fix their shoddy DRM service. Microsoft pays nothing, and consumers get something for their troubles, everybody's happy.
dan stabbingworth @ Jan 16th 2008 4:49PM
Yeah, the DRM thing makes me pretty angry. MS has known about it for several years but completely ignores it. It just screws the customers. So what is there to do besides a class action lawsuit? Sometimes these things are justified.
GunForHire @ Jan 16th 2008 4:01PM
Once again, this BS is going to get one look in court then chucked out.
As has been said many times, the XBL Terms of Service cover MS against downtime. And there was plenty of information available, status updates on Xbox.com and Major Nelson's site. If they just gave everyone 2/3 weeks of Gold time for the downtime, then it'd all be sorted out.
Watership @ Jan 16th 2008 5:01PM
5 years of constant uptime, and 1 outage later you're the worst service on the planet, getting sued.
Deck @ Jan 16th 2008 4:05PM
This is ridiculous. And I am standing on the side of Microsoft for this one.
Its an ONLINE service, and because of it being ONLINE there are bound to be issues. Especially when you have a HUGE influx of players in a small time frame. No matter how much you prepare for it, there are going to be issues. Some last longer than others, but you just got to deal with it. Its an ONLINE service, accept it for that.
Take an MMO for example. Every single MMO that comes out has issues. Especially when they are first released. Downtime is expected with the game and accepted. Sure people whine but overall, it doesn't mean people quit playing. Granted, XBOX live is brand new, but issues happen with an online service. Overall, this case is bogus.
Deck @ Jan 16th 2008 4:06PM
I meant "XBOX live isn't brand new" EDIT ^
NoHitHair @ Jan 16th 2008 4:05PM
Gibson does have an excellent point: companies generally refuse to listen to anything their customer base has to say. However, they're forced to listen in a civil case, when large sums of money are at issue.
Intentless @ Jan 16th 2008 4:09PM
Funny thing is they were listening and were going to give us a free game... Thats more than can be said for most corporations. Honestly they arn't required to do shit per their TOS.
NATO_Duke @ Jan 16th 2008 4:17PM
I have to agree. The Plaintiff's here, and everyone else, would have found the damages mitigated by what MS announced they would do. Now some lawyers get rich while the Live users get a few pennies.
Co @ Jan 16th 2008 4:12PM
Man I wish I could get in on this. Something about sueing Microsoft feels oh so right.
vidGuy @ Jan 16th 2008 4:15PM
If you own a 360 you already are in on it. Say, yeah, Microsoft is being sued on behalf of me, my three roommates, and millions of others ;)
Robert @ Jan 16th 2008 4:15PM
The real funny thing is that the lawyer is the only one that's going to profit in any way from this. Even if the class wins money the lawyer gets a lot of it and then the class has to split the rest.
If I didn't hate the court system I'd totally become a class action attorney.
Zeus.:God @ Jan 16th 2008 4:15PM
Honestly, those who actually try to argue that this suit is just, apparently haven't read the ToS, nor do they really know whats going on. On top of that, most who complain are those who have already proven themselves childish...
Speaking of which, Joystiq/Engadget/Fanboy sites, please get an age filter or something, because this is ridiculous how many kids there are on here.
vidGuy @ Jan 16th 2008 4:17PM
What, did the Internet suddenly become Adult-Only?
I mean, a good percentage is already SUPPOSED TO BE....
(I'm 22 btw)
Zeus.:God @ Jan 16th 2008 6:30PM
There sure as Hell should be. You wouldn't believe how many mindless and uneducated posts you see on here. An age minimum would remove much of this mindless drivel.
However, there is likely no hope for you, unless they have an IQ test or some math equation to solve in order to post, but that will never happen, so we will be stuck with some of the older fanboys and helmet club members.
Crono (NDF - Knight of the Old School) @ Jan 16th 2008 4:16PM
It doesn't matter what the XBL terms of service say: If you take money for a service, and then fail to provide that service, you are in breach of contract, and subject to possible legal action.
BIGGEN @ Jan 16th 2008 4:33PM
"It doesn't matter what the XBL terms of service say"
actually, it does. it's part of the contract that EVERYONE agrees to. why can't people understand this?
inajeep @ Jan 16th 2008 4:23PM
MS did not make 9 million during the time in question. To be fair you need to subtract the salaries, equipment and property leasing.
I'm amazed at all the arm-chair attorneys. Did MS handle themselves properly? No, enough information wasn't given. Is it lawsuit worthy. No, but it can still be brought. Under the contract they basically are absolved of any responsibilities. However, they offer up a free game as compensation which I think is fair. I want points so I can choose but the lawsuit is frivolous in any regards.
Zeus.:God @ Jan 16th 2008 6:33PM
Good points. +1
FoxHoundADAM @ Jan 16th 2008 4:25PM
For the record this was hardly a hiccup, the system was essentially unusable for 2 solid weeks not to mention had spot issues for another 1-2 weeks.
I wouldn't have cared if this was a weekend or even a 1 week thing but the duration of the issues was what eventually feel like I should be conpensated at least somewhat.
moospot @ Jan 16th 2008 4:26PM
And this class-action suit will ensure that Microsoft passes on the legal costs ot the consumers.....