Microsoft Punishes Gears Of War Leakers [UPDATE]

Microsoft Punishes Gears of War Leakers (UPDATE)

UPDATE (7:12pm): Well now here's an interesting addendum.

Earlier today, following a number of video leaks from a wide-scale beta test of the upcoming Gears of War remake, the game testing company VMC said in a memo that Microsoft had both permanently banned the leakers from Xbox Live and temporarily disabled their consoles, rendering them useless. Said VMC: "Microsoft also permanently disabled their Xbox LIVE accounts (as well as other suspected accounts present on their Xbox One kits) and temporarily blocked all of their Xbox One privileges — meaning that for a period of time which Microsoft decides on depending on the severity of the offence, their Xbox One is entirely unusable."

However, in a statement sent to Kotaku this evening, Microsoft denied VMC's claims, saying that in fact the leakers' consoles are still usable offline.

To be clear, if a console is suspended from Xbox Live for a violation of the Terms of Use, it can still be used offline. Microsoft enforcement action does not result in a console becoming unusable. Suspensions for both consoles and accounts are determined by looking at a number of factors. To avoid enforcement action including suspension from the service, users should follow the Xbox Live Terms of Use and Code of Conduct.

Microsoft would not expand upon this statement, clear up VMC's comments, or clarify as to whether they actually have the ability to render consoles totally unusable. Of course, the Xbox One is crippled without access to Xbox Live: offline players are unable to download patches — even those required to play certain games — or access online-only games like Destiny. But there's a big difference between what VMC claimed and what Microsoft is now saying.

In the wake of Microsoft's new statement, we've changed this story's headline. It originally read "Microsoft Punishes Gears Leakers By (Temporarily) Bricking Xbox Ones."

Original story follows:

Did you know that Microsoft has the ability to turn purchased Xbox Ones into bricks? Some people are about to find out the hard way very soon.

Over the past couple of days, testers for a contracting company called VMC Games have been leaking out videos from their current project, the upcoming (unannounced) Gears of War remake for Xbox One. As you might expect, neither VMC nor Microsoft is pleased about these videos, and today, the two companies came down hard, telling testers in an email that the leakers have been banned from VMC's program and will lose access to their Xbox Ones entirely for a period of time to be determined by Microsoft in the future.

Yep, according to VMC, Microsoft has both permanently banned those leakers' Xbox Live accounts and temporarily made their Xbox Ones totally unusable. If you didn't think Microsoft had this power, you're not alone. The digital present is scary. (To be clear: VMC contractors tell us they use their personal consoles for testing, not any sort of debug machines provided by the company.)

Here's the entire email, obtained by Kotaku this afternoon (emphasis mine):

Hi everyone,

In the light of recent events, we'd like to bring a situation to the community's attention in attempts to strengthened everyone's awareness and vigilance regarding the NDA which binds every single one of you to VMC.

Recently, multiple leaks were perpetrated by several GBTN community members. In one case, a member who was participating in that test shared a screenshot on Snapchat with their friend, who wasn't part of the project, but tricked his friend by saying he didn't believe him when he said they were working on the same project. Upon reception of the screenshot, the friend who received the Snapchat leaked it online, betraying his friend as well as his NDA with VMC Games. While the tester who first took the screenshot didn't think he was doing anything bad, he was still going against the NDA, and was part of the cause why the information got leaked. Because of this, both members were permanently removed from the community and addressed to our legal department, as per the terms of the NDA.

Now, new wording is about to reach the community regarding this particular event. The nature of the leak having had occurred through Xbox One, actually also went against the Microsoft EULA, which is agreed upon when creating an Xbox LIVE account, or any other type of Microsoft account. This being said, as per that agreement with the testers in fault, Microsoft also permanently disabled their Xbox LIVE accounts (as well as other suspected accounts present on their Xbox One kits) and temporarily blocked all of their Xbox One privileges — meaning that for a period of time which Microsoft decides on depending on the severity of the offence, their Xbox One is entirely unusable.

The reason behind the Non-Disclosure Agreement is not only to protect our clients and our program, but also our community, and to make each and every single one of you aware of the severity of revealing confidential information which you're entrusted with. One screenshot, message or even conversation shared with someone else can easily snowball into a situation that goes out of control, and not only penalise the offender as well as anyone else directly involved, but sometimes far beyond that. In certain cases, there were consequences which had affected people which had no malicious intentions but ended up entwined within the legal case - we're fully aware that this also targeted very faithful, hard workers who had been with us from the start, and this situation crippled the entire community. We do not want to go that way ever again and are constantly in search of better solutions to single out perpetrators before too much is at risk. The community itself is growing stronger, and often times leaks are reported by community members to us — and we're extremely thankful for that as it not only speeds up investigations drastically, but also shows us that this community is tightly knit and merely contains a few bad apples, who unfortunately ruin the experience for too many participants already.

We would like to take this opportunity to remind everyone that this is a community. Your actions and behaviour reflect on each other as well as on us, and acting selfishly has the potential to ruin the experience to everyone. Please be mindful of others throughout your actions.

Thank you,

GBTN Coordinators

Global Beta Test Network


You can reach the author of this post at [email protected] or on Twitter at @jasonschreier.


    Let me get this out of the way before the inevitable shitposts.

    All 3 of Microsoft, Sony and Nintendo can render your consoles worthless. It's in the User Agreements. These guys broke an NDA, they could have copped worse and VMC (who the beta testers actually work for) will most likely sue them.

      Exactly. That's what NDAs are for. I make all my girlfriends sign them so nobody ever finds out what a small penis I have and how lousy I am in bed.

        Juust great. You said penis and now this post is NSFW. I am gonna get in so much trouble for this.

          I better balance it out. Vagina!

            Haha! Always good to avoid gender bias in gaming.

        lol! Awesome! :)

      Yes. No sympathy for anyone who gets a bricked console out of this.

      Just because there's a stupid clause saying business can do what they want, doesn't mean we should all just roll-over and 'ho-hum' about it.
      It doesn't matter what these guys did, there's no excuse for these kinds of contractual precedents.

    I thought this would be the case with any device connected to the internet.

    Signed an NDA about not showing the game, did it anyway.
    Good on Microsoft for enforcing the NDA. Microsoft are well within their right to do this :)
    If I'd a contract with someone to not do something and they did it, I'd be pissed too.

      I don't know that they are within their rights to do this, enforcing an NDA falls under contract law, i.e. you need to take legal action against the people that break the contract, not vigilante action.

        I don’t know sh*t, but I’d suspect this is more like disabling the security card of someone who broke contract so they couldn’t reenter the building.

        The documents they would have signed as beta-testers would have been more harshly binding than the one a normal user signs. If they’re leaking company IP then it makes perfect sense that MS would have means in place to disable their systems.

        No, they absolutely do have the right to do this. They can technically do it to whoever they want, whenever they want as per the EULA. However, that would more then likely breach many different consumer rights laws in different countries and lead to law suits or class action law suits, and lose them many a customer as a result.

    new wording is about to reach the community regarding this particular event.

    So did the old wording permit a ban of this nature? What exactly is the wording that permits Microsoft to disable a console when the owner breaks a third-party NDA, and was the wording in place when they actually broke that NDA?

    It sounds like MS introduced new wording to increase the punishment for doing this, and made it enforceable in arrears. I suspect that's not entirely kosher, legally speaking - it's not uncommon to have weird terms in an NDA or EULA, but one of the basic principles of a contract is that both sides must be aware of and agree to its terms.

    Of course, I may be reading entirely too much into that awkward phrasing.

      Yeah, I think it's awkward phrasing. I understood "new wording" to mean that 'the community is about to find out that we kicked the arse of the leakers'.

      Microsoft have been making it clear you and your console can be banned for breaking testing NDA's for months now. Hell there have been pinned threads in the Xbone subreddit several times warning people when high profile games are being tested.

        Banned is different to bricked.

          How bricked is bricked though? If the console is offline, can it still play single player games from disc? Is it bricked if you can't access your digital catalogue, or any apps/programs that rely on an online component?

          Personally I think the more worrying part is that "other suspected accounts" on the console can be banned.

          Last edited 15/05/15 8:51 am

            From the wording it sounds like it's completely unusable at all - at least for a period of time.

            The wording sounds like the console is completely disabled, not just banned from online.

            Bricked makes perfect sense. If a person has already breached their NDA and shown their lack of trustworthiness, why would you give them more opportunities to do the same? Only banning their Live account may not lock them out of using their Beta copy offline. or abusing their access to your content in other ways.

            Bricking doesn't sound like something everyday gamers need to worry about, unless they're trying to hack the console and stuff like that; I'm sure that's a brickin'.

              I'm sure if they can give your console a command to brick it, they could give it a command to delete a copy of a game.

            turning off online access for the Xbox One renders almost all applications useless, which I'm fine with in this case.
            I had to fix several issues over the last few weeks and had no internet access for Xbox One. Every game that I bought through their online store (which is all of them) said I had to access the internet. This was my "home console" where I bought all of them and they wouldn't even launch, so no internet is basically bricked

          Doesn't matter. Disabling their ability to play certain games or use certain services has nothing to do with their obligations to corporate secrecy.

    NDA or not, this is going to create a sh*t-storm. MS are perceived to be heavy handed with their decision making. It's one thing to perma ban them from playing the game or even suspending/banning their Live accounts.. it's an entirely different matter to disable hardware. Again, whether it's in some licence agreement or not.. reddit et al. is going to be raging over this, further instilling the perception that MS is "evil".

      I'd love to see this tested in court, just to see the outcome. Does the user agreement trump the right to ownership of your own console etc?

        This is the risk though in this day and age when so much of what consoles do is tied into online services. Having the console banned from Xbox Live/PSN/etc isnt' going to leave you with a very usable device, even if you can maintain basic offline functionality.

          The ACC would have a field day with this.
          If it's bricked it would fit into the 'unfit for purpose'.

            I'm sure the question of why it was bricked would come up, and would probably be an interesting conversation in itself. Eg: breached an NDA, 'modified' the console, etc.

        I think it breaks the OS rather than the hardware. Making it a license issue for their os rather than the still functioning hardware. Tricky stuff really.

        No one is taking the console away, just revoking your license to use software on it. You're still free to use it to, e.g.: prop a door open, keep papers from blowing away, or fashion the outer shell into some kind of chestpiece to protect your vital organs when the dead rise from their graves.

    If you breach a NDA then there are consequences. Fair enough.

      The ability to brick something you paid for doesn't seem 'fair enough'.
      An NDA is a legal document, consequences should come via the legal system, not through half assed vigilante tactics.

        You still signed the NDA which provides for consequences for breaching the NDA.

          Sounds like the principle of non-derogation from grant would apply here. Fair enough if Microsoft bans the user from Xbox Live, because that is a 'gated service' and MS has the right to deny access to the service for various reasons. Relying on a EULA "licence" for a *physical* product to not only stop the user from using it, but removing value that the user could have from selling the Xbox I think would have a fair chance of being unlawful. Is someone going to commence proceedings because they have a bricked Xbox? Not likely. Maybe in America...

            The legal proceedings will be thrown out due to the NDA that they signed. In the US they would get that plus a counter-suit for damages

            Last edited 15/05/15 9:18 am

          I didn't sign nuthin!

          I just pressed x a bunch of times to get to the sweet gaming action. Was I agreeing to stuff? I've been conditioned from gaming just to hit x lots. I don't know what I'm doing.

        You don't want to get fined for speeding? Then don't speed.

        I'm sure they would be running debug consoles, likely owned by VMC, or even just on loan from MS.

        Especially for a game that hasn't even been officially announced, playing it on a home console would make an NDA impossible to enforce (risk of family, friends, etc seeing/using the game).

        Seems to me Microsoft used their whole ass, not just half of it! :P

      The NDA extends to the IP in question, breach of the NDA opens the person up to legal action/repercussions from the respective companies. However they don't have the right to disable an asset; correction a physical asset you own that was not covered by the NDA. It's an abuse of power and an over reach of authority.

      If these testers leaked information about the xbox one before its release and they were under an NDA then it makes to sense to brick a confidential asset.

    That's like saying if I breach some parking laws then someone can come along and clamp something to my car to stop me driving it...

      No, it is more like they tow the car, and then decide arbitrarily if or when they will give the car back.

      More like a manufacturer selling you a car and telling you that they can immobilise the engine remotely at any time if you don't drive it according to their unilaterally imposed rules.

        And if that's the conditions of buying the car (although arguably this is more of a loan), then so be it.

        I think this situation is more like complaining that an ISP has limited your speed for going over your monthly download limit.

          A NDA has legal implications.
          These comparisons are hardly comparable.

          If you sign an NDA when you are employed by a company and you share some information under that NDA, you aren't just looking at a slap on the wrist and your job.
          It could build up to be much more serious than that.

          Just because these are entertainment devices doesn't mean there is an exception to signing an NDA.

            Yes, but my point stands. What Microsoft has done is equivalent to the hoon laws where your car can be scrapped because of you driving it in a certain way. However in this case it's worse because Microsoft is affecting consumer rights that have nothing to do with private contractual arrangements (NDA). I've seen this happen with banks as well. You have a home loan which is up to date as well as a business overdraft which is 'at call', meaning the bank can ask you to repay it at any time, even if not in default. Okay, so the bank decides it wants to reduce exposure and calls in the overdraft, giving you 7 days (if you are lucky) to refinance. If you don't, then the bank says you are in default on the overdraft agreement, which means it is now calling in your home loan as well. I've had clients to whom this has happened. It is very easy for a powerful contracting party to give itself every imaginable advantage - you sign your life away, figuratively speaking - but there needs to be checks and balances. At the very least, if Microsoft decides to brick a console, it should refund part of the purchase price based on the age of the machine.

            Last edited 15/05/15 11:19 am

              From my understanding of the article, the console restriction is a result of a breach of the EULA, not their NDAs. I don't know if that make a difference or not, but I think it's fair game, they went against a written agreement with Microsoft, and Microsoft used he powers permitted to them by the EULA. Not Microsoft's fault if they neglected to read it.

                Trouble is that you don't even get to see the EULA before purchasing the console. It's fair game if you are doing stuff in MS's online ecosystem, but when you look at the box MS is selling you a console for playing games on, not 'a console that you can use as long as you adhere to these voluminous instructions that you won't know about until you start setting up the console at home'.

                If Microsoft said 'we are going to access the delinquent tester's console remotely and remove all of the confidential information on it' that would be fine. If Microsoft bricks the console so that you can't even play games on it, that is disproportionate and not a legitimate response. MS is enacting the 'eye-for-an-eye' approach. What they should be doing is (a) stopping the breach of the NDA by removing access to the content (if they can't do this in any other way apart from bricking the entire console I'd be extremely surprised) and (b) assessing whether they have suffered damage by the breach of the NDA and suing for damages if appropriate.

                If a neighbour's dog comes into your yard and bites you, you seek compensation (and keep your gate closed) - you don't throw poisoned meat over the fence and kill all of the dogs in the neighbour's yard.

        More like a manufacturer selling you an unannounced test car, and telling you that they will disable the engine if you drive it in public,

        Then you drive it in public because you're an idiot and they disable the engine.

        These guys would have signed all sorts of documents with provisions for this situation, they would have known well what they were getting into.

          There was a case in the US awhile back where some car manufacturer, Chevy or Dodge maybe, had donated a number of decomissioned muscle cars to various schools for them to practice working on in auto shop classes. The cars were provided on the basis that they are never to be used for any other purpose such as being driven on the roads.

          So, one school restored their car and took it for a test drive. The manufacturer found out, and pursuant to the terms of their agreement, repossessed and destroyed the car.

          They didn't break any traffic laws, but they violated the agreement. Sucks to be them, but the manufacturer had to protect their interests and that means enforcing the rules.

            Yeah I get that, but this is the equivalent of the manufacturer repossessing and destroying some completely unrelated vehicle that you happened to buy from it. These weren't Xbox devkits, from what I understand, just normal retail units.

              It's not a perfect example, but the fact remains that there are license agreements and terms of use in effect. You breach the license, your rights under said license are revoked. Enjoy your $500 paperweight.

          Pretty sure they were talking about retail consoles, not devkits, but I could be wrong. In the case where the console was supplied for a specific purpose then yeah, the testers had it coming.

      I think it's more that if you park illegally then your car can be towed away and you can pick it up at an impound lot at a later date.

        I think it was a good enough analogy to seed further discussion :)

      Actually it's more separate: It's more like you're late to work so your boss impounds your car.

    I should just install the PC version and capture a video of that with an Ambient Occlusion injector and put that online, see what happens afterwards :P

    These are play testers, they have a nice fancy debug console and they also have signed an NDA, now, having had to sign
    One of these before they generally outline what happens should you be caught breaching the agreement, simple, anyone who says it's wrong or don't think MS should've done this have not thought this through. They signed the agreement, they agreed to the consequences, if I break my agreement there are a lot of consequences... SO I DON'T BREAK IT

    1) Microsoft appear to be well within their rights to do this.

    2) Testers did the wrong thing and should expect to suffer consequences.

    3) The rights in 1 and the consequences in 2 are shit and it's unfair that the ability to 'brick' a console for any reason whatsoever, robbing someone of their access to their entire library, is written into the EULA/ToS.

    What you do in one game should not affect what you do in other games. The platform itself should be inviolate - neutral ground.

    I don't know the specifics but I would not be surprised if there is actually some kind of legal maneuvering which would actually make this kind of action by Microsoft illegal in Australia.

    Consumer law trumps EULAs - you cannot sign a contract which violates the law, and consumer law affords many protections and guarantees regarding your right to access things you buy. Protections that don't exist in the US and which many Australians and Australian-operating tech companies forget exist.

    (Edit: Of course, this only applying to things that you purchase, not which you've had given to you.)

    Last edited 15/05/15 11:17 am

      Well said. I think that the wriggle-room might come from MS not actually bricking the console. It would argue that you are using the OS on the console subject to the EULA. This gives me the shits because it paints the consumer as a user of a service, when in fact the OS on the Xbox is not dissimilar from the OS on a television: you press buttons and stuff happens on the TV (changing channels, menus etc). What would happen if a television manufacturer disabled TVs because you watched a documentary it didn't like, or Telstra bricked your mobile phone because you didn't pay a phone bill? This is the level of bullshit MS would be pulling by bricking a retail console because the user had violated an NDA.

    This should hopefully serve as a reminder to people that there are a lot of devices you use every day (certain cars and phones have remote disabling features as well) that can be remotely disabled should someone will it (including yourself). At least Microsoft is being sensible about this and justifiably swinging the ban hammer but the reality is this is a process controlled by humans so there is always a risk of abuse.

    At the same time, half the people on this website are asking for stores to break their contractual agreements with CDProjeckt and break Witcher 3 street dates...

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