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Microsoft is facing a possible class action lawsuit from Xbox 360 users aggrieved at being banned for piracy, alleging that the company intentionally timed its bans to coincide with the release of popular games, and deliberately took advantage of the fact it was not refunding unused subscription time.

Abington Law rubs its hands with glee at the prospect of a profitable class action suit:

As has been reported widely in the media, tens of thousands of Xbox owners have had their modified Xbox consoles banned from Microsoft’s online gaming service Xbox Live.

Although modification of Xbox consoles is *arguably* against the terms of use for Xbox/Xbox Live, Microsoft “conveniently” timed the Xbox console ban to coincide with the release of the new Call of Duty: Modern Warfare 2 game and less than two months after the release of the very popular Halo 3: ODST game.

This “convenient” timing may have resulted in more Xbox Live subscription revenues for Microsoft than it would have generated had these Xbox console bans taken place at some time before the release of Halo 3: ODST and Call of Duty: Modern Warfare 2.

Additionally, sales of both Call of Duty: Modern Warfare 2 (published by Activision) and Halo 3: ODST (published by Microsoft Game Studios) would likely have been greatly diminished had the Xbox console ban occurred prior to the release of these games.

Additional *reported* problems resulting from the bans include, but are not necessarily limited to:

* Disabling/altering Xbox functionality *NOT* associated with Xbox Live or piracy (HDD functionality for example);

* Disabling/altering Xbox functionality *NOT* associated with piracy (Netflix, game add-ons, music, and arcade games for example);

* Obtaining information from Xbox consoles without permission of the owner;

* Other problems/consequences associated with these bans have been reported here and elsewhere.

As an aside, PIRACY IS A LEGITIMATE CONCERN for Microsoft and other content producers. HOWEVER, (to use a poor analogy) Microsoft has chosen to use one of the most indiscriminate “weapons” in its arsenal in an effort to combat piracy — as a result, use of this “weapon” has resulted in a great deal of collateral damage — many people were affected who had nothing to do with piracy.

Furthermore, Xbox console functions that have nothing to do with piracy were also affected or disabled.

Details aside, Microsoft’s bans could (and should) have been more measured.

Notably, the lawsuit is explicitly on behalf of Xbox Live users who had their “modified Xbox console” banned, meaning that the issue of them violating their usage agreement with Microsoft is not in doubt.

Undoubtedly a self-serving venture for the lawyers concerned, but with millions of dollars tied up in the timing of the bans it is far from ridiculous to suggest Microsoft may have taken such factors into account – indeed, it would have been rather sloppy had they not done so.

Just whether they will succeed in getting anything out of Microsoft is another matter however, though with hundreds of thousands of angry pirates and a supposedly substantial number of accounts banned in error there will likely be no shortage of people eager to see them pay for having the gall to try to make users pay for their software…


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    Comment by Anonymous
    01:37 23/11/2009 # ! Neutral (0)

    Those pirates deserved it. They even have the nerve to complain. What a bunch of retards. If they want to play THEY HAVE TO PAY for it. Playing games is a luxury. If they can't afford it well BOOHOO.

    Comment by Anonymous
    20:03 23/11/2009 # ! Neutral (0)

    If they cannot afford it, they will find another way to get it. Its one of the rules of the market. Welcome to capitalism!

    Comment by Anonymous
    04:26 26/11/2009 # ! Neutral (0)

    Oh I surely hope you never streamed or downloaded any media when you say that...

    Comment by Anonymous
    05:39 23/11/2009 # ! Neutral (0)

    Microsoft will win this nonetheless not because they have loads and loads of money. But because everyone who has a problem with piracy wants this one to win to show pirates you can have what you want for free.

    Pity to the people who filed the suit, MS prolly will file a counter-suit against them.

    Comment by Anonymous
    02:44 23/11/2009 # ! Neutral (0)

    anyone who goes running back and buying a new 360 because of the ban is only feeding them more money. Just buy a ps3. its better/free online and sony won't screw you over like this.

    Avatar of WEZ
    Comment by WEZ
    02:03 23/11/2009 # ! Neutral (0)

    Smart move on Microsoft's part. best way to make the Pirates pay

    Comment by Anonymous
    01:53 23/11/2009 # ! Neutral (0)

    PIRATS ARE AGAINST THE LAWWWWWWWWWWWW YOU CHEATED YOU CHEAPPPPP BASTARDES NOW STOP COMPLAINING

    Avatar of Ota-Kool
    Comment by Ota-Kool
    00:19 23/11/2009 # ! Neutral (0)

    why play online when you can play by yourself like without having a sex partner why not... MASTURBATE.

    Comment by Anonymous
    Comment by Anonymous
    21:35 22/11/2009 # ! Neutral (0)

    Some of the comments to this article was to no surprise, let me address them:

    1-360 sucks!! PS3 PWNS!!!
    2-Hah! Fucking Pirates deserved it!!
    3-Dam you M$, you money whore!!
    4-They killed our console without notice!!

    1>Yes I'm sure fanboyism sure showed those 360 fanboys...
    2>STFU Please. 80% of you bastards are hypocrites. Go back to downloading or streaming your anime, drama's, games, movies, manga's, comics, novels, music etc...
    3>...Erm yes they are a money whore. They're a business. It's your own foolishness to not suspect that online functions might not be screwed over sooner or later.
    4>This is the only thing worth debating. It's definitely not within rights to screw the consumer over without notice and with an instant kill switch. But then under guidelines of agreement, you should of at least expected that they 'may' in the future brick your console should it be modded when you got internet connected.

    Comment by Anonymous
    04:24 26/11/2009 # ! Neutral (0)

    Couldn't agree more. Fanboyism on either side is pathetic. I just don't understand how double standards are accepted among some gamers. It's wrong to pirate games, but it's fine for music and other media? As you you said Microsoft is a business. Their methods of dealing with things may suck but any business will take whatever oppurtunity to up a profit. People shouldn't complain, well chronically, when they are shafted doing something they shouldn't either.

    Comment by Anonymous
    21:26 22/11/2009 # ! Neutral (0)

    As a self-standing student I simply cannot afford the video games. Their prices are ridiculous, and my scholarship barely holds me on my feet, and I have to study 95% of my free time to keep my scholarship, so I can't really work.

    Does that mean I can't enjoy video games just because I wasn't born in a wealthy family like most of the spoiled little fuckers here? That makes no sense at all and I won't tolerate it. If I copy their I.P. they lose nothing at all, so I don't see what's wrong if a certain degree of people just pirate. If they want more money they should find ways to attract more gullible people who are willing to pay for I.P. with casual and party games.

    Comment by Dark Mage
    03:00 23/11/2009 # ! Neutral (0)

    It's probably best to get a PC and see if your banned Xbox can be turned in to a linux media center.

    I hate to say it as soon as a new linux hack is out I might take advantage of M$'s tactics and buy a few banned xboxes on the cheap just to turn into Ubuntu work stations/media transcoding boxes.

    Avatar of Artefact
    Comment by Artefact
    03:45 23/11/2009 # ! Transparent

    Get out of here you dirty communist.

    Comment by Anonymous
    22:11 22/11/2009 # ! Neutral (0)

    "Does that mean I can't enjoy video games just because I wasn't born in a wealthy family like most of the spoiled little fuckers here?"

    Exactly, now go blame your parents, scholarship and the rest of society because YOU can't buy games because YOU don't have money

    Comment by Anonymous
    22:08 22/11/2009 # ! Neutral (0)

    You don't have time to play video games if you have to study 95% of your free time. And it seems like your problem is not only being poor, but stupid as well. Having to study 95% of your free time? I hope you are post-graduate at least.

    Comment by Anonymous
    22:19 22/11/2009 # ! Neutral (0)

    Yea, I'm studying real science (physics) at one of the top Universities in Europe.

    I understand it's unimaginable for an American. Also, in the 5% of my free time I love to play video games, because they relax me.

    Comment by Anonymous
    22:31 22/11/2009 # ! Neutral (0)

    Make excuses all you want but please just support the industry.

    Comment by Anonymous
    23:59 22/11/2009 # ! Neutral (0)

    ok, MS has the right to ban people from their service who break the terms of usage, that said:

    "Additional *reported* problems resulting from the bans include, but are not necessarily limited to:

    * Disabling/altering Xbox functionality *NOT* associated with Xbox Live or piracy (HDD functionality for example);

    * Disabling/altering Xbox functionality *NOT* associated with piracy (Netflix, game add-ons, music, and arcade games for example);

    * Obtaining information from Xbox consoles without permission of the owner;

    * Other problems/consequences associated with these bans have been reported here and elsewhere."

    The above quote is a list of illegal acts, basically. The 360 is "phoning home" something that would be unthinkable in the PC market, thanks to past lawsuits. Various other acts listed above have legal precedent indicating they are illegal (criminally or civilly) thanks to the Sony rootkit case and other cases of digital sabotage in the PC market in the past.

    Comment by Dark Mage
    02:36 23/11/2009 # ! Neutral (0)

    Agreed several laws were broken and a device that phones home without permission should never be tolerated.
    It also should be noted the Xbox 360 is the only console with e-fuses that cannot be reset once blown.
    As for supporting the industry it would be better for the industry as we know it to die then be forced to accept scumtastic behavior like this.

    Comment by Anonymous
    00:19 23/11/2009 # ! Neutral (0)

    Enough of your common sense and logic! Pirates are evil! Now, let me get back to my fansubs...

    Comment by Anonymous
    08:51 23/11/2009 # ! Neutral (0)

    HD game install wasn't in the original Xbox 360. It was added in an update. All other streaming functionalities fall into XBL. The console is banned from XBL so they are lost. A banned console still plays game as it supposed to, except that your profile and saves are "locked" in that banned console(meaning you can't use it on an unbanned console). It is a known fact that Xbox 360 keeps a backlog of user activities(that's how you could still get banned for playing pirated game offline), some legal gibberish from MS probably took care of that already. So they don't really have a case there.

    Comment by Anonymous
    12:56 26/11/2009 # ! Neutral (0)

    They do.

    What about systems that were bought with that firmware already loaded? Those would already have those functions "built-in". Also, you can't connect to a Windows Media Extender, so that has nothing to do with XBL, either.

    The fact is, they deleted information that was already on people's unit without permission and that's the part that's illegal.

    Avatar of El Chaos
    Comment by El Chaos
    11:07 23/11/2009 # ! Neutral (0)

    It doesn't "phone home", they connected to Microsoft's very servers, paid a subscription fee and used their very services with a bootlegged system. Do I need to telegraph this shit into your fuckin' brains or something?!

    I mean, it's almost like whining for getting your legs bitten off because you just dived into a sea full o' sharks, and act that deserves some kind of all-time massive stupidity gold medal.

    Comment by Anonymous
    23:45 22/11/2009 # ! Neutral (0)

    As long as the case is presented well, I believe they could win. Why? Simple:

    1_ The timming of the ban is, well, too convenient. With both new games and the holidays coming up, the ban serves as a good way to increase sales.

    2_ They are not refunding subscriptions. Accounts may not have been banned, but if someone had their system blocked and don't feel like buying a new one or using their account on a different one, they were pretty much milked for all they were worth.

    3_ If Microsoft had simply issued a warning, say, two weeks before they started banning, stating what they were about to do, it would have gotten the same results in terms of fighting piracy, maybe even allowing people to return their systems to normal (which should be possible, but I can't be certain). But, you know, Microsoft saw the profit in doing it stealthly, so...

    On a side note, I don't own an X-Box, now am I going to. But I'll share a little something: where I live (south america, not specifying country), any original PS3 or XBox game cost anywhere between 200 to 400 pesos, with the legally minimum income for a fulltime job being around 1200. With PS3 you can't do much, but Xbox, being that many games are burned on DVDs, the price is ridiculous for the original one. Seriously, a blank DVD costs less than 2 pesos, it's no wonder you can't find an UNmodded Xbox here on sale...

    Avatar of El Chaos
    Comment by El Chaos
    11:00 23/11/2009 # ! Neutral (0)

    "milked for all they were worth"
    You mean some 8 bucks per dumbass for a single month?

    Wow, "phat 1007" indeed.

    Comment by Anonymous
    11:08 24/11/2009 # ! Neutral (0)

    Nice way to both miss the other points, and fail at math. Lets say, hypotetically, users banned don't ever log back in. They somehow manage to cancel their subscriptions, but probably loose a full month. It's,like you said, only 8 bucks, no bid deal. But, with 600k banned people, that amounts to 4.8 million for MS, that they get for a service they aren't providing. All hypotetical, of course.

    Say what you want, but if you are gonna ban hundreds of thousands, give a freaking warning. And I don't mean the Terms of Service, I mean a warning people will actually look at and take seriously. Sure, they SHOULD read the ToS, but you can't tell me sending an ultimatum wouldn't have diminished the amounts of bans substantially.

    Comment by Anonymous
    12:14 24/11/2009 # ! Neutral (0)

    Their only obligated to give a terms of service agreement. They forfeit their subscription by engaging in illegal activities. Pirating is illegal. MS can easily counter sue all the individuals that present the case, for up to 100,000 a piece. If they bring the law in an additional jail time can be added up to 10 years.

    So honestly who ever is doing this stuff is a moron.

    In addition there is nothing preventing MS from doing the banning at any time they want as it's in the TOS.

    I'd like to see a couple of the guys go to jail for stupidity and the lawlz.

    Comment by Anonymous
    22:57 22/11/2009 # ! Neutral (0)

    If this lawsuit isn't thrown out in court I will eat my 360.

    Comment by Anonymous
    23:28 22/11/2009 # ! Neutral (0)

    If this lawsuit wasn't thrown out in court I will blast my 360 with a Spas-12

    Comment by Anonymous
    13:44 23/11/2009 # ! Neutral (0)

    Yeah, fuck Microsoft up the ass! Who gives a shit about the pirates?

    Comment by Anonymous
    06:41 26/11/2009 # ! Neutral (0)

    Ah, they're just paranoid. I fail to see Microsoft as intentionally wanting to ruin people's lives.

    Mysterious Voice: "I can't wait to see your comment rated down. We're not paranoid; you're naive."

    Comment by Anonymous
    12:51 26/11/2009 # ! Neutral (0)

    M$ is boned. They went one step too far and should've quit while they were ahead.

    Legally, they can ban you from their online system and cancel your Live membership. However, it is illegal for them to go into your system and sabotage it and destroy/reduce its functionality (they delete your system keys). It's effectively like formatting your HDD for having a pirated Windows, except in this case it makes the HARDWARE stop working and you can't really reinstall it (unless you're a hax0r).

    Comment by Anonymous
    22:09 24/11/2009 # ! Neutral (0)

    Told you you couldn't trust M$.

    Comment by Anonymous
    05:29 24/11/2009 # ! Neutral (0)

    Interesting that Microsoft would take this stance when the company's original fortune was amassed based on piracy, theft and duplicity.

    Comment by Anonymous
    02:09 24/11/2009 # ! Neutral (0)

    Microsoft are a different type of pirate. But pirates nonetheless. The only difference is that Microsoft have suits and money.

    Comment by Anonymous
    07:27 23/11/2009 # ! Neutral (0)

    So this is how it's probably going to go down:

    Lawsuit comes to Microsoft. Regardless of the legitimacy of its claim, they'll choose to go after an out of court settlement in which they admit no wrongdoing, but it never sees the legal light of day. They do this because it's far cheaper just to pay off the law firm than press the case in court. "Plaintiffs" in the case will get $5-$10 each and the law firm earns a half a million.

    Honestly, I hope Microsoft pursues this case just so this ambulance chaser doesn't get a penny. I only see one real legitimate point of contention in this case, and that's the lack of a pro-rated refund on time remaining on the x-box live account, as the laws of many states override their EULA's no-refund policy.

    Comment by Anonymous
    07:28 23/11/2009 # ! Neutral (0)

    YOU RRoD 360 BETA TESTERS FAGS SURE GOT TOLD.

    Comment by Anonymous
    06:19 23/11/2009 # ! Neutral (0)

    The exact reason why MS sucks and I'm still loyal to Sony.

    Avatar of tingle
    Comment by tingle
    09:45 23/11/2009 # ! Neutral (0)

    M$ did do this for money but SO WHAT? They are a busiess and piracey is illegal. They are within their rights. I see no legal thing the people bricked can do. They should be lucky they aren't criminally prosecuted.

    Comment by Anonymous
    19:56 23/11/2009 # ! Neutral (0)

    For modding THEIR consoles?

    Comment by Anonymous
    10:18 23/11/2009 # ! Neutral (0)

    just another nail in the coffin for xbox... if no one buys xboxes or their games everything will be released on the user friendly ps3. i owned them both, sold the xbox, ps3=clear winner.

    Comment by Anonymous
    19:38 22/11/2009 # ! Neutral (0)

    In the Xbox360 ToC they are leasing the xbox to you and it is not really yours. Thus you have no right to modify it in any way shape or form. Therefor this is a lost cause for anyone attempting to get their jollys off of this

    Comment by Anonymous
    13:31 22/11/2009 # ! Neutral (0)

    angry pirates

    MS's in deep shit now

    Comment by Anonymous
    13:33 22/11/2009 # ! Neutral (0)

    Some mods should be alright.

    Modding it to increase the amount of memory to LEGALLY store the games you buy movies w/e should be legal.

    Avatar of Ciscotaku
    Comment by Ciscotaku
    15:45 22/11/2009 # ! Neutral (0)

    and that's why MS sells bigger HHD, no need to "mod"

    Comment by Anonymous
    12:36 23/11/2009 # ! Neutral (0)

    So i have to pay several times market price for the same product, because MS says so? You're kidding right?

    Comment by Anonymous
    13:23 22/11/2009 # ! Neutral (0)

    HOW DARE THEY MAKE US PAY LEGITIMATELY FOR OUR GAMES

    Comment by Anonymous
    13:22 22/11/2009 # ! Neutral (0)

    Microsoft and the Skynet virus wins.

    Rule #1 if you're going to pirate software, never connect to the internet.

    People crying for his stupidity...

    Avatar of LaughingReader
    Comment by LaughingReader
    13:15 22/11/2009 # ! Neutral (0)

    Aaarrggg...acting like pirates aren't we?? why?, 'tis my favorite occupancy and stage play

    I'm expecting PS3 to take advantage of the pirate uprising

    PS3: With our PS3(which does everything), u can do everything with ur PS3 and not getting banned, tortured, shark baited or getting cursed you drunken scalawags!!! and remember PS3
    Pureeeiiishtaaaay....pureeii...aaarrgh!!!

    I'm hoping sony will grant a lenient punishment or amnesty to current ps3 modding jack spassies(don't know if there're ps3 mods out there) or future aspirants

    I just think microsoft have done their math, then not explaining the point(do we get richer with the banning spree?), or are they?

    Comment by Anonymous
    16:24 22/11/2009 # ! Neutral (0)

    If you take a look at how many revisions of PS2 and PSP they have gone through, you will know that Sony doesn't look kindly on pirates, even more so than MS.








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