Kotaku 
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Denver, 5:40 PM
Fri Nov 20
53 posts in the last 24 hours
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12:06 PM
12:19 PM
"Ye be warned. If you fuck with us, we will kick you the fuck off."
12:48 PM
Nice job reading the post.
They're suing for all of the people who did nothing wrong and still got banned (Like my sister, for instance, who was banned for no fucking reason, she doesn't even play online, so it couldn't have been for racism or some other bullshit)
Next time read the whole thing before making yourself look like a total imbecile.
01:09 PM
Then this is the last time we'll be seeing you aroud Kotaku, isn't it? Because if you've truly got an infalliable case here, if your sister has a purchased brand new xbox that has absolutely zero evidence of tampering on the inside and outside and truly received the same sort of ban the pirates did, you guys are about to be rolling in cash. In fact, why would you get all angry at dre? You don't need a class action lawsuit, you've got a fucking 100 percent solid case with a new xbox, absolutely no tampering in or out, and a permanent system ban.
That is, unless, you're full of it, or are about to come back here with 'wellll... it wasn't new....' or 'maybe a friend did it?' or 'oh wait, i meant a gamertag ban because she was cheating or too many people complained about her use of the word nigger'.
10:38 AM
Got a message from one, whom I didn't know had a modded console 'MTAF: Console banned, dunno when I'll be back'. One of my friends who I KNEW had a modded console also wasn't one of the ones online. I kinda figured out what happened when Microsoft went all 'We just banned a million people'.
I have absolutely zero sympathy for you guys. You could have not been retards and NOT been playing your games online, and just left your modded system permanently without an ethernet cable in it.
But no. You chose to take your modified system onto Microsofts service, because you are dumb. So very, very dumb. I'm even willing to sidestep calling you dumb for having a modded system, but you are dumb for going online with it.
Microsoft was gracious enough to even let you keep your precious gamertags with your precious pirated game achievements.
I'm also guffawing at the amount of people that existed on Kotaku right before the mass bannings that went 'as long as I never play prerelease games, I'll never get caught'. Same thing my buddy said, whelp, they caught him. And 999,999 others.
Seriously, a console modder is one thing. I've got an unethical DS and PS2 sitting right here.
A console modder who thinks he deserves services (even if he paid for them) from the company who expressly told him to stay the fuck out if they have a modded console, and then cries when he gets kicked out permanently, is a complete fucktard.
10:45 AM
10:48 AM
Well put.
10:57 AM
11:40 AM
they also crippled hdd installs, and corrupted the profiles and game saves on whatever storage unit was attached at the time. meaning that a user who decides to go legit will lose all progress in all games they've played. a GT can always be recovered, but to lose all your gamesaves is a low blow.
not to mention the loss of extender abilities. luckily, tversity still works.
11:47 AM
Maybe you shouldn't have been playing pirated games that created those gamesaves?
And the ability to install to the HDD didn't even exist before. Its a Microsoft software upgrade (NXE) that allows that). They disabled what they gave you for free, tough noogies.
Maybe, just maybe, you shouldn't have hooked your xbox up to xbox live? Because then none of this would have happened to your modded box, since it would have been none of Microsofts business, as you've already paid for it and you are staying clear of any other services offered (which all come with the strings attached of 'no modded console if you want this').
Why are people not understanding that they lost all rights to fair treatment once they flaunted their ill gotten gains in the face of Microsoft by demanding their continued support and service.
12:14 PM
Well said my man!!!!
03:35 PM
you're making the assumption that because my console is modded, i don't pay for anything.
NXE feature or no, hdd installs have nothing to do with the the Live ToS. especially when you consider that games will install these updates for you, or you can download and install them yourself directly from MS.
game save corruption is simply uncalled for as well. the console was banned, not my hard drive. i mean, why did they stop there? why don't they just make my controllers not work on other consoles as well?
i'm fine with being cut off from live, but anything beyond that is overkill.
i also find your firm stance on Live and modding interesting. it's mostly the anger that interests me.
I also enjoy your condescending tone. I don't think I deserved it.
#speakup
10:25 AM
Microsoft has every right to ban you from their private network, and despite assertions to the contrary they are not disabling your hardware - the console still works but can't access Live, and the hard drive still works and can be moved to another system if you want to regain the ability to play games installed to disc.
The only possible way this might gain traction is if they can somehow prove that people who were banned had nothing to do with piracy, but I have a feeling that's going to be more of a he said/Microsoft said argument. The simple fact of the matter is that I don't know anyone who was banned who wasn't pirating games. I'm sure that mistakes were made, just like with Windows Genuine Advantage, but how do you prove to Microsoft that you weren't pirating games?
10:46 AM
08:13 AM
It's not like Microsoft sent goons to people's houses and crushed the systems. They still work ... they just lost one of the main benefits of having the system.
This is just going to waste people's money and the court's time ...
08:41 AM
My Xbox was banned after it had been modded for ~18 months. I was banned a few days after the release of MW2. I hadn't played / downloaded a copied game on that thing in over 2 months at least and certainly not MW2 (I have it purchased on PC.) I was using it for Netflix only in our bedroom for quite some time. It makes one wonder how long MS knew and allowed my system to stay on Live (I purchased a ton of Arcade games etc. - still bringing MS a fair amount of money) till the right time that my chances for purchasing a new system after a banning would be at its highest.
I'm not saying thats not smart or "their right" but it all seems a little strange.
08:48 AM
#speakup
08:50 AM
@jayntampa: "It's not like Microsoft sent goons to people's houses and crushed the systems."
08:51 AM
09:45 AM
02:46 PM
07:56 AM
There are offices in Tulsa, Wichita, and Dallas, and they only have one lawyer? Some young guy who got his JD in 2001 and deals with Intellectual Property law?
Methinks Mr. Dukelow got the banhammer himself and wants revenge because he's a lawyer.
08:28 AM
In general though the legal argument as presented here would be solid-ish except for the part where banning one million users for no other reason than opening up space is ridiculous. Bring on the armchair lawyering!
11:09 AM
The thing about his legal argument is that people should've been reimbursed for their remaining LIVE access time. It would have been awful nice of them to do so, but they were under no contractual obligation to do so for people who did not abide by the terms of usage as stated in the TaC/ToS/EULA.
And good luck to him if he thinks he can make a case based on the possibility that Microsoft was banning people to increase sales during a vital period.
Also, I wish there was a site that had a list of XBL subscription and points purchase statistics, so I'd have an idea as to how much he'd stand to take home in contingency fees if Microsoft were to lose the case.
07:05 AM
07:24 AM
07:30 AM
07:37 AM
07:40 AM
To get even more pedantic, modding a console you own is perfectly legal; MS just won't let you use LIVE with one. That's their right, of course - I am not sympathetic with the plaintiffs at all. I'm just articulating what the plaintiffs may claim based on the information in the article.
07:50 AM
· Makes it a crime to circumvent anti-piracy measures built into most commercial software.
· Outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software.
· Does permit the cracking of copyright protection devices, however, to conduct encryption research, assess product interoperability, and test computer security systems.
· Provides exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions under certain circumstances.
· In general, limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet.
· Service providers, however, are expected to remove material from users' web sites that appears to constitute copyright infringement.
· Limits liability of nonprofit institutions of higher education -- when they serve as online service providers and under certain circumstances -- for copyright infringement by faculty members or graduate students.
· Requires that "webcasters" pay licensing fees to record companies.
· Requires that the Register of Copyrights, after consultation with relevant parties, submit to Congress recommendations regarding how to promote distance education through digital technologies while "maintaining an appropriate balance between the rights of copyright owners and the needs of users."
· States explicitly that "[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use..."
08:01 AM
I stand corrected; it is not legal to modify your console.
I wonder if the firm's fishing will uncover many folks with unmodified consoles, or who bought modified consoles unaware of the modifications. This just adds to the insurmountable problems with filing a class action suit against MS on this issue.
08:34 AM
10:21 AM
Or did you somehow think that $299 was just a really big leasing fee from Microsoft?
10:23 AM
I'm going to follow you just because you actually realize that modding consoles is legal and aren't spouting "LOLLERZ PIRATES PWND!!11" nonsense.
10:25 AM
10:31 AM
10:46 AM
also, modding consoles to circumvent copyright protection is not legal in the US. however, this changes nothing in reguards to microsoft as it would still be illegal for them to take independant action against offenders reguardless.
12:06 PM
You could argue that it's a software capability which is exclusive to legitimate XBox Live users.
12:13 PM
Followed for being informative without insulting.
03:48 PM
*sigh* Next time I have a hankerin' to comment on a legal issue on Kotaku, I'll just write up a memorandum complete with citations and leave it at that. ;)
Thanks for the follow - I may not be bashing on pirates, but I am very skeptical that this class action will be able to move forward on procedural grounds.
#speakup
07:02 AM
We're through the looking-glass here people.
03:49 AM
1) The plots themselves are usually so convoluted only a complete idiot or someone with the math skills of a turnip would believe they could make any money
2) Its MS, a company that has made so much money that the guy who established the company quits to devote his life full time to giving away some of he billions they made.
MS doesnt need complicated plots to make money. They just print it themselves. Theyve been printing money since Miyamoto was doodling plumbers on the back of a napkin.
If you cheat and steal its cause you think its ok to take shit away from others unfairly. Claiming MS is doing the same to you is the type of irony that makes the Baby jesus cry.
02:39 AM
"u mad"
02:29 AM
Best part is, even with a settlement, the idiots will see maybe $50 bucks tops. They aren't gonna get their modded systems unbanned, they aren't gonna get new ones or anything of the sort.
05:18 AM
this'd be a stronger argument if 360 had a homebrew scene of any discernible kind...which from what ive seen, it kinda doesnt, sadly.
02:28 AM
03:08 AM
I guess in this case, the zombie army is on their side.
02:23 AM
Define many. When talking about Xbox Live, many would be 1 million users. Let's remember that figure.
Now let's look at the number of people who modded their systems to play backup copies of their own, legally purchased, games & also those who did so to escape region locks. Can that same word, "many", be used to describe the amount of people who modded their consoles for the reasons listed previously? Methinks not.
No, I'd be willing to go out on a limb and say that of all the people that got their consoles modded, only 1% of those individuals did not play pirated games. Period.
The fact of the matter is, the EULA clearly states that tempering with your console and connecting to Xbox Live gives Microsoft the right to block your console. For any reason. If you hit 'Agree' without reading everything and are pissed because you got banned, deal with it.
You have no case, law firm. Suck it.
02:27 AM
02:32 AM
02:34 AM
Oh, baby. You know just how I like it.
I just hate stupid asshats who think that they are entitled to something when they deliberately, and knowingly, went against the policies of Xbox Live and their console gets banned.
You broke the rules, assholes! Quit yer bitchin'!
02:36 AM
I remember talking with some pirates few months back about this very thing and they did not know about any way to do it.
02:40 AM
You can't mod away the region lock, per se. What you can do is play pirated games from other countries that have been modified to work in Region 1 territories. So, it's essentially the same thing as burning an NTSC copy of a game, except now you can burn copies sold in Japan, England, etc.
02:49 AM
Thanks anyway, I guess if I can find some cheap banned console, I could give it a try (provided I can find PAL version of games like Deathsmiles).
03:03 AM
I guess the 'collateral damage' thing refers to people who got banned but did not modify their console, because they bought a previously-modified console second-hand from someone else.
So the first guy breached the ToS but it is the second guy that suffers for it. That should be actionable as a class action if there are enough of these people around - or if enough can be rustled up convincingly before a trial.
I'd guess that, now the bannings have taken place, there will be a small flood of modded consoles hitting the market so the members of the class will increase.
So probably it isn't all that frivolous a lawsuit after all.
03:11 AM
..uh. Yes. A few people might be wrongly banned, technically. But they still must have broken the EULA - otherwise why would they have been banned?
Brilliant. Yay. Fricking applause.
03:54 AM
If I were a judge, I'd toss this out quickly. Unfortunately, I imagine that the plaintiffs' lawyers hope that they can tie the suit up in class certification for a long time, or at least credibly threaten to do so, and that teh damages are a small enough dent in MS's bottom line so that MS will settle.
I'm actually a fan of class actions in general as a facet of consumer protection - but this suit just seems silly. I do plan on following it- I'm really interested in how the plaintiffs' lawyers plan to state a cognizable claim against MS, what relief they'll seek and what sort of class action they'll want to have certified.
03:57 AM
Same principle. Only difference is that you can't test the integrity of the person connecting to XBox Live the same way you can test the integrity of someone who has purchased stolen property, and if you've got 30 million units out there... well, if you can scan every questionable situation and determine whether or not a modded system is a pirate or just someone who bought a bad system, you will be a very rich man.
If it looks like a duck, walks like a duck, and talks like a duck... it's probably a pirate. That's the only reasonable stance you can take with these sort of things from a business angle.
04:27 AM
If the EULA or ToS is enforceable, these people are SOL. If it's unenforceable, the plaintiffs still have to prove MS is obligated to provide access to Live for the full length of the subscription.
05:24 AM
#speakup
06:26 AM
07:55 AM
There have been many cases where EULA's have not been honored, though I'll agree with your implication that in this case it would probably be found valid.
04:02 PM
Yeah, both those figure were absolute hyperbole, but so was the the law firm's use of the word "many". I got 1 million from the amount of consoles Microsoft claims to have banned, and the 1% was pure estimation.
I can't be that far off, though...
02:20 AM
02:09 AM
02:10 AM
02:23 AM
02:28 AM
The only point is that it's easier said than done. Especially since the users banned were not just banned for playing MW2-- It was a ban that detected a modified drive FW, period. They didn't even have to play a pirated game to get banned. (Or at least, certainly not in the timeframe of the bannings.)
So proving things here is going to be somewhat difficult. That's the only reason why I think that unbanning "innocent" users is going to be difficult, if not impossible. If you modified your drive's firmware, even to do legitimate things ... you knew the risk. If you got a second hand 360 banned, then I feel your pain.
02:29 AM
The bans had nothing to do with piracy. Well, they did in the sense of Microsoft wanting to protect their property, but even if someone modded their console and never played a pirated game, they would still get banned - and rightfully so.
The Xbox Live EULA clearly states that modifying your console and then connecting to Xbox Live is strictly forbidden, and is subject to ban. If these people are trying to avoid crappy region locks or playing backup copies of their own, legally purchased, games then they shouldn't be connecting to Xbox Live. You hit "Agree", you wave your right to complain.
04:06 AM
11/10/09
Kids denouncing parents for thoughtcrimes on Orwell's 1984.
I know that many people see this as a good thing, but they never stopped to think how poor those people that have to sell R4 in a black market are, and how big a corporation like Nintendo is.
People ignore the ocean of yens or dollars a company like that is swimming on, and will even help it to get more money by threading on people who are selling a device that could be useful for people on the homebrew scene, who also has no money (if they had money they'd fund an official gaming company).
But the thing about totalitarian dictatorships like the one described by Orwell is exactly that: Money and power. Everything is justifiable by those.
If you are some poor guy selling stuff people are interested in, doesn't matter if it could be used for legal purposes or not, doesn't matter if it's not the seller's fault if it is used in an illegal manner, even the people will support what the dictatorship demands, so brainwashed they are.
If Nintendo issues an order to kill people selling R4s, I wonder what the results would be.
Maybe they should up a website that gives some Nintendo market share for people who actively manipulates communities to stop buying other companies products and get Nintendo stuff alone.
Or even build their own particular police to go arresting R4 sellers.
Now I'm off to my hourly rage.
o/ #r4
11/10/09
11/10/09