Microsoft and the Xbox

[dmaul1114]

Originally Posted by Hellmark

Is Xbox Live advertised as a feature, or the availability of Xbox Live advertised as a feature? Here in the US, it is the availability, which does make for a legal difference, although most people cannot tell the difference.

Yeah, they just mention the feature etc. I've not seen it marketed as a built in feature so much. Most of the marketing focuses on Gold which is the pay service, and just mentions that silver is available.

Originally Posted by Hellmark

If they didn't have some control over their network, then things would run amuck. Couldn't do anything with cheaters, or people who do try to ruin things for others.

Exactly. Companies have to have control over who they allow on their network. Maybe they could do a better job of not getting false positives in who they ban etc.--but again, as someone said earlier, it can't be that many innocent people being banned or their would be a huge stink about it especially as much as people hate Microsoft.

Also, if it wasn't legally valid, why haven't they been challenged so far? Pretty much all of the suits I've seen have been thrown out.

Agreed. Especially in the US. Maybe there are some more issues in other countries where they have tighter regulations of business etc. But again, seems like we'd be hearing about class action law suits etc. if there was a solid case--as greedy civil lawyers would jump all over it if they though there was a clear case here.

They no they aren't going to win a case involving people getting banned from a companies network for modding consoles, as it can easily be argued that most people doing it who were banned were playing pirated games, cheating etc.--not a very sympathetic set of defendants. At most you'd get some required change to make sure they weren't banning people who hadn't modded for that purpose.

[DawnFalcon]

Originally Posted by Hellmark

Is Xbox Live advertised as a feature, or the availability of Xbox Live advertised as a feature? Here in the US, it is the availability, which does make for a legal difference, although most people cannot tell the difference.

As a feature. And yes, it makes a difference here too. One wonders what the heck Microsoft UK were thinking.

And yes, stick to your line that the threads in forums all over the net are not important. Read the comments, see how many people dismiss them as "pirates". Sigh.

You don't hear about "class action" suits here because we don't allow them*. And neither are there public records of small claims court actions which are cancelled pre-hearing because of settlements. Typically settlements are sealed precisely to stop the person who's settled making out how nasty the company is as well.

(*Yet. We may have them in a few years)

[Hellmark]

Originally Posted by DawnFalcon

As a feature. And yes, it makes a difference here too. One wonders what the heck Microsoft UK were thinking.

And yes, stick to your line that the threads in forums all over the net are not important. Read the comments, see how many people dismiss them as "pirates". Sigh.

I've not said that.

[Sonist]

Originally Posted by Hellmark

... Here in the US, it is the availability, which does make for a legal difference, although most people cannot tell the difference.

No, it is not.

I pasted the xbox.com link above, but here it is again:

http://www.xbox.com/en-US/hardware/compare101.htm

Where do you see the word "available?"

[Hellmark]

Originally Posted by Sonist

No, it is not.

I pasted the xbox.com link above, but here it is again:

http://www.xbox.com/en-US/hardware/compare101.htm

Where do you see the word "available?"

That page makes no mention of Xbox Live Gold, only Xbox Live Silver. Silver accounts are free to anyone, you don't even need to own a Xbox. However, Xbox Live Silver cannot be used for online play, or many other things. Xbox Live Silver really is pretty useless. The terms for not modifying the xbox are in the agreement for Xbox Live Gold.

[dmaul1114]

Again, it just doesn't matter as even though it's listed you have to sign up for it and create an account and you have to agree to the EULA as part of that process.

So there's no legal issues there--at least not in the US--I can't speak for other countries. But again, if there were huge issues anywhere there would be a bigger stink over other than just nerds whining in forums. MS is a big company, if there were legal issues there would be lawsuits, and media coverage of outraged consumers etc.

It's just a non-issue for most as it's in the EULA and the majority of people aren't modding their consoles.

People just go to far. Consumers rights is one thing. But it's another to be totally anti-corporation and not think that companies should have pretty broad rights in who they let on their networks etc. There needs to be a happy medium--EULAs should be reasonable, and it seems like MS's largely is aside from potentially banning some people who maybe didn't mod their consoles--though I'm skeptical of that claim without seeing more than whining on message boards. I don't care if people modded them for non-piracy reasons. The policy is no modding--stick by it or don't buy an x-box if you want access to the online stuff--and get a PS3 instead. The bulk of good games are on both these days anyway.

[Sonist]

Oh, and here is another link, which may be of interest:

http://www.abingtonlaw.com/Xbox-Live-class-action.html

[dmaul1114]

Originally Posted by Hellmark

The terms for not modifying the xbox are in the agreement for Xbox Live Gold.

Yeah, that's my understanding as well. I couldn't see them banning people from silver accounts, as it blocks the being able to pay for expansions, arcade games, movies etc.

Maybe they are banning silver accounts as well--but the bitching I've heard have been from people who couldn't play their games online anymore not that they couldn't access the demos etc.

[Hellmark]

Originally Posted by Sonist

Oh, and here is another link, which may be of interest:

http://www.abingtonlaw.com/Xbox-Live-class-action.html

They are investigating a classaction lawsuit, which means it hasn't been brought up yet.

[dmaul1114]

Originally Posted by Sonist

Oh, and here is another link, which may be of interest:

http://www.abingtonlaw.com/Xbox-Live-class-action.html

It will be interesting to see if anything comes out of it.

I don't see it as it's easy for MS to paint the picture of the majority of mods being to allow for the playing of pirated games--not a very sympathetic defendant.

Maybe a suit could get some small change to require some way to ban only mod chips that allow pirated games to be played and not catch people who installed a larger harddive etc.

But it would be a straight up joke if they were ever required to completely ignore people installing mod chips that allow playing bootlegs. Companies need to be allowed to do things to protect their property.

[DawnFalcon]

[QUOTE=dmaul1114;661541]Again, it just doesn't matter as even though it's listed you have to sign up for it and create an account and you have to agree to the EULA as part of that process.

Yes, and as I said that not only dosn't excuse Microsoft in the UK, it's arguable that the entire EULA has no force because it's an illegal form of supplementary contract.

But it's another to be totally anti-corporation and not think that companies should have pretty broad rights in who they let on their networks etc.

If they have to serve them in a shop, they should have to let them on their network. There's no appreciable difference.

Yeah, that's my understanding as well. I couldn't see them banning people from silver accounts, as it blocks the being able to pay for expansions, arcade games, movies etc.

They are. And yes, that's the point I'm making about it being a bad idea, the particular way they're going about it!

And nerds "whining" (i.e. normal people airing valid complaints), right, like the thread about unpacking Xbox's from major retailers and finding them banned (and no, I am not your linkbot. Deal)

[Sonist]

Originally Posted by dmaul1114

... you have to agree to the EULA as part of that process.

So there's no legal issues there--at least not in the US....

You are wrong. Particularly, regarding the US.

T-Mobile lost a case last year in California, where the whole legality of EULAs was questioned in the Court's opinion. It basically said, that where one party has far superior bargaining power, and there is no ability to negotiate (you have to accept or decline the whole EULA), the contract may be unconscionable.

And don't throw "socialism" in there. There are some large companies, which much resemble socialist societies, including the requirement to toe the "party line," and are often complete with their own "cult of personality."

Oh, and large companies often lobby hard to avoid competition, and usually love dealing with non-democratic regimes, where they can get long-term contracts through wooing one dictator, or through bribes.

So, do not equate the free market with Halliburton....

[PKFFW]

Originally Posted by Sonist

But my real point was, that MS advertises Live as part of the hardware purchase (it's listed under "in the box.") Even if "Silver" is "not substantial," it is nevertheless taken away from modded boxes, correct?

Originally Posted by DawnFalcon

The fact is, legally that dosn't matter, it's advertised as a feature of the Xbox 360.

Be that as it may, once you have modded your Xbox you no longer own what you purchased in the shop. You own a different product. That different product does not come with any advertised access to Xbox live.

Arguing that you should still retain all advertised accessories would be akin to arguing if you switched out or modified the engine in a car you bought you should still have the new car warranty and all other accessories advertised with it when you bought it.

Sorry but it just don't work that way.

Cheers,
PKFFW

[DawnFalcon]

That's a novel legal theory about different products. Bluntly, lol.

And no, warantee issues are totally, legally, separate from EULA ones. More, there is an assumption of fitness-for-purpose under UK law which means that even if technically disqualified for warantee repair, if the product was not not fit, it dosn't matter what the warantee says. Oh, and that statutory right extends for six years and is on the retailer who sold you the goods. (Although after six months, you have to prove fault, within six months they have it's not faulty after taking it back)

[PKFFW]

Originally Posted by DawnFalcon

That's a novel legal theory about different products. Bluntly, lol.

With your limited understanding of law I'm not surprised you laugh.

In Australia anyway, and our legal system is based upon the UK system so I strongly suspect it is the same there, any time you significantly modify a product it will be considered, for legal purposes, to be a different product to the one purchased. This difference may or may not affect the requirement for the product to work as advertised depending on the specific modifications and the product itself.

Once you have moddified your Xbox it is very likely the courts would rule there is no requirement for that Xbox to work as advertised.

Cheers,
PKFFW