Firm considers class action over Xbox Live bannings

Law firm AbingtonIP has revealed that it's currently "investigating" what it calls the "convenient" Xbox Live bannings over modded consoles.

The firm believes that it's no coincidence that Microsoft banned "tens of thousands" of users after receiving its money for Gold memberships, post release of Halo 3: ODST and Call of Duty: Modern Warfare 2. Therefore, the law firm is considering a suit in order to get the membership fees refunded to subscribers along with a "refund for the prorated sums".

"To me, this certainly sounds a lot like a cash grab directed at a company with deep pockets, but perhaps there are more facts than they are letting on," said Joystiq legal columnist Mark Methenitis. "If, in fact, Microsoft is inducing people to buy a service only to terminate them, then there's certainly a deceptive business practice concern.

"But this seems far more cut and dry than that."

Methenitis also stated that a user "savvy enough to have a modded console" should be savvy enough not to connect it to Xbox Live without "serious risk."

Microsoft recently banned as many as one million players from Xbox Live for altering or modifying their Xbox 360 consoles in order to play pirated versions of Xbox video games.

Report a problem with article
Previous Story

YouTube Captions to Use Technology from Google Voice

Next Story

EU agrees with guidelines on Internet restriction

88 Comments

Commenting is disabled on this article.

Basically ... if you modded the xbox 360 ... and got banned ...
You broken the rules ... MOVE ON !!! Sell it on ebay or sell
it to someone.

If you still want a xbox .. buy another one an DON"T MOD IT ....

this whole issue is childish. Geez, don't like the xbox online service or the bannings? get a PS3! microsoft isn't the only game in town.

Actually there is nothing idiotic about this lawsuit and some claimed here. Microsoft doesn't have the right to disable someones paid for console. But then again, Microsoft always has been good at stealing from others, yet their fanboys don't say a word about that.

Microsoft hasn't disabled the consoles but banned them from xbox live.

Microsoft has every right to ban modded consoles, the terms of use for live services clearly state this in section 16, check it out if you don't believe me.

Fact is, you buy the console, you mod it and if you are dumb enough to use it over live then you're asking for a ban.

They reduce the functionality of the 360 also. Even when you are offline. You no longer can save games and install games to the hdd you can not access the media center on your PC. Also the gamer profile gets erased along with all of your game saves. They do not state that any ware in the TOS or the EULA. So pretty much making you counsel usless. Just because you modded your counsel. Witch you paid for in the first place.

I think Microsoft may slipped up.

If they banned the primary user of the xbox and the xbox that was modded, I don't think they have a leg to stand on (lawsuit), however to ban the box, and not the primary or most frequent user of such modded box.....

Why does anyone want to protect these thieves. I know there are a tiny fracion of modded Xbox users not pirating, but if you are honest you will acknowledge the vast majority are. They deserve no special accord, they broke the EULA, they pay the price.

Microsoft could probably avoid people trying this sort of thing on by actually banning modded consoles as soon as they are detected, rather than waiting for months and then batch banning once or twice a year.

But then the cat and mouse game wouldn't be as fun :)

By doing a mass ban, they cause the modders to speculate as to what the cause of the bans was. If they did it immediately, it would be easier for modders to implement a quick fix as more data came in. Personally, even with the mass ban, I'd be surprised if they don't make a workaround by the end of this year for modding and possibly even have a mainstream fix for hd installs.

Either way, the game will continue until the next generation, when it starts over again.

This law firm is completely retarded. The people who got banned were banned because they modded their consoles, which is against the T&Cs of Xbox Live. And it states in there that if you violate the rules, you get banned.

It's no major biggie if your console has been banned, anyway. Your gamertag still exists, and so does your Xbox Live Gold subscription if you have one. Simply go out and get a 360 without a modchip in it and you can play online again. You might as well just go legit, because when it comes to Microsoft's consoles, it's almost impossible to hide your modchip from them, no matter what you do.

If you want to mod a games console, then stick with the Wii, but overall, I prefer the PSP.

You had your Xbox modded, you were stupid enough to use the console online through Xbox Live. You are an idiot.
Microsoft's console scanning detected a known modification to your drive's firmware whilst you were playing online with a modded console, Microsoft have banned your console from playing online with Live.

........How can you possibly complain? If you modded a console and never used it online, it's not legal but at least it's not taking the complete ****, to use it online as well where they *do* have the ability to check for new firmware modifications when they choose to, that's ludicrous.

It is perfectly legal to mod your xbox. I have no modded Xbox. The only thing you are in violation of is their TOS and they can ban me from there service. It is not legal for them to make my 360, what i paid, for not due the things that i did when i brought it home. Unless its in the TOS and in the manual in the box. They say they will ban you but not limit its functions offline, like they have been doing.

*If i went to the store and bought a 360 and came home and threw it against the wall and broke it I can because i paid for it.
*You can legally make backups of your own games if you would like its perfectly legal. I don't know why every one assumes that its breaking the law. With the DMCA its legal to make back ups just not legal to circumvent the copy protection on the disk.
*Making a backup is a 1:1 copy, meaning with out modifying it. So if I play against you on live i have no advantage. Plus its not possible to change content on the disc's with out it showing up on live. Meaning you would instantly get banned. They say they ban people to protect other people that are on live. It's a bunch of BS.
* Disabling anything other than live is not legal. They would have to state what they will do in the EULA. They are crossing a fine line by what they are doing.
*Not everyone is pirates. I have two young children in my house that do not now how to handle the disc's so its nice to use back ups.

See Xbox live t&c section 16:

Microsoft reserves complete and sole discretion with respect to the operation of the Service. Microsoft may, among other things: (a) restrict or limit access to the Service; (b) retrieve information from the original Xbox, Xbox 360 console, personal computer, and any connected peripheral device used to log onto the Service as necessary to operate and protect the security of the Service, and to enforce this contract; and © upgrade, modify, withdraw, suspend, or discontinue any functionality or feature of the Service, any game or other content available or accessible through the Service, or any hardware or software associated with the Service or with an original Xbox or Xbox 360 console, or personal computer, from time to time without notice,

To the service, referring to Xbox live. The 360 is not a service. I already paid for it. Like i said they can ban me all they want from live. Now actually making my 360 not function is a whole different story.

I can see why they are banning people from XBL. But disabling HDD installations which were included in a mandatory Dash Update could cause problems for them. Personally I think they went too far on that one.

That must have something to do with revoking the console's certificate? I've been wondering about that to, but since save games are an issue, perhaps it uses the certificate when copying games to the HD too? Not that that's really that huge a deal to be honest. I mean I play my games off of the discs... There's very little load times generally...

The whole banning thing was excellent news for me. I was holding off on buying an Xbox (but I don't play any games online). So now I have a plethora of cheap ones to choose from, with the added benefit of not having to mod them myself (until the next batch of games comes out that needs a newer version of the firmware, of course).

I'm going to sue Apple because no where in the advertisements or License Agreement for OSX did they warn me that I would be unable to use my Laptop once it ran out of battery.

Modding a console = ~40$, buying a pack of dual layer DVD's = ~ 35 50$.

Burning 45 xbox 360 games = ~2400$ saved cash in your pocket.

Stores buy video games from companies, they then sell that and make a profit, so you are supported the stores that sell them, video game companies will ALWAYS will make money; and I have never seen a situation where they havent; excluding sega dream cast ;). I dont think we need to worry about Blizzard going out of business with their 8 million people per month at 15$ a month subscription.

-DanNY- said,
Modding a console = ~40$, buying a pack of dual layer DVD's = ~ 35 50$.

Burning 45 xbox 360 games = ~2400$ saved cash in your pocket.

Stores buy video games from companies, they then sell that and make a profit, so you are supported the stores that sell them, video game companies will ALWAYS will make money; and I have never seen a situation where they havent; excluding sega dream cast ;). I dont think we need to worry about Blizzard going out of business with their 8 million people per month at 15$ a month subscription.

So you're saying that piracy is O.K. because other people actually pay for what they get? I still say that if you don't want to pay the money for the game, don't play it. Seems fair enough to me...

-DanNY- said,
Modding a console = ~40$, buying a pack of dual layer DVD's = ~ 35 50$.

Burning 45 xbox 360 games = ~2400$ saved cash in your pocket.

Stores buy video games from companies, they then sell that and make a profit, so you are supported the stores that sell them, video game companies will ALWAYS will make money; and I have never seen a situation where they havent; excluding sega dream cast ;). I dont think we need to worry about Blizzard going out of business with their 8 million people per month at 15$ a month subscription.


This is not true because if a store cannot sell a particular game they will not make anymore orders which hurts the publisher/developer. In addition, if the Game Industry operates anything like the Music Industry retailers can force the publisher to buy back the unsold copies if they don't move within a certain amount of time. So yes, piracy causes everyone in the chain to suffer: The Consumer, The Retailer, The Publisher, and Developer.

Bring it on. Microsoft sure isn't the criminal here. You mod your XBOX and render it inoperable on the Live network? Too bad. Microsoft didn't make you mod it nor did they make you buy the Live subscription.

Microsoft sure isn't stupid. They would not "entice" people to buy a Live subscription with the intent of shutting them down and keeping the cash. That would be beyond absurd. Of course they want to keep members happy and active so they continue to buy subscription renewals. But they aren't going to tolerate piracy either and it's about time they stepped up the battle.

It goes beyond the ban though. When Microsoft bans an xbox 360 console they not only kick the console off the network but they also cripple the console. The digital certificate the console uses to sign it's content is revoked so that all content on that console is no longer valid on any other console without some serious work. Also most people who do mod there consoles do get marketplace content legitimately. They go on live so they can get the map packs and other addon items that are available at a cost so they are not entirely freeloaders.

@soLoredd: Some people had gotten the renewal just a couple months before the huge ban wave went through. The ban wave may never be over.

The whole point to modding your console is to not pay. What good would it do Microsoft to make a Platinum tier? That also would send a message that Microsoft condones piracy...just as long as you pay us for Live.

Either do it the right way or don't at all. Really, if $50/year is that big of a deal, go play PC games.

now imagine if all the car manufacturers did what ms has just done well that'd be an uproar and a half now wouldn't it, personally i don't see what M$ are packing a tizzy over they're still getting their money for gold accounts why not start an platinum account where use of an moded xpox is allowed and you can only play against other moded xpoxs problem solved everyones happy and M$ continues to make money hand over fist

Actually, car manufacturers do this all the time. I voided my warranty in my first car by replacing the factory fuel injectors with some that were not the same specs.

Also, happened to my brother when he replaced the transmisson with some after market "make my car fast" one.

Umm, is it because modded accounts affect their profits? They can play pirated games? And did it not occur to you game sales is probably more profitable overall and that developers need profit to stay with Xbox? Isn't that half the reason for having a modded xbox, if is not the whole of it? GENIUS we have here. You go around saying "M$", just because they are rich they are not allowed to look after their profits, right? If you live in a capitalist country, you should move immediately. Actually, doesn't matter, you won't fit in anywhere, since your ideals is more of anarchy.

And yes, cars do have some of the same thing. You know that episode of Top Gear with the Ferrari that Michael Schumacher drove? That car have strict conditions on how to you use it, where to use it, how to clean it etc. Just one example. Many more limited edition cars have similar rules. And if you break them, you forfeit your car, simple as that.

TheReasonIFailed said,
Actually, car manufacturers do this all the time. I voided my warranty in my first car by replacing the factory fuel injectors with some that were not the same specs.

Also, happened to my brother when he replaced the transmisson with some after market "make my car fast" one.

Wow. That's good to know...

Atlonite said,
personally i don't see what M$ are packing a tizzy over they're still getting their money for gold accounts



The reason they're in a tizzy and banning modded boxes is a simple one. While most mods now allow for playing pirated (or fair use) burned discs.

If M$ were to continue to allow modded consoles online, then the focus of modding would shift to custom code to interfer with the developer's intended playback of their game titles.

Hacks for games ruin the online fun for everyone. it's bad enough there are those out there who find game exploits (unresolved bugs). There are many games that could have had a longer playlife, if not for the exploiters.

If your online presence is compromised by cheaters, then you will lose your market.

People these days sue for the most idiotic unreasonable reasons. I just hope judges these days know about these fruitcakes and wave them off. Waste of peoples time and money. Like how someone would sue McDonalds if they saw a fly in there burger which they could've placed. Kudos for MS for banning those modders from Live. At least it keeps possible cheaters away from online play. I don't mind if they mod it for offline use but thats that.

I read this as; we knowingly took a risk with known consequences, got owned, and now we're going to cry about it.

thornz0 said,
I read this as; we knowingly took a risk with known consequences, got owned, and now we're going to cry about it.

+1

From the law firm's website:
"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. "

Points 1 and 3 are definitely stupid, as they are of course to do with piracy (and you agree to have console information collected when you sign up for Xbox live I believe), but hadn't heard anything about point two?

Atlonite said,
so you don't think your legally entitled to make a back-up copy and use this instead of the original

do you backup your t-shirt in case you spill something on it?

Atlonite said,
so you don't think your legally entitled to make a back-up copy and use this instead of the original

To answer your question directly, yes I do.

However, it is impossible for Microsoft to distinguish between 'fair use' copies and 'copies that I got from the internet or my mate'. They can't sit there and do nothing about it after all. Besides, the more obvious issue is that modifying the firmware IS against T&Cs of Live.

Atlonite said,
so you don't think your legally entitled to make a back-up copy and use this instead of the original

No, not if it involves bypassing copy protection mechanisms and moddifying the hardware beyond manufacturers spec.

* 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;

Well, Netflix, Game add ons, and arcade games use Live... So... Why would you expect to still be able to use those features?

As for collecting information about your console, I do recall something about that in the terms and that seems like a rather weak argument "So what my console was modded? How did YOU know??" :P So childish...

What? it's against the EULA so microsoft can ban you whenever they please.

The people who have modded consoles know they're breaking the rules. Break the rules, accept the punishment. Simple.

Lawsuits are getting ****ing ridiculous nowdays.

Problem is those people have this crazy idea it's their right to mod the console because it's their property, therefore, they can do what they want with it. They simply can't understand that the hardware was sold to them under the conditions they did not mod it. Then they get all shirty when they get banned for doing something they feel they were entitled to.

Xerxes said,
Problem is those people have this crazy idea it's their right to mod the console because it's their property, therefore, they can do what they want with it. They simply can't understand that the hardware was sold to them under the conditions they did not mod it. Then they get all shirty when they get banned for doing something they feel they were entitled to.

The thing is, they can mod their XBox 360 to their hearts content. Just they shouldn't expect to be allowed to use the online service if thats the direction they want to go with their hardware. I think thats fair. I don't want to play against/with people using mods.

Shadrack said,
The thing is, they can mod their XBox 360 to their hearts content. Just they shouldn't expect to be allowed to use the online service if thats the direction they want to go with their hardware. I think thats fair. I don't want to play against/with people using mods.

That is what is happening now though, problem is they do expect their modded console to work with the online service and get shirty when it doesn't because they feel their rights have been violated. They need to learn that if they wish to mod their console, they give up there rights to use it online and if they attempt to do so and get banned it's them who is in the wrong not MS.

@Xerxes: They are not getting ****ed because they got banned from XBox Live. They are getting ****ed because they are being blocked from using content they PAID FOR. Most of them are not mad about the ban from the online service in general.

Xerxes said,
They simply can't understand that the hardware was sold to them under the conditions they did not mod it.

Have you ever actually purchased a console? At no point in the transaction is the purchaser informed that the hardware is being sold to them under the condition that they do not mod it. There is no EULA for buying an XBox 360, only for Xbox Live.

shinji257 said,
@Xerxes: They are not getting ****ed because they got banned from XBox Live. They are getting ****ed because they are being blocked from using content they PAID FOR. Most of them are not mad about the ban from the online service in general.

Then they should be getting "****ed" for not reading the small print. Do these really hope they can sort of negotiate a ban now, do they? Content online they paid for is still Xbox Live Content, and this is what they are banned from. So why should they still have access to it?

So are you saying that if you get banned from a MMORPG that you can view your items about being "banned", just not play it? Give me a break....

They can still get the content they paid for already, YOUR ACCOUNT ISN'T BANNED, unless you're one of the ones who did get their account banned specifically, but that's not what this case is about. ONLY the modded system gets banned, you can just buy a new one and sign right back into your live profile and redownload everything you already paid for!

This case won't even make it to court.

Xerxes said,
Problem is those people have this crazy idea it's their right to mod the console because it's their property, therefore, they can do what they want with it. They simply can't understand that the hardware was sold to them under the conditions they did not mod it. Then they get all shirty when they get banned for doing something they feel they were entitled to.

Yep. But Microsoft needs to restrict the service to un-modded consoles to keep the service fair. I have no problem with these bans at all.

shinji257 said,
@Xerxes: They are not getting ****ed because they got banned from XBox Live. They are getting ****ed because they are being blocked from using content they PAID FOR. Most of them are not mad about the ban from the online service in general.

I guess they shouldn't have modded their console... I don't want to play with modded consoles... And if you want to pirate a game and play it on your modded console, that's bad enough. Maybe not being able to use the online features will impact things some.

rheostat said,
Have you ever actually purchased a console? At no point in the transaction is the purchaser informed that the hardware is being sold to them under the condition that they do not mod it. There is no EULA for buying an XBox 360, only for Xbox Live.

I have owned a lot of consoles, and have never seen one that they were O.K. with you modding... In addition, in the internet age when these consoles are connected to these services they have to keep things fair, and not knowing what was modded or what you attempted to accomplish with your mod, I see no reason why it shouldn't be banned...

And the XBox Live Terms do clearly state that you cannot use a modded console and that there are no refunds. It is pretty cut and dry there...

M_Lyons10 said,
I have owned a lot of consoles, and have never seen one that they were O.K. with you modding... In addition, in the internet age when these consoles are connected to these services they have to keep things fair, and not knowing what was modded or what you attempted to accomplish with your mod, I see no reason why it shouldn't be banned...

And the XBox Live Terms do clearly state that you cannot use a modded console and that there are no refunds. It is pretty cut and dry there...

I agree that modding can ruin the online experience, and that no console manufacturer appears to support modding. HOWEVER, the conditions of owning a console are not discussed during the purchase of a console.

As far as XBox Live's EULA is concerned, the whole thing reminds me of software EULAs. They should be printed on the outside of the box so you can read it before you buy the software. Otherwise, you're forced to agree to the EULA or be stuck with a non-returnable $60 box of cardboard.

You don't get banned from xbox live, only the console which is modded does, therefore micosoft aren't doing anything wrong.
Also everybody should read the terms & conditions for any contract/service they sign up for. Hardly any of us do, but that's our fault.

I hope they take it to court, lose, then have to pay microsofts legal costs!.

would seem that ms would make more money if they banned users and not machines
say a family of 4 has a gold each and they get banned... then they would need to buy a new subscription to get online and risk banning again. ms does not make a lot of money on the hardware so banning the usrs would even cop them in more money.

I disagree with the original post for a few reasons

a) A few people may use a console but not all may know it was modded (you go to a friends house or whatever) so they suffer for it if they ban any account on the machine.

b) The accounts is a large reason people will rebuy a console. If they blow away a persons account and their friends list + gamer score they have to start at square one which may turn them to the PS3. To many of these people buying a new XBox isn't a big deal as they saved that much money on games anyway due to the piracy...as long as they can keep their online profile. Gamerscore is actually a fairly effective antipiracy measure really. It won't stop it but it does create a bit of fan loyalty to some extent.

If MS was totally bricking your system then I could see a point to this, but they aren't. They just don't let you go online, oh and they crap on your hdd installs but oh well.

You can still play offline, and if you get a new one your profile is still up on live so you can get right back in. MS is basically banning the system in this case, NOT the user.

Theyd o stop you isntalling games onto the hard drive, and issues with corrupt saves moving from a banned console > new console, which seems like limiting the functionality which has nothing to do with xbox live

Yinchie said,
Er... not exactly... the entire console gets banned, meaning you have to buy a new xbox...

Which you would have to do anyway, because you were kicked out for modding your XBox. So banning the console only makes sense... It's been altered and they know that it's been altered... It isn't going to become "un-modded", nor should they trust someone to do this...

ahm what? I'm sure that if your XBox is modded, you couldn't even connect to XBox Live to get a subscription. If you bought a membership and then modded the XBox then you are an idiot and Microsoft keeps your money because the contract you signed specifically states no refunds.

Titoist said,
ahm what? I'm sure that if your XBox is modded, you couldn't even connect to XBox Live to get a subscription.

They can only be detected if they are running when connecting to XBL. Quality mods have an off switch. :)

I don't play consoles, or have an XBox, I just keep up with the info. So I can't tell you if MS has been entrapping gamers with modded boxes or not. If MS let them connect with modded boxes, waited for them to buy Halo 3 and then banned them after it got the $$$, that would be entrapment. I'm not sure if there is any law that says a company can't do something like that. I guess it's a matter of opinion? I think console gamers, whether legal or not, deserve abuse.

@toadeater

1.) Entrapment? I don't think you know what you're talking about.

2.) Just a suggestion, because I've seen you posting about how much you dislike consoles several times... Maybe ignore the news and threads about consoles?

toadeater said,
They can only be detected if they are running when connecting to XBL. Quality mods have an off switch. :)

I don't play consoles, or have an XBox, I just keep up with the info. So I can't tell you if MS has been entrapping gamers with modded boxes or not. If MS let them connect with modded boxes, waited for them to buy Halo 3 and then banned them after it got the $$$, that would be entrapment. I'm not sure if there is any law that says a company can't do something like that. I guess it's a matter of opinion? I think console gamers, whether legal or not, deserve abuse. :p

Entrapment is what police do. Private companies can't entrap. And entrapment is setting someone up to break a law, in this case microsoft is not setting up anyone to break the law.

nubs said,
Entrapment is what police do. Private companies can't entrap. And entrapment is setting someone up to break a law, in this case microsoft is not setting up anyone to break the law.

Ok, what would you call it other than a "cash grab"?