Xbox Owner Sues Microsoft for $500 Billion (Yes, Billion)

[Evil Tim]

What's interesting is that when he loses this case (as he obviously will) it does go toward setting a precedent that unilaterally imposing changes is not legitimate.

No it won't. The whole point of an end-user agreement is that you agree to the company's terms in exchange for use of their thing. Let's say Microsoft was offering unlimited soda if you agreed to certain terms; obviously, by drinking the soda you are implying you agree to the terms. If you don't like the terms, they're not out of order to say you can't drink their soda; they have no obligation to provide a service to you if you won't play ball.

David Stebbins of Arkansas provides no service to Microsoft, certainly not one worth half a trillion dollars. His claim is as stupid as claiming that writing 'I get to keep the books' on the back of your library card is proof you don't have to pay fines or return books if the librarian doesn't notice.

The XBox Live Terms of Use [http://www.xbox.com/en-GB/legal/LiveTOU] that he signed up to specifically state that they can be altered in any way by Microsoft and continued use equals your agreement with changes; it does not contain provision for the user to do likewise, meaning any alteration would require mutual consent from both parties (without him dictating to them what he thinks counts as consent), or would require that he formally dispute it. Microsoft can simply say that their non-reply was an answer in the negative; he has nothing in the contract he agreed to saying what their not replying to him means, and therefore no leg to stand on.

The whole point of a contract is it's an agreement; he agreed to Microsoft's terms when he accepted them, including the one that says they can modify them. Microsoft never agreed to his terms. If the law actually worked like this, every piece of junk mail that came through your door would require you to send off a cancellation form or accept that you just signed up to a service and now owed them money. Shit like that is illegal for a reason.

 

[Jaime_Wolf]

It's an interesting turn-about on the way companies manipulate user contracts as they see fit but I'm not sure how it's going to hold up as a legal strategy and Stebbins' willingness to admit that he's jerking the system around may have been meant ironically but it still drains any sympathy I may have had for his quixotic ploy. Making a point is fine, but there's no need to be a dick about it.

It was a fine article until this point. Why oh why does every Escapist writer try to inject some idiotic personal commentary?

Obviously it isn't going to hold up in court. Why would you even suggest that you're "not sure" if it would hold up in court? It's some random guy asking for $500 billion on the basis of "well you didn't say you WOULDN'T pay me $500 billion". This is not a serious claim, it's clearly a practical joke to highlight the unfairness of most software contracts.

And his jerking the system around is the entire point. I'm honestly not sure what the last two sentences are supposed to convey. Saying that his jerking around the system has drained your sympathy is like saying that you thought that it was totally cool when your kid TPed the neighbor's tree, but your sympathy was drained when you realised they were using toilet paper.

Seriously, how on earth are these people still writing for the Escapist?

 

[Evil Tim]

And his jerking the system around is the entire point.

Which works until his claim is thrown out for being frivolous and a waste of the court's time. The only question in this case is if the judge is bored enough to even bother to hear his arguments before throwing the case out. Do you really think this is going to cause people other than legally ignorant gamers who think it's Microsoft's fault they can't be bothered to read the TOU to question the law - a case built on the same playground logic that if I phone my landlord and he doesn't pick up he accepts that the flat he leases to me now belongs to me, despite there being nothing in the contract we originally agreed that says I'm able to do that?

Amusingly, while I was making my previous post the new Escapist board rules popped up. I guess according to the people who think this is a good idea, I should be allowed to amend them to include giving me all of your passwords, email addresses and IP addresses, as well as all of the Escapist's advertising revenue, and if I don't get a reply in the next 1.3 seconds then the Escapist has a binding contract with me to give me those. Or I could just accept that I don't have to post here and if I don't agree with the rules I should stop doing so.

 

[Jaime_Wolf]

And his jerking the system around is the entire point.

Which works until his claim is thrown out for being frivolous and a waste of the court's time. The only question in this case is if the judge is bored enough to even bother to hear his arguments before throwing the case out. Do you really think this is going to cause people other than legally ignorant gamers who think it's Microsoft's fault they can't be bothered to read the TOU to question the law - a case built on the same playground logic that if I phone my landlord and he doesn't pick up he accepts that the flat he leases to me now belongs to me, despite there being nothing in the contract we originally agreed that says I'm able to do that?

Again, that's the point.

It's not as though it ever stood any chance nor was it even intended to. Hopefully the judge throws it out exceedingly quickly since wasting the court's time doesn't really prove the point to any greater degree. I imagine he made the number so tremendously outlandish so he could be sure the court wouldn't waste time on it.

Also, it's not really an issue of people not bothering to read the TOU (though I really don't think it's reasonable to expect people to read pages and pages of legal text for every software product - you don't see these same agreements for the overwhelming majority of physical goods). It's about companies making use of unethical and/or illegal contract provisions, just like this one. Software companies put profoundly unreasonable and often illegal terms into their contracts and assume that (a) users are rational people to whom time is valuable such that they won't read them and (b) users don't have the money, time, or willingness to fight things out in court. It's a very unfortunate and pervasive problem with software contracts and this guy is just trying to raise awareness of it, which seems like a fine goal to me.

Actually submitting it as a case is useful because otherwise it's not even remotely newsworthy. It being thrown out quickly doesn't at all defeat the purpose of submitting it to make the story interesting enough to find its way into a few news outlets. Certainly it's not a huge story, but it would be quite a smaller story (nonexistent) if he hadn't actually submitted it to the legal system.

 

[Evil Tim]

Also, it's not really an issue of people not bothering to read the TOU (though I really don't think it's reasonable to expect people to read pages and pages of legal text for every software product - you don't see these same agreements for the overwhelming majority of physical goods).

XBox Live is not a physical good, it's a service. Services mean big contracts; think lease documents, mortgages, credit agreements. If you're offered a contract, don't bother to read it and sign it, that's entirely your problem. If the contract you signed says you have given permission for it to be modified without your further explicit agreement, that is also your problem. You'd get the same if you just nodded your way through agreeing to a loan and then suddenly decided you didn't like the interest rate.

This is distinctly different to what David Stebbins is doing, which is closer to if someone mailed you a contract saying if you didn't sign it then an agreement exists between the two of you; this doesn't hold up because you made no initial agreement saying that they could do this. Same with Stebbins' case; no agreement existed between him and Microsoft allowing him to modify the terms of his agreement with them by mail with ten days' notice.

It's about companies making use of unethical and/or illegal contract provisions, just like this one.

There is nothing unethical or illegal about saying you're allowed to modify the agreement. Particularly since the companies usually have you click "I agree" to any new modification of the contract rather than just have it take effect; that's certainly what Sony does with updates to the PSN TOU. PSN and XBox Live are services offered with a product, not parts of that product, and are subject to their own terms of use.

Software companies put profoundly unreasonable and often illegal terms into their contracts

Examples of illegal contract terms, please? There are certainly some that might not hold up in court (for example, the claims in software TOUs that they are offering you a license to use the software rather than a product, which is why "fit for use" laws on products supposedly don't apply to buggy games), but none that are outright illegal.

(a) users are rational people to whom time is valuable such that they won't read them

Rational people don't sign something they haven't read, as a rule. That's more irrational, in point of fact. The only person at fault for you scrollwheeling through the TOU is you.

(b) users don't have the money, time, or willingness to fight things out in court

Yeah, people will sue for tripping over a paving slab or the emotional trauma of finding a dead bug in a box of cereal, but companies know they're a-ok for committing massive contract fraud without legal repercussions. Are you even listening to yourself?

Certainly it's not a huge story, but it would be quite a smaller story (nonexistent) if he hadn't actually submitted it to the legal system.

So he's succeeded in wasting a few more people's time, big deal.

 

[the.gill123]

The judge has to throw this out the winsdow on the basis that in contractual law it says whatever the sides are offering HAS to be of equal value, (i.e. you cant write a contract saying I will sell this 10p pencil from Asda to you for £10,000, as the pencil and £10,000 aren't of equal value. Also it has to be legal, so you can't write a contract to kill someone). So unless he has some damn good evidence as to why his damages are worth $500 billion, than this contract isn't legal, thus has no legal standing in in a court of law.
Furthermore, when agreeing to most consumer based contracts, like Xbox Live, it basicly says that Microsoft can make changes, and nothing about you making changes, so they can change the contract and we cant, so again there is no legal basis for this, and shouldn't even be allowed in court.

Though this is British contractual law, I can't see the US laws being much diffrent.

 

[Jaime_Wolf]

XBox Live is not a physical good, it's a service. Services mean big contracts; think lease documents, mortgages, credit agreements. If you're offered a contract, don't bother to read it and sign it, that's entirely your problem. If the contract you signed says you have given permission for it to be modified without your further explicit agreement, that is also your problem. You'd get the same if you just nodded your way through agreeing to a loan and then suddenly decided you didn't like the interest rate.

XBL is a service, true. However, I meant software licenses in general. Buying a standalone game or piece of software is much more akin to buying a typical physical good than to receiving a service (in many states software is even explicitly defined as a good, not a service). As for contracts, I have never had a lease agreement, credit agreement, etc. nearly as long as many of the EULAs I've agreed to. Software routinely comes with EULAs that are more akin to novels than they are typical contracts. Moreover, the majority of the contracts you mention involve very substantial amounts of money that are not even remotely comparable to a $50 game or a $12/mo subscription. And it's very unlikely that a person is going to have to deal with those larger sorts of contracts particularly often, whereas a computer user might easily end up agreeing to a EULA every few days. To suggest that there's an equal incentive to pay close attention to these things is silly.

As for modification, I don't think that's as substantial an issue as many of the other problems, particularly those that run up against fair use and liability. However, contracts that may be modified without consent are particularly nasty in the world of software. If I were presented with a contract for a credit card that allowed them to change the rate, I wouldn't agree to it - I'd find another provider. But many of these EULA practices are so widespread in software and virtual services that there is no other provider. If you want to play games with your friends and you don't like the contract, it's not as though you can go elsewhere and find a different contract. The problem here is contracts for services that are themselves protected as intellectual property. A plumber is pretty interchangable with another plumber, so you can find a contract you feel comfortable agreeing to. Such a situation is relatively rare in software since similarly interchangable solutions would typically violate the first producer's IP rights.

This is distinctly different to what David Stebbins is doing, which is closer to if someone mailed you a contract saying if you didn't sign it then an agreement exists between the two of you; this doesn't hold up because you made no initial agreement saying that they could do this. Same with Stebbins' case; no agreement existed between him and Microsoft allowing him to modify the terms of his agreement with them by mail with ten days' notice.

Yes. I suppose I'll say it one more time: his case "holding up" has absolutely nothing to do with the purpose behind it. It isn't intended to hold up. It isn't intended to provide a legal challenge to these practices. It is intended to do one thing: bring attention to the gigantic grey area that is the typical EULA in a humourous way. It's a Michael Moore stunt, not a legitimate legal challenge.

There is nothing unethical or illegal about saying you're allowed to modify the agreement. Particularly since the companies usually have you click "I agree" to any new modification of the contract rather than just have it take effect; that's certainly what Sony does with updates to the PSN TOU. PSN and XBox Live are services offered with a product, not parts of that product, and are subject to their own terms of use.

Yes, they are. First, there are thousands upon thousands of pieces of standalone software. Second, I don't really think contractual modification is a particularly big problem. It's perhaps worth saying that it's not quite as inconsequential as suggested given that a person might shell out a pretty hefty sum for, say, a 360 so they could use XBL only to find a particularly unsatisfactory change in the EULA prompting them to quit a week later. That doesn't sit particularly well with me, though you may feel differently. But again, I don't think future modification clauses are particularly problematic, especially so long as modifications require their own agreements.

Examples of illegal contract terms, please? There are certainly some that might not hold up in court (for example, the claims in software TOUs that they are offering you a license to use the software rather than a product, which is why "fit for use" laws on products supposedly don't apply to buggy games), but none that are outright illegal.

Yes, that's what I meant - provisions that would never hold up if taken to court. I only meant to distinguish them from provisions that are likely to be enforced or are unclearly enforceable, yet seem clearly unethical.

Rational people don't sign something they haven't read, as a rule. That's more irrational, in point of fact. The only person at fault for you scrollwheeling through the TOU is you.

Rational people do not spend several hours a week reading page upon page of legal text to go with their $10-50 purchases. Particularly if they know that the average person doesn't read them and that it's very rarely an issue for the average user. I think you're confusing rational with "doing what someone told you to do regardless of the context".

Yeah, people will sue for tripping over a paving slab or the emotional trauma of finding a dead bug in a box of cereal, but companies know they're a-ok for committing massive contract fraud without legal repercussions. Are you even listening to yourself?

Those are all areas in which there is an established precedent of people winning damages. EULA cases are exceptionally rare and most of the issues involved are unlikely to win anyone substantial damages (most of the cases are over software purchases in bulk for instance). If I were to bring up the fact that Ubisoft ruined my computer with its DRM and that its contractual agreement with me states they are not liable for doing so, there is virtually no way that I wouldn't lose money bringing the case. Despite their potential fault, this sort of liability limitation is more or less untested in court and even if I won, the time and cost of going to court couldn't hope to balance out to the cost of the computer. Who would ever bring such a case?

And as for companies including unenforcable contract provisions, that's fairly routine when it's unlikely to cost them anything, when people are unlikely to press charges, when its the standard practice within the industry, and when the particular contractual terms are mosly untested.

If your posts can be taken to imply that you actually read all of the EULAs before agreeing to them, I hope you buy software very, very rarely. Otherwise, I truly pity you. That must be a hellish existence.

 

[The Virgo]

I'm not taking Microsoft's side on this matter, but I gotta say that this dude is never going to see that $500 billion. The fact that he's asking for that kind of money shows how low his intelligence level is.

I'm no lawyer, not by a long shot, but the article implies that he's already a subscriber to Xbox Live. That means he has already signed the contract, which means he AGREED to all the terms and conditions within said contract. That means that he has no rights to amend the original contract that he signed and agreed to.

If I were the judge and I got this case, this is all I would have to say to the defendant:


Which would then be followed by, "Case dismissed". And even though I would have to live with a few people thinking I had been paid-off by MS to dismiss the case, I wouldn't care because there's no point in wasting time over a case that has no ground.

 

[Jaime_Wolf]

I'm not taking Microsoft's side on this matter, but I gotta say that this dude is never going to see that $500 billion. The fact that he's asking for that kind of money shows how low his intelligence level is.

I'm no lawyer, not by a long shot, but the article implies that he's already a subscriber to Xbox Live. That means he has already signed the contract, which means he AGREED to all the terms and conditions within said contract. That means that he has no rights to amend the original contract that he signed and agreed to.

If I were the judge and I got this case, this is all I would have to say to the defendant:


Which would then be followed by, "Case dismissed". And even though I would have to live with a few people thinking I had been paid-off by MS to dismiss the case, I wouldn't care because there's no point in wasting time over a case that has no ground.

It's pretty obvious that he's not going to win $500 billion (or, well, anything). From the article and everything else, it seems pretty clear that he's doing it as a way to bring attention to somewhat shady EULA practices. Think of it in the same light as that guy who foreclosed on the bank - obviously that wasn't going to happen, but it was a funny way to bring attention to the stupidity going on.

 

[Kenjitsuka]

I know 100% certain this is illegal in NL. Some semi-illegal businesses tried this on consumers, and oh man, did that anger the judge in question, calling it criminal, aggressive and worthy of jailtime...

Depends on whether the judge is corrupt or not. BREIN(anti piracy crusaders/extortion racket) gets away with sending snail mail letters across europe with the message "if u dont respond in 6hrs, u lose and we own all ur stuff liek servers kkthxbye". They also use criminal tricks like "consulting" every single international capable lawyer's office so that their victim is completely unable to acquire legal help due to conflicting interests and seizing and "investigating" the victim's property by themselves instead of letting a neutral third party do it and then destroying it and blaming the victim for obstruction/get a default judgment in their favour.

But of course, these noble gentlemen "fight piracy" so the end justifies the means, amirite?

Urghhhh, don't get me started on BREIN....
I think the fact that they spell their own name in ALL CAPITAL LETTERS is indicative enough of what kind of entity we are dealing with here.
Sad money grabbers is what they are. And no matter how much cash they gain access too, the little men they claim to represent do not see a friggin' dime of it! :'(

 

[AtheistAndProud]

He does know that getting awarded a half-trillion dollars would, like, break the economy, right?

 

[Ultra_Caboose]

Of course, the guy's not going to win.

For one thing, Microsoft's not even WORTH 500 billion. Their total assets don't even reach 110 billion.
Also, how do you accrue 500 billion in damages? From the way the guy states his case, Microsoft certainly didn't aggravate him in any way, they just didn't respond to his e-mails, which he deliberately hid from Microsoft's legal department... Can't say that amounts to much.

I can see what he's getting at, trying to give the huge corporations a taste of their own devious medicine, but he jumped the gun. If Microsoft does retaliate legally, they'll smash him into a indebted pulp.

 

[Sephychu]

Well, I'm not sure what to think here.
I guess hooray for alluding to the evils of companies and EULAs, but goddamnit, BOO for highlighting the whole overly litigous society thing.
The only way to draw attention to this is to file a lawsuit? Really?

 

[GamingAwesome1]

I find this very funny.

I commend the guy for having the balls to pull a stunt like this.

 

[HydraZulu]

For all of you who are stating that he's a diabolical genius moving to prove a point, I leave you with this one quote (whose origins I entirely forget):

Never assume malice where stupidity will suffice.

 

[LitleWaffle]

I hope Microsoft pay him the $500 Billion, but in Microsoft Points.

It would be so funny if they deposited 4 Quadrillion Microsoft Points, that's 40000000000000 non transferable Microsoft Points, into his account, then terminated his account as he requested.

Best.

Idea.

Ever.

You, good sir, are full of win.

 

[LordSaai]

It's kinda stupid not to send legal claims to MS' legal division. He's shooting himself in the foot with that. Also, half a trillion dollars really?

 

[Olrod]

Stebbins does make the interesting point that he's merely using the same tactics that large companies often employ with their customers, changing the terms of the user agreement and taking the continued use of its service as acknowledgment of and agreement with the updated contract.

I kinda want him to win just because of companies that do this.