So the question is, who currently owns the rights to Too Human? Silicon Knights, but they have a court order preventing them from selling any new copies? Did Epic win some rights over the IP? I know Microsoft published Too Human, perhaps they have some form of influence on it?
EDIT - Also, making a game BC doesnt mean Microsoft has to make a digital version available for purchase. Perhaps there is a loop hole that would allow Silocon Knights to give Microsoft permission to enable 'compatibility' for those who own it.
In fact, thinking about it, would the lawsuit mean Microsoft would not be permitted to hold a digital version of the game on their servers?
Yes, the lawsuit outcome explicitly states that no copy can ever be sold again by any means, and it was immediately removed from the XBOX Live store.