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XBox (Games) Games Your Rights Online

Modded Xbox Bans Prompt EFF Warning About Terms of Service 254

Last month we discussed news that Microsoft had banned hundreds of thousands of Xbox users for using modified consoles. The Electronic Frontier Foundation has now pointed to this round of bans as a prime example of the power given to providers of online services through 'Terms of Service' and other usage agreements. "No matter how much we rely on them to get on with our everyday lives, access to online services — like email, social networking sites, and (wait for it) online gaming — can never be guaranteed. ... he who writes the TOS makes the rules, and when it comes to enforcing them, the service provider often behaves as though it is also the judge, jury and executioner. ... While the mass ban provides a useful illustration of their danger, these terms can be found in nearly all TOS agreements for all kinds of services. There have been virtually no legal challenges to these kinds of arbitrary termination clauses, but we imagine this will be a growth area for lawyers."
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Modded Xbox Bans Prompt EFF Warning About Terms of Service

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  • by sl3xd ( 111641 ) * on Friday December 04, 2009 @01:49AM (#30321238) Journal

    I don't mean to sound like I'm defending Microsoft, but...

    If you enter into any contract, you have to abide by the rules. There's NOTHING new here. Online service, game service (like Xbox Live), Phone service... even a lawn mowing service has terms to its contract.

    Guess what kids? Your actions have consequences. You should have the maturity to own up to those consequences.

    Contracts (and contract law) aren't anything remotely new. They've been thought out by many a great thinker for millennia. Calling contract law a "growth market" is about as far from the truth as it gets. Contracts are one of the oldest, most hashed-out, and most concrete aspects of law in any society. The entire point of contract law is to avoid lawsuits, specifically because there is so little wiggle room if both parties agree to the contract.

  • by Anonymous Coward on Friday December 04, 2009 @02:07AM (#30321310)

    Last time I checked, the enforceability of EULAs are nebulous at best. I would rarely call a EULA an Iron-clad contract.

  • by cbensinger ( 127227 ) on Friday December 04, 2009 @02:18AM (#30321350) Homepage

    Yeah, and they also can't install games to the hard drive, nor move accounts back and forth from a banned system to a non-banned system from what I understand. So yes there is a loss of functionality as well.

  • by bwcbwc ( 601780 ) on Friday December 04, 2009 @02:29AM (#30321388)

    EFF doesn't have a problem with contracts, they're just pointing out a few facts: a) courts can void contract terms for various reasons. Witness the Early termination fees on wireless phone contracts in California. b) The EFF isn't necessarily saying the contracts aren't enforceable. They're saying no one's gone to court to see if they're enforceable. c) The EFF is saying that consumers need to pay more attention to this crap before they get raked over the coals the way the XBox modders did.

  • Re:Well.. (Score:4, Informative)

    by ( 1195047 ) <philip.paradis@p ... net minus author> on Friday December 04, 2009 @02:36AM (#30321438) Homepage Journal
    Here's the deal: we live in a society that operates under rule of law. If something isn't specifically forbidden, it's permitted. In contract law, unless jurisdictional restrictions exist that nullify a given provision, it's enforced. Even at that, severability clauses will likely keep other restrictive clauses in force.

    You can ramble on about supposed morality considerations all day, but it doesn't change the fact that the law is the deciding factor, and the company that operates the network makes the rules unless otherwise constrained by the law. You aren't going to die if you can't log on to a gaming network and your civil rights aren't being violated, so I sincerely doubt any thinking person is going to care.
  • Re:Well.. (Score:3, Informative)

    by LordKronos ( 470910 ) on Friday December 04, 2009 @09:07AM (#30322784)

    They're 100% in the right for banning modded consoles. Basically you can play your pirated games or you can play on Live, but not both with the same console.

    Well, I haven't actually seen this confirmed in a media source, but I've read that people were banned for performing an unofficial hard drive upgrade. MS charges an insane amount for a larger HD for the 360, but people have found you can buy specific model drives, image the new drive with the proper firmware, and swap it into the HD case. That way you get a bigger HD for $50 instead of $200. This has no effect on a persons ability to do anything with the console except have a bigger hard drive (no copying games or anything). The only thing that is different, which allows MS to detect this, is that the firmware has an embedded serial number, which MS can detect remotely and validate. Since the firmware was imaged from a legit 360 hard drive, your HD firmware will have the same serial number as the drive the firmware was imaged from.

    If these reports I've read are actually true (and not a case of a pirate simply CLAIMING that a HD upgrade was all they did), then I don't think that's 100% in the right at all. It affects nothing except for their ability to strongarm you out of an expensive HD upgrade. No piracy issue, and no compromising the quality of other people's online experience.

  • by bryansj ( 89051 ) on Friday December 04, 2009 @01:09PM (#30325520)
    You can restore your banned console to its pre-banned state if you are handy with a soldering iron and have an old printer cable. Your console is still banned, but your NAND will be at its prior state so you can transfer saves, install to HDD, and use MCE. Just go to and read about it.
  • by RMingin ( 985478 ) on Friday December 04, 2009 @05:03PM (#30328830) Homepage

    The partition has an obfuscated copy of the drive's serial number. Data on drive doesn't match drive itself = you can be banned.

  • by Anonymous Coward on Friday December 04, 2009 @05:36PM (#30329276)

    Not only that, it contains a security sector that is written with the serial number of the console it came in, and a hash of the firmware and HAL, and new drives that are added to that particular console get that data also written to them, so long as they are official drives. An unofficial drive won't, because it doesn't contain A) the proper firmware B) the proper hashes (hash mismatch, the easiest way to find a modded console) C) serial mismatch.

    Quite easy for them to detect when all of the modded drives have identical inserted serials on them. I don't know what possessed the mod tool makers to do such a thing as use identical identifiers. This security sector also can't be written to or read from by any stock software such as dd, or even by the modkit software out there. The sector is encrypted and signed with MS Authenticode, and not just lightly. Software like dd would choke on reading it and just give error messages saying it's unrecoverable.

    We won't even get into the entire mess that is an ex-FAT filesystem.

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