In Lawsuit, Banned Resistance Player Alleges that Sony Violated Free Speech and Stole His Money

July 21, 2009 -

A PlayStation 3 gamer has filed suit in U.S. District Court in California, alleging that SCEA suppressed his free speech rights and caused him pain and suffering by banning his account on the PlayStation Network.

In a complaint filed on July 6th, Erik Estavillo of San Jose writes that he his disabled by a variety of disorders; among these are agoraphobia, a fear of crowds:

The pain and suffering was caused by the defendant, Sony, banning the plaintiff's account on the PlayStation 3 Network, in which the plaintiff relies on to socialize with other people, since it's the only way the plaintiff can truly socialize since he also suffers from Agoraphobia...

Estavillo's issues with SCEA apparently stem from his play of the PS3 hit Resistance: Fall of Man:

The ban is supposedly due to the behavior of the plaintiff when he plays the video game "Resistance: Fall of Man," which Sony owns and employs moderators for its online play. These moderators kick and ban players that they feel are deserving; though their biases to a player seem to be what determines the kick or ban...

 

The plaintiff was exercising his First Amendment Rights to Freedom of Speech in the game's public forum when he was banned from, not only [Resistance], but also banned from playing all other games online via the PlayStation Network...

Estavillo also claims that the PSN ban amounts to a theft of his pre-paid points:

The plaintiff...cannot access [his] money when a moderator from Resistance and Sony gives a player a arbitrary wide-range ban... which in essence, is stealing money from the player...

Estavillo also argues that the EULA for online play of Resistance is ineffective in blocking players under the game's recommended age of 17, although it's unclear how this fits into his claim.

In his request to the court, Estavillo, who appears to be unrepresented, asks that SCEA be enjoined from banning players. He also seeks $55,000 in punitive damages.

To date, SCEA has not filed a response with the Court. GamePolitics has requested comment on the lawsuit from SCEA.

DOCUMENT DUMP: Grab a copy of Estavillo vs. SCEA here...


Comments

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

 Its actually a bit sickening. I've had the unfortunate experience to have had played Resistance online with this Mr. Estavillo, and I can garuantee all those who want to know more about what he did to get banned from the network that he deserved the banned. If you get a chance to check out his videos on his youtube channel watch the one were he gets banned by a moderator. Notice after all his egging on off the mods, he only gets kicked out the game after he starts harrassing the other players in the room (which effectively defeats his arguement saying that mods kick/ban people because of their own bias). That last few minutes of him harassing people on video is actually a shade more tame then his usual actions online. I once watched him follow one player around through several games just so he could spend the night harrassing her. He argues that PS3 and Resistance both offer players the option to mute/ignore other player, and while this is true he often makes his way around these securities just so he can continue to verbally harras other players (ie. he'll sit in the lobby of a game, with out actually joining into actual game play. Once it seems that everyone or whomever he's harrassing in particular has muted him, he'll leave the lobby and enter right back in, effectively bybassing the mute. He also plays on several more accounts than just the one that got banned (the vincint19 account was the one with the most tracable offenses, thanks to him putting his videos up on youtube) and because he is able to create and play on as many accounts as he wishes, he can effectively defeat the permanance of the (psn) block and ignore (RFOM) features.

 It's such a shame that he banks on the arguement on his freedom of speech. No party should be expected to uphold this right when the perpatrator (Estavillo) abuses this freedom to harass and terrorize the party's intrest (the remainder of the PSN community). Its almost like saying the KKK has the right to promote hateful/maliscous speech on the grounds that the 1st amendment gives every the right to do and say whatever the hell they want without having to be held accountable for their words and/or actions. (if you've met vincint online, or at least seen the video where he gets kicked by a mod, it's obvious he believes this to be true).

 Actually the part that is most disgusting, is that I've actually had a chance to talk with "vincint" about this lawsuit (while inside a RFOM game) and try to explain to him how he is the one at fault here, not SCEA, and he agreed to some degree that he would probably not win the case (though he believes that if he had a jury full of people who where completely unfamiliar to the PS3 and RFOM systems he would surely win, which is why he demands a jury) he is pushing foward because he believes that SCEA push for settling out of court because it would be cheaper and easier for the company. (<--- his words, paraphrased). If he could he would get the use of mods abolished, most likely so he can continue menacing others without worry of being interupted, but he's most realisticaly interested in the money he could wring out of SCEA. This whole case is just... sad... He's not some poor kid, depressed because he's lost his "outlet" for the world. He's just a Jack@$$ looking to score a little money of what he think's is an easy target.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

I hope he realizes that Sony has a pretty solid case against him, and wouldn't settle out of court just because he might have a very, very slight chance of getting his case heard.  I also hope he realizes that any lawyers he's brought into this case are going to want their money, win, lose, or thrown out.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Since noone else has mentioned this, I figured I'd throw this out there.

If your Playstation account gets banned, only the account itself is banned, not the system. All this person would have to do is create a new Playstation account and he'd be right back in the game. The only things he would lose access to are his trophies (which can simply be achieved again) and any games/DLC he purchased (because those are linked to the account they were purchased from, Live and Steam are the same way as far as I know).

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

By the way, Here's a video this guy made of the incident and I can clearly see why he was banned.  http://www.youtube.com/watch?v=Li_Djb1HF8E&feature=related

After being kicked multiple times he goes back and continues and they ban him. 

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

If anyone thinks that his behaviour is okay and that the ban wasn't justified then I pity you.  I've been far from pro-Sony in t he last couple of years, but all power to them this time and I hope they win this legal challange at the first hurdle.


Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Sounds like the guy openly questioned another players sexuality and their mothers virtue. Except in a more cruder presentation.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

If you ask an actual psychiatrist or psychologist they'll tell you Agoraphobia is actually a severe fear of panic attacks, usually brought on by a severe panic attack. The reason it's often mistaken for fear of being outside by laymen is that to avoid being in situations where the person might HAVE a panic attack, they don't leave the home.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Agoraphobia is listed as a Clinical Phobia so it is considered to be a "real" phobia, but it doesn't matter anyways because he would have to prove that he was born and raised to use the Playstation Network as his only form of communication and he would also have to prove that he has absolutely no other social outlet(i.e. Facebook, Myspace, etc).  But seeing what kind of person he is and because he was banned, it shows that he is just a bad person overall and shouldn't have any interaction with the outside world.

Thank you Sony.  Thank you for banning people like this from your service, you have performed a great deed for all mankind.

http://www.deathvanquished.com

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Sorry, I didn't mean to imply that Agoraphobia was not a real phobia. I apoligize to anyone if my comment came across that way. I was only trying to clarify (to the best of my knowledge) the actual meaning of agoraphobia as many people assume it means "fear of leaving the home" when it (once again to the best of my knowledge, based on psychologists I have spoken with) actually is a "severe fear of panic attacks" brought on by reoccuring severe panic attacks. The hermit behavior is a symptom of it, not a cause.

Sorry again if I came across as meaning that it was not a "real" phobia. That was not my intent.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Fear of panic attacks is a component of agoraphobia but my understanding is that there is also a fear of certain environments or spaces conponent involved in that the sufferer fears having a panic attack in an environment over which they have no control. It's the combined fear of (a) having a panic attack in (b) a situation over which they have no control. And the response to these twin fears is to avoid situations over which they believe they have no control (hence the hermit-like behavior). It's not so much that the sufferer believes that by never leaving their home, they'll never have a panic attack. It's more the belief that if they do have a panic attack, it's better to have it at home.     

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Simple look at many stores and resturants that have that sign that says "We reserve the right to refuse service to anyone."

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

So I was looking it up online, the Phobia for being afraid of Crowds is "Enochlophobia". Just thought everyone would like to know that XD I know what Agoraphobia is because I got accused of it becuase I suffer from "Entomophobia" in other words I'm terrorfied of Bugs of all kinds which limits how well I do outdoors, so I was accused of not being afraid of bugs but being outside XD But anyways yeah Enochlophobia is what I found doing a massive search...they do list Agoraphobia sometimes but the majority stat it as Enochlophobia.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Are you certain that it's entomophobia? It could be lupus. I think we should play it safe and schedule you for an MRI and a CAT scan, just so we're certain.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

JDKJ, is "convincing medical documents" some kind of legalese term, or does that really sound as shady as I think it does?

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

It's certainly none with which I'm familiar. And I'm not so sure it's a product of shadiness as much as it a lack of mastery of the language. After all, this is the same guy who thinks he's in "a proper Venus."

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

This guys just grasping at straws.  First it sounds like he's just making up illnesses for th sympathy side of it.  I have ocd, Panic disorder, oh and Agoraphobia. . . Maybe even herpes.  

Second if you notice the last thing he's requesting a trial by jury which means he's hoping to profit based on a jury's lack of knowledge on the subject.

Also, I like how he apparantly knows the corporate stance of each company.  Nintendo doesn't ban, Xbox rarely does.   Seems I remember multiple times that xbox has announced massive sweeping bans and on there have been several stories online of people being banned for profanity or racism in profiles.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Let's also remember that this was a ban by a corp., not some privately-owned server. I would imagine that the odds of being banned for little/no reason would go down when you could get fired for such antics. If they went around banning people without cause, that information would get out and their business would quickly decline.

 

Edit: And, as for the 'stealing money due to loss of online privlages"... If you drive recklessly and lose your liscense, you don't get a refund for your car, do you? They took away your ability to drive, but they hardly have to give you money for it. Same principle, I believe. If you do something to get your ability to use your product taken away due to behavior, it's your own fault for not caring about your investment. It's not like banning is a new thing, or some unspeakable evil that is called down once a lifetime. It's (fairly) common.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

I don't even understand what his complaint is? He used a private service as a venue to be a jackass, and was thus banned from the service. I'm quite sure Sony has the ability to ban anyone for any reason at all, as does any private venue.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

I can't help but think that this guy was being an ass and it whining because someone actually did something about it.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

 In short:  It's a private company, they can do what they want.  The 1st Amendment is a restriction against the State and has no legal bearing on a private company.  If the guy violated their rules, they have every right to ban him.

My note to the guy, go QQ some more.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

How's the guy going to get to the courthouse?

Anyway, I won't form an opinion until I hear why he was banned.  I highly doubt that he was kicked out just because a moderator didn't like him, but you never know.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

I'd like to know what he said and how many warnings he got before I pass judgement.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

He got the warning in the EULA, technically that's enough.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

I'm curious as to what he actually said to get him banned.  Also, if he has a problem with groups and crowds, why would you play an online game?

---

Freedom of speech means the freedom to say ANYTHING, so long as it is the truth. This does not exclude anything that might hurt someone's feelings.

--- With the first link, the chain is forged.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

I have high-functioning Autism and, as a result, am very uncomfortable around people.  I think the last time I saw one of my friends face to face was about six months ago (could have been eight).  On the other hand, I chat daily with my friends online because that extra level of abstraction counteracts much of my inability to read emotional cues.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Do you have any of the special gifts with which the autistic are often blessed? Like the ability to calculate in your head the square root of any number within mere seconds?

I saw an episode of "Nova" the other night where this British guy who was blind and autistic could play back note for note on a piano any piece of music played for him only one time, no matter how musically complex. Mind-boggling to see him do it.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Nope, but on the flip side, I have the mildest case the state neurologist had ever seen in his career, milder even than most cases of Aspergers that he had come across.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

If had to choose between (a) the mildest case of austism possible and (b) being forever stuck with the mind of a five-year-old but having the ability to count the cards in an eight deck blackjack shoe, I'm picking (a) every time.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Wanting human (or what passes for it) interaction without the feeling of being smothered by the crowd (sorry that what it feels like to me).  Bacially this guy is claiming he cannot deal with groups of real life people but internet people are not real which to a point is true. 

Also I find I curious if this is the first time he was modded.  Get the feeling he has a history of them which is possibly why he was threatened with a lifetime ban. 

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Your first paragraph is what I thought the explaination was, but that brings me back to my question of what he said to be banned, and now a second question, which is what does what he said have to do with his menal issues?  I'm assuming he said something, due to his mental issues, that got him banned.  What was it?  Will Sony or this guy release that?

---

Freedom of speech means the freedom to say ANYTHING, so long as it is the truth. This does not exclude anything that might hurt someone's feelings.

--- With the first link, the chain is forged.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

 Well we don't know what got him banned, it could be any number of reasons... 

The reason he brings up his mental condition is to argue that Sony has caused him pain and suffering. By cutting him off from PSN, they have cut him off of one of his main outlets for his social needs... So really, the reason for him being banned is unrelated to the mere fact that he got banned.

Hopefully the court will have enough common sense to know that having a mental condition does not permit him to violating the rules for a private service. Just because he's afraid to go outside does not mean that everyone else on PSN must hear his trash (though to be fair, we still do not know what he said to get banned); unless his mental condition makes it physically impossible for him to be a dick, then he's got to play by the rules like everyone else... 

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

That is if, in fact, he was violating the rules (playing devil's advocate here).  Unless and until this goes to trial, we might not know what he said to be banned.

---

Freedom of speech means the freedom to say ANYTHING, so long as it is the truth. This does not exclude anything that might hurt someone's feelings.

--- With the first link, the chain is forged.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Several people have commented that a lifetime ban seems a steep punishment.  I'd like to point out that this is probably not a for a first offense.  This guy seems like exactly the kind of moron to ignore numerous warnings and timed bans and then whine about being oppressed when they finally cut him off for good.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

An interesting argument.

I tried comparing this to going to a movie theater, buying a ticket, disrupting the movie and being kicked out during the movie, told never to come back to the theater.

But there are a number of differences as well.

You buy a movie ticket, one ticket, one showing.  You'd also have access to the movie, eventually, in other ways.  And you can go to other movie theaters.

What about comparing to a season's pass to a sport arena or to a concert hall?  Half way through the season, you're expelled and told you can never come back.

If you feel you've been wrongly banned and after attempting to settle the issue with the site, you fail to get anywhere, you could always sue.

it does seem reasonable from the perspective of some.

Some issues of Freedom of Speech, including over the internet, are found here:

http://en.wikipedia.org/wiki/Freedom_of_speech_in_the_United_States

Nightwng2000

NW2K Software

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Nightwng2000 is now admin to the group "Parents For Education, Not Legislation" on MySpace as http://groups.myspace.com/pfenl

Nightwng2000 NW2K Software http://www.facebook.com/nightwing2000 Nightwng2000 is now admin to the group "Parents For Education, Not Legislation" on MySpace as http://groups.myspace.com/pfenl

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

None of the 'being removed from X venue" analogies really work because it's not an online only game. It would be more like being kicked out of the movie theatre but given a copy on DVD so you can watch it in private without bothering anyone else, you may prefer to watch the film with a crowd but you still have the ability to watch what you paid for.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Well, he self filed, and judging from the state of the document, this kid is no legal eagle...at least not one who is willing to check the spelling and grammar of a document before submitting it to the courts.  My personal favorite is in the venue description where he states, "Venus is appropriate..."

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Complainant: I'll settle for no fewer than $1 million!

Defendant: How about this cat?

Complainant: A cat will do.

 

"That's not ironic. That's justice."

"That's not ironic. That's justice."

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Having a bit of trouble wrapping my head out this.  Check me please. 

The guy was such a jerk that he got modded then kicked.   

He apparently has a fear of crowds (I do myself but to lesser degree apparently) so this gives him some special rights? 

So basically he can be an arse and if called on it is having his rights taken away and if he is not is a blight on society (or a bigger one than he is at present)?

I would wish him luck but find I REALLY dont mean it in this case.  I would encourage him to slither off to some hole somewhere away from people and try to grow a spine. 

 

 

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

It will probably hinge on, was he being a huge jerk when modded (compared to other players), or was it some kind of personal thing.  As others have pointed out, mods can be really arbitrary sometimes.

The agoraphobia sounds like it is one of the lesser issues the person has.  Multiple disorders PLUS Crohn's disease (which triggers with stress, making 'getting stressed' extremely unpleasent and possibly dangerous).... so assuming the list is real, it is probably someone with few options and fairly restricted to home.

I actually know a few people who are too mentally ill to leave the home.  Not as much to do about it as people think sometimes, and online serives really do provide a lifeline.   Though overdepencence on ONE is a horrible idea and his doctor should be discouraging it.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Depends on the severity of what he did. I do feel inclined to agree that a permanent ban is a bit steep considering he loses the online benefit of all his games, but then, I don't know what he said, if what he said was racist, sexist etc, then possibly a timed ban was better, we all deserve a chance to learn from our own stupidity. I also don't know whether any timed bans took place before the permanent one, which would have an impact.

However, if what he said was threatening or was harassment etc, then possibly a permanent ban is acceptable, there's one thing being prejudiced, a whole other threatening people.

Legally, he doesn't have a leg to stand on, but it's really hard to make any kind of 'gut' judgement without knowing what was said.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

I would like to know what the guy said to get himself banned.

http://www.magicinkgaming.com/

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

I have eben randomly kicked for saying harmless random stuff, and have seen people been randomly baned for worse and worse yet I have seen moderator pets get away with just about anything....

 


I am a criminal because I purchase media,I am a criminal because I use media, I am a criminal because I chose to own media..We shall remain criminals until Corporate stay's outside our bedrooms..


http://zippydsmlee.wordpress.com


Copyright infringement is nothing more than civil disobedience to a bad set of laws. Let's renegotiate them.

---

http://zippydsm.deviantart.com/

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

I didn't think PSN used a points system. When I had my PS3 I bought one thing from the PSN store and they charged my credit card directly for it, no points were involved.

Also, there is no subscription fee for PSN.

Finally, ever seen that sign in a business that says, "We reserve the right to refuse service to anyone?" That's what Sony is doing.

If this wasn't an argument for tort reform...

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

I didn't think PSN used a points system. When I had my PS3 I bought one thing from the PSN store and they charged my credit card directly for it, no points were involved.

Not quite.  When you buy something from the PSN store, you add money to your PSN wallet and then use that money in the wallet to make your purchase.  They make the process seamless on PSN so that you don't really notice, but the charge on your card indicates money added to your wallet, not money given in exchange for downloadables.  It is exactly like the Points on XBL, except there's no dollars-to-points abstraction going on. 

Incidentally it's a pretty crappy system that's bad for consumers, but that's a whole 'nother discussion.

http://www.darkesword.com/

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

While such refusal signs are valid, the buisness looses protection once it accepts money.  Or at minimal, people have a case after that point.

It does not mean they will win.. as another poster pointed out, getting kicked out of a movie theater does not entitle one to a refund, but this is purely based off what a jury will accept.  For instance, if a (insert group) couple walked into a theater, bought tickets, and were kicked out as soon as they got to the loby, they would probably win a suit.  Once you agree to deliver a service the customer has a reasonable expectation of recieving that service.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

What money did Sony take to give him access to PSN? It's free.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Playing a bit of  a devil's advocate here....

I am curious about the specifics of the case.   If the moderators do not have oversight or an appeal process, he might have a case.  While private companies have the power to drop users based of violations, the do not have a magic 'shut down anyone an unmoderated moderator feels like and keep their money' card.

So if he can show that he did not violate any speech guidelines and was banned due to some personal grudge (such as a moderator not liking is political opinion), then while he would not have a 1st amendment case, he MIGHT have a contract violation or unfair business practices one.

Again, without any details it is hard to say what is going on here.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

Yes, the moderators do have that card.

Sony's servers, Sony's rules. And what money? PSN is free.

 

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

sqlrob I'm wondering if they banned him from accessing PSN at -ALL- Because points are used for buying games through the PSN network that might be what's going on that they banned him from the servers completely and now he can't buy games from them or anything.

Re: In Lawsuit, Banned Resistance Player Alleges that Sony ...

The service in and of itself is, but other parts of the service likely not. According to what I read up there he did spend some of his own money on PSN points. Though since the PS3 has been kidna shafted in the DLC market, I dunno what he'd spend those on.

 
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