Microsoft and the Xbox

[Lo Zeno]

Originally Posted by DawnFalcon

No, melodramatic are the declarations that the network owner is allways right. And this is a thread discussing consoles, if you didn't notice. I'm supposed to discuss e-readers in this thread?

Simply because something in an EULA does not make it legal, or even a good idea. Anyone here, oh, cracked DRM? Unlocked a phone? Concealed the country they come from to purchase content?

I ain't the one throwing melodrama.

That's not what I meant... What I meant is, this is an eBook forum; this fact makes me think that it is filled with people whose common interest is eBooks and e-readers; this, in turn, makes me think that yes, there can be someone sensitive to consoles problems (I am), but they will be very few. Your words would have more effect among a community of gamers. I'm just speaking about the effect of your words.

As for your rhetoric questions, sure there is people here who cracked/hacked/whacked stuff. Hell, I admitted in my post that I own modded consoles. But the fact that other people does something doesn't make it right. Otherwise killing would have stopped being a crime ages ago!

If something is in an EULA, and 1) doesn't force those who accept the EULA to break some law, 2) doesn't ask people to renounce one of their rights, 3) isn't declared "against the law" by a court, then it is legitimate. You may not like it, but it's legitimate. I do not like Microsoft's .NET framework's and windows' EULAs but hell! They're totally legitimate!

That's why my personal laptop doesn't run any windows software at all!

Microsoft's EULAs (just like Apple's ones and most videogames licenses) are notably bad. I don't "buy" a videogame, I have a "licence to use it". With so many limitations that it even forbids me from making a backup of the game for personal use in case my DVD gets crushed under a car's wheel. Yes, EULAs and licences are bad. Devil-like bad.
But still, unless a court tells me otherwise, they're legitimate. So if you break them, you are on the wrong side, unfortunately.
What it would take is to force, somehow, the law-makers to make some rules about what can and can not be asked in EULAs and T&Cs, we already know that.

[DawnFalcon]

Oh trust me, this is so not the only place I'm posting about this :P

And sorry, but if a contract says "If you're gay you can't agree to this", that's "legitimate"?

Also, under UK law the liscence clause is utter, and illegal, bullshit. If it's a liscence, then it has to be sold as a liscence, not a purchase. Worse, if many EULA's are to be taken as a whole, then they are selling a service, not a product, and the companies are commiting multiple illegal acts per-"liscence".

[Lo Zeno]

Originally Posted by DawnFalcon

And sorry, but if a contract says "If you're gay you can't agree to this", that's "legitimate"?

Of course not: it's sexual discrimination, and I'm pretty sure that it would break some laws in UK too. I don't understand what do you mean though: does XboxLive T&C's say that you can't connect if you're homosexual?

Also, under UK law the liscence clause is utter, and illegal, bullshit. If it's a liscence, then it has to be sold as a liscence, not a purchase. Worse, if many EULA's are to be taken as a whole, then they are selling a service, not a product, and the companies are commiting multiple illegal acts per-"liscence".

Well, I don't know how does it work in UK, but here if I buy a videogame I am actually buying a licence. It is sold as a licence, yes. And most softwares are sold as services, yes. The fact that I buy that service in a Mall doesn't change anything... and I know that many companies commit multiple illegal act about it (i.e. installing more than the allowed number of installation), but as I said before: just because people does it, it doesn't make it authomatically right.

[DawnFalcon]

Did you miss the entire fuss about someone who self-identified as lesbian being kicked off XBL? But no, my point is that there are clauses just as bad, in a legal sense, remaining in the XBL agreement.

And no, you missed my point. The companies selling the product are the ones violating the law. It's not right...


Look: From a pragmatic pov, Microsoft's action is going to cause a lot of problems for the games industry, and there are other things they could do which would safeguard their network and cause far fewer problems. I honestly don't bother with a moral pov on this, people won't listen unless they're allready convinced you're right.

Also, their policy isn't environmentally sound and they have their eco credentials become junk over this. Yes, this should be a concern.

[Lo Zeno]

Originally Posted by DawnFalcon

Did you miss the entire fuss about someone who self-identified as lesbian being kicked off XBL?

Yes, actually I did miss it. As I said, I own almost all consoles available today: guess which ones do I miss? eheh

But no, my point is that there are clauses just as bad, in a legal sense, remaining in the XBL agreement.

Can you provide an example of a clause potentially as bad as sexual discrimination?

And no, you missed my point. The companies selling the product are the ones violating the law. It's not right...

What laws are they violating? Can't they sell services?

[DawnFalcon]

Yes, but they would then have to comply with the laws surrounding services, which are considerably more complex and restrictive than those for products. Which they don't want and don't do. They're taking the best of both worlds, and it's not legal.

And sure - the no-refund clause. This is bluntly and totally illegal. When you terminate someone's service, you are required to return the balance to them. Not doing so is fraud.

[Lo Zeno]

Originally Posted by DawnFalcon

Yes, but they would then have to comply with the laws surrounding services, which are considerably more complex and restrictive than those for products. Which they don't want and don't do. They're taking the best of both worlds, and it's not legal.

If you could be more specific and give me a concrete example, it would help greatly. I don't know UK laws, so I can't know how they are more complex and restrictive than normal commercial laws, and despite your efforts I still don't know what part of those laws they are not complying with. Can you please tell what are they doing illegally?

And sure - the no-refund clause. This is bluntly and totally illegal. When you terminate someone's service, you are required to return the balance to them. Not doing so is fraud.

Ok, I'm ignorant of the UK laws, so I'll take for good that where you live such a clause is illegal. Where I live, it is not: the refund is granted only when you buy an item, not when you buy services; in the case of services, you're granted a refund only proportionate to what you have paid in advance and not yet benefitted. So, if I pay for a three years service and get kicked out after 2 years, I get a 1 year refund; but if I pay only each time I benefit of the service, I can't have a refund.

If you are 100% sure that the no-refund clause for XBL is fraudolent, then you can positively point this out to anyone who had been banned from XBL because an illegal clause voids the T&Cs, and any court will confirm that.

[DawnFalcon]

Originally Posted by Lo Zeno

If you could be more specific and give me a concrete example, it would help greatly. I don't know UK laws, so I can't know how they are more complex and restrictive than normal commercial laws, and despite your efforts I still don't know what part of those laws they are not complying with. Can you please tell what are they doing illegally?

Please understand, they're selling these things as what UK judges is a sale. (If it looks like a sale, smells like a sale and is paid for like a sale? It's a sale!) They can't enforce restrictions only avaliable via a liscence because it's not liscenced, and any attempts to do so are illegal.

i.e. "No resale", which due to exhaustion of rights is something which cannot be enforced on a sold product.

(Also note this only applies to sales to end-users, company-company sales are, pretty much "buyer beware")

If something is a service then, for instance, there is an explicit right to recieve a "satisfactory" service, which has to be made good at the expense of the company providing said service. This was actually primarily aimed at cowboy builders, but would apply equally to software!

if I pay for a three years service and get kicked out after 2 years, I get a 1 year refund; but if I pay only each time I benefit of the service, I can't have a refund.

Yea, thats how it works, billing period minimums. But with XBL, if you pay for a year then get banned the next day, they don't give you 11 months back.

Microsoft have settled a number of these cases before they reached the small claims court. It's not in their interest to get a judgement against them there, and nobody has yet - although someone could - take it to a full court. And only the refund term could be changed in an action focusing on that...it's not precisely a high return item for a law firm.

[Lo Zeno]

Don't you have a sort of "National Consumers' Association" that can help you? That's all it took me to be fully refunded of Windows Vista's licence cost when I bought my laptop, formatted it, and installed Fedora Linux on it

[DawnFalcon]

Not really. There are watchdogs, but they're pretty toothless when it comes to getting major companies to behave. They basically have to catch a MP's eye to get things done, and Parliament has more important things on its mind (like next years election).

[HarryT]

Sorry, DawnFalcon, but would you mind spelling "licence" correctly. It's really bugging me seeing you repeatedly spell it "liscence" . Thanks!

[Hellmark]

Originally Posted by DawnFalcon

Also, under UK law the liscence clause is utter, and illegal, bullshit. If it's a liscence, then it has to be sold as a liscence, not a purchase. Worse, if many EULA's are to be taken as a whole, then they are selling a service, not a product, and the companies are commiting multiple illegal acts per-"liscence".

Xbox live is a pay for service. There is nothing for the Xbox itself restricting modification. The EULA in question is strictly that for Xbox Live.

[DawnFalcon]

Originally Posted by HarryT

Sorry, DawnFalcon, but would you mind spelling "licence" correctly. It's really bugging me seeing you repeatedly spell it "liscence" . Thanks!

It's one of the words I persistantly get wrong >< (dyslexic!)

Hellmark - Nope. XBL also has a free level. More, advertising has made it out to be a "feature" of the Xbox 360, and not a standalone service.

[HarryT]

Originally Posted by DawnFalcon

It's one of the words I persistantly get wrong >< (dyslexic!)

No problem, then, if that's the case .

[DawnFalcon]

Heh - I really don't mind it being pointed out, but I'll probably just do it again

(The spellchecker I used with Firefox 2 dosn't have a UK-English dictionary for 3.x, if you have a recomendation for one...)