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."
Growth area for lawyers (Score:3, Insightful)
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Any place someone with money feels (correctly or incorrectly) they've been treated wrongly, it is a place for lawyers to grow and make money.
fixed that for you.
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Actually, that's not fixed at all. Thanks to bar associations allowing lawyers to work solely on commission, even people without money can go to court, no money down.
Well.. (Score:4, Insightful)
Microsoft's network, Microsoft's rules. 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. Now what angers me is how they'll send out replacement consoles for warranty repairs that are already banned from Live, and tell the recipient that they must have a modded console and refuse them any recourse. What also angers me is how it would be easily within the law to ban for almost ANY reason, leaving the user with little to no recourse.
I applaud Microsoft's banning of modded consoles, but condemn Terms of Service in general because they're 99.999% in the favor of the writer. I mean, the company.
Re:Well.. (Score:4, Insightful)
I applaud Microsoft's banning of modded consoles, but condemn Terms of Service in general because they're 99.999% in the favor of the writer. I mean, the company.
I don't get it. You start out with "Microsoft's network, Microsoft's rules." Note that this isn't specific to Microsoft; you could replace them with any company that operates a network and it'd be the same concept. You then say you're against TOS policies as a blanket statement... what do you actually believe? Any company has the right to set terms of service for the use of their network, and it's up to the customer to decide if those terms are reasonable. If the customer doesn't think so, s/he can choose not to give that company money. It's very simple.
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Aye and with all networks playing by the same basic tos and the internet and other networks increasingly becoming part of everyday life and an increasing requirement for employment and business allow said companies to arbitrarily dictate who/how/when their services are used is completely fair.
They braking the law by locking out 3rd party stuf (Score:2)
They braking the law by locking out 3rd party stuff like who wants to pay $149.99 for a 120gb HD? when you can buy your own for way less or why can't you replace the dvd on your own?
You can do the same with cars and they can't say you used a 3rd party lube place / auto shop and then have the dealer lock out your car. It's same thing dealer lube at a very high price vs jiffy lube or some other place at a much less cost. Not only that there is court case out there to force the car manufacturers to give out th
Re:Well..Term limits. (Score:4, Insightful)
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Re:Well..Term limits. (Score:4, Insightful)
Re:Well..Term limits. (Score:5, Insightful)
Exactly.
And it's not like you don't have the choice to just connect your XBox 360 to another service provider, right?
Right?
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Or, to not purchase an Xbox 360, for the same reasons.
Except of "exclusive titles". (Score:2)
These are strictly monopolistic practices: console maker getting a game maker to take part in conspiring against competition from other console makers.
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One thing is a company choosing only one platform because it attracts their target audience, the hardware fits the needs, or simply the likely profits from the others aren't expected to be worthwhile.
Completely another is the platform owners coercing, bribing and otherwise discouraging the developers from developing for any other platform than theirs.
That is, the developers normally given choice between A, B and A+B are not being encouraged to "include A" but to "exclude B".
What is even worse is the hordes
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Or, to not purchase an Xbox 360, for the same reasons.
Then what set-top video game machine do you recommend for people who prefer to play indie games? Even with XNA's limitations, Nintendo and Sony don't offer anything remotely close to XNA.
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Or, to not purchase an Xbox 360, for the same reasons.
Then what set-top video game machine do you recommend for people who prefer to play indie games? Even with XNA's limitations, Nintendo and Sony don't offer anything remotely close to XNA.
You could, you know, not modify the console, since you can play homebrew without a mod.
I would argue that just because you don't like the gaming offerings out there, it doesn't give the 'right' to get what you want. There are three competitors in the space, you can pick one, more, or none of them depending on your preference. I think this was a clear cut case, I might be singing a different song if they were banning for fleeting explitives or because you didn't buy enough MS points.
If you don't want to
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you can play homebrew without a mod.
Say I want to develop a game that uses speech synthesis instead of having every line by every character voice-acted. XNA doesn't let me do this because XNA provides no way to generate audio at runtime.
Say I want to develop a game with a fantasy setting that includes words written in a made-up language. This page [xna.com] states that Microsoft has banned all languages from Xbox LIVE Indie Games other than those for which the Xbox 360 system menu has been localized.
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Point taken. You can do some homebrew on an XBox, not all.
Regardless, that's the trade-off. If you want to run on the XBox, you need to follow their rules. If you don't like their rules, go somewhere else (PC, for example), but be aware you might not get exactly the combination that you prefer, just because all the companies operating in the space don't offer it (or did and went out of business).
Of course, the big thing here is it was the XBL terms of service that were violated, not the hardware terms.
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No it isn't a question just ask MS if they will let another network work with their systems. Cease and Desist will be the first thing that happens.
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Yes, you're welcome to setup your own VPN with your router and play multiplayer via system link.
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You can backup the drive, but only onto another branded xbox drive (which cost several times as much as a generic sata drive of the same capacity)...
But the games, even if they let you install the game to the hd you usually can't actually play it without having the original media in the drive. If you let kids play on the console, and a lot of kids play games consoles, the risks of damaging the games increases massively.
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While I'm reasonably sure you meant the DVDs, you can't back those up without a proper press. Simple DVDRs will NOT cut the mustard without a modded console (the whole point of modding the console, in fact!).
If you meant the hard disk, the answer is equally "no". The X360 uses a custom firmware (copyrighted) on a mildly modified WD 2.5" hard drive. The contents are both obfuscated and lightly encrypted, so you can not meaningfully backup up the disk as a whole, or the contents, without MS sanction and assis
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The partition has an obfuscated copy of the drive's serial number. Data on drive doesn't match drive itself = you can be banned.
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That's a terrible strawman, by the way. It doesn't even make sense as a counter-argument, and almost agrees with my point.
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Microsoft is a government-sanctioned monopolist (Score:2)
The Bell system was, after all, a government-sanctioned monopoly
As is the company that makes the Xbox 360: it was found guilty of monopolizing the PC operating system market, and the United States government sanctions it by 1. continuing to enforce Microsoft copyrights and 2. licensing Windows from Microsoft.
at least until the Great Break Up.
Microsoft was scheduled for a breakup until the newly elected Bush administration intervened.
The real problem... (Score:2)
It seems to me as if everyone is missing the point here.
Yes MS can do whatever they want with their network.
The problem is that they have no burden of proof to do whatever they want.
When you start affecting peoples lives with no due process it starts to become an issue.
XBox live is not a good example but I am sure there are services out there that people rely on for their lively hood and if someone were to commit an act on this network that the operator did not like they could be terminated.
What if this act
Re:Well.. (Score:4, Insightful)
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Re:Well.. (Score:4, Informative)
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.
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And the fact that I'm not running a company doesn't change the fact that everyone who is running a company only offers one-sided, unfair, and unconscionable TOSs. And it doesn't change the fact that an individual's choice to "not give this company any money" will not change TOSs one bit unless every consumer decides to stop consuming anything and everything.
That's simply not true, provided that you make your reasons clear to the company. Of course when you're dealing with companies as monolithic as Microsoft it's easy to feel ignored. But you get ten thousand people who cancel their Xbox Live subscriptions and indicate their reasons for doing so, MS will start to listen. I'm not talking about signing an online petition, but actually sending an email (or, gasp!, a letter) to Redmond. Obviously this applies beyond MS/XBL, and the number of people needed to ma
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Small claims court (Score:2)
Unfortunately, it will be too much of a financial burden to challenge MS in court unless you have deep pockets, or lawyers working pro bono for you.
If you send in your Xbox 360 console for repair, and you get a Live-banned one back, take Microsoft to small claims court. It's amusing how often a big company will just not show up.
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"What also angers me is how it would be easily within the law to ban for almost ANY reason"
That's always been true, whether they explicitly say so or not. They seem to exercise this prerogative rarely enough, however, that a vast majority of people don't care just how much control Microsoft wields in this matter, or at least don't care enough to stop using that system.
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http://www.tivo.com/abouttivo/policies/tivobasicandtivoplusserviceagreement.html [tivo.com]
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No, it's in there somewhere. I don't remember how or where, but I do remember experimenting when I first got my xbox 360, and there is a media center setup screen where it asks you to input an auth code from WMC, and I remember going to my desktop, starting up WMC and authorizing the device and getting the code. I never used it beyond that, so I can't tell you exactly what it does, but it definitely has some sort of WMC interaction.
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Not that I'm condoning it, but I think the reasoning there is DRM and maintaining a controlled path to the display. If you hacked the 360, you can compromise that path. Not sure that it makes sense, because I'd think anything you could do to the 360 to compromise it could just be done to the PC running WMC to begin with, but maybe that's not so. Maybe the 360 has some really weak ass DRM implementation that they are afraid you'll exploit.
Re:Well.. (Score:5, Insightful)
I agree with the first statement. However, this recent round of bans has not only booted banned users from the microsoft network, but also reduced the OFFLINE capabilities of the console. The banning corrupts the NAND on the console, removing the ability to install games, purchased or otherwise, to the hard drive. Those who bought a large hard drive in order to install games to it to speed up load times (a function supported by the console, not something you get through modding) are now unable to do so.
I agree that kicking us off the network is WELL within their rights, but changing the capabilities of my console is not. I should be able to do what I want with my hardware, since I bought it. If I choose to mod it then, yes, I'm violating EULA and Microsoft no longer has to offer me support or access to their network, but they do not have the right to modify my hardware's offline capabilities.
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While i hate microsoft as much as the next guy, i have to side with them on this one.
Now, if they reached out and bricked your console we would have troubles, but they can ban you from THEIR network for having blue hair if they wanted.. Banning people may not be a good business/PR move, but its well within their rights.
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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 g
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Terms of service usually place lots of burden on you, and very little on the company operating the service...
They will send out already banned consoles as warranty repairs, and your screwed...
They will ban you for things other than having a modded console, playing a game before release date will get you banned (people who work in game stores can often get games before release for example). Also using peripherals (like hard drives) which you bought in another region, or playing a console from another region
Circumventing XNA limitations == piracy? (Score:2)
Basically you can play your pirated games or you can play on Live, but not both with the same console.
So are you saying any homemade game that uses speech synthesis is necessarily pirated? XNA, the "official" way to do homebrew on Xbox 360, lacks any way for a program to generate and play audio in real time.
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With Microsoft's history, anyone who would enter into any kind of agreement with them at all is foolhardy.
It is their right, but aggressive move nonetheless (Score:4, Interesting)
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I have no problems with what they did; but I question their logic. Those consoles that are banned from Live for being "modded" can still obviously play pirated games. What they *can't* do is go on live and among other things purchase things. So while they will undoubtedly sell some more consoles (Craigslist and eBay are full of banned consoles) and probably some more games - I don't really see this as doing much to stop piracy - I only see it stopping any legit spending from those consoles.
Seems to me th
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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.
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I can't believe people are OK with this!
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How so? If a company banned me from a subscription service, the LAST thing I would do is go out and buy new hardware so I can continue paying monthly fees. Anyone that would do otherwise either has way too much disposable income or needs to get their head on straight.
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I can't believe people are OK with this!
They're not. Probably astroturfers [womma.org] trying to manipulate public opinion. Ignore them, they're lying POS.
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Astroturfing "marketers" [wikipedia.org] are liars, fraudulently misrepresenting company propaganda as objective third party opinion. Anonymous commercial speech should be illegal.
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You made your choice, now live with it. (Score:2)
I think Microsoft is being aggressive in it's strategy. Warnings, even many warnings and second chances, third chances, etc should be utilized before doing something irreversible like this
The only thing irreversible is that the modded box goes off-line and stays off-line. It cannot be used as a licensed Microsoft "media extender."
Your warranty is voided.
psychologically speaking they are angering a great many customers
Microsoft couldn't care less.
The cheaters are given the boot - to a loud round of applaus
Re:It is their right, but aggressive move nonethel (Score:2)
Warnings are an interesting idea, but I wonder how they would play out in the real life? If people are aware they get 1, 2, 3 "Get out of jail free" cards, they do adjust their behavior accordingly. If you tell folks that mods are not permitted, and then allow them to get away with it, are you just pushing the problem further down the road? They're still going to raise hell when they get banned after a warning. Perhaps warnings just give folks more incentive to experiment with signatures that won't be d
What good would a warning do? (Score:5, Insightful)
get a Gaming PC (Score:2)
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Anecdotal, of course, but I've seen a lot gaming PCs where one part or another has failed (in one case, the power supply went, taking with it the mobo, CPU, and video card - any one of which cost a good chunk as much as an Xbox 360).
In fact, as somebody who got his first gaming console after the release of the Xbox's Jasper chipset (I gamed on PC long before that), neither I nor anybody I know has had a RROD with the new chipset (and only one person in that time with an older one). Don't get me wrong, the f
what they believe (Score:2)
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MS doesn't particularly care if you mod the console; if they did, they'd have bricked the modded consoles instead of simply banning them from Xbox Live.
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Deliberately bricking the consoles would be a PR and financial disaster. It could also result in felony charges for whoever authorized it and knowingly aided in carrying out the bricking. That's not an answer. MS may not care if you mod the console, but they care very much if you pirate games (and that's what 99% of modded consoles are for [citation needed]).
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Well, to be sure, were they of the mind to, they'd likey brick the console by doing a firmware check/upgrade with a new game. Or simply program new games to refuse to run on modded consoles. Point being, it could be done, but isn't.
Ooo... now contracts must not matter to EFF (Score:4, Informative)
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.
Re:Ooo... now contracts must not matter to EFF (Score:5, Insightful)
In no event shall Microsoft be liable for any damages whatsoever, even in the event of fault (including negligence).
-- Windows XP Professional license agreement
What kind of contract is this? And the same contract allows Microsoft to change the terms of the contract at any time, without notifying me? I would never agree to such a thing. But, Windows is required in order to work. So I say out loud, "I disagree with these terms" and click the button to continue. Microsoft, having had a chance to respond and remained silent, can only be assumed to have agreed with my deal, since it clearly is continuing with the software installation. Obviously the whole thing was just a bluff to get me to agree to some ridiculously one-sided terms.
Terms like these I would never, ever accept in any deal, business or otherwise. Including negligence! Imagine a lease or even a parking stub with such language on it. It's basically admitting that they're negligent before the deal even starts...who on Earth would do business voluntarily with a party who says up front that you can expect negligence on their part?
Re:Ooo... now contracts must not matter to EFF (Score:4, Funny)
I preferred the websites that present TOS in editable textarea. Textarea implies invitation to edit = negotiation.
I tend to edit these to my needs and save myself a copy. Of course by clicking "I Agree" I -am- sending these back to the originating server (if they don't get them, it's their negligence).
Since they accept the edited copy, I can safely assume they agreed to changes.
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Well, you've voluntarily decided to do business with Microsoft. Clearly since you're not willing to change your job that "never, ever" isn't strictly accurate.
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What Microsoft is saying, is that if a bug in Windows causes you to lose all your data they won't be held financially accountable for it. If that wasn't there, every time someone lost work due to a BSOD Microsoft would have to pay up. The fact is, there is no way they would ever agree to terms like that.
I don't think it's unreasonable for Microsoft to refuse to cover my data loss so I enter into the contract with them. If you don't like the terms, don't accept the contract; it's as simple as that. You'll ha
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If you don't agree with the terms, you don't click the "I agree" button. Simple as that.
Let's run with that thought for a moment. If I'm given a brand new copy of Windows 7 in Chinese, I won't be able to understand any written text on the screen. At the same time, it's entirely likely that I will manage to install the OS. If there's an "I Accept" and "I Decline" option presented, sooner or later I'll stumble upon the button that gets the OS installed. At no time will I have read or comprehended the EULA presented. How can my "agreement" be considered binding when a} I was never made aware
Re:Ooo... now contracts must not matter to EFF (Score:4, Informative)
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.
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EFF just says "Caveat Emptor".
People have willingly signed the contract. They can now be screwed left and right to the company's desire. So beware what you do because you can be next.
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Just saw something interesting with Borderlands... (Score:3, Interesting)
When I installed it, it popped up an EULA that stated that the company reserved the right to modify the agreement from time to time (changes to be posted to their website) and that my continued use of the software 30 days after these changes constitutes my acceptance of said changes.
I should mention, this is a retail boxed version of a game that doesn't require any online service to run.
Then there's Windows 7. Bought the upgrade to put a legit copy on a new system. But apparently, and this was stated nowhere online at the time of purchase (including Microsoft's site, and I checked thoroughly), this upgrade is only properly licensed if I put it on the computer that had the OEM version of XP on it. Impossible, as its motherboard died, and even the OEM XP had no mention on its packaging or on the website that it would only be valid on the first system it was installed on (as indicated by the motherboard in said computer, even if the motherboard needs replacement).
You really are treated worse than a pirate when you pay for your software. You can't even properly lend or swap games with friends anymore, even on consoles like the Xbox 360 because of DLC.
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Yep. This is why I pirate MS products, buy Apple products and download linux for free. Because MS are still the evil empire.
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"You can't even properly lend or swap games with friends anymore"
"Yep. This is why I pirate MS products, buy Apple products"
Logic fail.
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Um... what was that about upgrade installs? I've certainly used those on non-OEM images. In fact,t he very first thing I do with an OEM image, after booting it to make sure the computer works, is reformat that shit right off.
Mind you, the previous copy of Windows was legit, but it was certainly not OEM and I had no problem using an upgrade copy. Installer checks, sees an old version, then goes ahead and reformats the drive for a clean install.
It's possible that the installer checks to see if your copy is le
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Online services? That's all? (Score:2)
While they're at it, they should get with Consumers' Union and go after the wireless providers, credit card lenders and all those other services where the terms of service are basically "we've got the gold, we make the rules". Onerous contract terms and gullible consumers that think they have to have these services are the root of all evil in our service/consumer based economy (speaking for the US).
Buy a second box (Score:4, Interesting)
If you really, really, really care THAT DAMN MUCH about modding your XBox, you'd buy 2 -- one for online play on XBL, the other for souped-up media center purposes. Can't afford a second XBox? Then maybe modding and/or XBL isn't for you.
A modded XBox increases the probability the end user has a cheat enabled to give you an unfair advantage in an online competitive game. I applaud any service that wants to preserve purity in a competitive arena. It's just like every major competitive sport having regulations over the specifications of all equipment used in all games.
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It's a net loss (Score:5, Interesting)
My console was banned for being modded. The thing is, it was modded because the DVD drive died and I replaced it... the only way I could do this "legitimately" was to buy a whole new console, since MS claimed it was no longer under warranty. I wasn't about to spend $250 or whatever it was at the time (this was a couple years ago) to buy a whole new console when I could buy a new drive online for less than $60.
So I had a modded console... I played exactly 2 games that entire time, Rock Band and Rock Band 2. The original of Rock Band worked perfectly and when Rock Band 2 came out, I purchased it... well the original had trouble playing in the console, so I used a burned copy, which ironically played fine. During that time, I purchased nearly 100 songs for RB and RB2 and maintained a Live Gold subscription. My gamer profile confirms that I haven't played any other games than RB and RB2 since I replaced the drive.
So my console is banned. I will cancel my Live Gold account ($50+ a year or something) and I will no longer be able to purchase songs for RB2 or future RB games that come out. So by banning me, they've lost a continual revenue stream that has exceeded the purchase price of a console. Sure, they already have my money for the RB2 songs I bought, but they aren't able to get more, even if I wanted to pay them money.
What kind of stupid idea is this? Unilaterally cut off your customers who pay you money regularly and prevent them from being able to pay you any more money. Wow. What a brilliant business move.
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It is a private network (Score:3)
XBoxLive is Microsoft's private network. Only Microsoft has a right to use it. For everyone else, the use is XBoxLive is a privilege.
Microsoft owns it. Microsoft runs it. Microsoft sets the rules. Microsoft says the service is for unmodified XBox systems and if you have a modified XBox, you can't use the service.
XBoxLive is a service and Microsoft does not have to provide the service to anyone it doesn't want to provide it to as long as it isn't discriminatory under the law.
The EFF needs to shut the fuck up until it dig it's collective head out of it's collective ass.
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They have the right to run their service the way they want to. they also have the right to change their terms of service when ever they want to and don't even have to tell you.
Actually, if ToS were changed, and users were banned under the changed clauses, I think there would be a point here. It may be legal, but personally, I find contracts that can mutate like that abhorring, especially when you pay dearly for the privilege of entering one in the first place (i.e. ToS change, you don't like the new ones, but if you drop out now your Xbox is useless and you've paid for it... and the only information you had when you paid the money was the original ToS).
In this case, however, I do
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You forgot that most ToS', unlike contracts, can't (reasonably*) even be read until you're no longer able to back out of the deal.
*insert Hitchhikers Guide reference here.
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