Microsoft and the Xbox

[Hellmark]

Originally Posted by PKFFW

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.

To play devil's advocate here, DF mentioned the Optical Drive Firmware, NOT the firmware of the Xbox itself. The DVD drive has it's own firmware, a large duty of that is to handle the copy protection. The optical drive firmware isn't responsible for Xbox Live access.

[DawnFalcon]

Originally Posted by PKFFW

The firmware of the Xbox is directly related to the Xbox accessing the Xbox live service.

That's not what is being altered, however, as you'd know with a very little research. What is being altered is not the firmware of the Xbox, but the firmware of the optical drive in the Xbox, which dosn't affect the ability of the Xbox to use Live.

1: Unlocking a mobile phone

Sophistry. It's directly altering critical phone functions, and it has to gain exceptions from the relevant laws on protecting DRM in various countries. It is considered in the consumer's interest to allow unlocking, which is why there are exceptions for it in some countries.

Therefore, the claimant must prove that one of these automatically unfair clauses exist.

Try reading the EULA in question. And no, the judge does not have to rule anything or the defendent do more that point out that the clause is one on the list. There mere existence puts the burden of proof on the company. Period. Don't try and pretend you know anything about the UK court system when you very obviously don't have a clue, and are simply trolling for the heck of it.

[PKFFW]

Originally Posted by DawnFalcon

That's not what is being altered, however, as you'd know with a very little research. What is being altered is not the firmware of the Xbox, but the firmware of the optical drive in the Xbox, which dosn't affect the ability of the Xbox to use Live.

Ok. However the point about changing the product still stands. The Xbox 360 is sold as a complete product. It is not sold in parts requiring assembly upon purchase. You change the Xbox 360 and you may very well find you don't have a legal leg to stand on if it doesn't work as advertised.

Originally Posted by DawnFalcon

Sophistry. It's directly altering critical phone functions, and it has to gain exceptions from the relevant laws on protecting DRM in various countries. It is considered in the consumer's interest to allow unlocking, which is why there are exceptions for it in some countries.

Yes it is allowed in some countries. It's also a requirement that the unlocking is done by an authorised and qualified person in order for you to have any legal recourse should the procedure be stuffed up.

In the case of hacking and modding the Xbox, if you could kindly point to any authorised and, more importantly, qualified person able to hack and modify the Xbox that would be great.

Originally Posted by DawnFalcon

Try reading the EULA in question. And no, the judge does not have to rule anything or the defendent do more that point out that the clause is one on the list. There mere existence puts the burden of proof on the company. Period. Don't try and pretend you know anything about the UK court system when you very obviously don't have a clue, and are simply trolling for the heck of it.

1: I think you meant claimant do more than point out that the clause is one on the list correct?
2: That being the case, who would you say has the burden of showing that the clause is in the EULA? The claimant perhaps? Or does the defendant actually have to come along and read the claimants mind and decide which clause they are referring to and point it out for them? Or perhaps the judge has to do it?
3: So assuming you agree the claimant is the one who has to point that a clause that is on the "automatically unfair clause" list is in the EULA, who would you say bears the burden of proof in showing that one such clause is in the EULA?

Quite obviously it is the claimant who bears this burden of proof regardless of what you think.

Then.......
(unfortunately for you the courts don't come knocking on your door at this point and simply ask you to make a ruling.)

MS will have the opportunity to respond to the claim. In law, a single word can make a difference. The order of the words. The "any reasonable man" test can be applied. There are all sorts of things that need to be considered.

So.........

MS will undoubtedly make some sort of argument as to why the clause in question isn't really an "automatically unfair" clause.(however bogus and transparent that argument is)

Then........can you guess what happens now?

That's right........the judge makes a ruling!!! Wow, amazing how law works isn't it? In order to make a ruling the judge must first make a decision based on the arguments in front of him!

So you are clearly wrong about who bears the burden of proof.
You are clearly wrong in claiming there is nothing the judge has to decide.

Cheers,
PKFFW

[DawnFalcon]

Originally Posted by PKFFW

Ok. However the point about changing the product still stands. The Xbox 360 is sold as a complete product. It is not sold in parts requiring assembly upon purchase. You change the Xbox 360 and you may very well find you don't have a legal leg to stand on if it doesn't work as advertised.

Yes, you do. Again, you've shown you don't understand the UK's law surrounding this, asking rather than making incorrect pronoucements might be a good idea on your part.

Yes it is allowed in some countries. It's also a requirement that the unlocking is done by an authorised and qualified person in order for you to have any legal recourse should the procedure be stuffed up.

You seem to remain unable to differentiate between a warrantee (which can indeed be easily invalidated) and the separate statutory requirement that goods be fit for purpose (which is hard to invalidate)

"Authorised personnel" have very little to do with the second.

I think you meant claimant do more than point out that the clause is one on the list correct?

...

No, that is all they have to do, as I've stated repeatedly. If the phrase is in the EULA as presented to the customer is entered as evidence, that's sufficient. One of the defences is that the phrase is not one of those considered unfair, but that defence has to be made by the company, if they enter no defence then they will fail on that count!

[Sonist]

Originally Posted by PKFFW

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

Well, since you specifically recognized DawnFalcon's "limited knowledge," I just assumed that you deem yours to be unlimited, or at least vastly superior.

Originally Posted by PKFFW

... 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.... ...

Uhm, if you really wish to expand your knowledge, you shouldn't rely just on a brief description from Wikipedia. Even significant modifications are covered by The Act, and the manufacturer has to show, that it was the particular modification, which caused the particular failure, before it denies warranty coverage.

But, again, we are speaking of EULAs, an EULAs are often a shaky ground to base a lawsuit on. If MS took away the ability to sign onto Silver Live, I'd expect them to reverse their decision, either because of a court decision, or as part of a settlement.

[PKFFW]

Originally Posted by Sonist

Well, since you specifically recognized DawnFalcon's "limited knowledge," I just assumed that you deem yours to be unlimited, or at least vastly superior.

What you assume is entirely up to you. What I claim is entirely up to me. I have never claimed an unlimited knowledge of the law.

Originally Posted by Sonist

Uhm, if you really wish to expand your knowledge, you shouldn't rely just on a brief description from Wikipedia. Even significant modifications are covered by The Act, and the manufacturer has to show, that it was the particular modification, which caused the particular failure, before it denies warranty coverage.

I did read more than Wikipedia. I used that quote because it was easy to find again after I had done some reading and related to a specific point I wished to make.

Yes, significant changes are covered. However, when I mention significant changes I also mention they must be ones not done by an authorised or at least qualified person in order for them to not be covered. I use the example of making significant changes to a car yourself. As a more specific example if you were to turbocharge the car yourself and this caused the engine to blow up, the manufacturer would not be required to repair it for you. Or if the significant increase in speed caused the breaks to be unable to stop the vehicle safely the manufacturer would not be required to repair the car after a crash. However if the turbocharging was done by an authorised and qualified person the car would likely be covered by warranty still.

So, as I asked DawnFalcon, if you could point out any person authorised or, more importantly, with recognised qualifications, able to hack and mod the firmware of the Xbox that would be great.

Originally Posted by Sonist

But, again, we are speaking of EULAs, an EULAs are often a shaky ground to base a lawsuit on. If MS took away the ability to sign onto Silver Live, I'd expect them to reverse their decision, either because of a court decision, or as part of a settlement.

Yes, in short, we are talking about value added extras that may or may not be advertised as being part of the purchased product. We are not talking about warranties and so the Magnuson-Moss Act doesn't even apply.

Cheers,
PKFFW

[PKFFW]

Originally Posted by DawnFalcon

Yes, you do. Again, you've shown you don't understand the UK's law surrounding this, asking rather than making incorrect pronoucements might be a good idea on your part.

No, you claim you do. The law doesn't go by what DawnFalcon claims though.

Originally Posted by DawnFalcon

You seem to remain unable to differentiate between a warrantee (which can indeed be easily invalidated) and the separate statutory requirement that goods be fit for purpose (which is hard to invalidate)

"Authorised personnel" have very little to do with the second.

Incorrect.

Anytime you make any significant changes to a product those changes must be done by an authorised or at the very least qualified person in order for you to claim the product remains fit for purpose.

Take the car example again if you will. Should you turbocharge your car yourself and the engine blows up you can not turn around and claim "but it should still be fit for purpose even if my warranty is void". Sorry, no, if you blow up your car by using some joe smoe down the road with no qualifications then you don't have a leg to stand on legally. It really is as simple as that.

Now if you can simply point out any authorised person or at the very least a person with recognised qualifications that is able to hack and mod the Xbox, that would be terrific.

Originally Posted by DwanFalcon

No, that is all they have to do, as I've stated repeatedly. If the phrase is in the EULA as presented to the customer is entered as evidence, that's sufficient. One of the defences is that the phrase is not one of those considered unfair, but that defence has to be made by the company, if they enter no defence then they will fail on that count!

You should re-read your own post.

Post #257 page 18

Originally Posted by DawnFalcon

And no, the judge does not have to rule anything or the defendent do more that point out that the clause is one on the list.

Sorry to tell you this but the defendant is not required to point out which clause the claimant is claiming is in the EULA and is one of the automatically unfair ones.

The claimant must do that!

Ergo, the burden of proof for showing that the clause the claimant claims is in the EULA is on the claimant. Admittedly that is a simple matter of presenting the EULA and pointing to the clause but it is still the claimant who has to do this.

You are correct in asserting that the defendant then has the burden of proof in showing that the clause is not actually one of the automatically unfair ones.

I still find it suspicious though that all these clear cut automatically unfair clauses are supposedly there and yet no one has pointed it out in court. Ever!

Cheers,
PKFFW

[Lo Zeno]

Originally Posted by DawnFalcon

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.

I have in front of me the box of "Spore - Galactic Edition" for PC (the closest that I could reach with my hand right now). On the front, on the lower-right corner, I read: "Licensed by Electronic Arts". Isn't this stated explicitly enough?
Similarly I read "Licensed by Nintendo" on every Wii title I own, and "Licensed by Sony International" on my PS3 games. Isn't the same for X360 games? I would very surprised if it weren't...

[Sonist]

Originally Posted by PKFFW

...
Yes, significant changes are covered. However, when I mention significant changes I also mention they must be ones not done by an authorised or at least qualified person in order for them to not be covered. I use the example of making significant changes to a car yourself....

Bleh, we are not getting anywhere.... It doesn't matter who did the modification. What matters is, did the manufacturer show, that modification caused the failure.

Originally Posted by PKFFW

... We are not talking about warranties and so the Magnuson-Moss Act doesn't even apply....

Yey! You got it

But then, EULAs are mostly there to scare the sheep, and to provide some bootstrapping opportunities for the provider in a lawsuit. I bet they even specified the venue MS wants somewhere in this particular EULA....

Have a beer, and never, ever, ever mod anything.

Oh, and keep a length of rope handy, you never know what's in the next EULA you agree to....

Cheers!

[Hellmark]

It does say that. Licensed by Microsoft, although much less noticably than the famous Nintendo Gold Seal.

[PKFFW]

Originally Posted by Sonist

Bleh, we are not getting anywhere.... It doesn't matter who did the modification. What matters is, did the manufacturer show, that modification caused the failure.

At most the manufacturer would only have to show that the modification played a part in the failure.

Since it is clearly stated that a modded Xbox will cause MS to ban that Xbox it would be easily argued that the mod played a part.

Originally Posted by Sonist

Yey! You got it

You are the one who brought up the Magnuson-Moss Act. I assume because I included "voiding warranty" with "not required to perform as advertised."

Ok, you got me, the Magnuson-Moss Act could be used to ensure that your warranty isn't voided if you mod your Xbox.

It wont mean diddly squat when it comes to being banned from Xbox live, a value added service that has nothing to do with the warranty, which is what we are really discussing.

So why did you bring it up in the first place?

Originally Posted by Sonist

But then, EULAs are mostly there to scare the sheep, and to provide some bootstrapping opportunities for the provider in a lawsuit. I bet they even specified the venue MS wants somewhere in this particular EULA....

Have a beer, and never, ever, ever mod anything.

Oh, and keep a length of rope handy, you never know what's in the next EULA you agree to....

Cheers!

I would agree parts of most EULA's are there to scare people. Other parts are there to ensure the end user plays by the service providers rules. Which is of course their right.

Cheers,
PKFFW

[DawnFalcon]

Originally Posted by Lo Zeno

I have in front of me the box of "Spore - Galactic Edition" for PC (the closest that I could reach with my hand right now). On the front, on the lower-right corner, I read: "Licensed by Electronic Arts". Isn't this stated explicitly enough?

*Looks at box images on the web* Hm, none of them have that.

But a small statement probably isn't enough, no. "Shrinkwrap" with no easy way (i.e. provided URL) to read the licence before purchase has been held to be a sale in the past.

[Lo Zeno]

Originally Posted by Hellmark

It does say that. Licensed by Microsoft, although much less noticably than the famous Nintendo Gold Seal.

Originally Posted by DawnFalcon

*Looks at box images on the web* Hm, none of them have that.

Ok, now, who do I have to believe to?

Just to give an example: Wii games (actually, every Nintendo game sold since the times of the NES) in PAL (euro) version has a box like this (look at the lower right corner):
http://www.gearfuse.com/wp-content/u...4box042907.jpg

As for the "is this enough" part, I guess it's different from each country. Here, it's enough, and (theoretically) you can bring back the game as soon as you read the license and decide that you do not agree with it, but you have 11 days to do it.

[DawnFalcon]

You can? Okay, an 11 day returns policy is great. Here, once the box is open you cannot return the software, and that's partly (maybe even largely) why the courts are not kind to shrinkwrap and secondary agreements to use the advertised features.

I'm a big fans of a returns process, I think it'd cut out a lot of corporate abuse-by-licence, and quite legally cut down on the second hand market.

[stustaff]

Originally Posted by Lo Zeno

Ok, now, who do I have to believe to?

Just to give an example: Wii games (actually, every Nintendo game sold since the times of the NES) in PAL (euro) version has a box like this (look at the lower right corner):
http://www.gearfuse.com/wp-content/u...4box042907.jpg

As for the "is this enough" part, I guess it's different from each country. Here, it's enough, and (theoretically) you can bring back the game as soon as you read the license and decide that you do not agree with it, but you have 11 days to do it.

I dont think you understand this part!? this label is to show that the Game itself is licensed by the manafacturer of that particular game . and is properly licensed and approved by nintendo. this is to stop a manafacturer releasing an ulicensed game for the machine.

NOTHINg to do with an EULA or a license with the buyer of a product. Its one of the very clear things that DawnFalcon has tried to explain if i buy something from a shop and its a physical product in a box then I am buying that product not a license no matter what the EULA or box may say.