Microsoft says it's 'well within legal rights' to ban consoles

by Richard Mitchell on Nov 22nd 2009 5:00PM

In response to a possible class action lawsuit resulting from a recent round of Xbox Live bans, Microsoft has now asserted the legality of its position. A spokesperson has told the Financial Post that piracy is a violation of the company's terms of use and that Microsoft is "well within its legal rights" to ban users from its Xbox Live.

It was reported earlier this month that the law firm AlbingtonIP is "investigating" the possibility of a class action lawsuit against Microsoft over the bans. The firm argues that timing of the bans -- shortly after the release of Halo 3: ODST and just prior to the launch of Modern Warfare 2 -- was designed to get as much money from Xbox Live subscriptions as possible. In other words, the firm believes that Microsoft personally waited for a time when many people -- modders in this case -- would be purchasing Live subscriptions for popular games -- money that probably wouldn't be refunded after a ban.

Joystiq's Law of the Game columnist, Mark Methenitis, classified the suit as a likely "cash grab," explaining that anyone savvy enough to mod an Xbox would know to stay well away from Xbox Live. We might add that major releases, like ODST and Modern Warfare 2, are the biggest targets for piracy, and likely correspond with rises in illegal downloads. And that just might have something to do with the timing of the bans in question.

[Via Kotaku]

Source

Tags: ban, halo-3-odst, lawsuit, legal, microsoft, modding, modern-warfare-2, piracy, Xbox-360, xbox-live

Reader Comments (148)

@Dreaded Fear: I am not a pirate, and I choose to "go on the side of these scumbags" because this is a case of someone going too far to prosecute an issue. I'm an internet privacy advocate too, that doesn't mean I advocate child pornography. You're turning me into something I'm not. I don't advocate piracy, I advocate freedom and progress. I advocate the civil liberties of everyone who would actually like to own the things they purchase. I advocate for this generation of tinkerers, builders, and thinkers who will some day create the technology our grandchildren take for granted.

Microsoft has established criteria that allow or disallow use of a network that they administer, that's fine, but when I purchase an item from the store, that item is mine. If I modchip it or paint it purple or throw it in a wood chipper it's really none of your business any more, I own it. If I try to connect it to your network and it no longer meets those criteria, you can deny me participation in the network, but that's all you can do. I'm personally happy without XBox Live, and would love to modify my console without fear of retribution. I don't really feel like paying $100 for a proprietary USB 802.11G adapter anyway.

Going back to my car analogy, if I buy a hot rod and join a club exclusive to those who own classic cars, and later I sell my classic car and buy a Camry, it is well within the rights of those who run the club to exclude me from their functions as I no longer meet their membership criteria, but it is not within their rights to deface my Camry.

This is a heated topic, and I've no interest in further feeding of trolls, but the reality is this: Tinkering, building, breaking and modifying things is how we got to the technological level that made things XBox 360 possible. Most of the people who created the current generation of consoles grew up tinkering with the last generation of consoles. Interfering with tinkering is interfering with progress, so if you'd like to see the next generation of consoles sooner than later, quit messing with the people most likely to someday create them.

If you find a pirate, prosecute the pirate. If someone isn't obeying the rules of your network, whatever they are, ban them. If the rules are too strict, you'll lose more members, and that's your choice Microsoft. If someone modifies your product, breaks your encryption, bypasses your protection scheme, etc. then you have lost a small battle in the war of progress. No system is unbreakable, you can only delay the inevitable, so there's no sense getting all pissy when someone breaks it. Just ban them and move on without retribution. If they committed a crime, prosecute them, we know you have lawyers Microsoft. Or hey, maybe try finding the guy who broke your system last time and give him a job hardening it, he's obviously better than the guy you've got now.

-They are pirates
-They are apparently suing, and they are the ones who committed a wrong-doing
-They have committed a crime

It is that simple. They deserve what is coming to them, especially since they are the ones trying to sue Microsoft when it should be the other way around. You pirate a game, and then try to go on live to play it? Ridiculous.

No analogy is going to win you an argument when it is obvious that the modders broke the law. If you want to mod your Xbox, go ahead, but don't come on Xbox live and expect to get away with your bs.

God, why do people still use things like cars as arguments for digital goods? The people who say when I buy the car it's mine to do what I want to it are usually the same people who say that piracy isn't stealing because no one has lost anything. I'm sick of hearing all that bullshit.

Software and digital goods are NOT physical products like cars and do NOT follow the same rules. Yes, you can mod the shit out of your hardware and no one can tell you otherwise but no, you don't have a right to have your way with the software.

Granted, it is confusing that the xbox dashboard software comes with the physical product of the 360 itself, which makes it hard for some people to judge. But look at it, the only people being hurt here are the people who modified their xbox's knowing full well it was unsupported and almost exclusively for the purpose of piracy. It may be harsh for MS to disable their install feature and their streaming media, but these people are criminals. I have no sympathy for them.

Dude, MS doesn't brake you console! They just make it stop from gettin on xbox live. You can still play games off line but you will never get to go online with that modded console. you xbox live account still remains good. Remember that MS is targeting the hackers that download the MW2 and where abble to make copies of it for other modders players. I know of this cause my friend from Canada got banned lol.. I haven't seen him online since Nov 7. Besides there was a rumor about the banning of players with modded consoles 2 weeks before the realese of MW2. So ppl were aware of this, just ppl were so stupid to get online first to rank up and be the badasses on live.. Anyhow whats done is done, lets move on.

The picture should have said: "Two words for you: Fine Understanding!

Modding is a great thing for the gaming community - of hardware or software. However we shouldn’t make it so easy for the retards to load the mods on their consoles. I think any moron dumb enough to mod their console and play pirated games online should not only be banned but the US Population Control forces should come to their house and remove their testicles or tie their tubes. We have enough already clogging up the advancement of our species, need to start plucking hairs.

@ghen

unlike car leases etc there is no contract ending.. look you buy the right to use the software.. but you do not own the software... it is still the companies intellectual property and they can REVOKE your right to use it..

just be happy that they are not completly disabling the system preventing it from playing any games

They can't turn it into a paperweight. Just look at the lawsuit against Apple where some jailbroken phones got hosed with the 1.1.1 update. If it turns out that Apple did that on purpose, they will be in the wrong and have to pay. Same thing would have happened to Microsoft, but they took a much more subtle route and only disabled a few pieces. Still, it is the same principle. If Microsoft did it on purpose they will probably have to settle.

Microsoft's stance for their mass banning is that piracy is illegal. However it is not illegal to mod your console and play backed up games. When I travel, which I frequently do for business, I am not going to bring a $60 original copy of a game for it to get scratched/lost/stolen by housekeeping who needs something for their kid's birthday. No, I'm going to bring my legally duplicated and paid for 95 cent version of the game so that if any of the above happens, it's not such a big deal.

Now that there's a slimmer PS3 at a lower price point, and a noticeably empty space in my suitcase, I think $300 to Sony will serve as my appreciation for the way Microsoft handled this issue.

Oh please. It is within MS legal rights to enforce their EULA that you agreed upon. Oh, and yeah, right, your "legal" backups. Besides, you can simply not connect your 360 to the internet, simple.

Where did I say it was illegal for Microsoft to ban me?

You missed the point, rather. It's that if Microsoft feels it necessary to ban me from something that's virtually required for the console to be enjoyed because I legally protected my property, then I don't want them making decisions with my money anymore.

You take your Xbox360 with you to hotels on trips? Could you not purchase a carry case for it then, and have your gaming discs in that.

Alternatively, buy a DS or PSP - consoles meant for gaming while travelling...

EULAs are not legally binding.

So you back up games because you don't want them to get scratched... in their cases... but you're okay with carrying around a $200+ fairly delicate machine? What?

And go ahead, buy a PS3, they're awesome. But don't think for a moment that Sony would respond any differently to this situation. Plus, last I checked the PS3 hasn't been cracked for "backup" games yet, so you'll be left with the your initial "problem" if you can even call it that.

Where were the complaints BEFORE the ban? "Look, I have modded my XBox 360 so I could play downloaded copies of games for free. I can even play online with them as well as cheat. But Microsoft is not doing anything to prevent me from doing this! That is just plain not fair!" I did not hear a lot of THIS kind of talk before, did you?

this has been said before, gonna say it again, if you REALLY feel the need to hack a 360... don't go online with it. If you want to go online, don't use a hacked 360. It's not hard.

I don't understand why people are so upset with Microsoft about this. I don't see why one want to "mod" their 360 other than playing "backups" (read: pirated) games. I have yet to read reports of false positives either. It IS within MS rights to ban them. Don't like it, just buy another one, open another account, big deal. It's not like MS ban your IP address or something. Don't like MS' decision, then don't support them. Buy something else. Simple.

Yes, it's convenient that they'd ban a bunch of consoles right around when big name titles are coming out. This is also convenient:

http://komplettie.wordpress.com/2009/11/16/banned-xbox-360s-modded-to-reconnect-to-live/

Read the last two paragraphs.

And I didn't see in the EULA where that if I was to be banned from XBL that they're allowed to cripple my console and corrupt the profiles on the HDD...So yeah, take my console off of Live, but don't cripple my console.

I love how the topic of piracy turns nearly everyone into a self-righteous, frothy-mouthed prick. Get off your fucking high horses, because none of you are perfect. How many of you still illegally download music? Most of you, I'd wager. Sure, piracy isn't good, but it's hardly appropriate to treat offenders like mass-murdering lepers, is it? Piracy is the last thing society needs to worry about.

5 billion intarwebz for you!

More apologists... sigh

Oh please. Does MS ban those people's IP address? No. Does MS call the cops to arrest those people? No. Those people can simply buy a new 360, create a new account, and move on. People that mod consoles expect this to happen sooner or later. If you connect your modded console online, then you're a fool. Like another commenter said, simply get a stock console and use that to go online. Stop the whining and ask your mom for another $200.

I'm sure that's what they're expecting. Feed the machine more money!

I'm sure half of those banned are defecting.

Yeah, normally they ban mass-murdering lepers Live accounts. A torture generally reserved for the worst degenerates humankind has to offer.

Are you some kind of fucking idiot?

You're the idiot who failed basic reading comprehension. I wasn't referring to the bans; I was referring to the way morons like you overreact to piracy.

"The firm argues that timing of the bans.....was designed to get as much money from Xbox Live subscriptions as possible"

That's ludicrous. For one, Microsoft has banned people from Live for as long as I can remember. Modding your console and being on Live is one way to receive ban. I know I've played against others who modified their consoles to have an unfair advantage. It's not right. And to say it was done to get as much money as possible is stupid, because it's a loss of revenue in that customer is no longer on Live.

This never gets to trial. And if it does, the clients don't have a leg to stand on. Modding your console is against Microsoft's policy. It's like a criminal robbing a bank, and getting away, only to be robbed in the parking lot by another criminal. Then the first criminal sues the second criminal for 'stealing' his money. The money was never his to be stolen.

Your initial statement is correct, but the analogy gets a little wierd ;) Live is a service paid for with regular old cash. Its impossible to hack a live subscription, so there is no initial theft.

A better analogy would be using a rental car to commit a robbery and then expecting to get a refund on your rental when things go sour.

All you idiots do not know the facts of this case. There were several thousand people who had their gamertags banned until 12/31/9999 and some that had BOTH the gamertag AND console banned. Anything that was purhcased legally on your gamertag is now gone if your gamertag is banned. Digital content can suck a dick because everything that you purchased is THEIRS and they can an do take it if you break one rule. The same rules don't apply to physical media. The EULA is their to screw people who open the door to be screwed. Just because you make a deal with the devil doesn't that that deal is legitimate and will hold up in the court of law. Just like loan sharks.

There does actually seem to be merit to this one. They're not protesting the bans themselves so much as the timing and nature of the bans. An EULA cannot remove certain express rights you have as a consumer, no matter how much any of the big 3 (or any big company, really) would like to think so.

I wouldn't say it was fine print. Microsoft TOS pages are usually these huge walls of text.

They should be grateful that it was just a ban.

@Jared, last I heard about that ban was when someone illegally obtained an early copy of Halo 3. Granted these bans probably continued throughout the years but no big news was made regarding it, nor did I noticed any bans until this large scale action by Microsoft.

This action will probably benefit Microsoft in some way; Those who were banned will most likely purchase another Xbox 360 just to get back on Xbox Live. That or they'll migrate to the Playstation 3(Hey, free online service), who knows.

I'm guessing they won't migrate to the PS3 - it hasn't been cracked yet.

Actually there is a good amount migrating to ps3 and going legit. At the 299 price point for both consoles, the PS3 is the better value for legit play. Better audio, better controller (debatable unless you like 1v1 fighters), no $50 a month... etc.

lolz.

i'm for modding consoles, they are your hardware, i do however, understand that MS doesn't want you to play on live with that modded console
i have a softmodded wii, and a flash card on my DS, but i am against piracy, i understand that nintendo can ban my wifi privileges, and if i update, brick my wii, but i took those chances when i installed the homebrew channel, i'm not going to bitch about it though if it does happen

I have never had my console banned from xbl. Surprise, surprised it is because I have never modded my console. This very simple logic tells me that having your console banned is a direct result of your decision to mod your xbox which violates multiple agreements you willfully enter into with Microsoft when you a) purchase and xbox and b) purchase an xbl account. The argument that says a customer should have a right to do whatever they want with their console has a catch 22 in that if you hold the logic across the board then Microsoft should have a right to do whatever the heck they want with their service. If I buy something with a warranty then open it up and start messing with things the company has a right to end my warranty. The same applies here as Microsoft is trying to protect itself from the results of modifications made to their proprietary hardware which can possibly effect all their other customers. The timing of the bans has nothing to do with anything as it is Microsoft's right to ban those consoles.

Oh and Ghen you are an idiot who clearly knows nothing about the Xbox 360. XBL is $50 a year if you pay full price which is unlikely if you are a smart shopper as there are always deals. Oh and by paying for the service Microsoft has a certain level of priority to it that PSN doesn't because they can always say, "Beggars can't be choosers." So go enjoy your half baked gamin network full of glitches and problems.

I'm going to assume this is in response to switching to the ps3? I personally am not going legit I'm just not playing online. AC2 is happily in my console right now and I use TVersity for media streaming to get around the windows media player ban.

All of my posts in this thread except this one are about the community in general, not my personal entertainment center.

Doesn't change the fact that you made a claim that XBL is $50 a month and it is actually 1/13th the cost of that. My point is XBL is not that expensive and well worth the money for the great network play and consistency. I never minded paying for it. I have no experience with PSN but I know many people who have had an extremely difficult time playing on it and there is no ability for them to have an effect on changing that because they don't pay for it. Even if you are not personally changing to a PS3 you still were spouting incorrect facts about the matter.

Why not just ban all the consoles, microsoft. That will stop the problems once and for all.

What about the people that got caught in the crossfire. My console wasn't modded, yet it still got banned. I think the class action suit if done by users who got banned without having their console modded is a fair execution don't you think?

I love the money I save on games and I get them weeks before everyone else! :) My buddies' console got banned and we went to gamestop and bought him another one. lol, cheaper and cheaper everyday. It's pretty hard to lose with piracy, it's cheaper then you think!

I don't have an Xbox 360 (don't want one either) but Microsoft is within their rights to ban consoles if they deem fit. We've all read articles about people misusing the Xbox Live service with the achievement points and modded consoles (although this isn't strictly exclusive to Xbox 360) and so on. It's what they get. Buy your console and use it right. Then there's nothing to worry about.

Most of the cries of "not fair" deal with the HDD handicapping. Yes they are perfectly within their rights to banned modded consoles, I don't know if they can disable features that have nothing to do with Xbox Live or its services. If you got banned, you got banned but, as Ghen said, there are other ways to share media. So at the end of the day you lose out on installing games and online play. It may suck, but you would be foolish to think that Microsoft started this ban wave without making sure there could be no recourse.

Thats right legal right to ban consoles from live! but they banned profiles consoles and any console (modded or not) that tried to recover a banned profile onto it. NO WHERE in the fine print do you get a warning for that or for the false update they sent out to currupt the data on the HDD making the profile useless even in online mode (this renders all downloable content and games GONE for good as a banned profile cannot redownload them)

to anyone victim of buying a modded console from gamestop used or "refurbished" and banned without warning or knowing they had a modded console. I feel for ya, I have heard the horror stories and the way they lost 100$s in download content and avatar crap. Banned profile and currupt HDD because you bought a used system!

Yeah the "cash grab" isnt so cut and dry after all. Sure some people modded, but what about the ones didnt mod or played on a modded system without knowing it was ever modded. Profile banns where uncalled for here! Consoles where modded NOT profiles and as such only consoles themselves should have been banned!

"Is it me...or does the timing of the bannings actually make a lot more sense then people want it to?

Think about it for a second. If you have just purchased a new Live account in order to play some AAA title online, then of course it will look like MS is banning people just after the purchase.

Because they can't ban somebody's console for violating the terms of XBL if the console isn't on XBL to violate the terms. So if 1000 people with modded consoles all stupidly sign up for XBL at the same time because some big title came out...then of course MS will have ban all 1000 of them in one huge group since their existence was just made known."

T said it perfectly, how else can MS know until they sign on. It just seems like a lot because the dumbass modders all signed up at the same time to play Halo or MW. Maybe they should have just bought those two games and then there would be no problems. Hell, if I were Microsoft I would have sent modded 360's a virus to brick the consoles then send them a refund for the remainder of their live subscriptions THEN charged them an arm and a leg to fix their bricked consoles.

HITNRUN, you're absolutely incorrect!
They detected modded consoles,not just those that played MW2 before release.

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Microsoft says it's 'well within legal rights' to ban consoles

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