Thanks, I had missed that post. My thoughts:
First, you are assuming Skel's actions were sufficiently manipulative to constitute inducing the store worker. He hasn't (IIRC) been specific about exactly how it went down but it would seem unlikely to me that a single customer could use force or coercion or even sufficient pressure to get a retail clerk to do something that he must know puts his own employer at risk, unless the worker was already more or less inclined to do it as a favor (which is more or less what he alluded to).
For that I was going off what was posted in the OT. While we don't know what level of coercion was involved, from a purely literal standpoint anything from "hey, can you sell me a copy of Halo 4 early cuz I'm a good customer, I promise not to tell" to "sell me an early copy and I'll give you an extra $100" would seem to meet the standard of creating a tort.
If this were a simple matter of John Doe walking into a store, buying a game off the shelf and walking out, then none of this would apply.
Second, from your own link:
What were the damages to Microsoft?
Third, if MS do in fact have a civil tort against Skel, they should pursue that claim through the civil system. Put another way: the fact that MS initiated extra-legal punishment by banning him from their proprietary service is orthogonal to the question of whether he broke the law, because their own TOS allow them to ban users for any reason at all.
Since you've said you think MS was mostly ethically in the wrong, I'm not sure what your actual argument is. If it's that MS had the right to ban him, I'm pretty sure we all know that's in the TOS, no one's arguing against that. If it's that MS banned him specifically as punishment for committing a civil tort against them, I'm not sure the evidence supports that conclusion.
Damages are a question. From Microsoft's point of view, damages would be whatever was stipulated in the contract as liquidated damages. Usually that's done when the impact is difficult to quantify. Damages could include anything from spoilers to comments that influence sales. Some might argue that the ban limited MS's damages. Others would argue that that action increased them.
As far as going straight to the judicial system, that's another question that's up for debate. Suing your customers is never a good strategy. In this case, what Skel did was against the law, but it wasn't criminal. And since MS isn't the govt, it was under no obligation to find a remedy via the legal system. As a side note, if it did go to the legal system, then Skel would have been compelled to turn over the store's information.
My honest guess is that someone at MS decided awhile back that it wasn't worth the cost/time/effort to sue for damages in a situation like this, instead opting to use the ToS to lock people out. There are merits to both sides of that argument as when it comes to business, just because you're right doesn't mean everyone will love you for it.
My main reason for bringing it up were the sheer number of people insisting that Skel was 100% in the right and didn't do anything wrong; that his actions couldn't possibly be against the law, etc. I don't know if that was just anti-MS emotion or a general ignorance of civil law, but the inaccuracy was bugging me.
Personally, I do think a permanent ban was a little much. But at the same time, I can't honestly say that Skel bears no blame for his situation and that's based purely on his own words.
If I were in Skel's shoes, I would have written to the arbitration team at Microsoft. They're outside the regular CS channels and are pretty much empowered to do whatever they think is right. If he didn't agree with their decision, then it would escalate to binding arbitration at MS's cost. The arbitrator would view all evidence presented and then make a decision. Skel could have argued his own damages as the cost of a new system + retail value of all digital downloads lost due to the banning. There would have been no cost to Skel, except time. I mentioned this in the OT as well.
Instead his reaction was to 1) complain on NeoGAF and 2) buy a new console.
