Possible Class-Action Suit Alleges Xbox Bans Result Of Vast Redmond Conspiracy

Microsoft has declared that the owners of banned Xbox consoles have no recourse and no choice but to buy new consoles. Some users see this as unfair and a vast Redmond conspiracy, and law firm AbingtonIP is fighting back with a class-action lawsuit. God bless America.

What’s the alleged conspiracy? The firm thinks that the bannination was conveniently timed to occur shortly after several major game releases, in order to sell more Xbox Live memberships before banning consoles for life. Um.

This “convenient” timing may have resulted in more Xbox Live subscription revenues for Microsoft than it would have generated had these Xbox console bans taken place at some time before the release of Halo 3: ODST and Call of Duty: Modern Warfare 2. Additionally, sales of both Call of Duty: Modern Warfare 2 (published by Activision) and Halo 3: ODST (published by Microsoft Game Studios) would likely have been greatly diminished had the Xbox console ban occurred prior to the release of these games.

That’s taking things a bit far. But if you believe that your console was unfairly banned, let the firm know.

Xbox Live Class Action Investigation [Abington IP]

Microsoft Says There Is No Recourse For Gamers Whose Consoles Were Banned
If You Don’t Care About Online Gaming: Banned XBOX 360s Available
Xbox Gamer Says He Was Banned Online For No Reason


Edit Your Comment

  1. Chumas says:

    Lots of gnashing of teeth with this discussion on slashdot.
    Personally, I feel MS went too far with the banning, as there is a fair percentage of people who bought their console used and had no idea it was modded. Buyer beware indeed, eh?

    Also, of no small merit, is the fact that when an Xbox is banned off the network certain offline systems do not fuction anymore. Hence part of the lawsuit pertains to this “partial-bricking” of modded consoles with reduced functionality, especially in those cases where a part had failed and was replaced without paying the exhorbitant fee MS wants, such as a dvd drive.

    • bohemian says:

      @Chumas: This is really at the core of my problem with what Microsoft did. They determined that owners of an xbox could not open their consoles or have anyone but Microsoft do any repairs and at a grossly inflated price. Can you imagine the outrage if some company tried to do this with computers? Telling someone they can’t repair or replace their own hardware is excessive and sounds like possibly an illegal business practice. What if Chevy said you could only get your vehicle serviced with them at 10x the going rate?

      Microsoft took many benign actions and lumped them in with the one mod that would allow pirated games. Then banned everyone.

      • y2julio says:

        @bohemian: That is not why they got banned. They got banned for having systems that were modified to ban pirated games.

        • Herbz says:

          Not exactly. Many people were banned who did NOT have systems that could play so-called “pirated” games. Many were banned because they modified the hardware of the system itself, i.e.different hard drive, different cooling system. Anything that was detectable to not be the same as the system they sold you was taken as “modding” and they banned the console for it.

          • Projectneo says:


            I wasn’t banned and I replaced the DVD drive in my xbox last year. I think alot of people just dont want to admit they have been cheating, but if you play a game like Modern Warfare you can tell, there are alot of cheaters out there.

          • zoompooky says:

            @Herbz: So? Again this is a case of someone doing something they knew was against the ToU / ToS for Xbox Live and then whining when they were caught.

            If it’s not 100% genuine, it should be banned. If Microsoft were to try and decide which modifications were “ok” and which weren’t, it’s just a slippery slope.

      • Siegeman says:

        @bohemian: “Telling someone they can’t repair or replace their own hardware is excessive and sounds like possibly an illegal business practice.”

        Isn’t there a company that already does that? I believe it starts with an A and ends with a pple…

      • Joeb5 says:

        they tryed to ban place like jiffy lube and then the law sad you can’t do that.

    • XTC46 says:

      @Chumas: Not being able to open a consumer electronic without voiding the warranty is standard practice. Computers are different becasue so many people have the ability to make the repairs without trouble, but you cant open your DVD player, your TV, your Blender, etc without voiding a warranty.

  2. thebigbluecheez says:

    Do we have any hard numbers for how many xboxen were banned? The linked class-action lawsuit says tens of thousands of boxen, but the linked Consumerist article says 1 million users.

  3. ximmaculatex says:

    whoever had a modded xbox and got banned its their own fault. its against the rules to mod an xbox to play backups of games. its not like microsoft came and broke or took away the xbox they just cant play online big deal should have never modded their xbox

    • NikkiSweet says:

      @ximmaculatex: You’re completely missing a very significant point. Some systems that were banned weren’t modded to play backups of games. Some systems were “modded” by users replacing failed parts, like the shitty 20gig drives, with official MS harddrives.

      • guaporico says:

        @NikkiSweet: Replacing the DVD or hard drive is still a mod. I don’t agree with MS, but, they have stated ANY modification to the console will result in banning.

    • LadyTL says:

      @ximmaculatex: This also ignores the scattered reports of people who got banned and never replaced any parts and had not bought their xboxen used and did not mod their consoles. Intrestingly though these seem to happening to people who don’t play multiplayer at all.

  4. Preyfar says:

    I see it as merely coincidental timing, really. I think Microsoft banning modded consoles from Live is fine. People can still play their consoles offline and do whatever they want to do, but per the Live subscription agreement, you can not play them online.

    I can understand people didn’t want to pay the repair fees ($170 on average, if I recall) but Sony has similar fees for similar issues. In the end, Microsoft has always had a stance that modded 360s can’t be used online on Live. This is not the first, second or third time has happened, either. It’s in their TOS, and while people may disagree with it, that lengthy form that nobody bothers to read covers things just like this.

    The lawsuit won’t hold up on court for the sheer fact that Microsoft, in the end, will simply say “Did you read the agreement? Did you see the part about ‘no mods’? Yes, then why did you agree to the terms if you didn’t agree to bide by them?”

    It’s unfortunate for those banned for simple repairs, but if they had compatible, but non-legit parts for repairs then Microsoft has no way to tell which modifications were for repairs, which were for cheating, pirating, etc.

    BTW, I am an Xbox 360 modder. I modded mine for cooling and airflow, *NOT* piracy.

    • Sinful Josh says:

      @Preyfar: Preyfar if you are a modder and yes I did mod mine to replace a Failed dvd drive (cost to replace myself 25$. M$ cost. 100+$), then you would know that there is no topic of Modding in their TOS. In fact there IS NO TOS!!!!.

      Its not a TOS or a EULA, its a Terms of Use. for XBox Live, and the link/forum post/faq that keeps getting listed is just that.. a site. It was something that I never agreed to upon signing up for xbox live. The grounds that M$ is standing on for their bans are that they have the right to remove service to xbox live for any reason however if they fail to provide cause for this then they must refund any unused service and they are doing just that.

      My problem I have with these issues are a few:

      1. I know that modding my console voided my warranty. I was out of warranty as It was a 1st gen 360 (Dec of launch year). However MS does not provide me with any REASONABLE alternative to this.

      2. the ban is on the console only. Meaning I am told I can take my live account elsewhere or buy a new console.
      However they did not want to cancel or refund any time left on my prepaid 1yr sub. (going in time with the ban I was waiting for the MW2 LE console and gonna get that one anyways. yes i finally got my refund for live)

      3. The reason they give you for ban I never agree to, even in the TOU. however they have decided to apply this as a very very broad cause for banning ANY console (the words they use are “NOT LIMITED TO”) giving them power over a consol that I have paid in full, have no intention of using on live (I have two consoles now) and yet still have no access to features that are bought in good faith with the system. and in some cases CRITICAL UPDATES AND PATCHES to games that are released.

    • kayfox says:


      I think the point of contention is there is a false positive rate, and despite whatever you do to try and avoid it, there always is a false positive rate. And that couple by Microsoft’s attitude towards anyone banned (go f*** off or buy a new console) is not helping.

      When Nintendo did a similar thing, they replaced any console that got bricked and who’s owner called in to complain. This is likely why we dont have dozens of people here bitching about their bricked Wii and do have dozens of people here bitching about their bricked Xbox360.

      If they go to court and prove that their console was not modded in a way that can legally void the warrenty (there is a limit to what you can put in the warrenty, IE: you cannot do things like say it needs x brand of cables or power or have to use y brand of batteries in the controllers), and it was banned, then tney may prevail.

  5. The Marionette says:

    My view on it, the ones who knowingly modded their consoles and got banned deserve it. They decided to mod it and got caught and now wanna bitch and moan. And trust me, just from the people I know (a very large percentage of them being online people) had their systems modded and were banned.

    The ones who were only replacing parts and got banned, that Is MS’s fault and they should have been more knowledgeable about if the parts were just replaced or not.

    Now, the ones who bought a 360 and didn’t know it was modded, it’s just a classic case of you get what you pay for. I never buy systems (or even electronics in general that may cause a problem like this) from someone i don’t know. Example, there’s a lot of people complaining that they’ve bought a banned 360 from someone online and didn’t know about it. The risk factor is partially to blame on the buyer. If they’re buying it from someone in person, they should at least check if it works (both mechanically and online with live) before they purchase. With the 360 they could simply do a recover gamer tag to test if it’ll go online just fine. If they seller refuses to let you do that then it’s a flag that it shouldn’t be bought. If it’s an online purchase through random people (ie: craigslist) then the risk is even higher since you can’t test it before hand and that’s at the fault of the buyer to take that risk.

    I have modded systems (dreamcast, ps2), but those aren’t high risk because i never go online with either. My 360 on the other hand isn’t modded at all so i have nothing to worry about. Simple logic.

  6. Lost_Intelligence says:

    Was the banning timed with the major release of Modern Warfare 2? I would assume it was as I’m willing to bet it was the pirated versions of the game which tipped off much of the banning. These are assumptions, but justifiable.

    Does Microsoft have the right to ban consoles? Sure, but they also have to accept the public backlash of those who were unknowingly using modified consoles. Anybody who modified their console should not be surprised when they get banned. They know the risk.

    Microsoft is in a tough situation as again, there will be backlash no matter what. They should have come up with a way for those who were unknowingly using modified consoles to revert back to legitmate firmware. Of course, then how do you find the “unknowning”.

    • kcvaliant says:


      How is it MS fault if people unknowingly bought modded 360s??

      The only fault MS should have if legal mods like a bigger MS harddrive got banned.. But for the most part it is just hearsay.. They could have modded that and something else..

      Everyone I know that modded got caught and were forced to buy a new 360 if they wanted to play MW2 online.. MS had every right to do it..

  7. Kishi says:

    So, are they arguing not that they were unfairly banned, but that Microsoft let them spend money before they were banned?

  8. Dafrety says:

    I think that they should have been banned, but I don’t think Microsoft should have completely crippled the consoles. I can see disabling online, but Media Center and the ability to access memory cards is something else entirely.

    • mon0zuki says:

      @Dafrety: I agree 100%. I’m surprised nobody else has responded to this comment yet, since from what I’m reading other people seem to be thinking along similar lines.

      • Sinful Josh says:

        @mon0zuki: Agreed. I had this happen on my self repaired console. Now that it has no access to live. I have learned how to make LEGAL copies of my owned games and have a system link for friends.

        on that note How is it that in a time of 50+” tv’s, high end processing consoles with 4 avail controllers, can i not do a 4 person split screen when friends come over… only 2.

        things to MS and the banhammer I now have 2 consoles running my system link for me and my 3 buds.

        And for those that say its illegal. I have a legal right to retain 1 (SINGULAR) copy of my game for backup purposes. However due to lobying The means to make that copy do not have to be made avail. I have to do that myself. And also have to destroy the copy upon selling getting rid of the legit game. (if retail copy is broke, keep it and download a copy for use. its legal)

  9. DasSavva says:

    What about the people whose gaming data was corrupted – whether they modded or not?

  10. G.O.B.: Come on! says:

    They deserved to be banned from Live, but messing with data and Media Center capabilities is fucked up.

    Still, I say it has no merit. You know you’re rolling the dice when you mod. You also know what happens when the big M drops the hammer. If you don’t want it happen, then don’t do it. No one in their right mind can expect to not be banned. What difference does it make that it happens near big title releases? Your Live subscription becomes useless and wasted money no matter what time you get banned.

  11. humphrmi says:

    Basically what this lawsuit is saying is, “Microsoft knew that my XBOX was modded, and they waited until after I (the class) bought these new games to ban me.”

    It’s weak, very weak, because on the other hand the XBOX owners knew that they had modded xboxen that were subject to banning, when they bought the game.

    The only exception to this will be the secondary market buyers who didn’t know that they had a modded xbox. They *might* have a case, but I suspect that the numbers of those people are very much lower than the lawsuit class.

    • G.O.B.: Come on! says:

      @humphrmi: I don’t think second-hand buyers have an argument. It’s comparable to buying a car that should have a salvage title but is advertised with a clean title; it’s not Toyota/Honda/etc.’s fault that you didn’t know you were buying a problematic/compromised car.

  12. pridkett says:

    I don’t think the sales are that much higher because of the bannings. A quick scan of Craigslist shows hundreds of banned XBox 360s for sale, most of which advertise that come with “backups” of various games, including Modern Warfare 2. While there may be some need for game “backups” the fact of the matter is that most people aren’t using their modified systems for “backup”. The argument didn’t hold in the 1980’s or 1990’s with BBSes that called themselves “software backup libraries” or anything like that and it doesn’t hold out now.

    There are two categories of people who may have a claim: those who were collateral damage — banned boxes that shouldn’t have been banned because they weren’t modded and people who modified their boxes to run homebrew and Linux. Now, I haven’t seen any credible numbers on the former and wrt to the latter, that’s always a danger of homebrew. Even more so when Microsoft gives you a method to write your own software through the XNA Creators Club.

  13. wrjohnston91283 says:

    They have not filed a lawsuit. They are working on gathering information. This is a pretty standard practice. A quick google search of abington reveals very little about the firm – it doesn’t look like they’ve done much.

    Also, AbingtonIP is going to have trouble litigating this case as it looks like their only attorney is a patent lawyer only licensed to practice law in Oklahoma.

  14. themrdee says:

    “…owners of an xbox could not open their consoles or have anyone but Microsoft do any repairs and at a grossly inflated price”.

    I thought we went through this back in the ’50s / ’60s when the big three (BOP) came out with oil drain plugs that required a special wrench that they did not sell to non dealers. The courts ruled that this was an unfair market advantage.

  15. Moonshadow101 says:

    Of course more than half the people here said yes. What the hell website did I think i was on…

    • cerbie_the_orphan says:

      A website where people think that hardware they bought should function as they choose it to? Denying Xbox Live access is one thing (and 100% justifiable, though there aught to be some recourse for those accidentally caught, as MS always has those), but partially bricking them is entirely wrong, and like with other types of machines (such as cars), that should not legally be within their power.

  16. dreamsneverend says:

    This is no different than when DirecTV used to have “Black Sunday” when it nuked pirating receivers the days leading into a Super Bowl.

    MS knew one of the biggest game launches in history was about to occur with Modern Warfare 2 and struck when it knew the bozos who mod and think they can beat the system will try it out or hop on Live.

    ANYONE who plays this game knows you have the chance of being caught. There is no validity in crying about it. Grow up already and buy another unit.

  17. Audiyoda says:

    Wow – 53% feel a money-grubbing law firm and their class action suit has basis? That’s sad.

    So as I understand it, this banning of systems effected three groups – people who knowingly modded their systems to play downloaded (ie…illegal) games, people who purchased a used system that was previously modded. And people who did upgrades to their system (upgraded HDD for example).

    I’m not a huge fan of M$ – but they have a right to protect their intellectual property. So in the case of people with modded systems – I have no sympathy. Even if you purchased that system used, you are getting what you paid for – I’ve never purchased electronics from someone I don’t know. Now if it’s simply a system upgrade – even if the HDD isn’t a M$ authorized unit – that doesn’t constitute modding IMO – that’s a upgrade just as I would do to my computer. M$ should make concessions for those owners.

    • dbshaw says:

      @Audiyoda: By not providing a process that allows people to contest their banning, with the only solution being to buy another console, I’d say they have a basis.

      To believe that MS pulled off a million+ ban with NO errors defies credulity.

      See, if they provide a way for banned people to contest their ban, then its a straight up action, designed to achieve what MS claims.

      Without a way for people to protest their ban, its extortion.

      There is a basis. And the basis is because MS won’t provide a way for people to contest their ban.

  18. 2 replies says:

    They (the ones behind this lawsuit) are basically just saying with this that the CONSOLE manufacturer should be held accountable if any game developer releases any attractive new games AFTER said user has been banned from online use for modding their console (or purchasing a console which they didn’t confirm was legit/unmodded).

    That all games released should be less attractive than the previous, just in case someone (who broke their warranty by modding their console) wants to play those games too.

    Give me a break.
    The modders just want to have their cake and eat it too.

    This suit has no merit at all.

    I mean come on, cry me a river modders & jail-breakers.
    You know the risk in modding.
    And if you didn’t know, next time actually READ your EULA.
    And yes, caveat emptor for those who bought used or opened consoles.

  19. Outrun1986 says:

    Unfortunately for buyers of used consoles, the stores like Gamestop make it seem like buying the used console is the same as buying the new one. Most of these buyers have no idea about any of this stuff, especially parents who are buying their kids a video game console, they just think it plays games. Yes its their fault for being ignorant, but we can’t put the blame on the consumer all the time. No one is an expert on everything. Now I am sure that GS has a policy for this now, but what about people who bought previously used consoles that were modded and didn’t know it.

    I don’t like that Microsoft restricted use of 3rd party items like memory cards and hard drives, because those items are sold right along the microsoft stuff just for a cheaper price. There is no way for the average consumer to tell the difference or know the item is going to be banned in the future. Most people who buy this stuff are just trying to save money. In fact many times the clerks at the store upsell the 3rd party stuff as cheaper and better to customers who are buying console accessories.

    The user agreement also isn’t printed on the outside of the box or in a pamphlet on store shelves so people can find out what they are getting into BEFORE they buy the system.

    I have a feeling its just easier for me to stick with the game consoles I have instead of buying all this new fangled stuff. Yes now I am sounding like an old person but when the company you buy from is restricting your use of the item that much I do not want to own it at all. I would never buy a Xbox360 or any other console from microsoft and I likely will not be participating in the release of any other new consoles.

  20. dbshaw says:

    If MS provides NO recourse to prove your case then they are in effect breaking people’s consoles forcing them to give more money to MS if they wish to continue to play in the manner they have been. Its called extortion. If MS is on the up and up, they’d provide a way for people to show they got hit with the ban-hammer by accident.

  21. SnoopyFish says:

    This lawsuit makes no sense. I was led to believe that all banned consoles will allow thoes users to transfer their gamertags to a new console. So if that’s the case, Microsoft isn’t making squat on users resigning up for new Live accounts.

  22. steveliv says:

    for what its worth, a banned xbox’s save files are not corrupted, it is just that they will not be recognized by an unbanned console. they will work fine on the xbox they were created on. second, a banned xbox cannot stream as a media center extender, that is a bit harsh, but the ability to store a game on the hdd is pretty much a wash since the xbox requires the disc to be in the drive to play the game, and the few seconds saved when loading/playing doesn’t really amount to much of a time advantage…

  23. drivebybiped says:


    But if you modify your car and add 30 blinding lights to the front of you car outside of DOT spec the police have the right to give you a ticket.

    If you’ve got people modifying their consoles to play pirated games then they deserve to get booted from Live according to the TOS. Yes things like Netflix may use Live, but they knew it so its just a bunch of whining that they got caught.

    Doing something knowingly wrong by some of the mods and then claiming that you never knew is unethical too.

    • consciousj says:

      @drivebybiped: Modded firmware is not necessarily proof that people play pirated games, since what caused the ban is the firmware challenge code, not the game itself. Good luck to MS in trying to prove what the firmware was actually used for, since they would have to investigate everyone’s personal computers and homes for evidence of downloaded/burned games. The amount of money spent on trying to do that would be in the millions, if not billions. It’s not going to happen, and thus in the EULA there is nothing that states a local device being disabled is the result of being banned from a network.

      That’s why I think there’s a case here – not because people want to be unbanned from a network, but because of all the additional things that happen as a result of being banned from a network.

  24. Antiks says:

    MS and all of the other software companies can take their EULA and get stuffed. Some of them, according to EFF, are downright draconian.

  25. kabuk1 says:

    Sorry, but I’m on the modders’ side on this one. I believe that once you buy something, it is YOURS to do what you want with, and the manufacturer has no right to dictate how you use it. I can understand the warranties being voided by modding, but to ban people for it? Come on, Microsoft. For shame. It’s like a car company remotely disabling your car cause you installed a K&N filter. Yeesh.

    I have a Windows Mobile phone that I immediately unlocked & ‘modded’ with custom software as soon as I got it. I dare MS or Sprint to disable my device or cut off my service just cause I’m using the device that I PAID FOR in a way they don’t like.

    • Woofer00 says:

      @kabuk1: What you believe and what is true are unfortunately different things. You don’t own much of the media you purchase, nor do you own more than the physical hardware that your phone or xbox is made of. MS or Sprint probably won’t ban you from their network, but they probably could. To use your analogy, let’s say the Live users bring their machines in for service every time they logged in. The company could simply refuse to ever service any part of your car potentially affected by the air filter. (Believe me, if you have mods on your car and you bring it in for warranty, this can and will happen)

      • cerbie_the_orphan says:

        I’m afraid it tends to work out differently, such that you have copies and can decide what to do with them, within pretty reasonable limits. See Adobe and Autodesk, in particular, for recent examples.

  26. nstonep says:

    Actually…this conspiracy theory might have merit but good luck proving it.

    It makes sense on it’s face, they keep the subscription revenue AND they boot users saving money on server fees and maintenance.


  27. Zwoda says:

    The bannings occurred before Modern Warfare 2 was released, so the lawsuit has one of its key points undermined from the get-go.

  28. Quaoar says:

    I have read that there are upwards of one million modded consoles. The problem with this for Microsoft and their game vendors is that there are upwards of one million modded consoles that can use one single DVD of a major game posted as a torrent on any one of the major torrent sites.

    So, the potential loss for Microsoft and its game vendors for one game priced at $50 is $50,000,000. If this loss is integrated over the entire releases of games, it is not too difficult to conclude that the losses of revenue can be upwards of a $one billion per year.

    Microsoft is entirely justified to poison those who have modded their Xboxen and then used pirated games.

  29. donovanr says:

    Personally as a consumer I love it. I bought a banned xbox 360 tonight for $80. The person selling it had already bought a new xbox. I have zero interest in online games so to me the xbox is as functional as anything I could get from the store. If it breaks then I will get another $80 or have it repaired outside of warranty. So unless I get three boxes I will be way ahead cost wise.
    Now if Porsche would just ban some of their cars….

  30. scarletvsblue says:

    I would like to see someone investagate the ” Ring of death” Its amazing how many people had a hardware failure . I think this is a money pit. I have had this happen two diffrent times. I think the xbox is designed to fail and get $100.00 more out of everyone.

  31. scarletvsblue says:

    I think MS should be investagated for designing a products that would have a hd failure. I think the “ring of death” is a scam to get an extra $100.00 out of consumers. I think this is fraud and that is worth taking them to court!!!

  32. scarletvsblue says:

    I think MS designed the xbox to fail and when poeple learned how to fix them without paying another 100$ MS got pissed and Banned. The “whole ring of death” is BullSHI** and that should be investagated.