On XBL, Netflix is not available to free Silver members--it’s a Gold exclusive. That’s not the case on PlayStation 3 or other streaming devices like Roku, but Microsoft hasn’t shifted its stance on the issue.
"charge, directly or indirectly, any fee (including any unique, specific, or premium charges) for access to the Content or your integration of the APIs in your Application, or use the APIs to build an enterprise application (e.g., that you distribute to other companies);"
Naturally, some started to wonder whether this would force Netflix from Gold to Silver territory.
Netflix told me this afternoon that will not be the case.
The change seems to have more to do with preventing companies from scraping Netflix’s proprietary data and selling it. A company that’s using Netflix’s API to surface Netflix-driven data but charges consumers to download that application remains fair game. Thus, no changes for XBL.
Additionally, Netflix does not consider its service on XBL as "third-party," so the rules wouldn't apply.
It still bothers me that Netflix is locked behind Gold, but that’s an argument for another day (or another console).