Microsoft chucks our reviewer from Xbox Live Update Preview program

Steve Ballmer won't get a Christmas card from me this year. Or next.

Microsoft's assault on BetaNews' Xbox 360 dashboard review continues. I awoke to find a take-down notice waiting in Gmail, for photos posted with the review. A few hours ago, our reviewer, a BetaNews reader, informed me that Microsoft had kicked him out of the Preview program for violating the NDA. But did he?

Here's the email he received late this morning:

As an Xbox Live Update Preview participant, you agreed to a Program Participation Agreement that included an obligation to keep the program confidential.

Unfortunately, it has come to our attention that you have directly violated this agreement by posting pictures, information and/or talking with the press about the program and its contents. As a result, the following actions will be taking place:

You have been removed from the Xbox Live Update Preview Program.

The console(s) you registered as part of the program will not be able to connect to Xbox Live until the official dashboard release date later this year. You will not be eligible for future Xbox Live Update programs.

We share your excitement about new content, but it is unfortunate you chose to not abide by the terms of the agreement and have been removed from the Xbox Live Update Preview Program. Xbox Live Team.

I take non-disclosure agreements quite seriously. You don't break them. It violates trust established with the vendor. But reality is this: Embargoes and NDAs are violated all the time. I can't even count the number of times someone working for another publication broke an embargo and got a jump on me and other competitors. The excuse is always the same: "It was a mistake!" "We screwed up time zones" or "An editor hit post to soon". Pick any other excuse you like. Does Microsoft cut off the publications? Bar them from future embargoes? I'd love to hear of an instance, because I don't know of any.

That's not meant as justification but background and to raise questions about who and who doesn't get cut slack for mistakes and whether or not Microsoft should treat our reviewer so harshly. Earlier today I wrote: "I will take it as a personal affront should Microsoft choose to ban our reader from participating in future beta programs". This is much worse. He's kicked out right now and for the future.

I deliberately do not name the review's writer, even though his name is quite visible when linking to the story. Search engines give the Internet longer memory than an elephant. I still hope to resolve this situation with our reader's wrists slapped rather than legs broken.

Series of Events

Here's the timeline as I've reconstructed it so far:

• On December 5, Microsoft made a big splashy announcement -- with press release, blog post and other marketing material -- about the dashboard update coming the next day. That after Major Nelson reminding about it weeks before. Microsoft wasn't exactly keeping secrets.
• The same day, I asked for readers to review the autumn 2011 Xbox 360 and Live updates. (Microsoft's PR agency had rejected my request for game console and Kinect loaner.) Our reader responded in comments -- that he would do it.
• On December 6, Microsoft made yet another splashy announcement about three autumn 2011 updates, coming that day to an Xbox 360 near you.
• Our reader sent the review and photos during early business hours on the same day. He shot the photos that morning.
• I initially ignored the review -- to finish up a news analysis about the Xbox news, which posted at 12:22 pm ET.
• After completing other responsibilities, I edited and posted the Xbox 360 dashboard review -- at 3:12 pm ET. It was clear that our reviewer participated in the Preview program, but Microsoft supposedly had released the update -- that's what the fanfare was about.
• However, unknown to me then, Major Nelson tweeted: "Sorry for the dash launch delay. Good news: first set of customers will be getting the Xbox LIVE update within the next few hours". I assume the 3:46 pm tweet was Pacific Time.
• That means our review went up before the Dashboard release, but after the announcement. Something else: The rejection letter our reader received today gives different timing: "official dashboard release date later this year".
• Lastly today's aforementioned events: Take-down notice and reviewer rebuked by Microsoft.

While my first inclination is to support a BetaNews reader, I would be more understanding of Microsoft's position if the updates had been kept secret. Just the opposite, the company couldn't contain corporate enthusiasm about them. The date and content was public knowledge.

An Honest Mistake

Our reviewer takes full responsibility for not being more careful about the NDA, which I asked to see but he can't access having been booted from the Preview program. He doesn't want to make a big deal out of the situation and would prefer to let it subside. I understand the sentiment. But I also think there's honest mistake here regarding this damn NDA. He most certainly never meant to violate anything. He expressed his enthusiasm for Xbox 360 and Live in a review that is extremely positive and so well-written.

I won't recap all reader comments (from this morning's story), but there is some good insight regarding why this happened. Another reader informed me that the NDA doesn't expire until the end of the year. That makes sense since Microsoft plans more content updates for the new dashboard. But unless I missed something, our reviewer stuck to what's available. So what? The NDA bars him from discussing stuff already publicly revealed by Microsoft or available to other Xbox users? That other reader writes, and I've chosen not to name him (for obvious reasons):

I would have done the same thing he did because it wasn't until I checked the Preview program site (the day of the release) that I realized MS's message to us that we were still under NDA until the end of the year because we would be testing upcoming apps.

The problem with all of this is that MS did not make it abundantly clear to us that we were still in the program. I wasted a ton of time wondering why I never got a message saying, 'You have an update!' It wasn't until I went to the Preview program site that I realized, I had been updated days ago and that I would continue in the program until year end.

He should not have been kicked out. He made an honest mistake.

BetaNews' take-down notice remains an unresolved matter. I responded to Microsoft's request asking for more clarification on how the photos violate our reviewer's NDA. I won't do anything until Microsoft responds. However, BetaNews' reader reviewer shot new photos this morning before getting booted from the Preview program. It's pointless to replace existing photos without Microsoft clarification, since the company might view the new ones to be in violation, too.

We will act appropriately and responsibly once Microsoft responds.

Photo Credit: Steve Arnold