Microsoft Didn't Have Legal Grounds To Block Xbox One Media, Says Legal Expert

By William Usher 2013-11-10 13:45:17 discussion comments
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The weekend was a rocky one for Microsoft. They were lambasted hard by gamers over a customer gaining access to an Xbox One earlier than the officiated street date and proceeded to do what any excited hardcore gamer would do after become one of the first to own a next-generation console: he plastered the internet with videos and photos of his experience with the Xbox One.

The problem is that Target had a shipping error and accidentally sent out more than 150 Xbox One units two weeks before the official street date, to customers who had pre-ordered Microsoft's latest console. This resulted in Microsoft stepping in and, in a not-so-shocking twist, banning the legitimate Xbox One owners after they logged in to download the day-one patch to make their system more than just a silicon brick with a useless disc player. In addition to temporarily banning legitimate customers, Microsoft proceeded to flag photos and videos of the Xbox One from media sharing sites that popped up courtesy of the early adopters.

We decided to contact Cinema Blend's legal expert, Brent Randall, about the issue and he confirms that the company didn't really have any definitive legal grounds to block or remove the content as infringing on their property.

We asked if it was within Microsoft's legal boundaries to block the video – which has been restored, mind you, after the media hoopla surfaced and things started looking grim – and here's what Randall had to say...
"Like a lot of things in law, the answer to whether Microsoft could claim a copyright over what is shown in the video is 'it depends'. It doesn't only depend on the content of the video, but also on whether Microsoft could truly claim copyright over, say, the design of the XBox One. If there are truly original, artistic elements to its design, there is a potential copyright. If there is, then just like posting someone else's song or video on Youtube, such a post including the design could be infringing."

For those of you who would like to quickly jump on the bandwagon of the Microsoft Defense Force, keep in mind that you can watch the video below (now that it's been restored) and see just how “infringing” the video actually is.


Even though Microsoft lifted the copyright strike against the video, the YouTube channel owner, Midnight Swami, won't be uploading any more videos to his channel or releasing any additional information on the Xbox One until November 22nd. Why? Well, Microsoft had Swami sign an non-disclosure agreement and waive his rights to releasing any additional “confidential” information on the Xbox One prior to its launch. Microsoft sweetened the deal by inviting Swami to a special launch event party as well as being exceptionally “gracious” in an effort to make the negative media buzz go away.

Keep in mind that this is the same sort of NDA that keeps developers and journalists from speaking honestly and publicly about the differences between the Xbox One and PlayStation 4.

However, this doesn't dismiss the reality that Microsoft effectively strong-armed a legitimate customer from publicly displaying information he had every right to access based on his proof of purchase. Randall notes that it doesn't matter if the Xbox owner did have a right to post the material, the Digital Millennium Copyright Act works against the average consumer and in favor of copyright holders, superseding fair use by a sizable margin...
"Under the Digital Millenium Copyright Act (and some pretty important court cases, the effects of which are still not entirely realized yet), Youtube is required to respond to takedown notices from copyright holders by removing content the owner considers infringing. If Microsoft did in fact make such a request, Youtube would have had to comply - and the user that posted the allegedly infringing video would have the opportunity to respond if he/she wanted to defend the legality of the post. "

This issue is identical to what happened with TotalBiscuit's review of Day One: Garry's Incident, in which his review was flagged with a copyright strike by the original developers on the grounds of copyright infringement. Thankfully, the public at large fought back hard enough to overturn the scenario thanks to a very compelling video by TotalBiscuit calling to arms for people not to stand around and let the situation devolve into copyright totalitarianism.

But the thing that makes it even worse is that when inquiring about Microsoft's actual leverage to pull such a stunt, Randall mentioned this...
"All of this is to say that Microsoft does not have definitive grounds for having the video removed as infringing. However, practically speaking, regardless of whether the take downs are defensible or not, they will buy Microsoft enough time until launch date to retain some of the mystique and surprise of its new console."

I just have to say that I was appalled and disgusted at the lackadaisical approach by media regarding Microsoft's attempt to continue their strong-arming of information flow and railroading public perception of their product.

This is, by far, one of the more vile acts committed by a company in an attempt to control how people perceive and consume information about a product. This is not to mention that this very same company has been aggressively marketing the Xbox One as a must-have item for the holiday season.

$500 is asking a lot from consumers and by all means, every potential customer should have every right to find out as much as they can before committing to the purchase.

Simply put, any company committed to silencing their customers about a highly awaited product says more than any editorialized blog every could.

We've contacted Microsoft about when they plan to lift their NDA, so customers will finally get some honest coverage about the console. They're working on getting back to us with the information.

Disclaimer: Brent Randall appears on Cinema Blend to offer general background and information related to legal matters. His statements should not be taken as legal advice. The law often contains a lot of grey areas and can be interpreted in different ways.
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