Stop Suing the Game Companies Because They Said So

December 7, 2011 -

As we mentioned in a previous post, the new Xbox 360 Dashboard has been quickly making its way to users today.

As with any new product, you get the fine print of Terms of Service, and Microsoft is following on the heels of Sony and Electronic Arts with their own "no sue" provision in their updated wall of text.

Kotaku uncovered the new language in section 18.1.4, entitled Binding Arbitration:

IF YOU LIVE IN THE UNITED STATES, YOU AND MICROSOFT AGREE THAT IF YOU AND MICROSOFT DO NOT RESOLVE ANY DISPUTE BY INFORMAL NEGOTIATION UNDER SECTION 18.1.2 ABOVE, ANY EFFORT TO RESOLVE THE DISPUTE WILL BE CONDUCTED EXCLUSIVELY BY BINDING ARBITRATION IN ACCORDANCE WITH THE ARBITRATION PROCEDURES IN SECTION 18.1.7 BELOW. YOU UNDERSTAND AND ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION, YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. INSTEAD, YOU UNDERSTAND AND AGREE THAT ALL DISPUTES WILL BE RESOLVED BEFORE A NEUTRAL ARBITRATOR, WHOSE AWARD (DECISION) WILL BE BINDING AND FINAL, EXCEPT FOR A LIMITED RIGHT OF APPEAL UNDER THE FEDERAL ARBITRATION ACT. ANY COURT WITH JURISDICTION OVER THE PARTIES MAY ENFORCE THE ARBITRATOR'S AWARD.

THE ONLY DISPUTES NOT COVERED BY THE AGREEMENT IN SECTION 18.1 TO NEGOTIATE INFORMALLY AND ARBITRATE ARE DISPUTES ENFORCING, PROTECTING, OR CONCERNING THE VALIDITY OF ANY OF YOUR OR MICROSOFT'S (OR ANY OF YOUR OR MICROSOFT'S LICENSORS') INTELLECTUAL PROPERTY RIGHTS.

Section 18.1.6 soon follows with a note about waiving class action rights:

YOU AND MICROSOFT AGREE THAT ANY PROCEED­INGS TO RESOLVE OR LITIGATE ANY DISPUTE, WHETHER IN ARBITRATION, IN COURT, OR OTHERWISE, WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR MICROSOFT WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR MICROSOFT ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. YOU AND MICROSOFT FURTHER AGREE THAT NO ARBITRATION OR PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER ARBITRATION OR PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, MICROSOFT, AND ALL PARTIES TO ANY SUCH ARBITRATION OR PROCEEDING.

So once you accept those terms, you agree to binding arbitration instead of a lawsuit and don't look to ride the coattails of someone else suing Microsoft, either. If you do not agree, you can't use the product. There is no opting out.

A few Kotaku readers pointed out that some states expressly prohibit these provisions, so we will have to see how the first case to challenge these new provisions plays out.

(Image courtesy of Pikigeek, and thanks again, Andrew)


Comments

Re: Stop Suing the Game Companies Because They Said So

Someone should just sue them over the inability to sue rather than the product lol


Re: Stop Suing the Game Companies Because They Said So

I wouldn't laugh. That's basically all we can do. Then again, suing doesn't really accomplish anything. I'd just make a major press hoo-haa about it, get all the customers to throw a fit, and that usually gets the company to back down better than a court case. Worked with Netflix.

Re: Stop Suing the Game Companies Because They Said So

"A few Kotaku readers pointed out that some states expressly prohibit these provisions, so we will have to see how the first case to challenge these new provisions plays out."

Such state-level blanket bans were struck down by AT&T Mobility v. Concepcion (the big SCOTUS case back in April which led to these provisions being added to pretty much every terms-of-service contract in existence), although there appears to be room to argue that imposing such a ban without allowing the other party to opt out of that provision constitutes procedural unconscionability (as implied by Hopkins v. World Acceptance Corporation). Since no such opt-out option appears to exist in the new Xbox terms of service, this may not be as ironclad a defense for Microsoft as it seems.

Re: Stop Suing the Game Companies Because They Said So

From what I understand this is difficult to enforce in Canada. If an arbitration clause takes away any rights issued under the BPCPA it is waived.

Re: Stop suing the game companies because they said so

Why would you ever want to sue Microsoft?  All corporations are wonderful job-creators and you should love them to bits.

---
Fangamer

Re: Stop suing the game companies because they said so

Good question. Just like why anyone would want to sue Sony for something that was well beyond their control in the first place. It's just them covering their bases against an over-litigious society. Because nowadays, if anyone is even slightly inconvenienced in any way, shape, or form, they're going to find someone to sue for it and get free money.

Re: Stop suing the game companies because they said so

Silly Americans that have been brainwashed to no longer believe in their own court system. "over-litigious", "free money" indeed... Love how you'll trust that same system to decide if someone should face a death penalty or a life in prison though...

Re: Stop suing the game companies because they said so

When people sue McDonald's over coffee that is hot? Yeah, I'd say that's a smidge over-litigious. I'd trust the system over the people that try to abuse it anyday. But that's just me.

Re: Stop suing the game companies because they said so

Please stop using that case as an example of a ridiculous lawsuit.

http://www.hotcoffeethemovie.com/Default.asp

Re: Stop suing the game companies because they said so

I have to say I'm not impressed by the bit that touts how she "nailed" Stephen Colbert, considering his interviews aren't usually adversarial and most of his contradictory statements are being played for laughs, not him sincerely making an argument against the other person.


---
I'm not under the affluence of incohol as some thinkle peep I am. I'm not half as thunk as you might drink. I fool so feelish I don't know who is me, and the drunker I stand here, the longer I get.

Re: Stop suing the game companies because they said so

You mean the lawyer, not the actual victim who has died since, right?

Re: Stop suing the game companies because they said so

It's the perfect example. Your complaint may be valid if it only happened once, or maybe even just twice, but it happened on several different occasions. It's no isolated incident. Even worse was when someone sued over a hot pickle. This is the very abuse of the system that I am talking about.

Re: Stop suing the game companies because they said so

You're missing the reason why the coffee case was actually a valid court case.  The problem wasn't that the coffee was hot, but that it was served at a temperature that gave 3rd degree burns when spilt in someone's lap.  Coffee that hot is too hot to even ingest safely, and the only reason that coffee was being made that hot was because the employees were tired of getting complaints it was too cold - so they instead made it a safety hazard.  If someone served a pickle at a temperature that would cause 2nd or 3rd degree burns to anyone who held or attempted to ingest it, it was also a safety hazard and would deserve litigation.  I'm not saying there weren't people riding on the coat tails of that legitimate case and trying to get money while they saw it, but the original case was not a prime example of over-litigation.

"It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt." ~Best quote ever, Albert Einstein

Re: Stop suing the game companies because they said so

1: Everyone knows the boiling temperature of water.

2: Everyone knows that boiling water will scold you, BADLY!

3: Anyone with even a fleeting interest in coffee, (Fleeting here meaning anyone who drinks coffee),  knows that you have to brew it at a temperature of 92-96 deg Celcius, (~197-204 Farenheit), or it will taste crap!

Conclusion: Anyone who is surprised to get burned by showering in fresh coffee, is a complete moron on a such a scale that one has to wonder - what a person like this is doing driving a CAR in the first place. They should be declared mentally incompetent and require a legal guardian.

So, the hot coffee lawsuit is still a valid example of a sue-mentality that has gone out of control. (This does not, however, not exclude the fact that corporations ARE trying to eff up the rights of citizens...  like Microsoft tries to in this article.)

Re: Stop suing the game companies because they said so

Ah yes. Except it was parked. And she was in the passenger seat. And that the cup was badly sealed. But sure, believe the incredibly huge advertisement made by a group directly linked with companies concerned rather than, you know, search for facts (like actual court documents, documentaries or then timely tv shows.) Ah, and never mind that the amount awarded was ALREADY subject to a cap, which the jury was unaware of, and that the amount she received did not cover the treatment. Or that she was made fun of for being the coffee lady when all she wanted was for them to change their policies and not any money (that came after the replies they sent.) Or that the award was calculated after hearing how McDonald was aware of the situation, yet just considered burned victim as potential lost customers in a spreadsheet. Or that they used a formula that was roughly awarding 10% of what McDonald makes in profit on a single day with their coffee.

But don't worry, facts don't matter, not if you don't like what they point towards. Isn't that what you're taught?

Re: Stop suing the game companies because they said so

I don't care if she was sitting on a park-bench without a lid...
The point is that she indeed DID blame her OWN carelessness on someone ELSE.

I don't care if she got a billion dollars or 5 cents...
The point is that she indeed DID try to sue...

Re: Stop suing the game companies because they said so

And people losing access to games because they made a moronic design decision and put it in the SDK? Nope, that's beyond their control too.

 

Re: Stop suing the game companies because they said so

Yeah, removing OtherOS was beyond Sony's control

Putting a rootkit on the CDs, completely beyond their control

 

Re: Stop suing the game companies because they said so

I was referring to people suing Sony for the infamous hacking. OtherOS is a totally different debate, and all attempts to sue Sony for the removal of it have failed.

Re: Stop suing the game companies because they said so

Just because one suit is bad doesn't mean all are.

Limiting rights like this is BS.

 

Re: Stop suing the game companies because they said so

The same could be said for people in general. What's your point, exactly? It's just a company trying to protect themselves from idiots. And when did people start taking Terms of Service seriously, anyway?

Oh, that's right. The minute they became inconvenient. Silly me.

Re: Stop suing the game companies because they said so

When do you care about your rights?
...when you lose them.

I'm curious as to what YOUR point is though...
Should we all just stop playing games then? Cause there's really no need for companies to even ship the product you've paid for, is there? Since you shouldn't be able to sue them if the eff up... and if you complain, someone like you will surely stand up and scream "Whiner", "Hater" or something similar.

 

Re: Stop suing the game companies because they said so

That's the point. You shouldn't be able to sue simply if they "eff up". That would be tantamount to suing an entire city for a brownout. If your rights were directly violated? If they deliberately handed your personal information to the first hacker they see? Sure, why not? Sue away.

All I see here are companies trying to protect themselves from money-hungry nimrods looking for a free handout. Basically what you're saying is that people should have all the rights in the world, and any sort of business establishment should have none.

Re: Stop suing the game companies because they said so

Except this "agreement" is saying that Sony should have all the rights in the world and their customers should have none.  How is that any better?

Re: Stop suing the game companies because they said so

That would be my problem, companies becoming lazy because there is no resource if they screw up.

 
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