Posted on January 12, 2008,

Editorial: Microsoft Doesn’t Owe You Anything for Xbox Live Issues


For weeks now, Xbox Live has been struggling to provide the usually hassle-free experience that the service provides. The massive influx of new users and traffic from the holidays is no doubt the route of the problem, and Microsoft’s inability to promptly “fix” Live (certain issues are still lingering one third of the way into January) in a timely fashion has led to outcries of the community in the form of calls for refunds, free extensions on Live subscriptions, and even a lawsuit.

And while the problems have frustrated myself as much as any other Xbox Live Gold subscriber – playing NBA 2K8 online is practically a daily ritual for a friend of mine and me – I’ve realized from the beginning that I’m not entitled to jack from Microsoft. While they announced that they’d be handing out an Xbox Live Arcade game for free as an “oops, our bad,” all of the demands that we’re entitled to prorated refunds are completely unwarranted – as unfortunate or as unfair as that might seem.

Since you didn’t bother to read Xbox Live’s Terms of Service (because, honestly, who reads those things?), I sucked it up, opened up a pack of Livesavers and dove right into the massive 12,000 word document. Between wanting to gouge my eyes out and wondering how much you must get paid to write something like this, I was luckily able to track down what I was looking for.

terms.jpgBut first, here’s a little fun fact for you: In so many words, you agree not to threaten anyone or do something that promotes or expresses racism, bigotry, hatred, profanity or illegal drug use, among many other things. I’ve gotta think that incriminates roughly 92% of Xbox Live’s population.

Back to what I was looking for in the first place, in the very first clause of the ToS it quite clearly states, “Please note that this contract limits our liability and we do not provide warranties for the Service.” That’s not particularly clear, however, so let’s dig a little deeper.

“Microsoft may, among other things: (a) restrict or limit access to the Service; … (c) upgrade, modify, withdraw, suspend, or discontinue any functionality or feature of the Service or any game from time to time without notice …” So, Microsoft clearly reserves a lot of rights for itself, should it ever want to change something. But this clause doesn’t account for the problems that Live has had recently, and –which I’m not lawyer, by any possible stretch – I would imagine it could be construed as fraudulent for Microsoft to fall back on this particular clause as an explanation for why they Live members aren’t entitled to any remuneration.

But then we reach clause #16 which takes the issue and just slaughters any argument to the contrary. (It was also at this point that I went insane.) The clause, in its entirety, reads:

We provide the Service “as-is,” “with all faults” and “as available.” The Microsoft Parties give no express warranties, guarantees or conditions. You may have additional consumer rights under your local laws that this contract cannot change. To the extent permitted by law, we exclude the implied warranties of merchantability, fitness for a particular purpose, workmanlike effort and non-infringement.

That’s truly the “game, set, match” item I knew I would find buried away somewhere in the Terms of Service. But why even offer a free Xbox Live Arcade game if it’s so unequivocally apparent that Microsoft doesn’t out you a dime?

Public perception. That’s why. If Microsoft had come out, and instead of graciously apologizing (primarily through Major Nelson) and offering some small token of gratitude, there would have been a major backlash that Microsoft wants to avoid. We’re getting to a point in the console wars where the PlayStation 3 looks like a more and more viable gaming platform, and the last thing Microsoft needs to do is shoot itself in the foot and cause defections from its own community. While the main goal of Microsoft undoubtedly remains on attracting new customers, but they also can’t afford to start losing their established userbase.


So for all of the ridiculous claims that are still bound to spring up demanding those prorated amounts be handed back to gamers, there’s a very good reason why it will never happen.

There’s also a very good reason why no one ever reads the Terms of Service.

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67 Comments on Editorial: Microsoft Doesn’t Owe You Anything for Xbox Live Issues


On January 12, 2008 at 3:33 pm

I’ve had to read these types of contracts before for various reasons; you deserve a pat on the back for making it all the way through.

To be honest, I suspected this. I’m sure Sony will have the same thing and to a lesser degree, Nintendo. It’s nothing new. Just saying “we reserve the right for it to be in any state it is in”. PR is as big as the rules here; Microsoft must’ve had a tough choice still deciding whether or not to do anything.


On January 12, 2008 at 3:49 pm

you also have to keep in mind that a contract is only as good as the lawyer defending it. They may not “Legally” owe us anything, but Microsoft owes 360 gamers quite a bit for all the problems with live and their consoles. They have us by the balls right now because they have the better games, but the day Sony PS3 picks up slack , a lot of us will jump ship.


On January 12, 2008 at 4:32 pm

Microsoft can write what ever they like in their terms of service. They can write

“Our service may cause damage to your console that may cause it to be permanantly unplayable, however you agree to this risk by using the service”

This however doesn’t make the the fact that if it occured it would be legal. Terms of service have to be based within legal grounding. People are paying for a service which microsoft is (generally) providing.

That is to say Microsoft couldn’t tomorrow shut their servers down for repairs for a month and keep people’s money, but its not surprising or unreasonable (legally) that they will have some technical issues from time to time.

That said, it is all PR. Since people pay for the service they expect more. If PSN went down people could be more understanding since its free.

As for me I’m more than annoyed at my lack of live when I’ve wanted it my £40 a year is all I have my 360 for, online play. Its the only thing that makes it worthwhile and although MS might not ‘OWE’ me anything legally they damn well better give me something when I’m paying for a service and I’m not getting it, or I’ll be looking elsewhere for my online gaming.


On January 12, 2008 at 4:48 pm

Heck, they owe us enough for Live without downtime!


On January 12, 2008 at 5:34 pm

Noir, you are absolutely right. They can put whatever they want in a service agreement. That doesn’t make it legal. The way I see it, they and charging people for services they may not be receiving.


On January 12, 2008 at 9:18 pm

This is perfectly legal, to my understanding. You’re agreeing to the ToS which more or less state “the service may or may not be up at all times — and you understand this.”


On January 12, 2008 at 9:42 pm

The ToS is something you agree on when you sign up for service, but that doesn’t necessarily make it legal. It’s just a shame that Microsoft has failed to do the right things. Legal or not, their customer service and treatment of users is sub standard. It seems that Microsoft is not concerned with brand loyalty as long as people are purchasing their products. I think this is why major groups are trying to boot Microsoft our of Europe and it’s simply not good for business in the long run.

Regardless of what happens, I think Microsoft owes us plenty. My experience with the Xbox 360 has been one hassle after another. If they didn’t have Halo 3 and a couple other games I really love, I’d toss the 360 into the garbage bin and shift my loyalty over to the PS3 completely.

free ipod touch

On January 12, 2008 at 11:28 pm

While they technically don’t owe anything to their users by their TOS, if they didn’t do anything to remedy the complaints, they would lose many members.


On January 12, 2008 at 11:34 pm

Honestly I dont get some of you, you people actually think MS owes you something just because? Do you have any idea how hugely expensive and complexed operating something like XBL is? NO, you dont because no one has ever done it before! One more thing, for you people talking about going to the PS3 over this, do you really think Sony would be treating you any better in this situation, it would have taken us months for Sony to even communicate with their user base that they were aware of the problem. The MS hate is so 90s, get over it, MS is no more evil or satanic than any other billion dollar multinational corporation, they may even be a little less evil since EVERYONE is constantly looking for reasons to hate them.


On January 13, 2008 at 1:50 am

Sorry “Daran”. There was an issue with sonys 2.0 version and they cleaned it up within 3 days.
If you pay for a service your entitled to use/have access to that service.

If you pay for foxtel and it doesnt work 1 day every week ..what do you do? just say OH WELL its very complicated poor them.
No. They should give everyone A month of live access for free.

Have fun with your free game xbox live game.

Ill go enjoy my free(working) service now.


On January 13, 2008 at 1:50 am

Foxtel = Cable TV btw…

used cisco

On January 13, 2008 at 1:52 am

Noir is right.

The author of this article however, is not.

“That’s truly the “game, set, match” item ”

No, its not at all. And quite simply, because of what follows:

“You may have additional consumer rights under your local laws that this contract cannot change. To the extent permitted by law, we exclude the implied warranties”

The lawyers bringing this case are not likely to be stupid. I can guarantee you that the case is being filed in a jurisdiction that strongly upholds implied rights of merchantability as well as consumer rights. Most states mandate a warranty of merchantability even if the EULA/ToS state differently. They put those word in their just to keep simpletons off their backs. “ZOMG, the ToS says I don’t have any rights whatsoever therefore I must not!”



On January 13, 2008 at 4:21 am

Well I think when you put in the combination of the crazy DRM situation, (considering that many other people including me got a new machine (after the RROD) so the content which is bound to the machine you buy it on, unless you connect to Live which verifies you did in fact buy it. That I can’t play games or videos that I’ve bought because I can’t connect to live (because it’s DOWN!), we are entitled something as our own property is being denied from us. You’d think content could be transfered over to your machine.


On January 13, 2008 at 7:47 am

You are missing the issue. This is not a matter of contract, it is a matter of good customer service. Owes, no, good business practice….well, let me ask you….are you happy playing Live right now?


On January 13, 2008 at 10:10 am

The clause that you state is “game set & match” is not necessarily so. I noticed that the lawsuit was filed in Texas & I am sure that there is a reason it was filed there.

Different states have different forms of consumer protection. One of the many forms of consumer protection is the right to disregard certain terms or clauses in “Contracts of Adhesion”.

A Contract of Adhesion is simply this: a contract in which you as the consumer have no power of negotiation. The Offeror delineates the terms and you as the Offeree can take it or leave it.

However, our system of civil law in the U.S. is based upon a foundation of English common law. The very basis of a contract is two itmes in exchange for one another with the Offeror and the Offeree negotiating the terms. A contract of Adhesion takes away the consumer’s fundamental right to negotiate terms.

Now that being said, our society relies heavily on Contracts of Adhesion to provide protection to those that enter the channels of commerce. They are necessary tools used to encourage entrepeneurs to provide necessary, innovative and competitive service and price.

It’s when a contract of Adhesion is too oppresive that it can stifel commerce and therefore a state will give back to it’s citizens the right to disregard the contract all together or certain terms, conditions or clauses.

I am sure that the lawyer who filed this law suit is aware of Texas’ limitations on Contracts of Adhesion and believes that the clause you cited does not apply to their claim. Of course, only a judge will be able to decide that.


On January 13, 2008 at 10:55 am

Mike, when I switched machines, a majority of my XBLA content switched over with no problem, while a few games did not. Right now, I still have problems connecting to live and I am denied access to about 6 of my arcade games. I have to agree with you that something is terribly wrong when you are denied access to something you have purchased.

I definitely agree with most people who are basically stating that Microsoft’s TOS will not hold up in a court of law.


On January 13, 2008 at 11:31 am


Would Sony need to? They’re providing a free service, so if it isn’t there, you’re money isnt being wasted, probably why Microsoft are being sued. I think the most they should be sued for about this anyway is the cost of a month of Live, which is what? £2.50? Thats all they’re losing anyway…


On January 13, 2008 at 11:59 am

Danny, I think they should be sued for a little more than that considering there are people who cannot access property that they have purchased. The main reason the property is an issue is that so many people had their initial systems fail on them and then when you load up material on your 2nd, 3rd, or 4th Xbox 360, it sometimes requires you to login to live just to play the arcade game you purchased. Right now, I can’t play some of my games that I purchased.

I don’t think Microsoft needs to pay people a ton of money, but a free game simply will not cut it. I also have a feeling they will choose a popular XBLA game that most people already own.

I’d be happy if they resolve the XBL issues promptly and credit anyone who had problems with say 1,000 MS point so they can choose the free game. They also need to promptly restore points to users who magically lost their credits.


On January 13, 2008 at 12:40 pm

Pointless article. Your twisting the argument into what we’re owed. As you’ve stated we’re not owed anything and we owe Microsoft nothing. The argument is about customer satisfaction. Telling a customer, sorry you’re screwed because you signed an agreement that states we owe you nothing is considered _poor_ customer service. The customer then replies with, ok, I’ll just take my money elsewhere then.

You see, it never was about what they owe us. It’s about user’s leaving the service if they’re not satisfied. So if their goal is to keep users, well then they better penny up.


On January 13, 2008 at 12:57 pm

To anyone here that should know (like “Joelteon7″) Sony hasn’t had a major network problem for a paid service. Why? Because Sony’s network is FREE. All of its games, services… well, except for some extra content like PSN Games and certain Game-add ons. Yeah, that’s right, I was one of the people to actually look into the overall cost of an Xbox360 and a PS3, to see which one to buy.
For instance, Xbox360:
-Uses more power than the PS3.
-Much louder than the PS3, and my grandparent’s car.
-Gives off a lot of heat; has been reported to warm you during a cold front, or melt like wax.
-Failure rate including RROD, battery failure, etc… even though reduced to 33%, is still a big failure rate. Think about how many times you’ve gotten a 0% on your school work. That’s a lower failure rate.
-AA battery powered controllers; I’m going to hate either scavengering for half-used batteries or buying a new pack of AA’s for the low time usage the controllers take up.
-No Wi-fi OR Ethernet cord included. I’m not paying for a console that makes me pay for a crappy (yet expensive; just like Microsoft) $75 Wi-fi adapter that only travels half-way through my house, making me rework the network from my Dad’s office to my room every time I want to get on the LIVE.
-Don’t forget the LIVE network, its $5 a month right? So you pay $60 a year for a crappy service that rips you off like this? I’m suprised in anyone who owns an Xbox360.
-HDDVD just failed, that’s going to kill Xbox360.
-Don’t even forget the amount of games left in its exclusive valuable life-span, or how crappy the CPUs are. 2008 sure is the year for Xbox360, and its 2 exciting games, Fable 2 and some other game I totally forgot about.

Where as the PS3:
-Only 180 watts (minimum) to 250 watts (medium)usually used, and up to 350 watts used when you have it roasting in a fire during the ice age (aka maximum). Okay, that’s kind of funny, I mean seriously, its still a lot of power… but not as much as the Xbox360 uses.
-Silent compared to the Xbox360. The 80GB has been reported to become slightly louder when playing PS2 games.
-Not much heat given off considering it has a built in cooler. It has frozen up on me when I left it on for six days, though.
-FAILURE RATE IS LESS THAN 1%! Still, when you make-up that zero for a maximum of 50%, its much easier to score a 33% on it than a 1%, unless you don’t try.
-CHARGEABLE CONTROLLERS. They last for 24 hours total, and then you just plug em’ right back in with a USB B wire, and keep playing.
-Wifi built-in with all continued models AND Ethernet cord included with 60GB and 80GB models.
-PSN network is free, network updated every Thursday, and network slow-downs happen with downloading demos and free add-on content on the PSN the thursday or friday of its release, since everyone likes free stuff.
-Blu-Ray is the next-gen DVD, and stores 25GB on single layer and 50GB double layer, whereas HDDVD games only store 15GB (single layer) and 30GB (double layer). I haven’t seen any games release for double layer on the 360, and even though triple layer HDDVD (with 51GB) has been released, it’s has never been used. Even though its confirmed, it won’t happen, because its never been shoved into consideration.
-2008 Exclusives: MGS4, LittleBigPlanet, Infamous, Killzone 2, FFXIII, FFXIII Versus, Haze, GT5, Socom, Motorstorm 2, Resistance 2, Afrika, Heavy Rain… it goes on. Even the rumoured titles like God of War 3, PS3 even has some great 2009 listed, too.

That’s why I bought a PS3, and the Xbox360 is crap.


On January 13, 2008 at 1:20 pm

Jake, you are definitely right that the PS3 is a cheaper system in the end when you take everything into account. If they only had the best games….

And I have always felt that the PS3 is the better console when you break it down to the hardware level. Unfortunately, they still don’t have the game library necessary for it to be an awesome system.

I do feel like consumers are obviously not looking into things as deeply as they should. Many people cite cost as a reason for not purchasing a PS3 and that doesn’t make much sense. The PS3 is not more expensive in the end.

If you were buying a system simply because you want the cheapest, buy a Wii.


On January 13, 2008 at 1:54 pm

the question was never are you as a consumer legally owed anything for their downtime, every comapny has some clause like that to make sure you can’t legally go after them for issues.

the question is are they morally obliged to do something for paying customers, to which the obvious answer is yes.


On January 13, 2008 at 2:31 pm


On January 13, 2008 at 4:37 pm

Hey Jake, this isn’t an argument about whether to buy a 360 or a PS3 and just for the record I never use AA batteries for my controller, yes they’re rechargeable packs.


On January 13, 2008 at 6:57 pm

First of, I own a launch day 360 and it still runs fine.

This is going to be the toughest year for the 360 competition wise. LIVE has been the best weapon in Microsoft’s arsenal. No matter what Sony has done on the hardware or software side LIVE was way ahead of them in the online component.

Microsoft might be in a legal position not to give us more than a XBLA game. They might have been in a legal position not to extend the 360 warantee as well. But honestly who is going to buy a 360 and get on LIVE if Microsoft makes a point of telling everyone that in return for their yearly subscription they get nothing.

It took a while for the public outcry from customers to get them what they deserved on the warantee issue. If they keep up the outcry they’ll see justice on this one as well. The court of public opinion has power.


On January 13, 2008 at 10:31 pm

I don’t know about other countries but in the UK just because it’s written into a contract, terms and conditions, terms of service or whatever it doesn’t necessarily devolve a company of it’s legal obligations to their customers. Contracts can be deemed to be unfair.

Most of the legal mumbo jumbo in these absurdly long worded documents start with something to the effect ‘this does not replace your statutory rights’.

In fact several ISP’s here have fallen foul of such a mistake and customer’s have received recompense.

Sometimes these things have to be tested in court, sometimes the offending company get a slap on the wrist and told to pay up by a regulator.


On January 13, 2008 at 11:29 pm

David, it’s the same here in the states. A court can throw any contract out that’s deemed unfair. It’s kind of like someone who gets married and thinks a prenuptial agreement will be a binding contract regardless of circumstances. It’s kind of interesting to see how often contracts are completely thrown out of courts here.

All any lawyer would have to do when it comes to having Microsoft’s ToS thrown out is to prove that the actual terms are not sufficient for adjudicating consumer disputes.


On January 14, 2008 at 5:31 am

Xbox 360 components sold separately:
Xbox 360 Console w/ 20GB HDD – $349.99
Wi-fi Adapter – $99.99
Another Controller – $49.99
4 AA Chargeable Batteries – avg. $5.99
Chargeable AA Battery Charger – avg. $19.99
Electricity Bill – avg $25 a year (if you play 1-2 hour(s) a day)
LIVE – $60 a year
Failure Rate – 33%
Noise kicked out – LOUD
Customer Service – Horrible


On January 14, 2008 at 6:15 am

Jake, You have actually converted me. I seriously have decided to sell off my 360 on ebay. I have realised however that my DLC for it is worth nothing. I had my first 360 brick on me after spending about $120 on content now I realised since it was locked to my previous console its now worth nothing, no one can access it but me. At least with my Wii I can sell it as having 10 VC games included with it.

But thats it now, I’m making a pre-emtive strike I’ve completed most of the good games on 360 and I’m not excited about the coming year and I was always a Mear Gear Solid Fan, it feels like the right time.


On January 14, 2008 at 1:53 pm

Are you guys serious?

It is 50 bucks a year….less than a single game.

If you are so mad because Xbox Live was down for a week and you couldn’t play your games….seriously…get a life. Go Outside. Socialize with someone not on the internet.

Sweet Life.

(I give xbox credit for going above and beyond. Im not going to waste time explaining, but its funny how horrible PSN is even though it is free.)


On January 14, 2008 at 2:25 pm

I didn’t really go into this in the article, but even if the clause was deemed unfair in court, Microsoft has – by all indications – been working to fix things. Given that, I would imagine Microsoft’s clearly got the upperhand here because they don’t go around claiming 100% uptime.


On January 14, 2008 at 2:55 pm

HDDVD and Bluray, can you honestly tell the difference in quality between them because I can’t, I have watched the same film on both formats and they look identical, the only true advantage Bluray has is storage capacity. Microsoft stated they would never force companies to develop games on HDDVD because it is not part of the console as standard, that and there is nothing wrong with having multi disc games, it’s been happening for years, never bothered me, I still play games that have up to 5 CDs like Final Fantasy 8 on the PC.

Games wise the 360 has more good games, the PS3 however seems to have more games that fall short of being great, MotorStorm was just another off road driving game and Resistance was just another shooter, neither of them stood out as being something different in their respective genres.

Looking toward the future however… MGS4 could still come to the 360 about 6 months to a year after the PS3 release(still a rumour but you know, Konami/Kojima did say it could be possible), Resistance 2 and having 60 players via a console is wishful thinking and could prove to be the games downfall but props to them if they get it to work, Final Fantasy 13 and V13, no appeal whatsoever to me as I feel that the FF games have been going downhill since 9, GT5 isn’t really going to be that much different to the previous ones is it? At least PGR4 dared to be different by throwing bikes into the mix(still didn’t work well and the bikes just felt wrong).

Although to be perfectly honest all of the best games coming out are multi-platform like Devil May Cry 4, Mercenaries 2 and GTA4.

I’m not dissing the PS3 itself, it’s a genuinely decent piece of kit but the current and upcoming games leave a lot to be desired and could be better, for me at the moment buying one wouldn’t be a good investment as I’d be stuck with 3 or 4 games I’d barely play.

I’ve yet to touch the Wii, maybe once Smash Bros. Brawl comes out it may start to appeal but to me it’s a very kiddie friendly console and the controller doesn’t feel right to me, feels a bit gimmicky.

Joe L

On January 14, 2008 at 3:14 pm

I don’t understand why people think that a ToS is above the law… This case is very simple. People paid Microsoft for a service and Microsoft failed to provide that service. The ToS means jack when it comes BREAKING the law. Saying the ToS means Microsoft can do whatever they want to is like saying when you buy a car the dealership can give you whatever car they want… Wake-up! Just because Microsoft wrote the ToS doesn’t mean that it will hold legal water in a courtroom…


On January 14, 2008 at 3:21 pm

Lawlz @ Jake. What a Sony fanboy tool.


On January 14, 2008 at 3:21 pm

JoeL, I couldn’t agree more. Contracts are only as good as the lawyer defending it like I mentioned above. The real purpose of most ToS are to deter consumers from taking action. A majority of consumers do not know their rights.


On January 14, 2008 at 3:33 pm

I think I speak for all proper gamers when i say we’d still rather have our 360s, even with the occasional Xbox-Live faults than a -station.


On January 14, 2008 at 3:34 pm

Well legaly it does hold up. Because if you knownly signup for a service that does not grantee it will be up 24/7 then you knownly purchase said service.

The same applies if Blizzard decided for some strange reasion to shutdown World of Warcraft tomarrow. You would not be entitled to a refund of your remaining time or any work you put into the game. As it is clearly stated you are paying for a service as is that can be shutdown at anytime or offline at any time for any reasion. You knowningly agree to the terms. Now it is different if you are tricked into agreeing to a set of terms.


On January 14, 2008 at 3:39 pm

I had a friend who was complaining about Xbox Live being down. These are the exact same parts of the TOS that I showed him. Microsoft doesn’t owe anybody anything because they’re not under any type of warrenty.

I agree, the document was a little tricky reading :???:


On January 14, 2008 at 3:47 pm

And this is why I will never pay for Live. Don’t mistake me, I’ll never own a PS3 either, but paying for a game that has multiplayer and then having to pay again to be able to play that portion of the game? No thanks. Why would I pay to listen to 13 year olds whine and spout racial slurs? At least when I run into idiots in PC gaming, I can disconnect (from my non-peer hosted server!) and not feel like I’m missing out on making the most of this month’s multiplayer fee.


On January 14, 2008 at 3:58 pm

‘Owed’ isn’t the issue. It’s what they should do as a mea culpa. Just because it’s in the TOS doesn’t mean it’s good PR.


On January 14, 2008 at 4:09 pm

Nice article, but a lot of people already knew this. It is common sense, the only ones getting on the forums complaining are either 10-12 year olds or uneducated adults with nothing better to do. As both a 360 and PS3 owner I am not too worried about it yet, but a couple more months of service like this and some good PS3 games and the war could be over….


On January 14, 2008 at 4:15 pm

When it comes to something being provided to use it over an internet connection, I expect it to crash someday or at least be really laggy. No surprise nor am I mad. I dont go on xbox live 24/7 and also when I do play games online like halo3 or CoD4 I dont lag or get kicked off of xbox live.. except for the weekend after xmas. :P


On January 14, 2008 at 4:21 pm

Jake. Will you stop it? This is about Xbox Live, not the consoles themselves.

But if you really want to? Sure. Let’s do this.

Alright. First and maybe most importantly.
“-Blu-Ray is the next-gen DVD, and stores 25GB on single layer and 50GB double layer, whereas HDDVD games only store 15GB (single layer) and 30GB (double layer). I haven’t seen any games release for double layer on the 360, and even though triple layer HDDVD (with 51GB) has been released, it’s has never been used. Even though its confirmed, it won’t happen, because its never been shoved into consideration.”

Xbox 360 games aren’t on HDDVD. They’re on dual-layer DVDs. This statement makes all your arguments less valid in my opinion. If you didn’t know this…then the rest of your “facts” on the Xbox 360 are eyed with much more skepticism, but let’s go through it anyways.

I have a launch 360–and it hasn’t broken down on me once. It runs fine. It’s not as loud as you claim it is. If I’m sitting next to it? Yes. I can hear it. My TV is generally louder than it. It’s not as loud as a car. It’s a hell of a lot quieter than my last computer, that’s for sure.

Heat. I’ve been playing Mass Effect for three to four hours straight. I put my hand to the exhaust. It’s warm. Not hot. Not scorching. Not melting. Warm.

The games are debatable. It’s all about what you like. It’s completely subjective. The Xbox 360 has more good games for 2008 than just a couple, regardless of what you say. The Playstation 3 had a fairly uneventful 2007 season, save for Ratchet and Clank and Uncharted, the two big surprises. Their 2008 season looks more promising.

Bluray/HDDVD shouldn’t enter into it. HDDVD was added as an optional component. If you wanted HDDVD, you could get it. It wasn’t forced on you, costing you more for something you might never use.

Dragon is right. A lot of games are, will continue to be, or might change into multiplatform games. It’s best for everyone involved, in my opinion.

And your math is faulty. The WiFi isn’t necessary. You can buy one, if you look, for $60 or so…cheaper used at EBGAMES or Gamestop. I have one for when I’m at home, but when I’m at school, I just use the built in Ethernet. Better connection, less lag.

Live isn’t $60 a year. It’s anywhere from $30-$50, depending on where you buy it from. I buy a year subscription card every year–I find the best deal, which falls between $30-$50–and I renew. You can buy rechargable packs for the 360 for cheaper than you calculated.

Your personal aspects are skewed. You’re a Sony fan. It’s not very hard to see that. You get your jollies by blasting non-Sony things. I get it. But it’s not very accurate to claim that the 360 is melting hot and sonic-boom loud, it’s really not. Fail rate differs for everyone. I’ve never had a problem. Some have gone through 5 consoles already. Different climates, positioning…etc will change this. The fact that you didn’t even know what format the 360 runs is troubling in general when you start trying to compare specs. If you’re not willing to research, you shouldn’t be alowed to try to stir something up.

Your list of Playstation 3 games seems to be just that–a list of games coming out with no regard as to whether they’ll be good or not. Afrika? Honestly? You’re planning on buying that? Do you even know what it’s about?

The fact of the matter is, the PS3 is starting to come into its own–but the XBOX 360 has already established itself as a solid console with good games. The Playstation 3 isn’t as strong on the FPS, but stronger with the RPGs. The 360′s trying to breach the RPG market and the PS3 is trying to breach the FPS market, but as far as I’m concerned, they should really stick to what they’re good at.

@Noir. The PS3 is looking more inviting for future purchase for it’s BluRay player (and because I’m in love with White Knight Story), but right now? I don’t think it’s time to jump. After Metal Gear Solid 4? That’s looking more the time to buy. If you’re tired of the 360, then OK, but I’m still satisfied with mine.

In the future? Please don’t bring console wars into a simple matter of online play issues. We don’t care that the PSN is still up and still free. Those of us with Xbox LIVE see some purpose in buying it and paying for it.


On January 14, 2008 at 4:25 pm

All service providers have you agree to terms of service which typically states that if the service is interrupted, you cannot sue them. This is so very common in any service provider that I can’t believe people would assume that it’s illegal. It may not be right in the moral sense, but that doesn’t mean it’s illegal. Think of all of the Service providers out there. How many do you think have experienced outages? I will bet that every single service provider of any kind has experienced outages in some area at some time. Can you imagine getting compensation from your cable company because of an outage? I’ve actually tried and was completely shot down. The fact is, no company can guarantee 100% uptime on their services, not even Microsoft. That’s why statements like the ToS exist!


On January 14, 2008 at 4:36 pm

Jake, quit drinking the Sony kool-aid.

-The Xbox 360 launch units came with 203w power supplies, and the new Zephyr consoles come with 175w supplies. The 360 may be louder, but it consumes less power.
-Yes, the 360 IS very loud.
-Yes, it gives off heat. You’ll get some extra heat in the winter, savnig your heating system a bit, and you’ll pay more for A/C in the summer that evens out. It does make issues however.
-Widely addressed with newer consoles. The launch 360 units had many issues. Many launch PS2 units had defective DVD drives. Early adopters usually get screwed. Sony DID do a very good job hardware wise on the PS3, surprisingly low defect rate. I’d be concerned about failures in the Blu-ray drives in a few years though.
-At least you don’t have to plug in or wait for a recharge. Admittedly, I prefer rechargeable, but at least 360 will let me swap rechargeable batteries. I can have one in the controller, it dies- immediately swap it for one fully charged. I don’t have to wait or plugin.
- What are you talking about? The 360 comes with an ethernet cord, unless you’re talking about the barebones edition (like the 40GB PS3, lowest end). I’ll say that the adapter is overpriced, but many people use wired. And do you have any distance tests that you can cite? How do you know the adapter is inferior?
-LIVE ran into tons of issues. I’m pissed at Microsoft. However, if you a lot on the phone, they’ll give you more than the time you lost back. This is personal experience. I lost a week during repair time and I got a month back plus freebie arcarde games.
-Xbox 360 had an OPTIONAL HD-DVD drive. Believe it or not, DVD is the most popular optical disc format for movies. DVD is cheap, and MS has not had to cut down the system graphics to get great looking games
-Of course. Xbox 360 only has a catalog of over 775 games with many exclusives on the horizon such as Halo Wars and other exclusives coming in 2008.
-Of course, controllers with nonrepaceable batteries are amazing. I can’t wait until you have to pay sony to change them for you.
-Ah, yes, hundreds of games. Hideo K. says that MGS4 could be done on the 360, and I have little doubt that it will come shortly after.

My only regret in not buying a PS3 is being unable to play Ratchet and Clank.


On January 14, 2008 at 4:54 pm

Reading a K (contract) and understanding its express terms as well as how various implied terms and warranties apply are two very different things. There is a reason the legal profession charges money to read/write a K ;)


On January 14, 2008 at 5:10 pm

“You may have additional consumer rights under your local laws that this contract cannot change.”

I wonder how MS is going to respond to tens of thousands of small claims court cases.

Francis Esmonde-White

On January 14, 2008 at 5:21 pm

In Quebec, Canada, there are consumer protection laws that prevent ToS like this one from claiming that they owe you nothing even after you pay for the service. Then again, if one took action against them in court, the likely settlement would be for the value of the service, not for exaggerated grievance claims. I’d be surprised if there weren’t local laws in most US states that void that particular clause, to the extent that they are liable for the perceived service level expected at the time of purchase.

There is no absolute “game, set, match” clause here, just something to set up a small roadblock to anyone who doesn’t know their local laws from getting grand plans for litigation. I am fairly certain that in almost any state a judge would determine that the ToS contract constitutes a predatory and unfair agreement, and would void the clause. This type of issue is dealt with by laws that allow class-action lawsuits against shrink-wrap licenses that place the purchaser at a disadvantage (by virtue of a big corporate legal team against the little end-user who has no practical legal recourse).

I think I have previously read about class action lawsuits against cellular service companies regarding this kind of practice.


On January 14, 2008 at 5:22 pm

With many service-level contracts and guarantees like this, the recourse you have is minimal. Under normal circumstances your compensation is pro-rated based on the downtime, so if you’re paying $40/year and the cumulative downtime of the system in a year is 2 days, you could argue for a $0.20 reimbursement. In order to get a full refund or any sort of punitive damages you’d need to demonstrate willful misconduct or gross negligence on their behalf. You’d need to demonstrate that they clearly mislead the public and put out a product that substantially failed in terms of the designed functionality. That’s very hard to do if your biggest complaint is that there was a few days of downtime.

Your best recourse is just to complain loudly to customer service and ask to close your account. They’ll likely toss you a bone or two like a free game or a discount in order to keep you as a customer.


On January 14, 2008 at 5:47 pm

Console gaming is so 1982. You’ve got a computer. Use it.


On January 14, 2008 at 5:56 pm


Xbox 360 components sold separately:

Xbox 360 Console w/ 20GB HDD – $349.99
Wi-fi Adapter – $99.99 – You can use an ethernet cord just fine. In fact, you can run it through the wireless connection on your laptop even. Works just fine.
Another Controller – $49.99 – You don’t need two controllers. Unless, of course, it’s for more than 1 person, in which case you’ll be splitting the cost at the end.
4 AA Chargeable Batteries – avg. $5.99
Chargeable AA Battery Charger – avg. $19.99 – Use a play & charge kit:
Play & Charge Kit – $19.99
Electricity Bill – avg $25 a year (if you play 1-2 hour(s) a day)
LIVE – $60$50 a year
Failure Rate – 33%
Noise kicked out – LOUD
Customer Service – Horrible

That’s better. Of course, once you factor in games, the 360 does become a much greater investment. Oh the pains of having a library of actual, playable games, rather than a list of eventual ones.

And can I just rest my case by pointing out that Sony’s TV advertising campaign right now centers around the MOVIES the PS3 can play, not the GAMES.

PS3 = Glorified Blu-Ray player
X-Box 360 = Video Game Console

and just for fun…

Wii = Innovation beyond that of both the above.

Have a good day.


On January 14, 2008 at 6:12 pm

Sorry, messed up my math in my above post.

Total cost after 3 years is $595, not $590. So you’ll have to give up one extra starbucks during that three years to make up for it, xbox owners. so sad.


Also, I forgot to point out one other very important point: Up-front costs.

The 360 has a much lower initial cost than the ps3 (and comes with a free month of LIVE for evaluation purposes). So assuming you have a source of income (which you should, if you enjoy such an expensive hobby as video games), the 360 is less of an impact on your wallet, because that $600 is spread out over a period of time. So in that way, it is more affordable at first. Just something else to consider…

David Russell

On January 14, 2008 at 6:50 pm

The reason they’re doing it is that exclusion of liability clauses don’t generally apply in the EU unless they’re specifically highlighted to the consumer which this one wasn’t (that’s what ‘You may have additional consumer rights under your local laws that this contract cannot change. To the extent permitted by law…’) is about. So that clause wouldn’t cover them in Europe, which is why they’re doing the promo. Of course it isn’t an absolute prohibition – Microsoft with their legions of fantastic lawyers would still probably win any case, but giving away a free XBLA game is cheaper for them than even defending a hypothetical lawsuit.


On January 14, 2008 at 6:57 pm

selling my xbox 360 does’nt seem like a bad idea! this guy up block wants to buy my xbox 360 :)


On January 14, 2008 at 6:59 pm

To Jake,
To a discussion about the legal matter of Xbox Live, comparing and blasting the 360 is irrelevant and I’d like to point out that Live is a great service. My point was the problem with DRM. Sure the Xbox 360 is not the best system hardware wise but I’ve had perfect service with a new box replacing my dead one. It’s games category is outstanding, five star games including triple A titles as well as unknown instant classics (also play my old Xbox games on it). Also just to point out, every console has peripherals or accessories for it. When you love your machine you want to buy them which aren’t forced things you need to get but are wants just as people get accessories for any other electronic device (like an ipod).


On January 14, 2008 at 8:19 pm

For the record, there are now four posts by Mike. This one and the longer one above that starts out with my bold claim that Xbox 360 games are not, infact, HD-DVDs are by me–the other two are another/other user(s) entirely.

Mike K

On January 14, 2008 at 10:29 pm

Yea Mike’s a common name, but if you read them all you’d probably know which one is which. By the way Live has been up and running for a while now with no problems, just seemed like we had a hiccup during the holiday season, most likely due to highest traffic. :wink:

steven ratty

On January 15, 2008 at 3:34 am

the terms are only for the US but were is this lawsuit taking place.


On January 15, 2008 at 4:14 am

They offer it to appease people so they’re less inclined to bring a class action. The disclaimer of warranty looks all well and good, but there are a number of ways to get around this type of language. That said, I’m one of the masses appeased by the game offering. It was an inconvenience, but they took care of the issue reasonably well.


On January 15, 2008 at 2:29 pm

I like pie…… :cool:


On January 15, 2008 at 4:33 pm

The Clause #16 would not fly here in Maine. Local State Law would trump it.


On January 15, 2008 at 5:52 pm

Microsoft does not owe anything. We pay for online play. Sounds like world of warcraft and their payments. They have hours down every week, so why isn’t there a lawsuit against them?


On January 15, 2008 at 6:54 pm

The thing is that it’s not even a month after christmas, which means lots of new 360′s, as well as subscriptions for people who already had one. Though I’m sure Microsoft is working hard to keep the servers working so that people won’t quit.


On January 15, 2008 at 10:38 pm

Wow Jake that is the most biased piece of I have ever heard.
Who are you to say that HDDVD is failing and Blu-Ray isn’t.

PS3s Blu-Ray = PSPs UMD

… and we all know how we love PSP UMDs.

I was so mad

On January 16, 2008 at 1:29 am

I was playing COD4 at my friends house..had a FOURTEEN kill streak “host ended” the game, then we couldn’t log back into XBL. Of course the friends would show up…sigh…


On January 16, 2008 at 11:24 am

Its not the fact that the service is down, but rather Microsoft’s lack of communication to its own community that pisses me off.

PS: Don’t even get me started on DRM!