Class Action suit against M$!

[Irreverent]

http://www.xbox.com/en-CA/live/legal/legal-tou.htm

says the same thing as the US one in terms of section sixteen.

Its not what section 16 says....its section 27 that counts:

All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of your state of residence in the United States, or, if you reside outside the United States, under the laws of the country to which we direct your Service.

The devil in the details and some lawyers are about to make a tonne of money, regardless of outcome.

 

[Sinjo]

Its not what section 16 says....its section 27 that counts:



The devil in the details and some lawyers are about to make a tonne of money, regardless of outcome.

Pretty sure the company suing is American.

 

[Irreverent]

Pretty sure the company suing is American.

All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of your state of residence in the United States, or, if you reside outside the United States, under the laws of the country to which we direct your Service.

Still good.

You can bet that one of the 50-odd states and territories would have a consumer protection law that is in conflict with the State of Washington's laws. This wont be solved overnight...5, maybe 10 years.

 

[Sinjo]

Still good.

You can bet that one of the 50-odd states and territories would have a consumer protection law that is in conflict with the State of Washington's laws. This wont be solved overnight...5, maybe 10 years.

If I remember correctly, they aren't even suing over microsofts EULA. THeir suing over the timing (being so close to christmas and the release of COD4:2)

 

[Kangamutt]

Kids don't read contract, breach terms of said contract, lose service, BAWWWWWW and sue.

Lesson: READ THE CONTRACT.

 

[blackfuredfox]

Kids don't read contract, breach terms of said contract, lose service, BAWWWWWW and sue.

Lesson: Sue and see how quick Microsoft financially and literally rapes you.

fix'd.
im rooting for Microsoft.

 

[Sam]

Whatever. Waste of money and time.

You could buy a shit ton of xbox's for the time and money that they're going to waste.

Everyone is so fucking trigger happy when it comes to suing. Dumb shits.

 

[Irreverent]

If I remember correctly, they aren't even suing over microsofts EULA. THeir suing over the timing (being so close to christmas and the release of COD4:2)

True. But manipulating the consumer market like that (and maybe the stock price too) might be a SOX violation, the corporate version of RICO. If it is, the world's richest man goes to jail forever. This class action suit isn't a shot across the bow by some keener lawyer fresh out of articling, its a full spread of nuclear torpedoes running hot into Microsoft's water bottom line.

Best put on the pop-corn, its gonna be fun to watch.

 

[Kangamutt]

im rooting for Microsoft.

Indeed. We don't need anymore "hot coffee" lawsuits winning in favour of the plantiffs. But regardless of either way it goes...

Best put on the pop-corn, its gonna be fun to watch.

...this.

 

[Sinjo]

True. But manipulating the consumer market like that (and maybe the stock price too) might be a SOX violation, the corporate version of RICO. If it is, the world's richest man goes to jail forever. This class action suit isn't a shot across the bow by some keener lawyer fresh out of articling, its a full spread of nuclear torpedoes running hot into Microsoft's water bottom line.

Best put on the pop-corn, its gonna be fun to watch.

Note: Bill is no longer heading MS, he's just got a chair on their board.
They don't have a chance. As it says in the EULA, they can ban you whenever they please.

 

[StarGazingWolf]

Just reminds me of the time people tried to sue cause xbox live went down without prior warning. Pretty sure microsoft have something in the terms and conditions for every eventuality. Can't see this ending any favourably for anyone but them.

 

[Unsilenced]

"We reserve the right to refuse service to anyone"

... only they said it in a huge fucking convoluted contract.

 

[Carenath]

Yes, they can.

MS owns the XB OS and XB live.

They have every right to scan the hardware inside the xbox.

The way to look at this, is to compare the Xbox with Steam on the PC. You can and do get banned, permanently, from any server protected by VAC, if 'cheats' are detected by the system.

THe EULA is a legally binding contract. You Legally agree to let them scan and ban your XB whenever they like.

I believe Irreverent just explained aptly, why this is not true.

 

[Takoto]

Technically... they can legally ban those people for having modded consoles... So someone suing them for it will just make the person suing look like an idiot...

 

[Irreverent]

Note: Bill is no longer heading MS, he's just got a chair on their board.

SOX doesn't care. Just about the entire boards of MCI/Worldcom, Tycho, Enron went to jail (or cut deals) for what amounts to life sentences.

They don't have a chance. As it says in the EULA, they can ban you whenever they please.

You're right. But this isn't about the EULA or the TOS. The more I read into the suit and the statement of claim, this is about manipulating the market forces and maybe the share prices of a couple of companies. Its collusion, share price shorting, maybe a dividends thing....and that's a huge no-no under the US SOX-system.

Time will tell. This thing ain't even started yet, who knows where it will end up. It aint the slam dunk everyone thinks it is, for sure.

My prediction: The suit is a cover to get MS to disclose their internal books, before the next annual report, and the US justice department will be ready to pounce.

 

[pheonix]

This lawsuit makes me happy in the pants. Hopefully those fucks get what they deserve for being money hungry bastards.

 

[Sinjo]

This lawsuit makes me happy in the pants. Hopefully those fucks get what they deserve for being money hungry bastards.

Lol, out of the top money grabbing companies, MS is pretty low.

Might wanna direct your bitching at companies like Apple, EA, Nintendo.

 

[Mikael Grizzly]

This lawsuit makes me happy in the pants. Hopefully those fucks get what they deserve for being money hungry bastards.

If you're so revolutionary, stop using anything that has any MS software installed. Hey, gotta fight da' powuh, eh?

 

[AshleyAshes]

There is no class action law suit. Nothing has been filed. At this point it's one law firm poking and proding at the idea of a law suit.

However there is one major issue. There would be a limited ammount of testimony available, because a lot of people talking about their Xbox's in court would probably be envoking their 4th amendment rights in reguards to self incrimination. Copyright violation is a crime and admitting to it and having it on court records could seriously bite you in the ass.

There are a few ligitimate reasons to mod a 360, one is to use drives salvaged from other 360's for personal repairs and another is for imports. Obviously these people represent a minority of users. So such a 'class action lawsuit' will probably have to find only the people who actually modded for ligitimate uses while ignoring all the pirates, then find who out of those people cares enough to be involved in a class action suit and then see if they can even get anywhere.

Personally, if I sold hardware that connected to my propritary network over the internet that I developed and they were hacking that hardware to engage in violating my own copyrights and those of other buisnesses I deal with; Damn right I'd ban those boxes. So I'm keeping my 360 nice and ligit. There are to many awesome things on XBLA and such to lose out on. The XBLA service is also likely to grow in value as a distrobution service in the future.

 

[lilEmber]

I believe Irreverent just explained aptly, why this is not true.

Nope, it's actually true. This is mentioned in the tos and eula, these people were warned, and they were banned from using a service. There's nothing else to this at all, and there's nothing any mod-moron can do about it. It's his/her own fault and microsoft can do anything they wish with his/her account. He/she can still play offline.

 

[AshleyAshes]

Perhaps, but its illegal to probe devices on my network without consent. Consent of one is not implicit consent of the other.

In high level terms, when you connect your corporation to the internet, your ISP or backbone provider will make you sign a TOS/EULA that prohibits "hacking." M$ likely breached their agreement with their ISP when they did this. Its going to be an interesting torte for sure.

It's not 'hacking' if you consent and by agreeing to the TOS and EULA you have consented.

By agreeing you agreed to let Microsoft probe your Xbox 360. It's not like they are forcing their way into your 360. The 360 even if connected to the internet can not communicate with Microsoft untill you connect it to Xbox Live, their propritary network. You are connecting to THEM and while you are connected to their propritary network they ask it to run a few checks where it can and send the data back home. You agreed to these terms. Hell the 360 can't even auto-connect to Live unless you enable auto-connect yourself. Otherwise it'll ask for a password first every time.

This is all on the level. It's like saying someone 'hacked' you because someone started downloading data from you on a torrent you have going. You were fully aware and acknowledged it, so it's normal operation.

 

[Sinjo]

It's not 'hacking' if you consent and by agreeing to the TOS and EULA you have consented.

By agreeing you agreed to let Microsoft probe your Xbox 360. It's not like they are forcing their way into your 360. The 360 even if connected to the internet can not communicate with Microsoft untill you connect it to Xbox Live, their propritary network. You are connecting to THEM and while you are connected to their propritary network they ask it to run a few checks where it can and send the data back home. You agreed to these terms. Hell the 360 can't even auto-connect to Live unless you enable auto-connect yourself. Otherwise it'll ask for a password first every time.

This is all on the level. It's like saying someone 'hacked' you because someone started downloading data from you on a torrent you have going. You were fully aware and acknowledged it, so it's normal operation.

You just re-explained the whole first page.

 

[Irreverent]

There is no class action law suit. Nothing has been filed. At this point it's one law firm poking and proding at the idea of a law suit.

True. But the OP's reference article is just under two weeks old. Searching for petttioners may take more than a year to complete.

There would be a limited ammount of testimony available, because a lot of people talking about their Xbox's in court would probably be envoking their 4th amendment rights in reguards to self incrimination. Copyright violation is a crime and admitting to it and having it on court records could seriously bite you in the ass.

I'm not sure this holds for civil tortes. Tortes have different standards of evidence than criminal actions. And the prosecutor could always grant blanket immunity.

There are a few ligitimate reasons to mod a 360, one is to use drives salvaged from other 360's for personal repairs and another is for imports. Obviously these people represent a minority of users. So such a 'class action lawsuit' will probably have to find only the people who actually modded for ligitimate uses while ignoring all the pirates, then find who out of those people cares enough to be involved in a class action suit and then see if they can even get anywhere.

Likely. And the bulk of ApbingtonIP's suit will probably focus here. And possibly on the market manipulation aspect; with its SOX implications.

Nope, it's actually true. This is mentioned in the tos and eula, these people were warned, and they were banned from using a service. There's nothing else to this at all, and there's nothing any mod-moron can do about it. It's his/her own fault and microsoft can do anything they wish with his/her account. He/she can still play offline.

The problem with the MS EULA/TOS is that its only legal where its legal. Outside the State of Washington, its going to be a crap shoot. And if this class action goes forward, it will identify a lot of grey areas. For example, many US Sates and out of country jurisdictions have over-arching consumer protection legislation that invalidate some or all of the MS EULA/TOS. Which makes many of the MS terms and conditions null and void. MS actually alludes to this in section 27 of the TOS, but hopes their end users are too stupid to realize or follow up on it.

It's not 'hacking' if you consent and by agreeing to the TOS and EULA you have consented.

No, you've only agreed and consented to the portions of the EULA/TOS that weren't invalidated by over-arching state or federal legislation in your jurisdiction. Case in point...when you buy and use a music CD, you consent to the TOS not to copy it....but file sharing is de facto legal in Canada, so that portion of the music CD TOS is invalidated by federal law.

By agreeing you agreed to let Microsoft probe your Xbox 360. It's not like they are forcing their way into your 360.

Its not about the mechanism. Since you can't enter into a contract that is illegal (in your jurisdiction) you may not have been empowered to give that consent. Without consent, MS had no right to do anything, and may itself have committed an illegal act. What an insidious little twist.

This is all on the level. It's like saying someone 'hacked' you because someone started downloading data from you on a torrent you have going. You were fully aware and acknowledged it, so it's normal operation.

Maybe. AbingtonIP seems to disagree. And given a quick look at their current suits and history of wins, its more likely they are right. Time, money, and possibly a trip to the US Supreme court will tell.

Intellectual property and consumer protectionism are deep, deep minefields of unexplored unintended consequences. Its a huge problem in the industry, and not just an issue for Microsoft. If this suit goes forward, its going to be before the courts for a very, very long time. I'd expect that many of the anti-MS EU countries will jump on this pretty quick if it starts to gain critical mass. You can bet the US Revenue department will be watching this one closely too.

 

[Carenath]

The problem with the MS EULA/TOS is that its only legal where its legal. Outside the State of Washington, its going to be a crap shoot. And if this class action goes forward, it will identify a lot of grey areas. For example, many US Sates and out of country jurisdictions have over-arching consumer protection legislation that invalidate some or all of the MS EULA/TOS. Which makes many of the MS terms and conditions null and void. MS actually alludes to this in section 27 of the TOS, but hopes their end users are too stupid to realize or follow up on it.

No, you've only agreed and consented to the portions of the EULA/TOS that weren't invalidated by over-arching state or federal legislation in your jurisdiction. Case in point...when you buy and use a music CD, you consent to the TOS not to copy it....but file sharing is de facto legal in Canada, so that portion of the music CD TOS is invalidated by federal law.

Its not about the mechanism. Since you can't enter into a contract that is illegal (in your jurisdiction) you may not have been empowered to give that consent. Without consent, MS had no right to do anything, and may itself have committed an illegal act. What an insidious little twist.

Intellectual property and consumer protectionism are deep, deep minefields of unexplored unintended consequences. Its a huge problem in the industry, and not just an issue for Microsoft. If this suit goes forward, its going to be before the courts for a very, very long time. I'd expect that many of the anti-MS EU countries will jump on this pretty quick if it starts to gain critical mass. You can bet the US Revenue department will be watching this one closely too.

This. I believe consumer law in Germany already renders Microsoft's EULA invalid and contract law in other countries, generally (though I'm not a lawyer) state that you must be over 18 to enter into a contract, which means for these people under that age, the TOS/EULA may be null and void as they could not legally agree in the first place.

In any case, it will be interesting to see if this thing gathers enough momentum to go to court.

 

[Tycho]

If you're so revolutionary, stop using anything that has any MS software installed. Hey, gotta fight da' powuh, eh?

MS free for half a year and counting 8)