The Jury Talks Back

11/22/2009

An idiotic Class Action

Filed under: Uncategorized — Scott Jacobs @ 7:46 am

Feckless lawyer sniffs around for a pay-day.

They are “looking into” whether there are grounds for a suit, which in my mind comes to mean “We would like to make money. MS has $-Texas Money.  We will see if we have any chance in hell at making MS give us some of their money.”

I fail to see how this can even make it past the initial filing.  The ToS for Xbox Live says you agree to not modify your console.  If it is modified, and you get banned, your box will still work.  It will still play games, you just can’t access the Live service.  Your account can be transferred to an un-modified box, and still access Live.  The ToS also says that there are no refunds.

How can even a 1st year law student not see that this is doomed to failure?

Edit: Title modified because Xrlq is right.  Darn it.

22 Comments

  1. Don’t know anything about the merits of this suit, except to say that it’s not as obvious as you suggest. TOS say all sorts of crazy stuff which, thank Allah, is not always enforceable.

    More importantly, please don’t call it a “class action suit.” Once upon a time we had actions at law and suits in equity, making “class action suit” a contradiction in terms. Today the terms “action” and “suit” are used interchangeably, making the names “class action” and “class suit” synonymous and “class action suit” redundant. Unless, of course, your wardrobe includes several suits you like to wear when you’re out on the town cruising for “action,” and one of your prized “action suits” is classier than the others. Then – and only then – would it make sense to say “class action suit.”

    Comment by Xrlq — 11/22/2009 @ 10:15 am

  2. I think one of the big issues is that many of the people who modified their consoles did so to use third-party accessories. Banning somebody from XBOX Live because they don’t use a Microsoft-authorized hard drive is (potentially) anti-competitive and is a potential anti-trust violation, which would render the TOS void. I do think this is a money grab, but there is a legitimate argument here.

    Comment by tjwilliams — 11/23/2009 @ 7:57 am

  3. You can’t just throw in a normal laptop hard drive? That’s kinda strange. I was able to put a massive hard drive in my PS3 without getting kicked off the PSN.

    Well, anyway, MS has a track record of problems in court, so we’ll see if this kind of practice stands in court.

    A lot of people buy used 360s, which is not the smartest thing to do, and this only adds another reason. I bet many 360s for sale, and sitting under Christmas trees, are already kicked off Live.

    I am glad MS wants to fight game pirates. That’s a good move, though the best way to fight them is to not launch a console until you have really nailed down a secure system that won’t be pirated. I hope they have better luck in the future with this.

    I love XRLQ’s class action suit quip.

    Comment by Dustin — 11/23/2009 @ 9:56 pm

  4. First, it is possible to put a, say, Western Digital hard-drive on your 360. It requires a VERY specific formatting/partition setup (the HDDs from MS use three separate partitions, most of the chinese ones you find on e-bay only use two, which marks it as a non-MS device and thus it wouldn’t work), but it is possible. The same may be possible for 3rd party Memory Units, but I dunno.

    The 3rd party memory units were the big thing (currently it’s like $30 for a 512 MB MU, and that’s the biggest you can get), but MS says that other USB sticks make it too easy to pull saved games to your computer and modify your account/profile/avatar/game-save files, and they do have a vested interest in protecting the integrity of the virtual bullshit they have created around Xbox Live. It does harm the “good name” of the service, so I can see why they would do it (also, MONEY!!!).

    And Stephen Toulouse (head guy for the Xbox Live Policy Enforcement Team) is looking into a way to get a list of some kind – some sort of webpage were you can input a number (console ID number, most likely, maybe SN) and see if the console is banned.

    I understand that the more popular console (in the US) for the types of games that “teh hardcorez” players like is bound to get compromised in some fashion. They tried making it difficult, but they do have to leave it open for developers, and all that jazz.

    Though as an aside, one of the makers of 3rd party MUs (Datel) is filing suit against MS for it’s making those MUs not work anymore. I don’t see that as working out for them (Datel). MS never – I don’t believe – authorized the MUs, so it is under no obligation to allow them to work on the console, are they? I mean, if MS didn’t license them to make MUs, then they really shouldn’t be made that MS isn’t letting their MUs work, right?

    Comment by Scott Jacobs — 11/24/2009 @ 6:06 am

  5. I think one of the big issues is that many of the people who modified their consoles did so to use third-party accessories. Banning somebody from XBOX Live because they don’t use a Microsoft-authorized hard drive is (potentially) anti-competitive and is a potential anti-trust violation, which would render the TOS void. I do think this is a money grab, but there is a legitimate argument here.

    No, most of the mods were, actually, to change the firmware/dvd drives so they could play “backup” copies of games (read that as “ISO’s of games that haven’t been released yet” or maybe “pirated games ripped to a new disc”). You could (before the last update) use a 3rd part hard-drive just by formatting/partitioning it in a certain way. Now you just have to be REALLY careful, and basically clone an MS drive onto whatever 3rd-party drive you use.

    Or so I’m toldd. I’m actually not techie enough to do that, so I just suffer along with my 120 gig HDD (that cost like 170 fucking dollars, God Damnit Microsoft).

    I’m telling you, with the LOW cost of storage these days, the next console from MS better have a God Damn Internal HDD of at least 1T, or I’m killing something with fire. The reason the Original Xbox was so awesome was because of the internal 10 GB HD.

    Comment by Scott Jacobs — 11/24/2009 @ 6:12 am

  6. I think MacroSuck is going to have their head handed to them in court. They try to make everything proprietary, and the world just doesn’t work that way.

    I think MentalStupidity had better get a reality check and get rid of some of the shysters running the company.

    IMHO, MS ought to make a concrete technical hardware specification required to run on XBOX Live, and forget about being the only source of HW for it.

    Comment by PCD — 11/24/2009 @ 7:24 am

  7. PCD seems to have a raging Hate-On for Microsoft, to the point of being absurdly ad-hominem. I’m curious if he (she?) happens to use Apple hardware, notorious for being against 3rd parties.

    I’m a friend of someone that is into modding, who does so for a ‘cheaper’ way to play games. He got hit by the ban-hammer, so there’s a little bit of Schadenfreude on my part for his cavalier attitude on it. There’s two parts to the banning. One is the TOS, that prevents your console from accessing Live if modded. I believe your account is still valid with all the DRM & downloadable content attached to it. You just can’t use Live, get anything from Live, update from Live, etc. A new, unmodded console will let you back on.

    The other part seems to be something new from what I heard; there are some things being done to the hard drive of a hacked XBox 360. Pretty much a lockdown of all content on the drive, of the account you have stored locally, and any saved files. Additionally, it’s supposed to block the whole ‘Save To HD’ feature that allows playing games from the HD instead of from disc (though requiring it in the drive as a DRM/Security check).

    As far as using unlicensed accessories, there’s obviously the money reason to prevent them. But would you want to be the owner of a product blamed for burning down hundreds+ of houses, even though it was due to some shoddy third party product that was schulfed through QC? And believe me, MS would be blamed even if it wasn’t their fault (though the power supply & the RROD issues don’t help in the good-will department).

    Hacking is another issue, especially when dealing with matters such as DRM. If people can figure out how to modify the code, they can do all sorts of ‘neat’ things that, unfortunately, usually comes at the expense of other players. The standard ‘God Mode’, or ‘Speed Hacks’, anything to give themselves an unfair advantage just for the hell of it. Just take a look at postings on The Conduit for the Wii; the network code was inherently insecure, and has basically become a “Cheater’s Paradise”, ruining the game for other people. Microsoft has been doing their best to have a stable service free of cheaters and the like. That’s their marketing plan, and how they intend to make money.

    I understand that a lot of people don’t like MS’s service, particularly for the cost of it. But they have the choice of not getting a 360, not going on Live, and not playing those games. If you don’t like the policies, there are alternatives. PS3. Wii. PC. Older systems. That virtual reality simulator known as Outside The House. You have choices, make use of the others if you’re unhappy with one of them.

    Comment by Anon — 11/24/2009 @ 10:24 am

  8. I really was about to buy a 360 to sit next to my PS3 before I read this and thought about it.

    Scott’s insightful discussion of the hard drive upgrade really gets the point home: MS is just not about the gamer. I swapped out my PS3’s hard drive in 20 seconds. It was like plugging in an NES game, and the system took care of the format for me. Sony makes less money this way, but I guess I owe them some loyalty. And Uncharted 2 looks a lot better than any multiplatform game I own. I guess I’m giving up a few nice 360 exclusives, like Gears and Geometry Wars (I love Geometry Wars), but I’m not missing too much. My PS3 will never break, plays gorgeous blu-rays, and has an internet browser. It has all these little details that I need, like wifi. It was too expensive, but at $300, I guess they aren’t that pricey anymore.

    I mean, it’s not like the PS3 is really the stiffest competition in gaming history. It’s only got about a fourth of the market, the 360 has under a third (which falls every day as their year headstart fades into memory), and the wii is almost at half. Clearly, no one is really losing this competition, except perhaps for people buying a used 360. But the PS3’s been such a hassle free experience, and its exclusives are superior to other console games. I still wanted to have several 360 games, but I probably will get them on PC. Good article!

    Comment by Dustin — 11/24/2009 @ 10:31 am

  9. Anon, Ms has earned a fair bit of anger over the years.

    Is Ad Hominem always a logically fallacy? Nope. If I’m going to say I don’t like a company because of things they’ve done, then it’s valid reasoning.

    Of course, as you note, Ms competes with other cutthroat companies. Sony had that rootkit thing many years ago, though they seem to be better. Nintendo used to be amazingly hostile to smaller companies, and really screwed a lot of developers in the NES days. So yeah, you’re right.

    MS, Objectively, is worse. They’ve lost more serious lawsuits, and been caught many times doing ugly things. I remember when Capcom complained that they weren’t allowed to make a PS3 version of a multiplatform game that was better than the 360. That’s the kind of antigamer behavior that hurts competition. There’s a reason all my PS3 exclusives play much better than the multiplatform PS3 games I have… MS paid for that handicap.

    I know it’s a hard fought business, and I don’t really hold it against MS too much. But I understand why people are sick of it. This isn’t the first market they have entered with obvious intent to dominate by taking a huge loss until they own a market that they then screw the customers with. They don’t even have a third of the market this time, after a major effort, and they have some great games, so I think they aren’t much of a threat. But like I said, I understand where MS’s detractors are coming from.

    Comment by Dustin — 11/24/2009 @ 10:39 am

  10. The other part seems to be something new from what I heard; there are some things being done to the hard drive of a hacked XBox 360. Pretty much a lockdown of all content on the drive, of the account you have stored locally, and any saved files. Additionally, it’s supposed to block the whole ‘Save To HD’ feature that allows playing games from the HD instead of from disc (though requiring it in the drive as a DRM/Security check).

    What’s going on is, if you get banned, and then play single player on that banned box, and then you move to an un-modded box, the data (saved games, achievements, ect) are blocked out. You can still keep on with the gaming, but should you move to a new box, you’ll be missing stuff.

    But yes, it is the box that is done – move to a new box, and you’re fine.

    I guess I’m giving up a few nice 360 exclusives, like Gears and Geometry Wars (I love Geometry Wars), but I’m not missing too much. My PS3 will never break, plays gorgeous blu-rays, and has an internet browser. It has all these little details that I need, like wifi. It was too expensive, but at $300, I guess they aren’t that pricey anymore.

    Well, the PSN is talking about how soon there will be a premium “paid” part of the service. Dunno what it will entail (there are claims that nothing on the PSN now will move away from free… Maybe if you pay money you never have to deal with Home?), but it is coming…

    MW2 broke PSN utterly, because Sony has their network maintained by a third party, while Live has gone down like twice over 7 years.

    Xbox Live is still the Gold Standard (no pun intended) for online multiplayer. Its matchmaking and other features are all top-notch, with most being copied by Sony bit by bit (though is clunkier and less elegant ways).

    My 120 gig HDD for my xbox is less than half full right now, though I’ll admit that I’m pretty strict as to what I download and KEEP on there (I can re-download at any point, so what’s it matter?).

    The storage costs are the only thing I can’t stand about the 360. I am fine paying for a Gold account on Live, because I enjoy the features it gives me. It is a service provided that costs money, and so I don’t have any issues paying them for it.My games look great on the 360, and I have little to worry about with cheaters (all I have to worry about is being shitty at the game).

    This isn’t the first market they have entered with obvious intent to dominate by taking a huge loss until they own a market that they then screw the customers with.

    Thing is, they aren’t taking a loss, and haven’t been for a while. I think the original xbox lost them money per unit, but they’ve kept production costs low on the 360, and they make money with each unit they sell (unlike Sony, which STILL loses money for every PS3 that is sold). Heck, a non-trivial part of MS’s profit last year was due to the Xbox division (and Microsoft Game Studio).

    Comment by Scott Jacobs — 11/24/2009 @ 2:13 pm

  11. Sounds to me like MS is saying if you want to play in our sandlot use the bat we gave you. Don’t hollow it out and fill it with cork. I don’t know see where the lawsuit is.

    Comment by nk — 11/24/2009 @ 4:20 pm

  12. I suspect it is located somewhere around MS’s massive bank account…

    Comment by Scott Jacobs — 11/24/2009 @ 6:18 pm

  13. anon, I am a forthright MAINFRAME programmer. If Sperry or Unisys ever pulled the crap with non-fixes that MS pulls, they’d have been out of business.

    Yes, you are damned right I could run MS software development and maintenance a hell of a lot better than MS does. MS is the IBM of old.

    Comment by PCD — 11/27/2009 @ 6:15 am

  14. “unlike Sony, which STILL loses money for every PS3 that is sold)”

    Someone sounds a lot like a fanboy. Can you back this claim up? I’m pretty sure you’re wrong about the PS3, which I might add saved Sony’s extremely lucrative blu-ray bid.

    Also, you missed the point. MS’s profits indeed have not even slightly approached the amount of money they have lost with their two xboxes. They have lost billions. They lost a lot money when entering other markets too, but are willing to do this in order to make money later, after they have killed the competition. Your retort, that they make profit now, after losing tons, doesn’t seem to be very intelligent. This is a big part of why they lose lawsuits all the time.

    Looking over some of your other comments, you diss the PS3 a lot, and usually come across as a 13 year old fanboy. I really don’t have time for that dumb stuff. If you like your 360, that’s fine, but don’t make up stupid lies about the console you didn’t buy. That’s extremely pathetic.

    The PS3 has been profitable for Sony for well over a year, and represents about a fourth of their $200 billion profit. Citigroup, Bloomberg, and several other reputable sources confirm this pretty obvious news (obvious because this was the point of their recent lower price and much slimmed PS3 release).

    I looked over your other comments, and you said that release proved that the PS3 had no staying power in the market, and their saturation was too small to be worth developing for. That was a few days before their console sales jumped 999% in the UK, just shy of the 1000% promises.

    Look, I don’t mean to throw a bunch of facts in here. I like my PS3 very, very much, and I know it will work for decades and was a much more affordable, yet more functional purchase than a 360. For me, anyway. I’m sure many people love Halo style games and really are better off with a 360. I don’t even mind if someone buys a PS2 or a Wii. It’s their choice, and the vast majority chooses something other than a PS3 or 360.

    But you need to issue a correction. You made a claim that was patently wrong, and that’s not up to the standards I expect from this website. I’m kinda surprised that your game commentary is that unprofessional, but it’s the lies that I think need to be changed.

    You want to make this site a forum on why the PS3 sucks? That’s between you and the owners. You want to lie? That’s between you and we readers. So stop.

    Comment by Dustin — 11/29/2009 @ 12:31 am

  15. Can you back this claim up? I’m pretty sure you’re wrong about the PS3, which I might add saved Sony’s extremely lucrative blu-ray bid.

    I sure can.

    It saved the blu-ray player because even at the start, while still costing more than it was selling for, it was the cheapest blu-ray player on the market. It’s still pretty close to the bottom, price wise – and it plays games (or so I’m told), so the added cost is excusable.

    Maybe you missed the recent release of company profits, but Sony (and specifically it’s entertainment division) have taken MASSIVE losses. When I say massive, I mean Sony took many Billions in loss.

    And where did I say the PS3 didn’t have staying power in the market? It’s popular, and it’s selling well now – though they lag behind the 360, but install base isn’t everything.

    But you need to issue a correction. You made a claim that was patently wrong, and that’s not up to the standards I expect from this website.

    I’ll issue a correction the second I’m wrong. Sony saying “We hope the PS3 is profitable by 2011″ suggests that it might – might – not be making them money.

    And I not ONCE said the PS3 “sucks”. I know a lot of people who have one, several who have both in fact, and they don’t have a bad thing to say about them. The problem is, save for the rare PS3 exclusive (Metal Gear and Uncharted probably being Sony’s biggest aces in that hole), they don’t buy their multi-platform games on the PS3. They buy them for the xbox, because live is better. If you want to accuse me of saying something sucks, then feel free to quote me as saying that the PSN blows wang. What features it has that works they copied from Live, for crying out loud. Don’t talk to me about “well, the PSN is getting group chat…” when Live’s had it for a while now.

    So go ahead, bubba. Prove that I’ve lied.

    Here’s the money-quote you’re gonna have to ignore, though…

    Sony Chief Financial Officer Nobuyuki Oneda told a press conference in Tokyo today [that would be Oct 30th, 2009 — Scott] that Sony has managed to get its PS3 losses down to somewhere between 10% and 20% of the system’s retail price.

    I’d also like to say something about “Son’y extremely Lucrative blu-ray”. Sure, it’s lucrative… To license to others. In the PS3, it’s a money sink. Thankfully, it’s one that has driven sales and helped build their install base back when there was fuck-all to play (that first year was a dark time for that console).

    Comment by Scott Jacobs — 11/29/2009 @ 6:44 pm

  16. Geeks. Get a life.

    Comment by nk — 11/29/2009 @ 8:03 pm

  17. Screw you, old man!!

    :)

    Comment by Scott Jacobs — 11/30/2009 @ 5:56 am

  18. I’d also like to point out that my owning a 360 and not a PS3 is not because of any “fanboy” type of issue…

    When I was looking to get a next-gen console, Halo 3 was a month or so away from coming out, and I have the money to buy one system. I liked the Halo series for their story. Bungie does an AWESOME job with building a world that holds your interest… It is my deep and abiding hope that the game they are working on for after Halo Reach is based on the Marathon universe, because it was an AMAZING setting, and those games pioneered so much in the PC shooter genre…

    So I got a 360, mainly for Halo 3 (and btw, I’m hardly some awesome Halo player… I suck at multi-player, actually), but also for the titles that were coming. The strength of the xbox’s coming titles then was staggering verses Sony’s. I knew about Bioshock (never finished it, but god that game was pretty) and Mass Effect (that was game was destined to be a favorite, since it was from the makers of KotOR, and they simply don’t make bad games), and then there was Gears of War, etc.

    Back then, the PS3 didn’t have anything exclusive that I cared about. That isn’t to say that it doesn’t have great exclusives now, but back then there wasn’t anything coming that captured me.

    I mean, how long have we been waiting on the next God of War?

    If I could afford one, I would have a PS3 in my home. I don’t hate the console. I want one very badly, as a matter of fact. It’s just that the majority of it’s games don’t hold my interest. I’ve never been a personal fan of the MG series (much like I don’t care for Splinter Cell, really), and I would probably really like Uncharted 2 (though I understand that the control-issues in the first game would have me throwing my controller at walls).

    The PS3 isn’t worthless. It has a lot of good points – use any HDD you want, built-in wireless (God Damn you MS, why must your wireless dongles be so fscking expensive???)…

    But for multiplayer, Xbox Live really does have PSN beat hands down.

    Comment by Scott Jacobs — 11/30/2009 @ 6:23 am

  19. “How can even a 1st year law student not see that this is doomed to failure?”

    I’d say first year law students can come up with some contract theories attacking ToS terms.

    Comment by imdw — 12/15/2009 @ 2:21 pm

  20. Yes, but getting those theories to fly in front of a judge are quite another.

    A term that says “We own your kids” of course wouldn’t be acceptable, but I don’t believe it is outside MS’s purview to have a position regarding game piracy – and lets be honest, a modded box isn’t modded (99 times out of 100) for legit purposes.

    Comment by Scott Jacobs — 12/15/2009 @ 3:00 pm

  21. “A term that says “We own your kids” of course wouldn’t be acceptable, but I don’t believe it is outside MS’s purview to have a position regarding game piracy – and lets be honest, a modded box isn’t modded (99 times out of 100) for legit purposes.”

    Post number 2 talked about using 3rd party hardware as “mod.”

    Comment by imdw — 12/15/2009 @ 8:38 pm

  22. Post number 2 talked about using 3rd party hardware as “mod.”

    They don’t ban or disable most 3rd party controllers (they don’t license the wireless stuff, so there are no legit wireless controllers, but wired controllers are sold by several companies).

    Comment 2 refers to people who opened their box to use a 3rd party HDD, which is useful for things like “playing downloaded pirated games” and “modding your Xbox Live Avatar/Gamerscore”. Those things get you banned, because they are in essence an attack on the integrety of the service. Your xbox will still work, but it will never connect to xbox live again.

    And that is their right. they can bar you from accessing their service if they find that you have done something like that. Just like a paid-membership site has the right to yank your membership and ban you if they find out you have been posting their content for free elsewhere.

    People that mod their console to use 3rd part items aren’t doing it with innocent intent. Most 3rd party stuff won’t require you to modify your xbox. If it does, there’s a reason.

    Comment by Scott Jacobs — 12/15/2009 @ 9:17 pm

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