Xbox One still suffers from Microsoft's need for control

"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.