Microsoft and the Xbox

[DawnFalcon]

Originally Posted by PKFFW

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.

Only of it's directly related. If you flash the optical drive's firmware, that'll only affect the product having to be fit so far as it is directly related to the optical drive's alteration.

And my limited understanding? You're the one who insist that, for example, the burden is on someone to prove in a ciivil case here that a term is unfair, when they just have to prove that it exists, it's potentially unfair...and then the company has to prove it's fair.

[dmaul1114]

Originally Posted by Sonist

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....

Whatever. This isn't a competition or unfair advantage type of issue. It's allowing companies to impose some penalties on people who alter their product to allow them to steal other product (games) from them.

EULA do need to be looked over and struck down when they are unreasonable.

This is 100% not an unreasonable EULA IMO. We need to change laws to make having pirated games, illegally downloaded songs etc. treated much the same way as someone who stole the game or album from a store would be IMO. Digital product is still product.

People--especially the types who mod consoles--have this sense of entitlement that they should be able to have free access to digital content, or should be able to get on a companies network even if they've hacked the device in question etc.

Product is product. Buy it and use it as intended, or don't buy it if it doesn't suit your needs. I'll support the right of companies to protect their assets anyday.

If they cross the line and start trying to rip people off, then I'll defend the consumers.

[PKFFW]

Originally Posted by DawnFalcon

Only of it's directly related. If you flash the optical drive's firmware, that'll only affect the product having to be fit so far as it is directly related to the optical drive's alteration.

And which part of the Xbox 360 is advertised as coming with Xbox live service? Is it advertised that the Xbox 360 modem comes with Xbox live? Or the Xbox 360 optical drive? Or the Xbox 360 hard drive?

Or is the Xbox 360 itself, and as a whole, supposedly advertised as coming with Xbox live?

Correct me if I'm wrong but I believe you and Sonist have repeatedly claimed it is the Xbox 360 that is advertised as coming with access to the Xbox live service.

Therefore if you mod the Xbox 360 in any way it will very likely be ruled by a court to be a product that is substantially different to the purchased product and therefore does not have any requirement to work as advertised.

Originally Posted by DawnFalcon

And my limited understanding? You're the one who insist that, for example, the burden is on someone to prove in a ciivil case here that a term is unfair, when they just have to prove that it exists, it's potentially unfair...and then the company has to prove it's fair.

No, I said the burden of proof is on the claimant. Not that the claimant has to prove the term is unfair. You should take some reading and comprehension classes I think.

Now, if the term is automatically unfair, as you claim, the burden of proof becomes merely a case of proving that that "automatically unfair" T&C exists within the EULA. I'm sure the defendant would then argue that the term in question does not actually adhere to the definition of "automatically unfair". Then a judge would decide who was right.

It seems to me if the case was as open and shut as you claim at least one of those many millions upon millions of innocent bystanders who had been wrongly banned would have taken it to court and won by now. Or even someone who merely disliked MS would have done so just for the fun of it.

Cheers,
PKFFW

[Sonist]

Originally Posted by PKFFW

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

Originally Posted by PKFFW

... Therefore if you mod the Xbox 360 in any way it will very likely be ruled by a court to be a product that is substantially different to the purchased product and therefore does not have any requirement to work as advertised....

Well, your apparently unlimited "understanding of law," just got ran over by the Magnuson-Moss Act.

It has to do with modifications and warranties, and not with EULAs, but since you consistently confuse the two, it still applies to your post.

And I sincerely doubt, that Australia doesn't have its equivalent legislation.

P.S. I am too lazy to search (this is just for fun, right?) but I bet, you and dmaul1114 took similar stance on the "1984" deletions by Amazon. And look how that one ended....

[Hellmark]

Originally Posted by DawnFalcon

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)

I've yet to see any claims of a 360 silver account being banned under this.

[PKFFW]

Originally Posted by Sonist

Well, your apparently unlimited "understanding of law," just got ran over by the Magnuson-Moss Act.

Please specify where I have claimed an unlimited knowledge of the law.

Originally Posted by Sonist

It has to do with modifications and warranties, and not with EULAs, but since you consistently confuse the two, it still applies to your post.

And I sincerely doubt, that Australia doesn't have its equivalent legislation.

1: I'm sure Australia does have a similar legislation though I can't remember the exact act at present.

2: The act, as far as I can tell, does not cover significant modifications and changes to a product that are not authorised or done by the manufacturer or by an authorised and qualified third party. For example if you were to personally modify the engine in a car the Magnuson-Moss Act would not apply.

It does mention the following in Wikipedia....

"Warrantors cannot require that only branded parts be used with the product in order to retain the warranty.[2] This is commonly referred to as the "tie-in sales" provisions[3], and is frequently mentioned in the context of third-party computer parts, such as memory and hard drives."

However, consoles have long been treated differently to computers for starters, being that they are sold and recognised as an all in one product. And secondly changing the firmware of a device, especially when done by someone not qualified and authorised to do so, has long been considered an "at your own risk" endeavour.

So I'm not so sure the Magnuson-Moss Act would apply to modding an Xbox but of course that is again something that would be decided by a Judge in a court of law and not by a Judge asking you and DawnFalcon what you think on the matter.

3: The Magnuson-Moss Act relates specifically to warranties and not to value added services, even if those services are advertised as being part of the product.

Originally Posted by Sonist

P.S. I am too lazy to search (this is just for fun, right?) but I bet, you and dmaul1114 took similar stance on the "1984" deletions by Amazon. And look how that one ended....

1: Of course it's all for fun. I wouldn't spend time replying to something I didn't find fun!

2: As far as I'm aware the "1984" Amazon incident ended with Amazon making a good will gesture by returning the deleted items. I know of no court decision that ruled Amazon had acted illegally in any way.

Cheers,
PKFFW

[Lo Zeno]

I've made some homework () and discovered a few things:

In UK, you DO have a consumers association focused on defending consumers' rights. It's called National Consumers Association. I'd humbly suggest asking their help, since in my experience they have the perfect knowledge to fight against teh Evil Corporations Seriously though, it's thanks to that kind of associations that I discovered how to be refunded of the copy of Windows that comes pre-installed in a new PC.

There is actually nothing that separates the act of selling a product from the act of selling a service, even in UK: if someone sells you a videogame (or any other licensed software), he just needs to give you a copy of the licence agreement with it, and that is, normally, already covered because the licence agreement is written inside every User Guide / User Handbook inside the DVD case. So, I'd really like to know what differentiates, in UK, the "sell" from the "licensing", and in what way are reseller violating that, because I wasn't able to find it.

All the news I read do NOT report of Silver Memberships banned: all the news I could find report that people could not access their Gold Memberships from a banned console, yet using another console they found their Gold accounts perfectly working.
If there are less-known news, I'd like to see them, 'cause I haven't found any...

Finally, I'm pretty sure that the million of banned consoles weren't all bought in the UK so those who do not live in UK and have different (and/or more favorable laws) would have already started a legal action if they were entitled to it. I bring Italy as a case: our national consumers rights associations (we have at least five, that I know of) have quite some power when it comes to defending consumers' rights. Yet I haven't found any report of a banned Italian player who took action... and yes, I took the time to ask around in many Xbox-focused italian forums. What I found there is just that those consoles were actually modded, and only a couple of people had bought used consoles thinking that they weren't modded only to discover that they in fact were.

Interestingly, the first thing they told me was that someone has already found a way to get around the ban, and seems easily doable! Not a quick process, but doable.

[GeoffC]

National Consumers Association

not in the UK .... ?

Citizen's Advice Bureau
Which
Office of Fair Trading

[stustaff]

Originally Posted by Lo Zeno

All the news I read do NOT report of Silver Memberships banned: all the news I could find report that people could not access their Gold Memberships from a banned console, yet using another console they found their Gold accounts perfectly working.
If there are less-known news, I'd like to see them, 'cause I haven't found any...

NO memberships have been banned at all No gold No silver

A banned console can not access xbox live at all! so someone with a modded console and a silver membership would be unable to access it as they cant get on live.

[DawnFalcon]

[QUOTE=PKFFW;661701]And which part of the Xbox 360 is advertised as coming with Xbox live service? Is it advertised that the Xbox 360 modem comes with Xbox live? Or the Xbox 360 optical drive? Or the Xbox 360 hard drive

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.

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.

No, I said the burden of proof is on the claimant. Not that the claimant has to prove the term is unfair. You should take some reading and comprehension classes I think.

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.


Hellmark - It does happen. Consoles with only silver can and have been banned.


LoZeno - What differentiates a sale from a service in the UK is how it's sold.

Also yea, if you were one of the hardcore hackers and has a previous keydump and and another 360. you can bypass the ban.

[Lo Zeno]

Originally Posted by DawnFalcon

LoZeno - What differentiates a sale from a service in the UK is how it's sold.

Ok, so, how should they sell it and how is it actually sold?
Not to be an asshole, I sincerely want to know the difference. And I can't find shit on internet about it...

[DawnFalcon]

Basically, if something looks like a sale, smells like a sale and is presented as a sale? It's a sale.

[Lo Zeno]

Originally Posted by DawnFalcon

Basically, if something looks like a sale, smells like a sale and is presented as a sale? It's a sale.

I'm starting to think that you are being elusive on purpose again, so I'll put my question on the most detailed way possible.
In what a licensing contract should ever look, smell, or be presented differently than a sale? Given that in both cases I see a customer approaching a reseller who give him a product (in case of a sale) or the digital support which will provide the service (in case of licencing a software), given that in both cases the customer pays and the reseller gives a receipt or a similar notice like "I received money from you in exchange for this product/service", where should be the difference?

Seriously: I go to the mall, grab a pair of shoes, I pay. It's a sale.
I go to the mall, I grab a DVD, pay the DVD: it's a licenced software.
And it's perfectly fine, but you say that no, in UK it's not a licenced software because it's being sold as in a normal sale. Why? Where is the difference?

As I asked before:

How should they sell it, and how is it actually sold instead?

[DawnFalcon]

It's because there isn't a hard and fast line, it's a subjective one. There are elements which support both sides, but generally if you can see the licence agreement before paying and if it's explicitly stated to be a licence and not a sale, then it's likely to be considered a licence by a court.

In your example, the DVD is considered a sale. The movie studios cannot, for example, stop you from reselling the DVD by putting a licence on the disk stating you cannot.

Now, in this case, to be a proper licence they need to decouple the advertising for the Xbox and Live, and to make it plain that it's a separate service (which it is, because Live is also technically for Windows PC's)

[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