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Microsoft May Face Class Action Over Xbox Live Ban

Up to 1 million gamers barred for pirating games

By Jon Hood
ConsumerAffairs.com

November 25, 2009

Microsoft banned between 600,000 and 1 million users from Xbox Live, the popular service that allows gamers to play with each other online and download games to their consoles, after learning that users illegally downloaded pirated games from file-sharing sites.

The ban also affected gamers who modified their Xbox consoles to enable them to play pirated games. The company issued a terse statement warning consumers that “modifying their Xbox 360 console violates the Xbox Live terms of use, will void their warranty and result in a ban from Xbox Live.”

While Microsoft's actions look reasonable on their face, an intellectual property law firm is suggesting that the action was “conveniently timed” to maximize profits for the software giant. Abington IP says that Microsoft's ban was “'conveniently' timed … to coincide with the release of the new Call of Duty: Modern Warfare 2 game and less than two months after the release of the very popular Halo 3: ODST game.”

The firm alleges that anticipation of the games' releases led to a spike in new Xbox Live subscriptions, and that Microsoft waited until after the games' debut to institute the ban. Abington also points out that, without the ban, Modern Warfare 2 and Halo 3 might have suffered diminished sales (presumably because consumers could simply download the games illegally).

The firm takes pains on its website to note that “PIRACY IS A LEGITIMATE CONCERN for Microsoft and other content producers.,” but quickly pivots to accuse Microsoft of using copyright laws as a sword to fill its coffers at the expense of law-abiding gamers. Specifically, Abington says that the sweeping ban affected law-abiding users, and that guilty parties lost access to “functions that have nothing to do with piracy.”

In its statement, Microsoft was adamant that only gamers engaging in illegal piracy were affected by the ban.

That might be true, although, like most online communities, Xbox Live seems to have a bit of a big-brother quality to it. On the Xbox support page, Xbox Live Director of Programming Larry Hryb said that Xbox officials monitor players not only for blatant violations – like racism and profanity – but also for “just being an all around poor sport and ruining the game for others.” That standard seems to give little indication of if or when a user might find himself banished from the Xbox Live kingdom.

Microsoft is apparently not scared by the suit, asserting that it is “well within its legal rights to ban these users from Xbox Live.”

Abington is asking banned Xbox Live subscribes who had a “modified” console, and who “were not refunded a prorated sum for the time left on [their] subscription or have experienced other problems as a result of being banned” to contact them. The firm, which handles primarily copyright, trademark, and patent cases, has offices in Tulsa, Wichita, and Dallas.

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