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Hey, great news everyone, Microsoft's Xbox 360 dashboard update is ready to download. But wait, it gets better! Not only does the dashboard update overhaul the entire Xbox 360 experience and usher in an era of voice controlled navigation, but Microsoft went the extra mile by adding a clause to the Terms of Service (ToS) stripping you of the hassle of being able to file a class action lawsuit, should you ever feel compelled! No siree, if you have an issue, you can sidestep legal action by "filling out a simple Notice of Dispute form" and mailing it in, and Microsoft will then work to resolve the dispute to your "satisfaction within 60 days." Isn't that swell?
Oh, but it gets even better. It was originally reported by Kotaku that you could opt-out of the no-sue clause by mailing a letter to Microsoft, but the software giant took that away too, saving you the cost of a postage stamp. Terminology in the ToS relating to "opt out" only applies to future changes to the agreement and not the agreement itself. Here's what Microsoft told Kotaku:
"Users must agree to the new clause to the Terms of Use in order to continue using Xbox Live. Changes to the Terms of Use are designed to ensure that our customers have an easy way to file a dispute without requiring formal legal action. They may now bring a dispute to our attention by filling out a simple Notice of Dispute form found at www.xbox.com/notice and mailing in documentation in support of their claim. We will then work to resolve the dispute to their satisfaction within 60 days. Any customer unsatisfied with the outcome of this informal process may easily initiate arbitration with the American Arbitration Association.
"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."
Microsoft isn't the first to do this. Sony created the fad back in September and Electronic Arts quickly followed suit. Microsoft now joins the fray, but whether or not such a clause is even legal is up for debate and varies by state.
Comments are closed on this article
Kinetic
December 08, 2011 at 10:49pm
Hold up a second. Microsoft, since the Xbox 360's launch, has forced everyone to cough up $50 a year -now $60- to access multiplayer. Multiplayer. A free feature on EVERY other game system, including the PC via Microsoft's very own Games for Windows Live. And they make people pay this fee, to access a feature on the game they already bought. Which they'll play on the system they already own. Over an internet connection they already pay for. And this is what gets people upset? ... Wow...
Cregan89
December 08, 2011 at 2:33pm
That is an extremely misleading and flat out incorrect title. This TOS only attempts to block "class action lawsuits". These are the type of lawsuits you see TV ads for: "Have you or a loved one who has previously taken XYZ recently had a stroke, heart attack, or diarrhea? If so then please call this number so that you can receive up to $1 billion in damages!" at which point you receive a cheque for $2.41 in the mail while the lawyers pick up millions of dollars.
In no way what-so-ever do you give up your right to sue by agreeing to this TOS. As an individual you still have every right to take Microsoft to court for anything your little heart desires. The only thing this changes is that, for example, in the Sony PSN hack, each person has to take their damage claims to court individually as opposed to hopping on board a class action lawsuit bandwagon with 100,000 other people. And you'll win a lot more money in an individual court case then you would in a class action lawsuit.
All this does is ATTEMPT (because this probably would never hold up in court anyways) to prevent lawyers from gaining on the back of consumers. So again, the title of this article "Microsoft Sneaks a No Sue Clause into Xbox 360 Update" is nothing more than journalistic bullshit.
Carlidan
December 08, 2011 at 7:35pm
Your proabably right you will probably win more money doing it alone. But the question you have to ask? Do you think you have a hells chance of winning the lawsuit with the limited resources you have. I think Microsoft's lawyer will most likely kill you in court and you won't even get that $2.41 your talking about. With class action lawsuits, at least you have a fighting chance, you have more resources and better lawyers fighting theirs. But what do I know. Just ranting.
unsunghero225
December 08, 2011 at 11:33am
Correct me if I'm wrong on this but this is what I'm getting out of it.....
Microsoft essentially forces this new update on everyone (personally I dont like it at all but thats besides the point), and then they tell users that they can't use one of the xbox's core functionalities (xbox live, essentially anything internet related, and in some cases games that require an update), unless the users give up their right to take legal action???
Is that correct? If so, I don't understand why big corporations cant figure out why people hate them...
If like their mindset is "hey look at us with all this cool fancy sh*t, but you can't use it unless you sell us you're soul by signing an agreement thats been doctored in legal language so much that not even we can understand it ourselves"
Please reply to this and tell me if you agree/disagree or whatever
praack
December 08, 2011 at 10:52am
though I agree that usually the only ones to reap a reward in a class action are the lawyers - the rational for class actions are sound- many of the changes (price fixing and other shenanagins) would never change if that legal truncheon had not been brought to bear.
so though I look at my latest class action notice with it's paltry 1.50 credit and laugh- the fact that in the future high fees will not be charged just to print a ticket is showing me that the system still works somewhat to the better of society
firefox91
December 08, 2011 at 10:24am
Lets clear something up. The only winners in a class action lawsuit anyway are the lawyers. The customer sure as hell don't win anything as they end up getting a $5 coupon for something and no real cash claim. So really, you didn't lost much anyway by agreeing to this ToS.
SeloFile
December 08, 2011 at 10:17am
Great, another service to boycott. Eventually I'll just have to stop using electornics all together.
nsvander
December 08, 2011 at 10:13am
So if I dont agree to this, will they take away my ability to use X-box Live, and with it all the goodies like NetFlix, HuLu Plus etc.? Well I dont agree to this new TOS, and I still want to use those features which were the reason I bought it, so that in of itself sounds like grounds for a lawsuit.
B_H
December 08, 2011 at 10:09am
I agree that it's kind of dick-movery to sneak things in like this (why can't businesses be more transparent?), but it's a pretty standard response to seeing Sony's woes. For the most part, their terms of use and code of conduct is pretty reasonable. If you were to have an issue with the Xbox itself, or with your subscription, small claims court would, indeed, be the proper place to recover. If Microsoft somehow really screwed everyone over with an intentional tort of some kind, your responsibilities/abilities under any contract would be (I believe) void anyway and you'd be free to sue for damages either recovery or punitive. What this really protects from is a similar Sony incident where your personal information was scuttled. What I'd like to see rather than a no-class-action clause is some sort of certification or mark of proof for the level of protection that my consumer information is under while in the hands of Microsoft (and any other business).
I'll now put my Sherlock hat and pipe away, because I am really no expert of any kind (and I don't even own an Xbox).
Archangel1976
December 08, 2011 at 10:06am
It's awesome how a CORPORATION suddenly has more rights than REAL PEOPLE.
So... Microscoft... which is.. what exactly? It's not a person. You could argue that it's a collection of people maybe. Yet, this entity seeks to strip people of their right to sue it?
Here's my suggestion for those interested.
1) Form an organization for a lawsuit against Microsoft. That org being "Sue the Pants off Microsoft". File any "class action lawsuit" with that organization.
2) Our community should be able to represent us. A district attorney should be able to file as a representative of the people.
This sort of thing though, makes me mad. Honestly... WHY AREN'T WE HAVING OUR DULY ELECTED REPRESENTATIVES DOING THEIR JOBS AND REPRESENTING US IN TELLING MICROSOFT TO GO F*** THEMSELVES?
glamdring
December 08, 2011 at 10:32am
A corporation is considered a legal entity meaning you would sue the corporation as a person.
Our officials have no say/responsibility for this, it is not political. They could make a another law stopping something like this, but typically it's best to just let it go to court and let the judge rule in favor or against. If I want to slap a stick on my door "By breaking the sticker you agree to hold me harmless for any action I due" I can do that, is it going to hold up in court when I jump on the guy a beat cripple him? No, but I can still put that sticker on my door if I want too. That should never change we live in America, it probably never will because you can put whatever you want up.
People need to stop freaking out, I can guarantee you this will never hold up in court you are just getting worked up for no reason. Understand the legal system and contract than get upset about hings.
Carlidan
December 08, 2011 at 7:45pm
Yes Corporation have rights a person does by law. But how the F**CK did happen is a better question. That should have never happened.
glamdring
December 08, 2011 at 10:04am
This is called a contract of adhesion, like break the read tape/open box and you agree to xyz, they typically don't hold up in courts. This one would severely struggle being it would completely stop the consumer from using the product in the intended way unless MS is will to hand out full value refunds.
ApathyCurve
December 08, 2011 at 9:55am
Stupid lawyer tricks. I review and negotiate contracts every day, and I can tell you that most states have protections in place against "waiver of rights" clauses and other such underhanded tactics in contractual language. Contrary to popular belief, (and what contract writers would have you think), simply signing something don't make it so.
They'd have a hard time making this stand up in court. Not impossible, just unlikely.
SenTora
December 08, 2011 at 9:52am
Really, Microsoft? And you make it so that people can't opt out of this clause whatsoever? I need to find a lawyer, but if you agree to it, it's the same as if you get arrested by the police and you give up your rights....
