[Update: Microsoft has revised their statement]
Since I don't want to spend the entire first half of the article doing a recap for anyone who isn't caught up on the situation, I advise you read this article here or this article here. You'll find yourself well informed and duly caught up on the situation.
Moving on... Machinima and Microsoft have issued a joint response regarding a lot of the criticisms leveled at them over the XB1M13 promotion. We originally reached out to our Microsoft contact for a quote, but were also given a response from Machinima as well (how courteous).
The media representatives (or in Microsoft's case, "spokesperson") issued the following joint statement regarding the recent Xbox One campaign, noting that...
"This partnership between Machinima and Microsoft was a typical marketing partnership to promote Xbox One in December. The Xbox team does not review any specific content or provide feedback on content. Any confidentiality provisions, terms or other guidelines are standard documents provided by Machinima. For clarity, confidentiality relates to the agreements themselves, not the existence of the promotion."
There have been some heated discussions over the last bit, especially in regards to confidentiality.
The leaked agreement – originally reported on by iGame Responsibly – between Machinima and content creators had some language within the agreement that seemed to conflict with the regulations of the Federal Trade Commission, especially the line in the original XB1M13 campaign agreement that stated...
“You agree to keep confidential at all times all matters relating to this Agreement, including, without limitation, the Promotional Requirements, and the CPM Compensation, listed above.”
Now, as mentioned in the quote from Microsoft and Machinima, the confidentiality is supposedly limited only to the agreements themselves. However, the actual wording in the agreement relates to “all matters”, in which case one of the “matters” would be CPM compensation, as listed right there in the agreement. Unless, of course, there's litigation to be made that the mention of monetary compensation doesn't count as a "matter" in the agreement.
In any case, Cinema Blend's legal adviser, Brent Randall, was contacted in regards to the situation to find out who would carry majority of the legal brunt if complaints were filed with the FTC over the XB1M13 campaign under the conditions of a deceptive endorsement. According to Randall...
“It looks like Machinima would bear most of the legal burden based on the video campaign agreement. It's important to keep in mind that while they might be violating § 255.5 of the FTC Endorsement Guide, the Guide is based upon, but is not strictly law.”
It does make the situation a lot trickier, indeed, considering that the guidelines are just that: regulated guidelines.
Nevertheless, if enough complaints were put forward, some measures could be levied against the involved parties. However, some defenders of the promotion mention that Microsoft has no explicit ties to the Machinima XB1M13 campaign, and would therefore be left out of any pursuant judicial ramifications.
Cinema Blend's legal adviser disagrees with the assessment that Microsoft is in the clear, noting...
“If this issue went far enough (and it probably won't), Microsoft is not necessarily free and clear. Of course they could plead ignorance to the situation, or something similar, as they are not mentioned in the Machinima agreement. But their connection to Machinima, if any, would be closely scrutinized. The court can, in some circumstances, look behind contracts for context, and not limit its decision to a single document. Why is this agreement about Xbox and not PS4 or Wii or any other gaming product? This is an obvious question to ask, and the answer could very well lead to issues for Microsoft.”
For the most part I would imagine this whole thing will fade away; that gamers will continue to become more and more jaded and paranoid about corporate take-over of their favorite hobby; that some will no longer see video game content creators on YouTube in the same light thereafter.
The bigger question, obviously, is whether or not the XB1M13 campaign actually helped or hurt Microsoft's promotion of the Xbox One in the long run?
[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. ]