Law Firm Sniffing Around Xbox Live Class Action Suit

November 19, 2009 -

A law firm that specializes in consumer class action lawsuits is probing the recent purging of Xbox Live accounts in what may be a setup for future litigation.

Inc Gamers noticed that AbingtonIP currently has a form on its website asking those affected by the ban—and who were not refunded a prorated sum for their time remaining on Xbox Live—to send in pertinent information. The law firm writes, “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.”

AbingtonIP calls the timing of the widespread ban “convenient,” in light of the pending, post-ban release of Call of Duty: Modern Warfare 2 and thinks the ban may have resulted in a boost to Xbox Live subscription revenues. If the ban had been enacted before the release of MW2 and Halo 3: ODST, the law firm supposes that sales of both games would likely have been “greatly diminished.”


Comments

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

That doesn't make sense that they would ban the people that are NOT pirates. Is Microsoft trying it's hardest to lose customers?!?!?! B/c that's what it seems.

 

 

"It's better to be hated for who you are, then be loved for who you are not." - Montgomery Gentry

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Re: Law Firm Sniffing Around Xbox Live Class Action Suit

The number of modded consoles that weren't used to pirate games is ridiculously small.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Based off what?

This is a line that people like throwing around, but I have yet to see any actual numbers that were collected in statistically or methodologically correct ways.   Ususualy they are just made up PR numbers or anicdotal evidence expanded to fit 'all' people.

Personally, I have yet to meet a modder who pirated games, but I know my sample set is anicdotal and thus may or may not represent the larger group.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Just as there aren't any numbes saying that most modders are pirates, there are no numbers saying that the majority of modders aren't pirates.  Also, this would always be a skewed statistic if anyone wasted their time trying to gather such data, as nobody with any intelligence would actually admit to breaking the law.  Besides, I've only heard pirates trying to say that piracy isn't that bad, and attempting to rationalize being a criminal.

The fact of the matter is, console makers don't want people using their equipment to break the law.  Until people stop that, we are all going to have to deal with this stuff.  It's the pirate's fault, not the manufacturers.

---

He was dead when I got here.

--- With the first link, the chain is forged.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Doesn't matter anyway.  The TOS prohibits modding your console, period.  Whether or not you use it for piracy is irrelevant.  I'm not saying modding your 360 for homebrew or imports or whatever is actually wrong, but it is still against the TOS, and Microsoft is well within their rights to ban the console from Live.  What choice do they have, really?  How are they supposed to tell the difference between a modded console that is used for piracy and one that is used only for homebrew and imports?  All they can tell is that it's modded.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

"The TOS prohibits modding your console, period.  Whether or not you use it for piracy is irrelevant."

And a class action lawsuit may lead to a challenge of this stupid principle, as well. If so, I'm all for it.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Heh, I did hear even people with unmodded consoles were banned, so, this MAY have some merit

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

People keep saying "My friend was banned and he never modded." Pretty sure it's bs, everyone who was banned modded.  I haven't heard any first hand accounts or accounts with sources of someone being banned that didn't mod.  

http://www.eliteownage.com/nice

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

On the other hand, it would not be the first time that a microsoft validation method had a problem with false positivie.  If the suit could show even one such instance, or if someone could demonstrate how to generate a false positive with whatever method they used, microsoft could be in some trouble.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

The story I was gettign at was one I heard of a girl who even needed help turning the 360 on i nthe first place and it was banned from the network.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

I think it's pretty clear in the Xbox Terms of Use that you cannot mod your console - and if you do, are subject to banning at any time.  This 'lawsuit' should/will be dismissed outright.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

No. The Terms of Use say that you agree not to mod your console if you want to use Xbox live. It does not say that you can't mod your console under any circumstance.

E. Zachary Knight
Oklahoma City Chapter of the ECA
http://www.theeca.com/chapters_oklahoma

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

But these people modded their consoles and then went on Xbox Live.  So that distinction doesn't mean much in this case.  And it's not like these 360s are totally inoperable.  They simply can't go on Live, which is what these people agreed to in the TOS anyway.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

I'm pretty sure that's what he meant.

---

He was dead when I got here.

--- With the first link, the chain is forged.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Not necessarily. The suit seems to be focusing on the fact that banned users were not refunded a pro-rata based amount of their subscription.

In SOME jurisdictions, very few, this MIGHT be viewed as "unjust enrichment." MS was paid for a  year, banned someone after 6 months and might, in front of the right judge or jury, be made to pay back that 6 months worth of money.

It isn't as frivolous a claim as it sounds. In any case its a claim cognizable at law.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

People keep mistaking the Xbox Live Console bannings as Xbox Live Account bannings. Your account that you paid for is still 100% active, if you go on a new, another, or friend's console that is not modded you can still use it. 

Only your console's serial number, MAC, or whatever is banned your account is still there. The console is banned not the account.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

I was under the impression that MS terms of service state that an outright ban is nonrefundable.  Therefore, they don't have to pay them back.

---

He was dead when I got here.

--- With the first link, the chain is forged.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Even so, TOS's are not ironclad. In fact, it is not uncommon at all for a judge to say "Sure your TOS says this, but principles of law say otherwise" or (when a company sues) for the judge to say "Your TOS says this but that's not enforceable by this court because it contradicts [insert principle of law here]."

Basically EULA's and TOS's serve more as deterrents. They cram every possible thing in there and people figure they'll lose if its in the EULA or the TOS. Just because something is in a TOS or EULA and you agree to it doesn't automatically mean you lose.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

All Microsoft would have to do is point to their TOS and then find one - ONE - banned player who pirated, and no judge would hold MS accountable for their actions, regardless of any "principles of law" they "may" have broken in that judges opinion, because the pirate being banned would have violated the "rule of law" that "was" broken de facto.

---

He was dead when I got here.

--- With the first link, the chain is forged.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

That isn't how this works. You're not in the criminal realm here. First of all, there are multiple plaintiffs, even if the judge finds one of them pirated that plaintiff can be dropped. Unjust enrichment is a huge doctrine in contract law, even if a plaintiff did pirate there is a decent chance a judge would STILL require pro rata compensation (unless the defense can prove that plaintiff was pirating from day 1).

 

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

But if Ariolander is correct in the assertion that only particular consoles were banned and that the subscriptions remains active, then I'm not seeing the need to refund subscription fees pro rata. If the subscription wasn't terminated by the service provider in mid-term and the subscriber is therefore free for the remainder of the subscription term to enjoy the full benefit of that for which they subscribed  (just not with a banned console), then I would conclude that they aren't due any pro rata refund. Not unless the console banning is wholly without justification and, in response to that unjustified console banning, they themselves cancel their subscription in mid-term. But as long as a subscription wasn't terminated prematurely by one of the parties, there's no need which I can see to refund the subscription fee.

And for the idiot pointing to a TOS as if that's some sort of iron-clad governing law, be advised that most all TOS are one-sided, non-negotiated, take-it-or-leave-it "contracts of adhesion," the terms of which are almost always skewed to advantage the service provider and disadvantage the subscriber. It's not all that difficult to successfully challenge particular terms of a TOS as being unconscionable, unfair, or unjust.   

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

I was under the impression that a ToS was way more enforcable than an EULA, since they deal with ongoing services; it isn't permanent terms on something the user owns, it is a contract for services that either party can terminate.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Putting aside the ease with which a TOS can be enforced versus a EULA, they both are "contracts of adhesion" (i.e., one party presents all the terms and the other party, with no opportunity at all to negotiate those terms, either accepts or rejects them). As such and in the event of a dispute between the parties, the law tends to give a lot more benefit of the doubt to the party who had to accept the terms without negotiation. Certainly more benefit than it gives to a party who bargained at arm's length for the terms to which they ultimately agreed. Generally, contract law makes an arm's length agreement more binding than a contract of adhesion.       

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

They are subject to stricter scrutiny than other contracts, but unless the terms fall beyond objectively reasonable expectations, they are still enforceable.  So I think this will basically come down to whether or not it is reasonable for Microsoft to bar access to the Live service for hardware that has illegal modifications.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

From where are you getting that "falls beyond objectively reasonable expectations" standard? There are any number of reasons to invalidate the terms of an adhesion contract and none of which rely on that standard. For example and as nightstalker pointed out, if there is a term which provides for no refund of pre-paid subscription fess if the subscription is cancelled mid-term, that may well be a case of "unjust enrichment." Unjust enrichment doesn't have anything much to do with objectively reasonable expectations. Rather, it's got all to do with a subjective determination of whether or not a party is getting something of value from another party and giving nothing in return.  

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

http://cases.justia.com/us-court-of-appeals/F2/350/445/74380/

Paragraph 11:

"Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain.  But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms. In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld."

Also in this case, the subscriptions were not cancelled.  The consoles were banned from accessing Live or creating 'trusted content'; the subscriptions are still active and the account can be accessed from any non-banned console.

http://www.xbox.com/en-US/consoleban

edit:  I guess you could take a different interperetation of commercially reasonable than I did, but that was where I got it from.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

"[T]he court should consider whether the terms of the contract are so unfair that enforcement should be withheld."

Putting aside for now the specific facts of the Xbox banning and instead focusing on the more general example of unjust enrichment, you'll notice that the standard quoted above calls for the court to consider whether the terms are so unfair that enforcement should be withheld. A judicial determination of whether a party is unjustly enriched by a contract term, whether contained in an adhesion contract or a bargained-for-contract, can't reasonable require, as you previously suggested, the application of an "objectively reasonable expectation" standard. Rather, the court must look at the particular facts of the case before it and determine, based on those facts, whether one of the parties has received value from another party and given up nothing in return - which, almost by definition, is unfair. That's not an objective determination. It is entirely based on the peculiar facts of the matter and, therefore, is entirely subjective.

Now, going back to the specific facts of the matter, even though the account hasn't been terminated and can still be enjoyed through the use of a non-modified console, in cases where the subscriber doesn't go that route and therefore never again uses the subscription, it may not be far-fetched to argue that the service provider is being unjustly enriched. After all, they are getting something (the balance of the subscription fee) while the subscriber is getting nothing (they aren't accessing the subscription and, because of the banning, can't do so without resort to alternative and not necessarily readily available means). On those circumstances, it may not be unfair to require that the service provider refund the balance of the unused subscription. Rather, it may be unfair to allow them to keep that balance. Of course, the counter-argument is that the subscriber still has an active subscription which they can access by alternative means and, therefore, that they choose not to do so is no basis for a refund. Either way, there're good arguments to be made by both sides.

However, what is beyond dispute is the invalidity of the assertion that because the TOS says "no refund," then the TOS rules the day and that's the end of the matter. That's simply not the case. Not if the terms or operation of the TOS result in unfairness to a party. Which they often do because they're so skewed in favor of the service provider.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

"...you'll notice that the standard quoted above calls for the court to consider whether the terms are so unfair that enforcement should be withheld."

But only in cases where the contract has been found to be commercially unreasonable.  I think I may be using the term objective incorrectly here.  What I meant was that the decision is not based on whether or not the parties thought the contract was reasonable, but whether or not a "reasonable person" would.  Being skewed in favor of the service provider is not enough to invalidate a clause of a ToS; it had to do so unreasonably.  I know arbitration clauses have been held as unenforceable, but you are going to have a much tougher sell trying to argue that a service provider does not have the right to limit access to their network to legal hardware (mod chips are illegal under the DMCA and people have been successfully prosecuted and sued for selling them).

Microsoft is not taking action against accounts or doing anything that directly affects subscriptions; what they are doing is blocking connections from hardware that has been modified by the customer so that it no longer meets the requirements of the service.  Also, this wave of bans began more than a week before MW2 came out, which torpedos one of the key claims being made.  In fact, the timing of the ban has nothing to do with MW2 or Halo ODST; this is the third November in a row that they have done this.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Yes, unless the contract is commercially unreasonable, we don't ever get to the application of the "unfair terms" standard. But underlying all claims of an unjust enrichment under the terms of an adhesion contract is the claim that the contract is commercially unreasonable. There's no sane reason for self-interested parties engaging in commerce to arrive at an agreement whereby one gives something to the other but gets nothing in return. Even held to an objective standard, the inescapable conclusion is that such a contract is commercially unreasonable.

And I'm not so sure you can say that MS isn't directly affecting the subscription because they haven't cancelled it, only banned modified consoles, and simply end the matter there. While perhaps there hasn't been any direct action taken by MS to cancel the subscription, the reality is that unless a subscriber is willing and able to go out and obtain another non-modified console in order to continue enjoying the benefit of their subscription (easier said than done), they're effectively left with a useless subscription. And while the banning may have been entirely justified for whatever reasons, what's not entirely clear is whether it is reasonable and fair to not refund the balance of the subscription fees of those subscribers who, after being banned, will have no further use of their subscription. 

So, in the case of a subscriber-plaintiff claiming unjust enrichment because the service provider, relying on a "no refunds" term of the TOS, has effectively rendered their subscription useless by banning their console and refuses to refund the unused portion thereof or in the case of a subscriber who, because their console has been banned, cancels their subscription and the service provider, relying on the "no refunds" term, refuses to refund the unused portion of the subscription, in both cases the question of commercial reasonableness begs the question of unjust enrichment and the question of unjust enrichment begs the question of commercial reasonableness. The two issues are inextricably bound together.

I'd be interested in knowing whether you, putting aside all the legalisms, intuitively think it "fair" (which is, after all, the essence of the legal standard) that 30 days into a 12-month long subscription costing $120, I should have my subscription terminated (whether effectively by the provider in banning me or actually by myself in response to being banned and having no alternative) and the provider gets to keep the balance of my subscription fee. Leaving me with $10 worth of value received and the provider with $110 for service they no longer have to provide. That doesn't strike me as a "fair deal" but you may have a different opinion. 

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Just as a point of logic, being commercially unreasonable does not beg the question of unjust enrichment; a contract can have unreasonable conditions without enrichment, but enrichment cannot exist without unreasonable conditions (and having two questions beg eachother is a circular argument).

The subscription cancellation/refund, the first thing you have to remember is that I am Autistic and have no soul when it comes to matters like this.  Since the subscriptions are prepaid, I don't think it unfair that the provider keep the fees already paid, provided that they do provide the service you paid for (basically, I don't think it unfair for them to apply the cancellation to the end of the 'billing cycle', as it were); they are not obligated to provide a refund, especially if the reason you are no longer accessing the service is because you willfully disabled your means of access.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

I wasn't arguing anything as a matter of logic and making fallacious circular arguments. I was merely pointing out, in response to your contention that "first reasonableness must be determined, and then can fairness be determined," that the one issue cannot be resolved without necessarily resolving the other issue contemporaneously and concomitantly. That's not an argument. As a practical matter, that's simply an unavoidable part of the resolution process in the circumstances of this particular case. 

In a case where the plaintiff alleges unjust enrichment, the determination of the validity of that claim also determines the commercial reasonableness of the contract's terms upon which the alleged unjust enrichment is based. Can the court find that a party has been unjustly enriched under the terms of the contract but also find that the contract's terms which provided the basis upon which that unjust enrichment ensued was nevertheless commercially reasonable? Of course, it can't. Those two findings are mutually exclusive. And the flip presents the same thing. In a case where the plaintiff alleges that the contract is commercially unreasonable solely because it provides for unjust enrichment, then the determination that it is in fact commercially unreasonable necessarily requires a finding that its terms provide a basis for an unjust enrichment. Can the court find a contract commercially unreasonable because its terms allow unjust enrichment but also find that the contract's terms don't provide for any unjust enrichment? Of course, it can't. Again, those two findings are mutually exclusive. 

Under these circumstances and with respect to the resolution of the two issues (reasonableness and unfairness), it's all or nothing. You either win on both counts or you lose on both counts. The two issues and their resolution are most certainly inextricable bound together. Contrary to your assertion, they aren't resolved separately and serially. They are resolved contemporaneously and concomitantly. That's not a circular argument. That's just a truism. You don't see that? 

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Yes, if the only reason a specific contract is commercially unreasonable is unjust enrichment, then finding one necessitates finding the other.  What I was referring to was that unjust enrichment is not the only way that any contract can be found commercially unreasonable; you sounded like you were trying to make the argument it was.

I still do not see this as unjust enrichment, however.  Let's say I have an all-road motorcycle and buy a national parks pass.  For the next year, I can ride my motorcycle to the parks and go offroading.  If I make some changes to the motorcycle so that it is no longer street legal, the Park Service will not let me drive it into the park and will not give me a refund on the balance of my pass.  I am allowed to enter the park driving other vehicles, just not ones with certain modifications.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Yes, in theory you are still allowed to use your pass with some other vehicle which hasn't been modified and, obviously, if you in fact do so then you've got no basis to complain about being unable to use your pass. But what if you had no such other vehicle and therefore, as a practical matter, could never and would never again use your park pass? Do you see where the park would then still be holding something of value from you but for which they won't ever have to give you anything of value in return? If you can see that, then you can see the possibility of unjust enrichment.

And I'd imagine that in order to be a plaintiff in a class of of plaintiffs claiming unjust enrichment against MS, you would, as a matter of factual requirements, need to allege and prove that you never again used your subscription after your console was banned. Obviously, you can't use it post-ban and still reasonably expect to be refunded your money. What may be of greater importance to the determination of whether an unjust enrichment has occurred isn't whether you still have a theoretical possibility of using your subscription post-ban but, rather, whether (a) you demanded a refund upon being banned but demand was refused and (b) you in fact never agained used the subscription post-ban. If both (a) and (b) are present, then we could well be looking at a case of value retained with no commensurate value given in return and, therefore, one of unjust enrichment.

But don't get me wrong. I'm not saying that a claim by the banned subscribers for unjust enrichment is a sure-fire winner. I'm saying, as I've said all along, that a colorable claim can be made. It does, I believe, pass the giggle test.     

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Just for arguments sake, what if you bought a gold subscription without owning an Xbox or a Park Pass without owning a car?  Would that still be unjust enrichment on the provider's part?  Is there a difference between buying a service you don't have access to and buying a service which you willfully disable your access to?

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

I think you're missing an important point. That I willfully disabled my means of access (and that's not really an accurate description of the facts because the consoles were allegedly "modified" by the user and the service provider, in response, blocked access by the modified consoles . . . but anyway) doesn't matter. Indeed, that I in any other way may have breached the agreement doesn't matter. The service provider can't use the fact that I breached as a reason to not refund my money (unless the agreement provides for use of any leftover fees as "liquidated damages"). Unjust enrichment isn't really based on the contract (or, at least, it doesn't have to be based on a contract). It's actually based on a concept known as "restitution." Generally, the analysis required involves, most importantly, a determination of whether one party has been made richer while the other party has been made commensurately poorer and a causal link between the two (i.e., Party A got richer because Party B got poorer). But that Party B's misconduct may or may not have caused Party A's enrichment is usually irrelevant. That's not the causation with which the analysis concerns itself. It's only concerned with whether Party's A enrichment is directly related to Party B's impoverishment.

Of course, Party A may be able to successfully raise Party B's misconduct as some sort of "unclean hands" defense in equity or the like. But that doesn't mean that Party B doesn't have a valid claim. That just means the Party A has an equitable defense to the claim. 

And, looking at your hypothetical, if I, having realized after the fact that I have no means of taking advantage of a service to which I have foolishly subscribed, demand a pro rata refund (which is what I assume the average person would do rather than continue to pay for a useless service) but that demand is refused, then there's no meaningful difference which I can see. I'm left in the similar position of being stuck paying the provider for a service from which I can't and won't ever get any value. The service provider therefore gets richer because I'm getting poorer. That's what matters. Not that I'm a dumb-fuck for subscribing to something I can't ever use.

But, on the other hand, if I choose to sit on my ass like a big-headed Willy Gump and never say to the provider, "Hey, I messed up and subscribed to your service when I've got no means of ever using it, so I'd appreciate it if you'd cancel my subscription and give me a pro rata refund," then it should be assumed that I'm perfectly satisfied with paying for something I can't ever use.     

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

You aren't stuck paying for a service you cannot use, you are stuck having paid for it.  I consider that a somewhat critical difference.  I agree that forcing you to continue to pay would be a problem.  On the other hand, if you buy something you cannot use, that is your fault; the vendor cannot be expected to check prior to every transaction. 

Refunds have to be given for defective items, but that is about the only case required by law.  Some jurisdictions require conspicuous notification prior to sale if refunds are not given (which is why you have to agree to the ToS before you lay down your money).  In this case, the defect is not in the service, but in a separate product which was modified by the user or a prior owner (in which case the original owner or vendor who sold the used console would be at fault), and even then, it is not a manufacturing defect, so a refund is not required.

In short, it's your responsability to ensure you can use a product or service, not the provider's.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Where are you getting that "refunds required for defective products only" nonsense? You think a concert promoter can sell out Madison Square Garden with advance ticket sales, then cancel the show and tell all those ticket-holders, "too bad, no refund" and that's the end of the matter? Or that an airline can cancel a flight and tell all the passengers pre-booked to board and fly, "too bad, no refund" and that's the end of the matter? There are any number of legal remedies intended to ensure that those ticket holders either get the product/service they paid for or get back their money.

And, again, you're missing the point of the unjust enrichment doctrine. "Why" you ended up with the other guy having your money and you having nothing in return does not matter. It's the "how" that matters. If the "why" mattered, then a burglary victim shouldn't get any restitution from the burglar who stole their bobblehead collection because it was their fault for leaving their front door unlocked. 

Yes, it's my fault for subscribing to a service without the means to enjoy it, but once I've told the service provider, "Look, keep the value of the service I've already (not) consumed, but cancel me and give me back the balance of my value," then the "buyer's fault" argument is thereafter moot. Unless you're somehow suggesting that because the buyer is at fault, the seller should be allowed to profit beyond that which was ever contemplated by either party, including the seller. That's called a "windfall."

  

 

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

I would call the complete nonexistance of the product to be a pretty damn big defect.  At the same time, if the flight or concert took place and you were unable to make it to the airport or concert hall, you are not guaranteed a refund.

It is your fault for subscribing to the service without the means to enjoy it, but you have already paid for it in full; the sale has already been completed.  That is the "how" that really matters.  Their obligation is to deliver the consideration (in this case by applying an upgrade to a Live account) or, failing that, compensate the buyer.

Also, your burglary argument was a complete strawman and somewhat disappointing.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

No, it wasn't a strawman. It's perfectly analogous to you argument that "fault" somehow does away with the need for restitution. If I understand you to say that the provider shouldn't have to make restitution because the subscriber is at fault for modifying their console, then that's no different than saying the burglar shouldn't have to compensate the home owner because the home owner was at fault for leaving their door unlocked. And both positions are equally flawed because whether the impoverished party was somehow at fault in no way affects whether they should get restitution.

And you still haven't told me from where you get your "no defect, no refund" law. Are you pulling a jedi and making up your own law?   

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

If you honestly believe the two situations are even remotely similar, there is really no point in debating with you any longer.

Also, read the UCC.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Thanks for the invite, but I have read UCC before. It only applies to the sale of goods. It does not apply to the sale of a service.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

I'm not suggesting the TOS is ironclad, but good luck to anyone trying to say that they should be allowed to violate a TOS so that they may do something illegal.

---

He was dead when I got here.

--- With the first link, the chain is forged.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

But you seem to assume the existence of piracy. That apparently is not the fact of the matter. Rather, mere modification of the console is the basis for banning the console. Modification does not necessarily mean that any piracy occurred.

But, even if it did, as nightstalker tried to explain to you, in a  class action there are many members of the plaintiff class. Claiming instances of piracy by some class members would be insufficient as a complete defense if there are other members of the class who didn't engage in any piracy. Those class members wouldn't be subject to a claim of piracy simply because they didn't pirate anything.  

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Ok, I fully support the rights of people to modify hardware they own (within respects of the law, ie don't pirate); however MS by the same token has the right to ban people from THEIR network who do this... it is not exactly like its been some kind of secret anyway. This is just another greedy bunch of lawyers doing everything they can to increase their pay at the cost of consumers.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

Between Somalis and XBL whiners the image of pirates has really been dragged through the mud recently. 

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

lolz, just another one of those cases brought up because the profit could enormous, even though the chances of winning are next to nothing.  


http://www.eliteownage.com/nice

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

If the ban had been enacted before the release of MW2 and Halo 3: ODST, the law firm supposes that sales of both games would likely have been “greatly diminished.”

 

lower...yeah, maybe. Greatly diminished? hell no. Crack doesn't even begin to describe how these games sold.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

3 words Describe this What the -bleep-

Watching JT on GP is just like watching an episode of Jerry springer only as funny as the fights

America has just became its own version of the Jerry Springer Show after a bizarre moment in Florida involving a carnival worker.

Re: Law Firm Sniffing Around Xbox Live Class Action Suit

This doesn't surprise me in the least.

 
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Andrew EisenYes, there have been a handful of op-eds suggesting that the term “gamer” has become tainted (two that I know of) but that’s the opinion of only a few. I've seen an equal number from those who disagree.09/17/2014 - 8:55pm
Andrew EisenExcept, you haven't provided a single example of a site that’s actually actually calling gamers a "collective of Sexist White Bigoted Basement Dwelling Manchildren."09/17/2014 - 8:55pm
TechnogeekIf you want to make the stereotype of gamers less painful, try calling people out when they do bad shit rather than handwave it away as "not all gamers". Even if it is a few bad apples, that'll still more than enough to spoil the barrel.09/17/2014 - 8:53pm
quiknkoldI'm not going to Sell Gamergate anymore. It can sell itself. But I will sell the integrity of the Gamer. That we are still good people, who create and donate to charitys, Who engage with those around us and just want to have a good time.09/17/2014 - 7:35pm
quiknkoldpeople should not be harrassed and punished for the actions of a few. I've always welcomed and accepted everybody who wanted to join in. Who wanted to make them, or play them. I love good strong female protagonists, and want more.09/17/2014 - 7:35pm
quiknkoldOne of the tennants of Gamergate is to stand up against Harrassment. That Gamers arent like those assholes. We can argue for days if the Sexism or Antifeminism or corruption is there or not, But the one thing I believe in and wear on my sleave is that09/17/2014 - 7:35pm
quiknkoldBut there were these websites, attacking me and people like me, for the actions of a few. and then others joined in on Twitter and other places. there was a hashtag that said "explain in 4 words a gamer" and it made me sick.09/17/2014 - 7:35pm
quiknkoldManchildren who are awful people and that the Identity of the Gamer should die. This hurt me personally. I've always identified as a Gamer. Even in my childhood years, I was a Gamer. All my friends are Gamers. Its one of the core parts of my identity.09/17/2014 - 7:34pm
quiknkoldUltimately, With the whole Gamergate thing, I jumped on it due to the harassment. A small number of assholes harrass Anita and Zoe, and then all the publications lumped together Gamers as this collective of Sexist White Bigoted Basement Dwelling09/17/2014 - 7:34pm
quiknkoldEZacharyKnight : Lemme ask you a question. We have people who cling to walls, people who fire lasers from their eyes, people who can shapeshift....and yet fabric needs to be upheld to RL physics?09/17/2014 - 6:54pm
james_fudgebody paint?09/17/2014 - 5:33pm
E. Zachary Knightquiknkold, I stand corrected on the buttcrack thing. Still, I know of no fabric that actually does that.09/17/2014 - 5:05pm
Andrew EisenSo... it's unethical to discuss the ethics surrounding public interest vs. personal privacy?09/17/2014 - 4:45pm
prh99The source for the game was just released not long ago, it's at https://github.com/keendreams/keen09/17/2014 - 4:43pm
prh99An Indiegogo champagin bought the rights to the early 90's game Keen Dreams to make it open source and release it on GOG etc. https://www.indiegogo.com/projects/let-s-get-keen-dreams-re-released-legally09/17/2014 - 4:42pm
james_fudgeAlso http://www.breitbart.com/Breitbart-London/2014/09/17/Exposed-the-secret-mailing-list-of-the-gaming-journalism-elite09/17/2014 - 4:29pm
Andrew EisenI read the Kotaku story. Nowhere does it say anything close to "Gamers are white bigoted sexist losers." It's commenting specifically on the crap being slung at people discussing gender issues in games. So, what's the problem?09/17/2014 - 4:06pm
Andrew EisenYeah, I can imagine Spiderwoman posed like in your second link.09/17/2014 - 4:00pm
Andrew EisenThat's not the same pose. Spiderman (who is wearing an actual outfit rather than body paint) is crouched low to the ground. Kinda like a spider! Spiderwoman has her butt up in the air like she's waiting to be mounted.09/17/2014 - 3:59pm
quiknkoldAndrew Eisen : Kotaku did a whiole article on it, as did others http://kotaku.com/we-might-be-witnessing-the-death-of-an-identity-162820307909/17/2014 - 3:59pm
 

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