Microsoft Fires Back at Xbox Live Lawsuit

The only way they would have liability is if they banned unmodded consoles of legitimate users.

That's M$ for ya...

Agreed...if seen people say that if you own the xbox360 then you can mod it. Fine. But to play online with it...well that is risk the person is willing to take I guess...

Agreed.

I am wondering if the burden of proof "innocent until proven guilty" rests on MS shoulders... Should they have to prove one actually pirated a game as opposed to using a copy of a legitimately purchased game? Listen I am not condoning piracy or making excuses. In fact I have one modded and one un-modded for online play. However I do have a messed up copy of GOW 2 that only works on the xbox that I had copied to the hard drive. I would definitely prefer to use backups as the xbox did at one point have an affinity to scratch media due to a poorly manufactured drive.

I dunno why you all are so against moded consoles.. When I was a 15 I had a playstation with a ton of games I loved to play. One day I came home to my suprise my mom let some kids she was watching into my room to "play" my ps.. Low and behold my freaken favorite games were scattered across my room. Thus I bought one of those things to shove in the back and made copies of all my games and put those in the cases and hid my originals.. Yes I agree piracy of games is bad but I also agree that having little kids throw my favorite games around like they were 25 cent cds also makes me very angery..

I think Microsoft has every right to do what they did, and i think these hackers finally got what they had comming. I hope their is more to come, and i hope the Courts throw out the Bogus lawsuit.

Exactly. Microsoft has repeatedly stated that the detection criteria they use to determine what consoles were modded or not does not generate false positives (obviously this is unverifiable by pretty much everyone except MS employees). So far no one has conclusively disproven that statement - just a few anecdotal stories of people who claim to be innocent but were still banned. And anecdotal evidence is the worst possible kind of evidence, and would not hold up in court.

It's just MS's word versus theirs. Until there are confirmed cases where people are actually permitted to send back their consoles to MS, and then MS gives the O.K. that there were no mods on it and was a legitimate false positive - then there will continue to be a my-word-against-theirs stalemate.

(I don't own an Xbox 360, or any console for that matter)

When someone is providing a service to you they can deny that service for any reason not mentioned in the constitution (assuming USA here). So basically, if they told you, you can't play because you're *insert race* then yeah sue your heart out. If they ban you from that service because you broke the user agreement of that service (the one you agreed to at least once with a button click), then guess what, sue away and hope your lawyer only collects if you do and the people your suing find it cheaper to settle than take you to court.

MS is within its rights in this case based on my armchair lawyering skills.

And the answer to that would be Blurays my friend. =]

I think it's OK to ban those that modded a drive to play pirated games.
But.. Crippling the HDs also? Why??

Haven't people lost access to stuff on their hard drive because of the "update" that MS put out when trying to log onto live with a mod'd xbox?

I can certainly understand not allowing people who pirate the ability to access any of the services or to render their units useless, but I'm sure someone will call foul because they lost access to some precious personal data on their hard drive. You can sue for just about anything now adays...

Removing XBox Live support for pirated games is fair.

Removing XBox Live support for modified consoles is also fair.

What is a potential issue is that if a user decides to modify their console (which has been shown to be allowable by law now) and has 1 backup (or pirated game) then they get banned from the entire Live service. Why this could be an issue is that from then on all legitimate, original games will no longer receive updates. As some of these updates are 'bug fixes' which are not available from other sources , Microsoft is removing the 'warranty' and support for those legitimate products by association to the modified console.

I had a toddler, a dog, and 2 parents to ruin all my discs... along with my Xbox 360 wrecking just as many.

I am not against modding, but legitimate modders get screwed over, within Microsofts rights or not.
Look at the PSP or a iPhone, they turn into somehting actually useful once mod them. (For the PSP, a proper web browser, and many needed applications. For the iPhone, removing Apple's heavy chains)

They should just toss this lawsuit, but yes, I'd be pissed too. We invented fake Windows Live servers for a reason.

Bricking harddrives or deleting data isn't legal.

The spin on the lawsuit will probably be that Microsoft is only allowing people to play online through their service(Monopoly). Its only going to take a few individuals to show that they were innocent and were wrongfully banned, or a couple of people who modded their 360s because Microsoft wouldn't fix a certain problem the system had to get this lawsuit going.

Doesnt matter what justification people use, at the end of the day, the EULA for xbox live is explicit that modified hardware will result in withdrawl or permanent banning from the service. It is their service, they can do what they like. You're lucky you can buy a new console and carry on, they would be within their rights to cancel your account and keep the money as well probably.

Microsoft are keeping quiet on this one, and quite rightly so, the less they have to say about their detection methods the better for them as it will be less likely someone will work out a way around it.

I suspect the outcome is that they will add an addition to the RROD service:

"if you believe your console has been wrongly banned, send it free for us to look at, if the claim is genuine we'll repair or replace the console, if we find a mod, we'll keep it"

I predict zero usage, because I suspect microsofts detection method is accurate.

Oh yeah, in answer to the kids problem - I've got three kids - no scratched CD's ever - because i DONT LET THEM PLAY WITH THE DISCS!.

seriously if you cant teach your kids to look after stuff, they arent old enough to have it in the first place.

The only alternative to saying you were pirating games would be that the DVD region was altered to play out of region DVD's, which is also in violation of various terms.

I'm usually arguing against DRM and copy protection schemes because they don't work. I have no problem with this approach.

Besides, for $50 you can get a bare console that may have issues but probably has the part(s) needed to appear as a different box without the mods. Many banned consoles on eBay say they've already replaced the modified units in the descriptions, so XBox sales should be pretty good with all these second purchases even if some people are annoyed.

Sanctity of life my ass, Microsoft is the first one to play dirty!! Remember when the programed their soft to sabotage non windows machines?

Wait, "denial of Live service" is clear, but what about crippling Xbox-es?

I will probally get slammed for this, but something that has not been stated about "crippling" is the obvious business model. Their hardware is subsidized. To sell a console for the price they do, they must recoup revenue from "overpriced" hard drives. That is a concession you make when you buy a console. If anyone has a legitimate gripe it is PC gamers now paying the same price for games as console gamers after investing much more in hardware for the enhanced experience. Now PC gamers are being treated like red-headed step children. I bought a 360 once....I gave it away.

I hope every last one of these gamers flips off MS and buys a PS3. But I bet there will be still allot of them who will give MS more cash.

Just one lame ass game (modern warfare) I know of thought they could raise the price to $59, usually PC games start out at $49, I just picked up Dragon Age for my gaming rig for $39 at Amazon with free shippng too.

Doesnt Microsoft offer a dvd replacement service for the xbox360? So, making copies is not needed.

Under current copy right laws consumers have the right to create backups of any software they purchase. By not creating an avenue for consumers to legally backup their software purchases Microsoft opened the door for outside/private developers to do so. All a lawyer has to do is show enough people who modded for backup creation (having proof of purchase and the disks) and a judge may very well say that Xbox Live's terms of service violates fair use clauses in current copy right law.

Out of the 600,000 to 1 million people banned they will find enough people who were modding for backup to justify the suit and maybe win. MS needs to pull it's head out of it's ass and move to a system like Steam and Blizzard where games are registered to user accounts and downloaded/installed to the hard drive. No more need for backups as they're on the MS server. It would save tons of money by not having to come up with ways to beat pirates.

In class action suits, the "burden of proof" goes both ways. The plaintiffs will have to prove wrong-doing on Microsoft's behalf and Microsoft will have to prove that they were well within their rights under the terms of use agreement. If there are any grey areas in the terms of use, which is nearly unavoidable, MS will probably lose. Now, IF the terms of use states "any modification of any type"...then MS has already won as they've covered ALL possibilities. I haven't personally read the terms of use as I don't own an XBox, but the terms of use falls under contract law in most states, and is legally binding. If the terms of use forbid modification of the system, then MS is legally bound to ban ALL users of modified consoles, which means that the plaintiffs would have to prove that MS intentionally overlooked a significant number of modified Xbox users to prove any case against MS. One thing that most people don't understand, is that no class-action suit actually exists at this point. To gain class-action status, the plaintiff has to prove beyond any reasonable doubt that MS acted unfairly with regard to a significant number of users, then wait for a Judge to award class-action status to the complaint. It's not possible to simply file a class-action lawsuit, as it's not considered a civil action and requires certification from a Judge.

I upmost disagree with the first 2 sentances and all about modding an xbox to play a copied game while still having the orgianal. I did the same thing for my PS2 I went threw 6 copys of GT3 because my little brother then I found out about modded PS2 so I tried it and then it saved my self and my 40+ plus games from getting destoryed by my younger brother. Not only that but my PS2 from the get go didnt want to play DVD Movies. I talked to Sony and they wanted to charge me like 100$ to fix it, and it was brand new. Still under warrenty. After modding it played DVD movies like it was supposed to.

I wanted to buy an Xbox 360 but found out that you cant upgrade the hard drive so I went out and got the MGS4 PS3 and upgraded the HHD to a 160GB and I love it. So in away some people might have to mod thier gaming system to save from buying a game quite a few times. I do that for PC because I want to play online with all of my computers.

"The law firm also alleged that the banning was "strategically placed," thanks to the popularity of Halo 3: ODST, Modern Warfare 2, and the holiday season"

Ummm yes? That would be the best time to ban people, satellite companies have been using this strategy for years to ban pirates, nuking illegitimate cards just before a big event.

Banning people when nothing is going on it isn't going to make as big of a point.

Another point, people who get their console modded, or mod it on their own are well aware of the risk of getting banned.

When you mod your box you KNOW two things:
1. The warranty is void,
2. you risk Xbox Live access if you get caught.

While I understand is in it's legal right to ban modders, I don't think it's a good thing for them. Ban people who plays illegal games on their modded Xbox, yes, but not those who have mods for backup purposes or other legal use.

If we make the ever-popular car analogy: Would Honda be right to ban the modding of Civics? Legally, maybe, but they would lose a lot of customers. However, modded Civic or not, you can't ride it at 100mph.

Wrong, burden of proof falls only on the plantiff, the respondent(Microsoft)only has to submit an answer (terms of usage, reason for bans, ect.) to the plantiff's case. If reasonable liability or fault is found at that point then yes it would move to trial like you said, but it is still up to the plantiff to prove gross fault against the defendants answer during the exploration phase of the trial, the defendant doesn't even have to show up in court.