Xbox DRM Punishes More Paying Customers And Actually Restricts Purchasing Options

from the fighting-bad-ideas-with-worse-software dept

Publishers are still hanging on to DRM despite example after example of how it does little more than annoy or harm paying customers. Why would you purposely annoy those throwing money your direction? To fight off a few pirates? Is it worth it? Most DRM is cracked and discarded within hours of a game's debut and yet, companies hold onto the crippling code, assuming that a small dent in piracy is worth the fallout from hundreds of pissed off customers venting their rage all over the internet.

Some of the most pernicious forms of DRM take the form of "online services" which require a unique login and account before anything can be done gamewise. Under the auspices of "convenience," software companies have managed to lock down access to purchased games, reserving the right to do whatever they want with the software, thanks to broadly written Terms of Service and, for console manufacturers, binding arbitration "agreements."

Over at Medium Difficulty, another gamer is dealing with DRM, as implemented by Xbox Live.

The particular set up for us to play three player horde mode, with system link, in the same house led to our first transgressive living room. Two TVs was wrong, but it felt so right. Gears of War 3 came out and we continued to enjoy our set up, especially since friends could also join over Xbox Live. For our non-nuclear unit, it was the golden age of multiplayer. Then the Mass Effect demo dropped with included MP. While I know we might be in the minority, we found it, and still do, a pretty enjoyable experience. But we hit a hiccup: we couldn’t split screen the multiplayer. There is no couch multiplayer for Mass Effect 3.

So we did what any reasonable modern family with disposable income would do: we bought a second Xbox. And honestly? There’s no going back. Couch co-op is not a guarantee anymore. Xbox Live has done wonders for online console gaming, but it has made a local co-op a second priority in some instances. There are enough games that do not support local co-op, and even more that do not support both local and online at the same time.

So far, the outlay for Microsoft products, at the very minimum, includes two Xboxes. Then there's the fact that two avid gamers share the same living space, meaning that the outlay for software is much larger than your typical "complaining basement dweller." (The preceding is the sort of dismissive wording often deployed by DRM defenders in an effort to make a very real problem sound like some loser's overwrought drama. No one falls for it anymore, but it still makes frequent appearances in comment threads and forums.)

First, the co-op problem. Not really a DRM issue, but the next one definitely is:

Our second Xbox came with Fable 3, which is yay! but it also introduced us to the problems of owning two Xboxes. DRM is a real pain in the ass... We would go to play our Fable 3 campaign on one machine and be told that we couldn’t use the DLC, even though, you know, the code was in the box sitting on top of the machine. Without that DLC, you cannot load a saved game.

Because DLC (downloadable content -- ranging from small add-ons to standalone games) gets assigned to the Xbox it was purchased on and the player's Gamertag (which makes sense), but is a problem when attempting to make sure your DLC shows up on both consoles. Microsoft's rationale is simple: prevent users from going from Xbox to Xbox with their Gamertag and downloading DLC (and standalone games) onto the drives of non-paying gamers.

But this rationale doesn't do much for households with multiple consoles who most likely aren't going to buy a unique copy of DLC (much less full games) for each Xbox in the house. Since the games can't be played at the same time (with one disc and say, two or more Xboxes), it would make sense (from the consumer's perspective) to be able to transfer the DLC (especially if you can't even load a saved game without it) from console to console.

Also bear in mind that purchasing full games via XBLA (Xbox Live Arcade) ties that game to that particular Xbox if the "wrong" Gamertag is used.

For example: I purchased TellTale’s Walking Dead Episode 1. I enjoyed it a great deal. When episode 2 came out, Meg thought she would be a kind and thoughtful spouse and purchase it for me. This was apparently not the Microsoft-endorsed thing to do. Months later, I still haven’t been able to actually play the second episode. I have to either buy it again, or play it on another system. Which is dumb.

Thinking that these limitations could be worked around by using a Family Account (you know, to make sure all of your family members can access the same DLC/games), the author set one up only to find that Microsoft's definition of "family" is rather bizarre.

We set the account up under Meg, then gave me all the permissions that any adult would want on his game console, and went about our gaming business. That was until one day when I went to purchase something from Live and realized that, from Xbox LIVE’s perspective, I was not an adult at all. I could not add points to my account. This wasn’t a setting in our family account. Nope, only one member of the family can add points to their account. If I want points to buy something, Meg has to give me an allowance. I’m not joking, that is the word in the interface. An allowance.

Nice. A system that treats grownups like children and everyone like thieves and at no time approaches the reality of today's gaming market. Instead, it sets up a series of intricate hoops that must be navigated before DLC can move from machine to machine.

Context: Meg’s Xbox is the new version, so black, and mine is the old white one.

Prerequisite: Have both gamertags saved on a USB stick. This allows you to log in to any Xbox without transferring your gamertag or recovering it from Live.

1. Log in to black Xbox with Meg’s gamertag.
2. Go into Family Settings.
3. SELECT GRANT ALLOWANCE.
4. Instead of using the default payment options, because I don’t want to charge her credit card, I select my credit card from the list of her payment methods.
5. Purchase a number of points.

Info: You can add 500 points or in 1000 point increments.

Let's just break in here for a moment and roll our eyes at the "point" system which handily turns actual money into useless Xbox Fun Buxx. Further eye rolling will ensue after step 6.

6. After the points have been added to Meg’s account, I grant them to my account.

Additional info: You can only grant points in increments of 400. Thanks for the convenience.
Remember: Most DLC on Xbox Live is in neither 500 or 400 point increments. I know what’s happening here, Microsoft.

Fun stuff. This sort of plan always leaves a gamer's "wallet" either short a few hundred points or with no way to bring the account down to 0. Microsoft loves this, just like many companies love gift cards. More often than not, the card is discarded with some spare change on it. Not enough for one person to keep, but thousands of leftover virtual coins soon adds up to real money. It's not completely Machiavellian but it still works out pretty well for the companies issuing the cards.

7. I then sign in to my account on the black Xbox, purchase what I wanted and download it.
Result: Now, the DLC is available on Meg’s Xbox so that she can play it if she wants.

8. Turn off the black Xbox, and then log in to the white Xbox with my account and download/transfer whatever I bought.
Result: I can play the DLC on my Xbox, and Meg can play it on her Xbox.

Please note: She cannot play the DLC on my Xbox.

That's a whole lot of steps for a paying customer to jump through just to make sure someone doesn't run off with some free DLC. If you and your family members are taking turns playing something that requires DLC in order to load a save, it would make more sense (in Microsoft's eyes) to skip buying a console(s) from it and just schedule some time in front of the only Xbox. That scenario is whole lot likelier than hoping its DRM scheme will be obtuse enough to force multiple gamers with multiple consoles under one roof to purchase individual copies for every Xbox. Microsoft may consider that to be the "right" or "moral" choice, but I can guarantee you the consumer doesn't.

Last word to "CPG," the author of this piece:

I shouldn’t have to set up charts to figure out what DLC is on what machine, especially when we are on a family account that actually restricts my ability to purchase DLC.

We’re a modern family, geared towards gaming. We’re publishers’ target market – and if we’re not, we will be soon. They need to start thinking ahead.

 

Filed Under: customers, drm, punishing customers, xbox
Companies: microsoft

Charging $40,000 To Issue A Patch Makes Games 'Better,' Microsoft?

from the ctrl-z-returned-to-your-'edit'-menu-for-a-mere-$20,000 dept

The uglier side of working within walled gardens was made apparent late last week when indie developer Polytron announced it would not be releasing a new patch for its Xbox Live Arcade (XBLA) hit Fez. (More specifically, a patch to fix the original patch, which corrupted a certain percentage of players' saves.) The issue at hand wasn't a lack of desire to throw man hours at a finished game, but rather that Microsoft's XBLA policy only allows for one free patch, with subsequent patches requiring the game to go through a recertification process at a cost of $40,000.

Plenty of articles were written on all sides of the issue. Microsoft's policy on patching has its heart in the right place. It simply wants developers to release polished products, rather than dump unfinished software into the XBLA market and let paying customers do the beta testing. (If only Microsoft felt that way about its own software, but that's an entirely different rant...) But surely there's more than a fine line separating buggy shovelware and a developer trying to improve the gameplay experience for its paying customers.

Some of the articles focused on Polytron's obligation to fix the game despite the cost, especially considering the bug left unpatched affected gamers closer to end of the game. Other press has focused on the fact that Fez's mastermind, Fish, is a bit of a polarizing individual (understatement) and somehow, as such, is possibly just being a crybaby/dick about this issue.

The best commentary on this issue looks at something these others have missed with their focus on contractual obligations, Microsoft/Fez behaving badly, or whether paying customers should be unwilling participants in a contractual feud. Rob at the inexplicably-titled We Make the Cops Look Dumb (home of Mersey Remakes) says they're missing the point. This isn't about everything surrounding the patch and its attendant $40,000. It's about making (and selling) great games.

I’m uncomfortable with any debate that can argue around patches being seen as bad things to have, things that customers or services need to be protected from. Patches are to improve games. Patches are to make games better. Arguing against patches is to argue against the right to have better games. This is a ridiculous thing, beyond absurd. I’m uncomfortable when an imaginary line is drawn between services where patches are ok and where patches are not. Why is a patch to an iThing seen as desirable but XBLA not, beyond the whims of Microsoft?

Rob also looks at some of the other arguments, many of which we've seen used in the comment threads here at Techdirt, especially when dealing with artists finding themselves being manhandled by contractual details. This one in particular surfaces (too) often: "Too bad. They signed a contract."

I’m uncomfortable when people feel comfortable pulling the getting into bed with the devil argument, you signed a contract for fame and fortune and now, this is the price you must pay. I’m uncomfortable because it leaves no room for nuance, it leaves no room for context. It becomes a moral argument with nothing that hinges around whether something is fair, whether something is unfair, whether something is even viable. I would not like to be the person to cast such a judgement because I would not like to be the person if something went titsupus contractualus for me, to have the same argument thrown in my face.

This argument has always bothered me as well. Those espousing it seem hold two contradictory thoughts: that those holding the contract (label, studio, etc.) are somehow both massively benefitting the artists (simply by being the "infallible" system) and allowed to screw their signed artists without being called out for it. So, if the contract allows for screwing of said artists, it's just too bad. Legalese trumps any effort towards making it a mutually beneficial situation.

Then there's this argument: it's ok if this creator gets screwed because he's a jerk on the internet/IRL. This is like saying police brutality is ok as long as the person being beaten is a criminal. Is this rhetorical device still cool if you're the one who happens to be the jerk? Or worse, you could be one of the "good people" that "bad things" happen to.

I’m uncomfortable with the “but it’s Fish” train of thought because next time, it might not be Fish. It might be me. It might be you. It might be your friend or a developer you love not a developer you love to hate.

Then, of course, there's the "helpful" percentage of the crowd, always willing to suggest how things might have been done differently. It's one thing to suggest a solution while suggestions are still being welcomed. It's quite another to roll in post-mortem and point out everywhere the victim went wrong.

I’m uncomfortable when people say “you should have just released on Steam in the first place” when contracts were signed at a time when Steam was still 12 months away from showing its indie selling claws to one and all, when its notorious difficulty to get greenlit was at its peak. When other services were seen as behind the XBLA curve. I’m uncomfortable with hindsight being used as a stick to berate people with.

That's a tough one to avoid. Nearly everyone who's ever posted a comment or written for a blog has at one point or another found it impossible to resist playing a few downs as armchair quarterback. "What you should do next time" is definitely preferable to anything containing the past tense ("What you should have done..."), but neither does much to address the actual roadblock in question.

Rob's main concern is one that should be the main concern for gamers and developers alike: making great games. And Microsoft, for all its well-intended ways, is aligning itself against that very goal.

Right now, I’m just uncomfortable with the whole charade that’s sprung from a statement which points out the ridiculousness of a system that can penalise people for wanting to make better games. And I’m uncomfortable with how comfortably we let this shit slide over us.

Say what you will about Fish's divisive personality or the rigged system that is XBLA. Talk about how an indie studio with a million paying customers shouldn't complain about costs and time. Point out rival services and their advantages. But don't forget that underneath it all, a developer wanted to improve its game and the gatekeeper decided that the developers and customers would be better off if everyone "played by the rules" and nothing got fixed.

Filed Under: patches, video games, xbla, xbox
Companies: fish, microsoft

Is Comcast Thumbing Its Nose At FCC's Open Internet Rules By Exempting Xbox VOD From Data Cap?

from the sure-seems-that-way dept

As was somewhat expected, this week Comcast announced its plans to offer Xfinity video on demand via the Xbox 360... which will require customers to subscribe to both Xfinity TV and the broadband service, meaning that this isn't a solution for getting around your cable subscription (of course, because Comcast doesn't want you ditching your cable TV). But what's getting much more attention is the announcement that such streaming video won't count against Comcasts' broadband caps, raising some significant questions concerning whether or not Comcast is following the FCC's open internet rules -- the same rules that were put in place to stop Comcast from degrading certain services in favor of others. Comcast, for it part, insists that the rules don't apply to this VOD service, since it's coming over its private network, rather than the public internet, but it's certainly tiptoeing along a fairly fine line. I think the bigger issue is why the cap exists in the first place. But, in the long run, Comcast is definitely trying to back its way into being able set up "most favored nation" status with certain providers, which really does impinge on the internet's basic end-to-end principles.

Filed Under: bandwidth caps, broadband, fcc, net neutrality, vod, xbox
Companies: comcast

Microsoft Still Claiming That It Can Use The DMCA To Block Competing Xbox Accessories

from the not-what-it-was-designed-for dept

One of the many problems with the DMCA is the way that companies try to abuse it and twist it to stop competition. Thankfully, the courts have been pretty good (but not perfect) about shutting down such attempts, but more companies keep trying. You may recall cases such as the time Lexmark tried and failed to block competing ink cartridges from being used in their printers, by claiming that the cartridge violated the DMCA, by getting around a bit of software whose only purpose was to stop competing printer cartridges. The court correctly realized that this was not at all what the DMCA was supposed to cover. There was a similar case involving garage door openers (though the losers in that case, have figured out a workaround via its terms that effectively allows it to do the same thing).

The latest example of a company trying to abuse the law this way is... Microsoft. We've been following this story for a while. Back in 2009, Microsoft suddenly announced that it would break third party memory cards for the Xbox, basically because it could. This pissed off a lot of people, and kicked off an antitrust lawsuit from Datel one of the third party makers of such cards. That case is now moving forward, with Microsoft arguing there's no antitrust issue, because its merely blocking Datel and others because they're violating the DMCA's anti-circumvention clause, in that third party cards have to get past some software used to block them.

If I had to guess, I'd say Microsoft is going to lose this case. It seems that courts are seeing through attempts to abuse the DMCA when it comes to stopping hardware competition. That's not the case when it comes to software, where things get murkier, but this seems like a pretty obvious attempt by Microsoft to abuse the intent and language of the DMCA solely to stop third party competition of a physical product. Hopefully, the court recognizes this.

Filed Under: antitrust, competition, storage, xbox
Companies: datel, microsoft

Government Drops Xbox Modding Trial

from the bye-bye dept

Following yesterday's berating at the hands of Judge Philip Gutierrez, the government has decided to drop the charges completely against Matthew Crippen for modding Xboxes. Last night, they had indicated they were going to push forward with a trial, but today they obviously thought better of it. The government is trying to cover up the fact that this case looked bad for them all around by claiming the reason for the dismissal was a more specific screw-up: having the first witness introduce new evidence (a claim that Crippen had put a "pirated" game onto a modded Xbox -- something he hadn't mentioned before, and claims he just recalled it days before the trial started (uh huh...)). Of course, this still leaves some big issues left unsettled -- and the idea that you can get jail time for modifying a product you legally purchased remains tremendously problematic.

Filed Under: anti-circumvention, copyright, dmca, xbox
Companies: microsoft

New Judicial Hero: Philip Gutierrez Goes Ballistic On Ridiculous Gov't Prosecutors During Xbox Modding Trial

from the good-for-him dept

Wow. I don't think anyone expected the trial of Matthew Crippen for modding Xboxes to kick off the way it did: with a half an hour rant from the judge complaining about nearly everything having to do with the government's case. The judge, Philip Gutierrez, even stepped back from his ruling last week that fair use couldn't be used as a defense. The judge slammed prosecutors for putting two witnesses on the stand who had apparently broken the law -- including one, a security employee from Microsoft, who had admitted to modding Xboxes himself in college -- while trying to hide that fact from the jury. But the most important point may be Gutierrez highlighting how the government seemed to be going against its own claims about the DMCA concerning the willfulness of breaking the anti-circumvention clauses:

The fair-use issue came up as the judge berated prosecutor Allen Chiu's proposed jury instructions, which included the assertion that the government need not prove that Crippen "willfully" breached the law, in what is known as "mens rea" in legal parlance. The judge noted that the government's own intellectual property crimes manual concerning the 1998 DMCA says the defendant has to have some knowledge that he was breaking the law.

"The first prosecution 12 years later, and you're suggesting a mens rea that is akin to exactly contrary to the IP manual: that ignorance of the law is no excuse?" the judge barked.

"You didn't even propose a middle ground," Gutierrez continued. "What's getting me more riled, it seems to me I cannot communicate the severity to you of what's going on here."

After the verbal drubbing was over, apparently stunned federal prosecutors asked the judge if they could recess to think about possibly dropping the case, or maybe offering Crippen a plea deal of some sort. All too often we see judges simply fall over themselves to agree with the government's position on intellectual property cases. It's nice to see some judges pushing back on some rather important points. Update: Apparently, despite all of this, the government is moving forward with its case, believing it will still prevail.

Filed Under: dmca, fair use, modding, philip gutierrez, xbox

Jailbreaking Your iPhone? Legal! Jailbreaking Your Xbox? 3 Years In Jail!

from the copyright-law-at-work dept

Bunnie Huang is no stranger to absolutely ridiculous legal claims concerning trying to hack an Xbox. After doing so, he had trouble publishing a book on the subject, over fears that telling people how to modify a piece of electronics they had legally purchased might somehow violate copyright law (anyone else see a problem with that?). Now, techflaws.org points us to the news that Huang is scheduled to testify on behalf of a guy facing jailtime for modifying Xboxes. But US officials are trying to bar his testimony, claiming it's "not legally relevant." Technically, they're probably right. But, from a common sense standpoint, Huang is trying to make a bunch of important points.

First, let's take a step back, and realize just how ridiculous this situation is. If you buy a piece of electronic equipment, should you ever deserve jailtime for then modifying it? With most things you buy, you have every right to then make changes to it. Yet, when it comes to gaming consoles, suddenly that can get you jailtime. The culprit? Of course, it's the ever-present DMCA, and its anti-circumvention clause, which lets any device maker put in some "technological protection measures," and suddenly it's illegal to modify what you thought you legally owned.

Now, supporters of the DMCA will note that every few years we have the lovely "exceptions" process, whereby the Librarian of Congress gets to (somewhat arbitrarily) choose what things won't get covered by the anti-circumvention clause. Just a few months ago, for example, it was deemed "ok" to jailbreak your mobile phone. So, here's the conundrum: it's perfectly legal to jailbreak your iPhone, but you can get thrown in jail for jailbreaking your Xbox. Explain that.

Huang wants to testify on behalf of Matthew Crippen, who would jailbreak Xboxes. Huang planned to show the jury just how easy it was to mod an Xbox. While he doesn't say so, my assumption is that the idea is to show that, and then suggest that the anti-circumvention provision does not apply because it shows that the Xbox's technological protection measures are not "effective," and the anti-circumvention provisions are only designed to apply to "a technological measure that effectively controls access to a work protected under this title." Similar arguments have actually worked in Europe, though I'm not sure if they'll work here.

Either way, I'm guessing the court won't allow Huang to testify for a variety of legal reasons, but even if he doesn't, it would be nice if the court and anyone else could explain why jailbreaking an iPhone is fine while jailbreaking an Xbox gets you jailtime.

Filed Under: anti-circumvention, bunnie huang, circumvention, dmca, iphone, jailbreaking, xbox
Companies: apple, microsoft

Judge Won't Dismiss Antitrust Charges Against Microsoft For Breaking 3rd Party Xbox Memory Cards

from the ruh-roh-microsoft dept

You may remember back in October of last year that Microsoft publicly warned Xbox users who were using 3rd party memory cards for their Xbox that it was about to break those cards, and that users should, instead, transfer data to Microsoft's own cards. Datel, a maker of third party cards apparently sued Microsoft, claiming antitrust violations in this move, and Eric Goldman points us to the news that a magistrate judge has rejected Microsoft's request to dismiss most parts of the lawsuit. Microsoft argued that there was no antitrust violation because Xbox buyers bought the box knowing they could only buy aftermarket parts from Microsoft. Datel responded by pointing out that the warranty that made that point was only presented to the buyer after they opened the box and "therefore, a consumer could not have knowingly and voluntarily accepted it prior to purchase." After looking at a few other factors, the judge refused to dismiss the claim, noting that "shopping for competing products in the Aftermarket is not clearly precluded by any contractual provision into which customers knowingly and voluntarily entered." Datel did lose on a separate complaint, though it can amend and refile. Either way, this is good news for the aftermarket business, and it seems likely that there will be a full trial that looks at this issue. Oh, and we should note that Microsoft just recently decided to target the very same Datel in a patent infringement lawsuit. Gee, I wonder why they picked Datel... Must be part of Microsoft's belief in showing how "important [a] role IP plays in ensuring a healthy and vibrant IT ecosystem." That, or the belief in punishing companies who sue you for antitrust with more legal fees.

Filed Under: 3rd party, antitrust, memory cards, xbox
Companies: datel, microsoft

UK Again Says That Mod Chipping Isn't Legal

from the you-bought-it,-but-you-don't-own-it dept

The war against actually being able to own the products you (thought you) bought continues. An appeal by a guy convicted for installing mod chips in video game consoles in the UK has been rejected. Even though the guy himself might not have been violating copyright law, apparently the fact that such mod chips could be used by others to potentially violate copyright law is enough to get him convicted. So, basically, modifying the hardware that you legally purchased? Not legal.

And... in somewhat related news, a bunch of folks have sent in the story of Microsoft cutting off what may be hundreds of thousands of players from Xbox Live for using modded consoles. Microsoft, obviously, is trying to stop players from cheating (one use of a modded console), which is understandable, and certainly within Microsoft's right. Still, the action does come across as a bit heavy handed. There are perfectly good reasons to mod a gaming console, such as to play unofficial games -- and as much as I understand the desire to stop people from cheating or playing pirated games, it still seems like you should be able to modify hardware that you legally purchased.

Filed Under: freedom to tinker, mod chips, uk, xbox
Companies: microsoft

Microsoft Wants To Block Out 3rd Party Storage

from the freedom-to-tinker? dept

faceless writes "Xbox Live's Major Nelson (aka Microsoft's Larry Hyrb, Director of Programming for Xbox Live) announced on his blog that the newest Xbox 360 Dashboard update will block unauthorized 3rd party memory devices. These 3rd party items are big sellers because Microsoft charges $30 for a 512MB Memory card and $130 for a 120GB HDD. A 3rd Party 2GB Memory Card is $40 and is also expandable as it supports Micro SDHC cards. A 3rd party HDD is $70, and the Microsoft HDD's are just 2.5" drives in a proprietary enclosure.

Consumers having larger memory devices is good for Microsoft, since more space means people can buy more Xbox Live Arcade games and more Downloadable Content such as new map packs, levels and expansions for retail disk based games, as well as buying and renting Movies and TV Shows via the Xbox 360's online marketplace. Another important factor is these devices have been sold for years. In the case of the hard drives, the Microsoft and 3rd party devices look identical, so many consumers may not even know that they have purchased an unauthorized device.

People on various videogame forums, such as NeoGAF are worried about the content they bought not working and not even being able to get online on their Xbox 360 console if their memory device is locked out by the update."

Once again, this seems incredibly short-sighted by Microsoft. The idea of breaking legitimately purchased hardware that makes the core of Microsoft's profit center (the games) more valuable, this only serves to piss off Microsoft customers and drive them away from Microsoft. Blocking out third party hardware -- especially without a detailed explanation for why -- goes against the basic right to do what you want with your own, legally purchased, hardware.

Filed Under: 3rd party storage, freedom to tinker, xbox
Companies: microsoft