[PKFFW]

Originally Posted by DawnFalcon

No, the law is that only if you alter something directly related does it matter. Changing the optical drive firmware does not change how the Xbox behaves on Live in any way, or indeed any legitimate function, so that's a non-issue there.

The firmware of the Xbox is directly related to the Xbox accessing the Xbox live service. For example, without the firmware you would not be able to access live at all. If you stuffed it up completely you would also not be able to access live. So you are altering something directly related to the Xboxes ability to access live.

Originally Posted by DawnFalcon

Adding functions not recognised as legitimate by the platform owner does not nullify the requirement of the device to function properly. This has been taken to court with unlocked mobile phones, and the company lost.

1: Unlocking a mobile phone is not adding functions it is merely unlocking a function already there. Hacking and modding the Xbox firmware does add functions and fundamentally changes the product.
2: If you were to unlock your mobile phone yourself and screw it up by doing it wrong I think you would find pretty much any court in the country would rule you screwed up and therefore the phone manufacturer has no responsibility to fix your phone and there is no requirement for the phone to continue working as advertised. On the hand if you went to an authorised and qualified person and did it things may be different. Now, it may very well be that if you go to an authorised and qualified person to hack and mod the firmware of the Xbox the court may side with you. Of course since there are no authorised and qualified persons for modding Xbox firmware, that might be difficult.

Originally Posted by DawnFalcon

And you need to read my posts. The burden of proof is not on the claimant for terms which are recognised as being unfair. This is a basic principle of UK contract law.

1: As you point out, there seems to be no official organisation in charge of pro-actively seeking out and doing something about these automatically unfair clauses.
2: Therefore, someone must do something about them. ie: take MS to court over it.
3: Therefore, the claimant must prove that one of these automatically unfair clauses exist. A simple matter of bringing a copy of the EULA along and pointing to the unfair clause. However, it still must be done. The claimant can not show up at court and simply say to the judge "trust me dude, one of those automatically unfair clauses is definitely in there, I've seen it with me own eyes man!"
4: The judge must then rule that any clauses claimed to adhere to the definition of automatically unfair, do actually adhere to that definition.

Is the process clear enough for you now?

So where does the burden of proof lay? No official body is involved bar the court. The defendant, MS, certainly isn't trying to prove there are clauses that adhere to the definition of automatically unfair. The court and judge remain impartial.........so that leaves??? Oh yeah, the claimant!!!

Cheers,
PKFFW