Definitely a sticky issue. I certainly don't approve of anything that curtails my rights, and this definitely sets a bad precedent for abuse of EULAs. I can certainly understand a company's desire to limit their liability, though, because people sue over the most trivial issues. It's a shame that we've become so eager to sue that they feel this is necessary. Offhand, I can't really imagine a reason why I would want to sue Microsoft over an issue related to my use of Xbox Live. What could they possibly do that would cause so much damage to me that I need to sue them? Sure, it's conceivable that they, like Sony, could be hacked, and thereby inadvertently allow my credit card info to be compromised. In that case, though, I'd simply notify my credit card company of any fraudulent charges, and move on with my life. If a such a compromise occurs on a large enough scale, and the credit card company wants to take it out of Microsoft's hide, so be it, that's not really my concern. Let's also remember that this agreement pertains to your use of the Xbox Live service - not the hardware. One final thought: Class action lawsuits most often mean a law firm lines their pockets, while the people actually wronged get a pittance. They have their uses, such as discouraging companies from large-scale negligence (one reason why I'm hesitant to allow their restriction), but they are rarely about seeing "justice" done.
Microsoft updates user agreement to require binding arbitration, limit its liability to no more than the cost of one month of service, about $5.
Finally, Xbox Live users must also agree to limit Microsoft's liability in any dispute to about $5 for Xbox Live Gold members or absolutely nothing for Xbox Live Silver users.
According to the agreement, "You can recover from us for all successful claims only direct damages up to a total amount equal to your Service fee for one month. You cannot recover any other damages, including consequential, special, indirect, incidental, or punitive damages and lost profits."
If purchased as an annual subscription, the Xbox Live Gold service fee for one month would be $5. Xbox Live Silver is a free service and has no fee. While the agreement specifically states that liability limit applies to the service, loss of data, viruses, breach of contract, misrepresentation, omission, and negligence, it later states that, "Nothing in these terms will exclude or restrict liability for death or personal injury arising from our negligence, fraud, gross negligence, or willful intent."
[UPDATE]: Microsoft responded to GameSpot's request for comment as follows:
Customers may also choose to bring their claims in their local small claims court if they meet the normal jurisdictional requirements.
For detailed information, please visit: http://www.xbox.com/en-US/Legal/LiveTOU.
@GoingPostal13 If you think a situation like that is actually going to be negated by a flimsy clause in a user agreement, you don't know much about the law. The user agreement covers services provided by the company, not gross negligence resulting in death.
@Atheosis Console manufacturer Sicrosendo releases a new games console, knowing that there's a minute but possible chance of a fire risk should the machine be left plugged into the mains on stand-by. You buy one, but one night yours catches fire and the electrical problems short the smoke detectors in your house. You awake to find toxic fumes have performed a kill-shot on your wife and children. You manage to escape, just, but the fumes have rendered your ability to work impossible. You reasonably think this merits compensation. Unfortunately you accepted Sicrosendo's T&Cs with abandon, rendering your legal rights forfeit. Now you live in a cardboard shelter, feeding off discarded chip wrappers and the charity of strangers, who more often than not ignore or spit on you. You sit there sobbing, the bitter tears staining your memories. If only you'd cared about your legal rights, you wouldn't be here now.
Nice that even if you already have Gold, you need to update and agree to the new EULA in order to get full use of your pre-existing Gold membership. Existing members should be grandfathered in without having the change in EULA apply to them since this was not the "contract" that was agreed upon when purchasing the Gold membership.
@Rocker6 LOL, indeed. I'd say, rules were meant to be broken anyway. And hey, if you love a game, you buy it. If not, why even bother? Maybe the game is too short? Maybe I won't like it? Maybe i'll deeply regret it. It got me quite sad however, when I found out Witcher's pirating rates were 4x higher than actual sales, because it was a quality game made by a studio that actually cares. Now not only were they getting screwed by players, they are getting screwed by greedy publishers as well. Where is the justice here, I ask you? I'd DL a copy of TESV, FIFA or COD any day and not give a damn, but ruining a studio with such great botential.. FEELS BAD, MAN.
@supertom221 Well,if the police started enforcing anything,they would have to thin their ranks a lot very quickly.Need a Windows copy,cop is the best person to ask,nuff said...
@Rocker6 Precisely. If anybody were to enforce it here... Naahhh that will never happen. Just the other day a Cop I know asked me to download a game for his son. NO ONE CARES. And actually i think Gamespot is UK/AUS, which is 10 times as worse.
@supertom221 Indeed,thats how it goes in my country,gaming and any kind of copyright laws are fully ignored due too much bigger problems to worry about(fortuntaley,war or any sort of conflict isn't one of them),also since most consumers are pirates,enforcing anti-piracy laws would throw half of our country in jails,including many law enforcers too.I howewer know my duty to support the gaming industry and PC gaming,but I don't look kindly at any form of DRM... Also,I don't think freedom of speech is the problem here,its only how Gamespot is US based site,and US pays a lot of attention to copyright laws,so they apply to Gamespot...
@Rocker6 HAH, I also got a point loss for that one!... and many others... Dammit, I should be level 40 by now. SO much for freedom of speech, ey? @rgrambo I know you responded to Rocker6, but ijust had to say, no one enforces that crap. Maybe U.S. and certain other American-influenced countries. Throughout the Middle East, Asia, and certain parts of Europe, you'll find out no one cares for game cracking and pirating, simply because we have better things to worry about... Y'know, things like war, the economy collapsing, grand protests, treaties being proken, that sorta stuff... Gaming ain't that big a factor now, is it?
So basically this is to cover Microsofts ass from it's customer (myself and others) if they ever have a leak Sony did? The thing is Xbox Live has always been the most secure, against hackers modders and so on. Hell they put out updates that shut down modded Xboxes (depending on said mod), I guess since they have the most subscribers they don't wanna be the most sued, maybe...?
Can't think of any reason I would sue the manufacturer of my game console, so I really don't care... Our litigous society is kind of nuts to be honest.
@Decessus - The situations you menu do not warrant lawsuits. It would cost you more in attorney fees than you would gain from suing the company. You might think you going to accomplish something, but like I said you are only going to pay large attorney fees so have at it.
@rgrambo Yeah,perhaps I better delete my message,it may give me another moderation by Gamespot,but where Im from,copyright laws are very vague...
@nevryn Great post, that's comforting to know that forced arbitration can be thrown out. Sounds like most of these ToS contracts will still come down to the judge ruling on the case, at least in relevant scenarios.
@Richardthe3rd Great comment on the class action issue! I think collectively, consumers will feel the burn of the class action waiver more than the binding arbitration for the reasons you said. Here is to the hope of a better future! @nevryn Thanks for the info on the DoD Appropriations Act! I had no idea. I don't know how well that limitation will translate to policy regarding non-government contractors and non-employment contracts, but it's very interesting. I wonder how much business MS does with the DoD.
what a shame... my live subscription expires xmas day and i was debating on whether to renew it or not, i decided not to so seems like i made a good choice. Not that i support all of those moronic lawsuits, i just dont like being limited.
So now I'm your female dog Microsoft?! I have spend a pretty penny on your business and know your not liable if I'm robbed? This is getting out of hand.
@Decessus The problem is the vagueness of the clause. The Department of Defense Appropriations Act prohibits forced arbitrations in most egregious cases. In other words, they can't blanket force arbitration for all aspects of use. For example, say MS decides to open up a website to sell your social security numbers. MS could still be sued for this, a forced arbitration clause isn't going to save them.
Hey Rocker6, Im not a lawyer but I think youre not allowed by law to reverse engineer copyright protection schemes. Sadly, the "power to the people" ideology quickly vaporizes when the Larry Hahn and the MPAA/FBI or some other publicly funded Hollywood Goon Squad is kicking in your door. Just find other ways to have fun. These sickos are poisoning electronic entertainment. (no reference to EA or its subsidiaries in part or in whole) Rocker6 Posted Dec 8, 2011 2:35 pm GMT @supertom221 I only wanted to point out how PC despite everything still isn't a 100% free of binding contracts,but yeah,its much more free than any console that is always under Sony or MS reach that you can't escape... Also,I fully agree with your stance on cracking services like Steam and Origin that are being imposed on my SP gaming.As you said,nothing illegal in cracking them as long as you own the game legaly,the companies that made them were supported by the purchase,and I get to play my game without any DRM hounding me...
XBOX Live.. Thats were Im forced to create a behavior monitoring account on Microsoft's servers in order to save progress on my local offline single-player PC game, right? Yea, no shock they want to act without any liability and figure Im just dumb enough to grant them impunity. Much as I love games, I think Im going to read a book (printed on paper) this week instead. Might be fun and who knows maybe It will become an alternative way for me to spend my time and money. Hey, thanks Microsoft!
@supertom221 Yep,we did have this talk,only about Ubisoft always on-line DRM few months ago.I even have a Point Loss moderation to show from it :P
All these overstuffed game corporations are run by a bunch exploitive creeps. But it would be different if we didnt behave like spineless fodder.
@Richardthe3rd - You know what's also an effective deterrent for corporate misconduct? Not buying their product. If I ever feel that Microsoft wrongs me in a serious way I'll simply stop giving them money.
@Haasdude Doesn't change the fact that it can be an effective deterrent for corporate misconduct, and a way consumers can use the law to attempt to correct or at least make certain behavior unfavorable.
Class Action Lawsuits - the people each get 50 cents while the lawyer gets thousands of dollars. Yup, sure going to miss that.
@Unfallen_Satan "If left unchecked, this kind of policy will permeate all facets of the digital domain as almost every digital service has a TOU." Yes EXACTLY. There's been a lot of effort to shape the digital landscape. Now that we're getting some rulings to that effect the wild-wild west workings of the past seem like the good old days. I think the scariest part is that it seems like courts might let them do this, at least for now. And the removal of class-action lawsuits definitely scales damages down to whatever an individual could incur rather than what is collectively inflicted. Since a lot of it won't satisfy base damages thresholds, this potentially removes a very large amount of liability for these guys. Really, class action suits would be the only viable way for anyone to legally act against widespread abuses/ negligence. I just really think Supreme Court screwed the consumer (well, lawyers at least) on this one.
@Rocker6 I never implied PC to be 100% free, but I think we both can agree this is as close as it gets. Cracking is especially right when you are hounded by Draconian DRM's like Origin and Ubisoft's infamous DRM Launcher. Also, didn't I talk to you before? Small forum, this is :P
@Rocker6 @Richardthe3rd @BuiltForSin @JohnF111 I do understand your points, but all of you guys do realize everything you said is only in relation to game marketing services like Origin and Steam, right? No one forces you to use either. You can play a game without using any online service, Just like SONY or Microsoft don't force you to use PSN or XBLA. It's only if you want to play online, which perfect sense to bind it to such a service. If you don't want your SP experience to be tied to a service like Origin or Steam, your solution is simple-- Crack it. Not illegal, as long as you own the game, and binds you to none other than yourself. Perfectly fine. The PC gaming rig you own is YOURS, and that's what matters. so long as you own a PS3 or XBOX360, you will always be at SONY/MS's reach.
Geez, nothing like signing your rights away! Way to go Microsoft...you've found a way to roll-back the US Constitution and take our rights to what they were in 1650. God Save King Gates!!
@peanut1229, you obviously didn't read your PS3's latest TOS... Sony started this little snowball when they included a clause that prohibits you from joining a class-action lawsuit against them. EA followed and now Microsoft. You enjoying your PS3 as much now?
@nurnberg this is a contract that you have to agree to.. government cant change that fact. for the average user this wont really affect you. its simply enforced to protect the company. soo maybe theyll rule the world soon enough
@crazimax I have a xbox360 and a ps3 and I prefer my xbox because the controller feels better in my hands. That being said I agree with absolutely everything you just said. Good job bud.
This is actually legal and preferred in many disputes, like employment and insurance claims. It's becoming more wide spread. The only way to appeal this process to a court is to show evidence that the arbitration was corrupted somehow. Otherwise, courts will uphold the decision of the arbitrator.
so MS does learn from Sony's mistake,hw about learning from Sony's better traits ie have a lil more exclusive
This means nothing. Companies like Microsoft don't rule the world and they don't make the laws. Governments and lawmakers can easily intervene.
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