Microsoft deleted my data - remotely, without my permission, and... without even bothering to ask!
From Xbox-Linux
by Michael Steil, Terry Cole, 10 October 2003
Dear Microsoft Corp.,
| Table of contents |
About me
My name is Michael Steil, I am a legitimate Xbox owner. I have fully paid the price for it, and I own 6 original games. I live in the European Union and I never signed any End User License Agreement (EULA) or Terms Of Service (indeed, none came with the Xbox), thus I am not bound therefore to any agreement or contract. Thus I regard the Xbox as my own personal property. (I am aware that within the US certain restrictions may be claimed by Microsoft, however as a citizen of the EU, residing wholly within the EU, any limitations of the usage of the Xbox described in any EULA would be inapplicable, nor their questionable legitimacy in the US and further; just using the Xbox would not mean that I agree to them.) It should also be noted that my Xbox is not "modded" in any way.
About my Xbox
The Xbox I am talking about has been bought in Germany in April 2002. It came with a standard three-item-Dashboard. Some months ago, I played "MechAssault" on this Xbox, in the meantime Microsoft had launched an additional optional service by subscription called Xbox Live. I was quite happy without this service and therefore did not either purchase it nor make any actions to subscribe from my Xbox. However, te game updated the system software on my hard disk - without asking, I might add, but that's not my point right now. Since this unauthorized modification, I have a fourth item in the Dashboard, the Xbox's main menu: "XBOX LIVE". As there was no documentation about the new menu entry, I selected it. The item releaved a further menu which allowed me to enter my internet connection details - I did so, and I was able to "ping" my Xbox, and since I have other computers and I am generally interested in them this seemed like a novel idea. Of course, I know what Xbox Live is, but I only entered my network settings, I never signed up to Xbox Live or even selected "yes" or "agree" when some EULA was shown - because none was ever shown.
Using Linux
That was months ago. In the meantime, next to playing great Xbox games, I was running Linux on it. The Xbox is just a modified IBM compatible PC, its technology copied and using the standards of other manufacturers. I was using the MechAssault game as a bootloader for the great GNU/Linux operating system (without installing it to hard disk).
As the Xbox is my property, paid for and without any restrictions as to its use at either the point of sale or any accompanying documentation I regard that I am free to do anything I want with it. If in three years it stops working or technology provides a better console I feel I am free to use it in anyway possible. This might include its simple use as a decorative paperweight or opening it to re-use the components such as the disk. Indeed, this use is established common practice in the IT world. Legally therefore I own this Xbox and may use it for whatever purpose I wish.
Even if it's true that my Xbox has been sold below price, something I would not expect as Microsoft would be abusing its position as a aggressive monopoly; I own six games, all of which are licensed by Microsoft which would easily compensate for any loss they may make on each box.
The Xbox was always a specialised computer, however Microsoft had 'activated' only the parts needed for their own games. However, using nothing but loading a modified savegame and inserting a CD, I was able to use the untapped resources which were within the computer. To this end, I stored files on the Xbox hard disk. I stored files on the C: and E: drives. C: is the drive containing the system software, i.e. the Xbox Dashboard, and E: is normally used for save games and for copied audio CDs. However the amount of space available is such that, with my six games I was using only a tiny percentage of this space. I had not copied audio CDs to the drive.
The Unwanted Online Update
Today, by mistake, I selected the menu item "XBOX LIVE" again, and I was surprised to see a screen that said "Xbox Live is updating your system. Please don't turn off your Xbox console." - I never asked Microsoft do do any update, as I was very content with my Xbox as it was, and there was no warning screen of any kind, it just started updating the second I selected "XBOX LIVE". Fearing that turning off my Xbox could harm my data stored on the hard drive, I followed the onscreen orders, waiting for the update to be finished.
My Data was Gone!
About five minutes later, the update was complete. I used MechAssault to run Linux again to check whether my files were still intact. So I saw that Microsoft has deleted some data from my Xbox hard disk! Some files and directories on C: had been replaced, and the files I stored in these directories had been deleted!
Conclusion
Let me repeat: I own this Xbox, I fully paid for it, I bought it in the European Union. I never allowed Microsoft alter anything on my Xbox through the internet, and I never signed anything that contains a permission for Microsoft to do so. I never requested a system software update, and Microsoft never told me that my system software was about to be updated, the update just started. I never allowed Microsoft to delete anything on my Xbox through an internet connection.
Moreover: It appears that not only has Microsoft deleted my data but it has also taken data from my computer without my permission. The Microsoft server on the internet had to know that my Xbox had the old version of the system software on it, or else it wouldn't have initiated the update. This implies that data about the current status of my Xbox has been sent to Microsoft.
I would therefore ask Microsoft to
- help me recover my lost data
- stop alter people's properties without their permission
- stop deleting data on people's properties without their permission
- stop taking any data from my property without my permission
I might remind you that in Germany, the "Zweites Gesetz zur Bekaempfung der Wirtschaftskriminalitaet" (15.5.1986) states in § 303a (http://dejure.org/gesetze/StGB/303a.html) and § 303b (http://dejure.org/gesetze/StGB/303b.html) StGB that unauthorized altering and deleting of data ("sabotage") can lead to a prison sentence.
Michael Steil <mist@c64.org>
Commentary by Terry Cole
The law is what a judge says it is. Even lawyers don't guarantee to get it right, despite the rule (dating back to at least Lord Coke) that ignorance of the law is no defence. You can't even raise as a defence that you were acting on the advice of a solicitor. But some things are clear from current cases, even to engineers and geeks.
In particular, such unilateral actions contravene US law as well as European. Michael has, it appears, a good case. But not the same one as in Europe.
A licence is a form of contract. It is trite law that no contract is valid without consideration, and the terms and conditions have to be clearly brought to the attention of both parties, even in the case of so-called "unilateral contracts".
In one sense (taking data without permission) what happened to Michael was not merely a property loss, it was also an invasion of privacy. This might receive short shrift from US courts. It was Sun's Scott McNealy who recently noted that traditional notions of privacy were dead. But the contract issues will be harder for MS to brush off.
First, notice that the Xbox came without an EULA. Of course there is no accompanying OS on CD. This is in line with Microsoft's insistence that the Xbox is a closed appliance, like a toaster, not a PC. But it means that there is no licence agreement covering the use of Xbox software. That, in turn, means it is a product, not software governed by a licence, so it is not subject to the usual US court interpretation that has protected Microsoft from product liability suits until quite recently.
In sum; there is no enforceable licence agreement on Xbox hardware or software. This means ordinary "product liability" rules apply. The moral there is twofold. Microsoft had to ensure (1) that no updates were applied without Michael's permission, and (2) that even if such permission were granted (which it was not) Microsoft had a duty of care to preserve Michael's data.
There occasionally arise cases in the PC world where the lack of an enforceable EULA creates interesting tensions in the law. To understand why even in the US Microsoft could not get away with such a criminal nuisance, let's look at one parable and one real court case.
Class action suit against Netscape.
[1] (http://news.com.com/2100-1023-269673.html?legacy=cnet) AND [2] (http://www.golds.co.uk/articles/articles_corp_contracts_online_july01.htm)
"People who downloaded Netscape Communications' SmartDownload software are not bound by an online contract because they did not specifically agree to it, a federal judge has ruled.
The decision, which touches on the validity of commonly used Web contracts known as click-wrap licenses, clears the way for the plaintiffs to sue Netscape for tinkering with their computers without their consent."
The application of this case to Michael's missing data, and a potential class-action lawsuit by aggrieved US citizens against Xbox-Live, should be obvious. Netscape/AOL argued that they were protected by the terms of an on-line contract. But no on-line or any other contractual limitation was ever agreed to by Michael.
Now consider the plight of the Dell customers who were unable to even discuss the Dell (not MS) on-screen licence with customer support:
Dell without EULA
[3] (http://www.cypherpunks.ca/dell.html)
On first boot, the Dell Inspiron presented them with a warning; "...if you do not accept all the terms of the licenses, please call the customer assistance telephone number listed in your system documentation..." .
They weren't planning on installing proprietary software anyway - they wanted to run Linux. This of course is exactly the Xbox situation.
Unfortunately, like the Xbox, there was no readable licence in the Dell Inspiron's box as delivered, nor even a "customer assistance telephone number". This parallels the usual no-licence Xbox package - except for a crucial detail, as follows.
There might have been customer support contact and other details hidden within Dell's shrink-wrapped CD packages; they refused to open them (because the terms of the licence would then be binding, though they had not read it).
But there was a problem. The message on the Dell's first-boot screen made it clear that pressing any key would constitute agreement with the supplied licences!
Calling a general purpose Dell number got them technical support which was no help because it required them to break the shrink-wrap seal.
Finally the Dell manager of Customer Service advised them just what software was included and suggested they visit the relevant websites to read the licences without breaking the shrinkwrap. This was too much like hard work, and they didn't want to install Windows software anyway, so Dell agreed to pay the charges of returning the machine.
Before going through with the return, they had a brainwave: bringing up a Linux install CD which would bypass that pesky "Press a key to sell your soul" message. To do that they had to enter the BIOS with a keystroke, but that's done before the first-boot message so it was OK.
The funny thing was that after setting the BIOS to boot from CD, the first-boot screen disappeared! So Windows started installing without ever their agreeing to any licence! And following recent US court decisions, where this is possible the terms of the licence are unenforceable - see above.
Even if future Xboxes come with licence agreements on the software therein, they won't apply to the actual hardware, which is a consumer chattel. And if you can start to use your Xbox without agreeing to an on-screen licence - also likely - it's hard to see how the terms of such a licence can be enforced. We are then back to software being a product like any other, with the usual rules applying to things which are owned. This is particularly appropriate for closed systems like consoles. Were the courts to reverse themselves on this point, every toaster with an embedded microprocessor would come with a software licence to product liability suits in the event of electrocution!
