Keep It or Delete It?: Pushmo (3DS eShop)
Keep It or Delete It?: Quasar Quinn: Escape from Zargnon (Android)
Keep It or Delete It?: Mutant Mudds (3DS eShop)
Final Cut: Hetalia: World Series (Season 3) (DVD)
Keep It or Delete It?: Paper Monsters (iPad)
So first MS disabled 3rd Party Memory Cards, Then Datel (the only 3rd party Memory Card maker) sued MS for abusing its monopoly power to drive out competitors. So how has MS responded to the allegations?
- By whining that Apple can do it why can’t we?
- By insisting that a PS2 and the DS are equivalents to an XBOX 360
The Apple Defense:
In Apple vs Psystar, Psystar made mac clones that could run OS X. Apple sued and won because the EULA said that OS X can only be run on official MAC hardware.
So essentially MS says that when you started your xbox for the first time and the EULA appeared it has a line in it that says that you DO NOT OWN you are only Licensed to use the XBOX software and that you agreed to let MS disable non-MS products that are connected to the XBOX at anytime.
“Xbox 360 purchasers knowingly and voluntarily gave Microsoft the right to prohibit the use of unauthorized accessories,” adding that “each Xbox 360 comes packaged with a software license requiring consumers to agree that the Xbox 360 software can be used only with Microsoft authorized accessories.”
The Equivalency Defense:
Datels original filing only listed the PS3 as an equivalent system for the purposes of establishing that MS has a monopoly position based on Hardware and Software sales, as well as features of the system. MS claims that the relevant market for Anti-trust purposes includes all systems capable of playing games.
“Datel’s monopolization theory depends on excluding from the relevant market numerous products that fit Datel’s own definition, such as the Nintendo Wii, the Nintendo DS, the Sony PSP, and the Sony PlayStation 2 — all multiplayer online dedicated gaming systems,” (emphasis added)
My Analysis:
For the Apple defense, I was quite surprised when the Psystar case came through and firmly believe that it should be overturned in general and should not be used in this case as all EULA’s are Contracts of Adhesion and worse than that you can’t read the contract until AFTER money has changed hands, and after packages have been opened rendering them nonreturnable. Such contracts should not be legally enforceable due to Unconscionability. No one would agree to the the provision that MS has the right to interfere with the operation of their legally bought equipment. People only click the “I Agree” button because by that point ~$300+ non-refundable dollars have been spent. MS knows this and uses their unequal power position to lock you into agreeing. These contracts are typically not enforced, since common law dictates that all terms of a contract must be disclosed before the contract is executed (i.e. before money changes hands), but as we’ve seen in the Psystar case, some judges seem to think otherwise. If this precedent continues it has far more reaching consequences than simply a dispute between Datel and MS. It will give ALL COMPANIES the ability to put any clause in a shrink-wrap contract and make it legally enforceable. Just wait for this clause to be included in your next EULA:
“By clicking Yes, you agree to allow our software to scan all media drives connected to your system for financial information that will allow our advertising partners to price their products based on your current bank account balance, and to automatically purchase products they think you’ll enjoy.”
You may think that’s hyperbole but based on the Psystar case that would be enforceable.
As far as the equivalency argument goes, that is just pure bullshit. That is the equivalent (pun intended) of Ford saying that a tricycle is the equivalent of a F150.
Only a Lawyer could say with a straight face that a playing a DS is the same as Playing a Xbox 360. The 360 and the PS3 attempt to be ALL-In-One entertainment centers. They both want to be a gaming console, a media server, a movie player, and since the addition of twitter and facebook, your social media center as well. The DS does not do this. The PSP does not do this. The Wii does not do this. The PS2 does not do this. The PS3 is the closest equivalent and even then with so many game exclusives the average gamer would not say that they could easily move from the Xbox 360 to the PS3 and get the same experience.
The full filing can be read here.
