Plaintiff's Lawyer Talks Xbox360 Class Action Options

[Xbox-Scene]

Plaintiff's Lawyer Talks Xbox360 Class Action Posted by XanTium | December 12 01:19 EST

From next-gen.biz: [QUOTE] Following a class action lawsuit filed against Microsoft regarding "bricked" Xbox 360s [after October 31 fall update], Next-Gen spoke with one of the plaintiff's lawyers, who said M'soft's only defense could be, "We're Microsoft, and we can do anything we want." Next-Gen spoke with Brian Kabateck, senior partner at Kabateck Brown Kellner, who admitted that his firm has "no idea" what the actual amount of damages sought after actually is, because it's unclear how many people this issue has affected (although Microsoft claimed shortly after the update that less than 1 percent of Xbox 360 users were affected). Kabateck contested Microsoft's official claim that the company would pay all shipping, repair and/or replacement costs for affected consoles. "If that were true, that would go a long way to solving the problem," Kabateck said. "Unfortunately, all the reports we're getting is that Microsoft is saying 'Send your Xbox in and for 140 bucks we'll fix it.' In our opinion, they're turning their screw-up into a profit center." Some reports on the Internet have speculated that Microsoft purposefully tailored the fall update to lock up Xbox 360s that had been modified to play illegitimate content not intended for use on the console. There's no conclusive evidence that this is the case, and Kabateck said that Ray's console was not modified. "I'd be very concerned if I were a lawyer representing Microsoft suggesting that there would be a way to entrap people to download software simply because they've modified [a system] that belongs to them," Kabateck said. "There are two issues here. First, that's your property. You bought it, you own it. If you want, you can climb to the top of your apartment building and throw it off and break it on the parking lot." "... The other issue is that our justice system has ways to deal with people who steal software or modify a piece of equipment in an illegal or inappropriate way. [Microsoft] can't take the law into their own hands," he said. [/QUOTE] Read More: next-gen.biz

[Brizzzer]

M$ just fix the consoles... Saves us people who paid for the boxes with our hard earned money agony.

[dynt]

One very good point that i think most people miss on thease forums, if you infringe copyright microsoft do not have the right to decide the punishment they need to take legal re-course it is not there right to brick your system

[sidewinder33]

Ms is not bricking consoles, thats the stupidest thing I've ever heard. What the lawyer doesn't seem to realize is that Ms is not forcing people to use Live, but as soon as you go on you agree to follow their TOS which says that the xbox must be stock. Ms bans people from Live not brick their consoles.

[Tucan]

Saying MS created this glitch to help filter out modified 360's is stupid. It was discovered that the glitch was caused by people who did not update with spring update and went straight to the fall update...which has nothing to do with DVD firmware. The only other brick problem that was found related to the DVD firmware hack was when people switched their drive out for an other version…which can be fixed at home.

[Heet]

Ya that arguement is hot over at xbox.com, mostly because thats what they want to believe. ITS THE MODDERS FAULT!!!!



The truth is that M$ is saying pay us 140$ for our buggy update. Thats the issue and its total bs. Pay THEM for mistakes THEY made?


They should ship them a brand new console and offer them a free game of their choice for their inconvenience. What they will get IF UNDER WARRENTY FOR 90 DAYS, ya 90 days, is a REFURB.


I still dont know how they get away with that.



This post has been edited by Heet: Dec 12 2006, 07:46 AM

[vanxman]

This is not about modding...

This is about screwing up systems with "forced" (if you want to use XBL) updates, and then claiming you need to pay $140 to get it fixed.

Hopefully this class action lawsuit will look into some type of compensation model for busted 360's? Yes, MS will fix it, maybe for free, but YOU ARE STILL WITHOUT YOUR 360 FOR A WEEK OR TWO!!! During which time your XBL subscription is active. During which time you do not have the use of equipment you paid to use. So, maybe MS has to start paying the consumer $140 compensation for screwing them around and wasting their time!!!

Yeah!!!

[irishdrunk]

First, that's your property. You bought it, you own it. If you want, you can climb to the top of your apartment building and throw it off and break it on the parking lot."

It says right in the agreement that you haven't "bought" anything, it is "licensed" to you....

That being said, and having a buddies console die cause of this shit, its bull....they don't care cause its less than 1%, which is fine with them as far as defects and what not...they need to absorb the cost of this...I don't think M$ can survive another years long lawsuit...you think they would have learned by now that they can't do whatever they want, they can't bundle and integrate ID and Windows, and they can't charge repair costs on consoles that only die because of THEIR software update...Billions of dollars be damned, they're stock prices PLUMMETED the last time they tried that...

[vanxman]

AND, ALSO... Hopefully part of the class action lawsuit will force MS to release (at least to the lawyers) the ACTUAL FAILURE RATE FIGURES. Less than 1%? MY ASS!!! Given their target for 10'000'000 for 2006, that still leaves 100'000 screwed customers. Any many argue that figure to be closer to 5%.

Similar with the wireless headset issues (http://forums.xbox-scene.com/index.php?showtopic=570574&st=0&gopid=3799229&#entry3799229), they need to take the ownership and responsibility of their products!

This post has been edited by vanxman: Dec 12 2006, 09:12 AM

[circusmonki]

This is not about modding...

Sorry but I feel this IS about the modding (no offense).

Although I support the modding community i feel that Microsoft DOES have the right, or more of a responsibility, to try and prevent illegal software from being distributed. BUT that doesn't give them the right to destroy the property that people have paid good money for.

I feel, that at the most, they can somehow "patch" the firmware again to prevent recordable media from playing but anything more severe than that (and flashing firmware sounds risky to me) shouldn't be allowed.

This is about screwing up systems with "forced" (if you want to use XBL) updates, and then claiming you need to pay $140 to get it fixed.

I agree with most of the statement because anybody that has paid their subscription to XBL deserves not to have code downloaded and run that will brick their system.

I hope Microsoft goes down in this

[quall]

I agree. MS needs to do something about this. I don't understand how they can refuse to pay for those units when their forced update destroyed them in the first place, especially when you cannot refuse the update without refusing the online service.

[elmo_sni]

isn't there a clause in the license agreement thingy for xbox 360 saying that the 360 " technically" isn't ours entirely...

saying microsoft can't put software on the xbox360 that blocks pirates is like saying i shouldn't be allowed to install anti-virus software on my computer and that i should just have to suffer.

i wish common sense was a bat, cause i'd beat the sh*t out of these lawyers...

[twistedsymphony]

The console is yours... you OWN it... it's not leased like most people think. Did you sign anything when you bought it? No? well then you don't have any agreement with MS that's legally binding.

Personally I think this lawsuit is ridiculous, HOWEVER, after reading this little spiel by the lawyer I think this will be very very good.

IMO some or all of the following could come out of this if the lawsuit finishes in court:

• MS will be required to alert users about EXACTLY what is in the updates... meaning that if they're going to target firmware hackers they'll have to say so in the update
• It will set a legal precedence that moding is OK because you own the property, MS will be able to detect and block access to their service if they so desire but not take any action to thwart moding, such as wiping eproms, or doing other things that would specifically cause damage to modified consoles.
• It will set a precedence in the industry that companies like MS will be legally required to take responsibility for any damages caused by by the software updates they push out.

The worst case senario is they'll settle out of court (which has a high probability of happening) but if this thing goes the distance it could prove to be very beneficial to he moding community.

[celicagt1993]

The console is yours... you OWN it... it's not leased like most people think. Did you sign anything when you bought it? No? well then you don't have any agreement with MS that's legally binding.

Personally I think this lawsuit is ridiculous, HOWEVER, after reading this little spiel by the lawyer I think this will be very very good.

IMO some or all of the following could come out of this if the lawsuit finishes in court:

• MS will be required to alert users about EXACTLY what is in the updates... meaning that if they're going to target firmware hackers they'll have to say so in the update
• It will set a legal precedence that moding is OK because you own the property, MS will be able to detect and block access to their service if they so desire but not take any action to thwart moding, such as wiping eproms, or doing other things that would specifically cause damage to modified consoles.
• It will set a precedence in the industry that companies like MS will be legally required to take responsibility for any damages caused by by the software updates they push out.

The worst case senario is they'll settle out of court (which has a high probability of happening) but if this thing goes the distance it could prove to be very beneficial to he moding community.

totally agreed. The console is ours, we can do what we want with it. What isn't ours is the live service. We do "lease" that. That is stated in the user agreement that you press A to accept. with that being said, they can "ban" people from it if the hardware designed to use it is modified in anyway. But....... this doesn't give MS the right to take the law in their hands to damage equipment you buy. They do have the right to keep you from using their service, and possibly (i don't know this for sure) future software on the system.

I do not believe that this was an attempt to do anything to the modding community. They might have been trying to detect the firmware, but who really knows. That is only for the people that did modify their consoles and got the dvd error. That is a small %. The remaining % of people that had problems, and the biggest % at that, are the people that skipped the spring update.

[hamwbone]

maybe one of their lab rats should figure out a way to start making money on the console it self from the get go, rather then basing is on attach rates. they need to realize when a buck's a buck.