Xbox One still suffers from Microsoft's need for control

Treatment of Gears of War leakers underscores a philosophical difference in this generation's console race

"We may disable access to Microsoft and third-party content associated with your account for any reason. We may also remove or disable games, applications, content, or Services on your Authorized Device in order to protect the Services, application providers, network operators or any other affected or potentially affected parties."

That's from the Xbox Live Terms of Use, and it gives Microsoft unprecedented control over the console gaming experience. Agreeing to it is a required step in setting up an Xbox One, so there's no opting out. It's also another step toward a digital future where consumers never own anything, but merely pay for the right to access it*.

*Rights subject to change without notice at the discretion of the Service provider.

Yesterday, Kotaku reported that a number of beta testers for the upcoming (and unannounced) Gears of War Xbox One remake were caught leaking footage of the game, and apparently punished by having their Xbox Live accounts permanently banned, and their Xbox One systems completely disabled for an indefinite length of time. Microsoft released a statement in the wake of that report, saying, "if a console is suspended from Xbox Live for a violation of the Terms of Use, it can still be used offline." It did not specify what would happen if a console was suspended for a violation of non-disclosure agreements.

"However justified that punishment may be, it should at least make you wonder what will happen when Microsoft is in a less clear-cut situation and has this tool at its disposal."

Regardless, the Xbox Live Terms of Use suggest Microsoft has the ability to disable Xbox Ones completely. If that's what happened in this case, the testers in question get little sympathy from me. They lose access to hardware they likely paid for with their own money, but it seems preferable to the costs of fighting a lawsuit from Microsoft over their broken NDAs, especially if the consoles resume functioning soon. However justified that punishment may be, it should at least make you wonder what will happen when Microsoft is in a less clear-cut situation and has this tool at its disposal.

What happens when there's a rights dispute over a piece of content, as there was in 2009 when Amazon remotely wiped copies of George Orwell's 1984 and Animal Farm from customers' Kindles? What happens when someone is suspected of unspecified terms-of-service violations, as there was in 2012 when Amazon closed a customer's account and wiped her Kindle's entire library? What happens when an Xbox One title receives its own version of the PT incident, in which the falling out between Hideo Kojima and Konami scuttled the next Silent Hill game and saw its teaser demo pulled from the PS4 library?

That last situation is interesting, because it underscores a difference in the way Sony and Microsoft operate, one visible (but just barely) in Sony's PS4 end-user license agreement.

"If SCE determines that you have violated this Agreement's terms, SCE may itself or may procure the taking of any action to protect its interests such as disabling access to or use of some or all System Software, disabling use of this PS4 system online or offline, termination of your access to PlayStation Network, denial of any warranty, repair or other services provided for your PS4 system, implementation of automatic or mandatory updates or devices intended to discontinue unauthorized use, or reliance on any other remedial efforts as reasonably necessary to prevent the use of modified or unpermitted use of System Software." [emphasis added]

"Sony's PS4 EULA isn't much more consumer-friendly than the Xbox One's, but there's one significant difference."

Sony's PS4 EULA isn't much more consumer-friendly than the Xbox One's, but there's one significant difference. While both agreements effectively give the console makers a backdoor killswitch, Sony's right to disable PS4s or shut off access to games is contingent on users violating the terms of the agreement. Microsoft's agreement, on the other hand, lets it nuke a console "for any reason."

In the PT case, the demo was pulled from the PlayStation Network store, an unfortunate but understandable move considering the product it was promoting will never see release. Those who already downloaded the demo can continue playing it, but are unable to re-download it should they ever delete it from their own system. There's nothing in the PS4 EULA that says Sony can reach into consoles that had already downloaded PT and disable access intentionally unless a user violates the terms of service.

Of course, these are different situations, and a company's incentive to punish contractors who leaked an unannounced game is far greater than its incentive to help a third-party partner scrub away all trace of a cancelled game. But Microsoft's insistence on Xbox One users agreeing to its particularly one-sided EULA tells us the company wants this level of control, and the punishment for the Gears of War testers tells us they're willing to use it. And if Microsoft's history of international anti-trust fines, investigations and lawsuits is any indication, the company rarely errs on the side of caution when it comes to over-exerting its control. Still, you'd think the gaming division might have learned a thing or two considering the last awkward overreaching power grab it made.

Microsoft's original vision of the Xbox One was predicated on control. Always-on DRM was the poster child for this, but other aspects of the system--from the way Microsoft dealt with (or didn't deal with) indie developers to the hope that users would let Microsoft be the gatekeeper to their cable TV providers--echoed Microsoft's drive to expand its control both inside and outside the ecosystem.

On the one hand, that's a natural drive for a company in the console business, considering the entire console business model is predicated on having a certain amount of control. On the other hand, the console business is also predicated on selling a lot of hardware, and Microsoft's power grab has handed Sony a significant competitive advantage on that front. Console consumers--early adopters especially--wanted the ability to rent or lend games and they wanted a robust slate of self-published indie games. They wanted a more open, consumer-friendly system so much that even Microsoft's nigh-indisputable edge when it came to big-name exclusive games couldn't even the playing field.

"If Microsoft is going to catch up, it needs to understand that the control granted to it by an increasingly connected world is best used sparingly, and invisibly."

In some ways, Microsoft has learned from its mistakes. It abandoned the always-on DRM plan, and the ID@Xbox program has made the platform more inviting for indie developers. But that drive for control is in the company's DNA, still visible in things like the mandatory agreement to the above Terms of Use or the much-criticized ID@Xbox parity clause the company stubbornly clings to. Going beyond the worst-case scenario implications that insistence on control has for its partners, developers, consumers (basically anyone that isn't Microsoft), these actions are actually hurting Microsoft as well.

The difference in the console wars this generation has been one of approach. Sony's has consistently been more open, from its approach with DRM to its efforts to attract indie developers to its allowing consumers to enjoy games how and where they want, through features like cross-buy, share play, or remote play. Based on its actions this console generation, Microsoft has seen the digital future as a way to expand its control over every aspect of the gaming experience; Sony has seen it as an opportunity to make the experience better for everyone involved.

That's a philosophical difference that has given Sony a commanding lead in the latest race for the living room. If Microsoft is going to catch up, it needs to understand that the control granted to it by an increasingly connected world is best used sparingly, and invisibly. Or to put it another way, Microsoft was so preoccupied with whether or not they could remotely disable somebody's Xbox One that they didn't stop to think if they should.

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Latest comments (10)

James Berg Games User Researcher 5 years ago
XB also confirmed that it only blocks the XBLive features, the console can still be used offline normally (minus the XB accounts that got banned). Sony instead has "disabling use of this PS4 system online or offline", which seems to indicate they can completely brick your PS4, which is far worse. They haven't used that, to my knowledge, but that's substantially worse.
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Pete Thompson Editor 5 years ago
Hmm, so this article seems to be saying that it's not ok for Microsoft to enforce their own Terms and Conditions on their own service or to protect their own IP and an as yet unannounced game from that IP, and that it's ok for people to break NDA's and not expect any punitive measures? Right??..

As an XBL user for almost 13 years straight now I'm glad that MS / XBL take the actions they do wielding that BAN HAMMER to protect the XBL service and to keep all the jtag'ers and cheats from ruining my gaming experience, even if that means giving the XBL / MS haters something to moan (or write) about then so be it..

Two of the gamertags leaking footage only had 740GS & 410GS respectively, so not likely to be hardcore or regular gamers, yet they were willing to break NDA's & leak footage to gain notoriety, good riddance to them and all like them. I'm sure they will love PSN as it doesn't have such punitive measures as XBL.

Edited 2 times. Last edit by Pete Thompson on 15th May 2015 6:24pm

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Andrew Jakobs Lead Programmer 5 years ago
Well, all is nice, but whatever the user agreement says, it doesn't mean they legally can do it in the country you reside in.. Completely disabling your console (for offline use) is one of the things that is illegal and therefore is a a part int he EULA you can just ignore (as I said, if it's in the EULA doesn't mean it's legal, and passages in a EULA that are illegal in your country are thing you can gladly ignore and accept)..
So all they legally can do is block you access to your online account (well at least in my country).. but then again, most gamers who'll get their consoles blocked won't go to a lawyer anyway..
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Show all comments (10)
Brendan Sinclair North American Editor, GamesIndustry.biz5 years ago
Barrie, 1.1 of the Xbox ToU defines "Services" as basically anything the console does. So it isn't as explicit as Sony's ToU in saying they can disable use online or offline, but it amounts to the same thing.
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James Berg Games User Researcher 5 years ago
Brendan, MS released a clarification that the ban is XBL only. Seems like they could apply it to all Services, based on the EULA, but that's not what happened here.

Andrew, any source on it being illegal to brick a console? It wouldn't surprise me, mind you.
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Brendan Sinclair North American Editor, GamesIndustry.biz5 years ago
James, the clarification from Microsoft doesn't actually contradict the original report. It just says bans for XBL ToU violations don't result in the console being bricked. It says nothing about its policy of bans for NDA violations, which is more likely what happened in the Gears case. (I see nothing in the XBL ToU about leaking information on unreleased games you're beta testing.)
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Paul Jace Merchandiser 5 years ago
Microsoft did the right thing in this situation. Both Pete and James said the majority of what I was going to say. And I'm sure if/when someone leaks Uncharted 4 footage/game play later this year(or the whole game online) Sony will also take the appropriate action in banning them. The difference of course, will be that we won't see stories about Sony having a control problem. And that isn't a slight at you Brendan, it's just the way media writes articles around Microsoft in regards to nearly everything that has to do with Xbox One.

Edited 2 times. Last edit by Paul Jace on 16th May 2015 12:20am

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Klaus Preisinger Freelance Writing 5 years ago
Microsoft overshot the target and has a problem here. Sure, everybody will sympathize with them over leaks and agree that Microsoft need to address the issue. However, the steps undertaken make them appear overly vindictive. Microsoft did not just solve a problem, they dealt out punishments. Even if everybody at Microsoft feels justified and righteous about it, the core issue is still the product they sell. A full-price product which never gives full control to the buyer. Such a product requires a relationship of trust between Microsoft and the customer to go along with the purchase. So when Microsoft goes Old Testament on customers, they erode this trust and therefore their product; no matter how justified they are or claim to be.

At the end of the day, Microsoft sent out working games and trusted in a piece of paper some lawyer drew up for people to keep their mouth shut. Considering the range of technological options at Microsoft's disposal, I call that rather gullible for the sake of budgeting.
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Alfonso Sexto Lead Tester, Ubisoft Germany5 years ago
Seeing how this is most likely (like discussed in another article) a case of users having no clue of the EULA they accepted (or what an EULA is, at all) maybe from now on we should put a big red banner with flashing lights in the game that appears the first time you run it telling you "If this ends in Youtube, you'll be in big trouble". Also with a un-skippable 30 sec. timer that forces the user to read the whole thing a couple of times at least.
Just an Idea.

Edited 1 times. Last edit by Alfonso Sexto on 18th May 2015 8:47am

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Jeff Kleist Writer, Marketing, Licensing 5 years ago
Goalie, the issue is the Microsoft hate that exists out there, and the constant spin people put in everything they do.

The testing company is the one who claimed the bricking of the console, which then immediately became gospel truth without question because hey, Microsoft is evil

Just like the howling the wailing and whining when MS bought exclusives, but nothing but praise when Sony or Apple does the exact same thing.

The original vision of the Xbox One was giving digital aftermarket value, and helping devs and publishers keeping GameStop from screwing them. But because they couldn't discuss deals that weren't signed yet, they couldn't talk about it and clarify. It's not "need for control", it's "need for control for it to work". And such policies may have changed in the interim, if they weren't dodging artillery fire putting people's backs to walls. slow and steady wins these race. Powerful people need to be massaged and nudged, put a gun to their head and they pull the trigger for you.
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