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.

But 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:

16. WE MAKE NO WARRANTY

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.

News-Source: news.filefront.com