You don’t own the video games you purchase. So it says in the EULA (End User License Agreement) or TOS (Terms of Service), the oversized bundle of text you scroll past whenever you start a new game. South Park’s Kyle Broflovski did the same thing on his iPad, legally allowing Apple to turn him into a Human “Centipad”.
You laugh, but EULAs and TOSs are watching. You’ve potentially given up your firstborn in agreeing to them.
Microsoft’s TOS, which consumers have the option of reading when making purchases on Xbox Live, runs nearly 12,000 words and encapsulates most of their services—Xbox, Windows, Skype, etc. The key is this paragraph: “There may be times when we need to remove or change features or functionality of the Service or stop providing…access to Third-Party Apps altogether. Except to the extent required by applicable law, we have no obligation to provide a re-download or replacement of any material, Digital Goods, or applications previously purchased.”
In short, they reserve the right to revoke access to purchases when they choose without offering refunds. This is relevant because of what just happened to Microsoft’s Xbox Fitness. In July of 2017, Microsoft will cease user access to Xbox Fitness for good whether a consumer paid into the program or not. Everyone who used the software agreed to this in the TOS, like a horde of Kyle Broflovskis.
In their updated statement on July 5th, Microsoft noted refunds for purchased Xbox Fitness content would automatically deposit into the users’ accounts within 90 days.
I contacted some Xbox Fitness customers for this story, and they said the refunds are satisfactory to them. “I am aware and I have already refunded one of my items with absolutely no hassle but I had purchased it about a week before the announcement,” said Dan Marino. “I am satisfied with the result because I am getting some of that money back but I feel like Microsoft really didn’t have to do it.” Marino isn’t wrong; they didn’t need to offer a refund, based on the TOS.
Another user, Jim Farley, stated to me in an email, “I know some people reported receiving full refunds but the only official info I saw on the Microsoft Studios blog was about the credits.”
Reaching out to Microsoft for comment led to an email response directing me to the above July 5 update stating, “We have nothing further to share on the matter.”
This is not Microsoft’s first time shutting down purchases. When the original Xbox’s Xbox Live internet service shut down (April 15, 2010) so too went the licenses for any purchased digital content. While digital games were still playable (including a small selection of classics like Pole Position and Pac-Man) should a user’s system or hard drive fail with age, there was no legal means of restoring those paid games. Applying the current Xbox Live TOS (the 2010 version lost to history) to those games means consumers have no legal recourse. They must hope companies willingly offer refunds.
This is not a Microsoft exclusive concern, although Xbox Fitness is a high visibility, mainstream product shutdown. Nintendo has set a closing date for the Nintendo DSi Shop and Sony ceased support for PlayStation Mobile. PlayStation Mobile games are no longer downloadable, even if previously purchased.
These situations are not uncommon across all media. When I contacted the FTC’s Mary Engle about Xbox Fitness, her aide sent me a letter concerning Nest’s Revolv Smart Home Hub, which Nest rendered inoperable after removing cloud connectivity, similar to the circumstances of Xbox Fitness. Since Nest provided refunds, the FTC chose to take no action, but did add a blog post about the future possibilities of situations like this.
If anyone appears especially concerned, it’s Aaron Perzanowski, Professor of Law at Case Western Reserve University and author of the upcoming book, The End of Ownership. His co-study on digital media, What We Buy When We Buy Now, investigated consumer attitudes regarding their digital purchases. Some 83% believed the words “Buy Now” on digital storefronts equaled traditional media ownership (meaning the ability to resell, lend, etc.). It doesn’t.
Xbox Fitness is not an isolated case, but unlike an aging service being taken offline—the DSiWare shop opened in mid-2009—Microsoft has an active, relatively new product. And, when the servers turn off next year, Xbox Fitness won’t work whether the file remains on a user’s hard drive or not.
“If we were talking about DVDs, a retailer would never try a stunt like this. But Microsoft, armed with a license agreement that denies consumers any meaningful legal rights, is training consumers to not only suffer, but to expect this sort of treatment,” said Perzanowski.
In most cases, that expectation comes from the length and technical jargon littered within a TOS document. “Fact is almost no consumer bothers to read the Xbox TOS. It’s actually totally irrational for consumers to read these things,” Perzanowski continued. “They’re thousands of words long. It doesn’t make sense to spend half an hour trying to understand some document that was written for lawyers to understand, not for consumers.”
I asked Xbox Fitness customer Dan Marino if he read the EULA before his purchases. He claimed he did, noting, “I think a lot of the anger and confusion comes from people who did not. Unfortunately, like other digital-only services, we are technically only renting the licenses and Microsoft has the ability to shut it down at any time.”
When I asked Farley the same, he replied, “No, I did not.”
Whether or not they’re read, EULA and TOS contracts present two possible futures. “I do worry about a future…where you don’t have any sense of security that the thing you bought today is going to work to tomorrow or is going to work in the future,” said Perzanowski. “It’s why I think it’s important to push back every time one of these things happens because we just kind of shrug our shoulders when Nest decides to kill everyone’s Revolv. That sends a signal to the next platform maker/device maker about what they can potentially get away with so it’s important to continue to express displeasure about this.”
“The more optimistic future is one where consumers are actually empowered to make choices about how they want to access not just content but all sorts of resources,” Perzanowski continued. “If you want to own your games, then I think it’s great there’s still an option to go out and buy a physical copy. I don’t think we should force everyone into a single mode of consumption. But, as we allow for other kinds of business models for access, we have to keep some form of ownership on the table as well. And I worry we’re heading in a direction where ownership is deemed forgotten.”
Forgotten Xbox Fitness will be, along with DSiWare, PlayStation Mobile, and Nest’s Revolv. Dead software and dead hardware, thanks to the little box consumers click to “Agree.”