Showing posts with label games. Show all posts
Showing posts with label games. Show all posts

Wednesday, April 8, 2009

Resident Evil 5 Fucks Gamers

Turns out that the extra "content" for Resident Evil 5, a downloadable "Versus" mode that Capcom is charging an extra $5 for, is already on the disc:

The total download size for RE5 Versus Mode is 1.86MB. You are not, in fact, downloading the content from Xbox Live Marketplace or PlayStation Network. Instead, you are downloading a key that unlocks content already on the RE5 retail disc. The same disc you paid $60 for a month ago.
This is total bullshit. Words fail me. Is this the new trend? From one-time use codes to unique CD keys, it seems like the games industry is doing everything in its power to nickle-and-dime gamers.

Tuesday, March 31, 2009

DRM and EULAs for PC Games

Great read over at Ars Technica about the Entertainment Consumers Association pushing for the requirement of full disclosure of DRM on PC game boxes, as well as the standardization of EULA agreements. Hal Halpin of the ECA told Ars Technica:

We suggested a few things to the FTC, one of which was we'd like to see DRM disclosed. So when people go to the store and buy the packaged good, the PC game, they'll see something on the front of the box saying there is DRM inside, and to what degree it will be invasive.

The second thing that we recommended was that EULAs get standardized, so again, rather than have 30 or 40 types of agreements, there would be one standard one for all different types of computer games. People go into the store, buy the game, open it, and they can no longer return it... by standardizing the EULA, consumers will have the confidence to know what it is they're agreeing to before they buy the product.

That didn't go over so well. There was a room of attorneys that kind of gasped when we suggested standardization. One panelist commented that the EULA really were there as consumer information, and that was the one and only time that the FTC jumped in and said "wait a second, this has nothing to do with consumer information, this is purely IP protection." I pointed out that when we ran the IEMA (Interactive Entertainment Merchants Association) we were able to get the size of the boxes standardized, and to get the PC CD-ROM logo on the box. These were not herculean undertakings, and they didn't require legislation. So if we can do those things, then certainly we can do these.
This can only be good for consumers, and I'm particularly pleased to see the ECA raising the conflicts that digital distribution channels like Steam have with the concept of ownership.

Friday, March 13, 2009

This Is Bullshit

Leaving aside the troubling racial imagery in Capcom's Resident Evil 5, I read this on Ars Techinca:

Capcom has sent word that a Versus mode will be added to the game... for a price.

[...]

Other than a screenshot or two, that's all we know about the content, except for price: the new mode will cost 400 MS points on the Xbox 360, and $5 on the PS3. We should expect the content "a few weeks after Resident Evil 5 is available." [emphasis mine]
Resident Evil 5 was released in Japan last week, and releases here, in North America, today. Ars Techinca reported this yesterday, before the game went on sale over here. I cannot believe that this is simply "extra content"; it seems a lot more like this "Versus" mode was intentionally left out of the initial release. It feels like milking the consumer. Downloadable content is getting out-of-fucking-hand.

Gamers should not be charged extra for modes of play that, for all intents and purposes, should have been released with the original game! Whatever you want to call this "Versus" mode, it most definitely is not an expansion pack. Beyond the Sword is an expansion pack for Civilization IV. Broodwar is an expansion pack for Starcraft. Capcom's "expansion" for Resident Evil 5 is more like the developer deciding to release an online tournament mode for Street Fighter IV, a noted omission from the initial release, as a $5 download (don't get any ideas, Capcom!)

I really hope no one buys this and Capcom realizes that gamers won't be swindled, but I know I'll be wrong. The popularity of XBox Live is enough to prove that there are a lot of suckers out there.

[UPDATE]: This is downloadable content done right:
F.E.A.R. 2: Project Origin fans are in for a treat next month, as Monolith has announced that it's going to be releasing "Toy Soldiers," the game's first new map pack, in mid-April. Of course, the biggest part of the news, though, is that the DLC is going to be free. [emphasis mine]

Tuesday, January 6, 2009

Patent Law Absurdity: Worlds.com Claims Ownership of the Concept of MMOs

I came across this Penny Arcade comic today, which is troubling. Worlds.com is suing NCsoft for patent infringement, claiming that the game developer has infringed on their "System and Method for Enabling Users to Interact in a Virtual Space" patent. Yeah, you read that right. More information can be read here and here.

If the suit is successful, I'd suspect Worlds.com to go after all other developers of MMOs. What will happen to World of Warcraft? The new Warhammer: Age of Reckoning? Age of Conan: Hyborian Adventures? And the dozens of other existing MMOs?

Friday, November 14, 2008

DRM-Free v. DRM-Stricken

World of Goo, a puzzle game, has a 90% piracy rate -- a rough estimate by the developer 2D Boy. What's interesting to note is that the developers reference the Russell Carroll study that I've written about before to show that the piracy rates between DRM-free and DRM-stricken games aren't any different:

this is in line with a previous estimate by russell carroll (director of marketing at reflexive) for the game ricochet infinity. russell estimated a 92% piracy rate and i found his analysis quite interesting (check it out here if you’re curious). one thing that really jumped out at me was his estimate that preventing 1000 piracy attempts results in only a single additional sale. this supports our intuitive assessment that people who pirate our game aren’t people who would have purchased it had they not been able to get it without paying.

in our case, we might have even converted more than 1 in a 1000 pirates into legit purchases. either way, ricochet shipped with DRM, world of goo shipped without it, and there seems to be no difference in the outcomes. we can’t draw any conclusions based on two data points, but i’m hoping that others will release information about piracy rates so that everyone could see if DRM is the waste of time and money that we think it is. [emphasis/grammar in original]
I think the more important sentence in the quoted text is this: "people who pirate our game aren’t people who would have purchased it had they not been able to get it without paying."

Game developers and publishers should keep this in mind because it means that file-sharing isn't the same thing as lost sales, which is the opposite of what most developers and publishers assume to be the truth.

Wednesday, November 12, 2008

Epic Games Would Charge Extra to Fight Final Boss

Epic Games is at it again, this time it's in an interview with company president Michael Capps:

Q: How do you see downloadable content evolving over the next few years?

Michael Capps: I'm not sure how big it is here [in Europe], but the secondary market is a huge issue in the United States. Our primary retailer makes the majority of its money off of secondary sales, and so you're starting to see games taking proactive steps toward that by... if you buy the retail version you get the unlock code.

I've talked to some developers who are saying "If you want to fight the final boss you go online and pay USD 20, but if you bought the retail version you got it for free". We don't make any money when someone rents it, and we don't make any money when someone buys it used -- way more than twice as many people played Gears than bought it...
As I've said before, Epic doesn't make money on a used sale because they've already made money on that sale, the first sale. Ownership has transferred.

But you don't see libraries (where you can get content for free! Imagine that!) tanking the book publishing industry. The film industry is making money hand over fist despite the existence of Blockbuster and Netflix. Why does the gaming industry believe that it's in a unique situation?

Ah, here's why:
Q: Do you see an enemy in this equation? Is it the retailer, or the purchaser of second-hand games?

Michael Capps: I'd hate to say my players are my enemies - that doesn't make any sense! But we certainly have a rule at Epic that we don't buy any used games - sure as hell you're not going to be recognised as an Epic artist going in and buying used videogames - because this is how we make our money and how all our friends in the industry make money.

I think a little bit of it is education so people realise that the reason there's no PC market right now is piracy. I mean, Crytek just put out some numbers saying the ratio was 20:1 on Crysis, for pirated to non-pirated use. So guess what? That's why there's no Gears of War 2 on PC, because there's no market, because copying killed it - and that's gruesome to a company like ours that's been in the PC market for so long.

We're trying to fix it, there's a new alliance of companies trying to make PC gaming work again. But if people are playing games without buying them, then the games aren't going to keep coming.
Piracy, the ultimate scapegoat. Yeah, people who would never have bought your product in the first place are costing you sales. All those lost sales from people who wouldn't ever buy games.

The PC gaming market isn't in decline because of piracy, in fact, I'm unaware of any hard evidence that shows that the PC gaming market is in decline at all. Games still sell millions of copies, copy-protection or not. What will kill the PC gaming industry is shit like the president of Epic Games floating around the idea that developers should charge used game buyers extra money just to be able to finish their games. This kind of behavior is blatantly anti-consumer, and people will react negatively to that kind of treatment by not purchasing any of your games.

What we're seeing from Epic is a content publisher's dream-- to have ultimate control over how copies of their distributed content are used. Before digital content, these publishers had little they could do regarding the secondhand market. But the gaming industry is inherently digital. It's software; code. They have the ability to easily include schemes like this because of the nature of their medium. I'm not surprised that Epic Games (and lets not forget EA) is attacking the secondhand market for games; however, that doesn't make their intentions any less of an assault on people's expectations about what they can do with their purchased content.

[UPDATE]: Soren Johnson, game designer and programmer, offers several insightful observations on this topic.

Tom Chick, games journalist, mused on this topic as well:
Without any segue or distinction, Capps conflates renting games with pirating them. He goes straight from "buying used games" to "PC games are dead because of piracy." Amazing. [emphasis in original]

Friday, November 7, 2008

Fallout 3 Sales and Piracy

Wired reported yesterday that Fallout 3 earned Bethesda $300 million, with 4.7 million units shipped between the PC, PS3, and Xbox 360 versions. The game was released on October 28, 2008.

But with just about 3 weeks before launch, the game had already been leaked and pirated on the Xbox 360. If we are to believe PC developers who claim that piracy of PC games makes them unprofitable, how are we to interpret this information? PC games are usually pirated the day of release, maybe a few days prior. Fallout 3 was pirated on a console almost 3 weeks before release!

I don't know the breakdown of sales between platforms, as that information doesn't seem to be available. So it's hard to say exactly, but I'll hedge my bets and say that piracy of Fallout 3 on the Xbox 360 did not negatively impact sales in the way that PC developers claim that such piracy impacts PC sales. I'd even go so far as to say that this is the kind of evidence that really puts that entire line of reasoning into question.

[UPDATE]: I just found this article in PC World, which states that the Xbox version of the game accounts for 55% of sales. This only further supports my conclusion.

Wednesday, October 8, 2008

The Used Games Market

There's an interesting thread on Quarter to Three unfolding as I write this. The opening topic began discussing EA's new business model of packaging NBA Live '09 with real-time player stats. What this means is that as things happen to players in real time during the season, the game will update the stats in the game. For example, if a player breaks an arm during the season, NBA Live '09 will update that player in the game to be out until recovered. EA is only offering this feature to first time buyers; any player who buys the game second-hand will have to fork over $19.99 to have access to the feature.

But in the last few hours, the conversation has shifted towards Epic Games and their upcoming Gears of War 2. Epic has decided to include a special download code, a one time use, which would give the buyer access to 5 additional multiplayer maps. Unlike NBA Live '09, though, Epic is not offering an option for second-hand buyers to have access to the extra maps. Epic claims that this is to reward those who buy Gears of War 2 new, while simultaneously punishing those who buy the game used.

The protest has focused on this attack on the used market. What I think is being ignored in this discussion is the simple concept of ownership. Poster EpicBoy, presumably of Epic, stated in one way or another that game developers deserve to make money on the sale of used copies of their games. The problem is that the developer has already made money on that sale -- the first sale. Once that first sale occurs, the developer no longer owns that copy. Ownership has transferred to the buyer. And according to the long ago established First-Sale Doctrine, the new owner has the right to resell that copy without providing compensation to the developer. As far as I am concerned, Epic does not deserve to make money on the sale of used games simply because they no longer have ownership rights to those copies. Ownership has already been transferred.

Not only is including a special code for downloadable maps that can only be used once an attack on the used games market, but more importantly, it is an attack on the rights of consumers to do as they are legally able to do with their purchased content.

On a related note, I don't think this is good business, either. Poster Al gets right to the meat of problem with Epic's approach:

A customer of GameStop is still a customer in the video games market. When GameStop takes their money for a used copy of Gears that money doesn't just disappear never to be seen again (do your own Great Economic meltdown of '08 joke here), GameStop takes that money and uses it to buy more inventory, open new stores and so on. All of that gives publishers have more chances to sell their games.

Besides that the secondary market also helps lower the barrier of entry into the market which helps expand it. My teenage nephews wouldn't be playing video games at all if there wasn't a used market; they couldn't afford to. Eliminating the used market wouldn't force them to buy their games new, it would force them to find something else to do. If that happens what'll they do once they grow up and have more income? Suddenly start buying games again or stick to whatever they moved onto? [edit mine, for clarity]
Not to mention that GameStop doesn't get 100% profit on used games, as some people have suggested. I have no doubts that those margins are larger than with new games, but they still have to buy those used games from people in order to resell them.

Wednesday, October 1, 2008

EA Admits File-Sharing Does Not Equal Lost Sales

Gamasutra has the story. Mariam Sughayer of EA's corporate communications department states:

Stepping aside from the whole issue of DRM, people need to recognize that every BitTorrent download doesn’t represent a successful copy of a game, let alone a lost sale. [emphasis mine]
Dan Hewitt, the Entertainment Software Association's senior director of communications agreed:
It’s important to remember that it’s not a one-for-one equation. Our calculation isn’t such that we say that every game that’s been stolen [he means downloaded] is a sale loss." [emphasis mine]
This comes on the heels of TorrentFreak's analysis claiming that Spore has been downloaded from bittorrent file-sharing networks more than half a million times. Last week, EA reported that Spore had sold 1 million copies. Now, EA is trying to downplay the record number of Spore downloads.

I have to ask: EA, if a downloaded copy of Spore doesn't necessarily equate to a lost sale, what is the point of your DRM? Are your DRM schemes simply to stop people who wouldn't have bought your games from playing them? That's the only conclusion I can draw, since we can see that your inclusion of SecuROM did not stop people from pirating the game.

Tuesday, September 30, 2008

Penny Arcade's DRM Discussion

I wrote before about part one of Penny Arcade's "The Origin of the CD-Key" series, and I agree with much of what was said in that post. Crecente's post did a good job highlighting what essentially most DRM proponents are ignoring -- that DRM is a flawed form of encryption. All DRM schemes give away all the tools needed to crack them -- for it is necessary to do so if content providers want the content to be useful to legitimate customers. Buyers have to be able to decode the DRM in order to use the content. In doing so, any knowledgeable party will be able to eventually crack any form of DRM imaginable.

Part two was posted last week, and it amounts to a "so what?" argument. Author Chris Remo acknowledges that DRM doesn't work, but also argues that it's no big deal. For example, he argues that it doesn't matter if publishers stop supporting games that require online activation because users can simply find the hacker's crack to play the game. Except, Mr. Remo, it does matter. For one, the described practice is against the law, according to the DMCA. Even if an individual owns the content, the DMCA makes it illegal to bypass digital copy-protection. Secondly, legitimate users should not have to resort to illegal practices to get their content to work. Finally, Remo's suggestion does not address DRM's encroachment on the First-Sale Doctrine. Many of the new DRM schemes effectively kill the second-hand market by requiring activations to be tied to an account and limiting the number of installations.

Part three, posted yesterday, brings the discussion back to a level of reasonableness. Author Daniel James makes several salient points about the nature of digital content and the ultimate effects of DRM. James hints at the concept that copying is a integral part of software, and because of that, is it ultimately futile to try to limit copying. James also hints at the important concept of software being "open." He argues for all software being shareware, and then letting the market reward the best software. This is only a step away from open source software, which would arguably create a boon in innovation by giving more users access to the innards of software. By allowing anyone to improve upon the software, we end up with a better product in the end. Finally, James hits on the concept that DRM really only hurts legitimate customers. The trend towards increasingly draconian DRM is only driving away potential buyers, while doing nothing to stop rampant file-sharing.

Overall, Penny Arcade's "The Origin of the CD-Key" is a good back and forth discussion of DRM and computer software, and I recommend everyone to read all three parts.

Wednesday, September 24, 2008

Spore DRM Challenged by Class Action Lawsuit

Melissa Thomas has filed a class action lawsuit against Electronic Arts for their inclusion of SecuROM with Spore. The lawsuit focuses on the impact of SecuROM on personal computers and EA's lack of disclosure about the program's inclusion with the purchase of Spore.

I'll be very interested to see how this turns out. Perhaps this case can at least pave the way for consumer rights regarding DRM -- the requirement of public disclosure and transparency of the DRM scheme implemented, as well as all the possible effects of such DRM software.

I also wonder if any decision would get into the conflicts between DRM and existing consumer rights such as Fair Use and First-Sale Doctrines.

DRM is PC Gaming's Ouroboros

I've been discussing DRM a lot lately, and I ran across this article on Penny Arcade by guest writer Brian Crecente of Kotaku. I think that Crecente makes a lot of relevant points, especially in this passage:

As long as there are creative works people will want to buy them, protect them and, yes, even steal them. Even this modern use of the word piracy dates back to the 1700s when Daniel Defoe agonized over hand-written, pirated copies of his poems sold on the streets. He called those erstwhile literary thieves "pirates" and "paragraph-men."

Imagine, though, an unsuspecting bibliophile returning home with their copy of The True-Born Englishman only to discover that once they’ve read it, the pages turn to ash. Or maybe they can read it and let a couple of friends borrow it, but that’s it. No more reads, thank you very much. What if they find that there is someone lurking outside their library window, watching them, making sure no one else catches a glance of page 32? Or, god forbid, they try to go and sell the book back?

No, copy protection in the 18th Century was a much simpler thing. There was no technology to obfuscate what a publisher was doing. No ghosts in the machine. No machines. But today, as the ways a game or creation can be stolen increases, so do the little lies, the hidden spies created by those creators.
I think it would be beneficial if we, as a society, had a discourse about what "intellectual property" actually means. What does it mean to "own ideas"? My previous post, "Who Owns Ideas" has a discussion about the role of ideas and expressions in a democracy, and I encourage everyone to listen to the radio program.

Monday, September 15, 2008

Piracy of Spore Extraordinarily High

According to Forbes magazine, Spore has been shared via bittorrent clients at an increasingly faster rate than other triple-A titles have been in the past:

As of Thursday [9/11/2008] afternoon, "Spore" had been illegally downloaded on file-sharing networks using BitTorrent peer-to-peer transfer 171,402 times since Sept. 1, according to Big Champagne, a peer-to-peer research firm. That's hardly a record: a popular game often hits those kinds of six-figure piracy numbers, says Big Champagne Chief Executive Eric Garland.

But not usually so quickly. In just the 24-hour period between Wednesday and Thursday, illegal downloaders snagged more than 35,000 copies, and, as of Thursday evening, that rate of downloads was still accelerating. "The numbers are extraordinary," Garland says. "This is a very high level of torrent activity even for an immensely popular game title."
TorrentFreak reported last Saturday that Spore had been downloaded more than 500,000 times, and at this current rate the game is likely to earn the title "Most Pirated Game Ever" within a matter of weeks.

EA can't be this stupid. They have to know that their use of SecuROM DRM schemes are not going to stop people from pirating the game. In fact, the Forbes article reveals that Spore was pirated a full three days before it was launched on September 4th, 2008.

But this may not be about piracy at all -- it may be about ending the second-hand market through technological means.

Tuesday, September 9, 2008

Spore's DRM Backfires

This is very interesting. I wrote before that I decided against buying Spore because of the SecuROM DRM scheme being implemented, and it looks like I wasn't alone in that decision. As of 9:04 AM this morning, there are 1,272 one star reviews on Amazon for Spore.

Reviewer Brian Fox wrote:

DRM is a show stopper. I doubt this game will work for me after a few years given my habit of new hardware purchases and system snapshots. Like others have said, this game is for rent not sale.
Reviewer Fox News Sucks wrote:
The DRM for the game utilizes securom which is essentially a virus that installs itself without warning when you install the game. There is no way to completely remove it without reformatting and it is constantly running in the background if not removed. Sucking up computer resources.

It also is overpriced. This is actually a RENTAL, not a bought game because it only lets you install 3 times. If you install over 3 times then you must call EA customer support and beg them to let you play the game you bought. Did I mention the call is not free? If you live outside the U.S. it will be a very expensive call.
Reviewer N. Bolten wrote:
I was looking to buy the ultra-nerdy $80 package at release... no more now that I've learned of the crippling DRM. A message to EA: if you give your customers what they pay for, they're *not* going to pirate (they've already proven they will buy the game). Games are cracked *before* release, so that is not something you can avoid. Stop screwing your customers under the guise of protecting your copyrights and you'll get my cash. Until then I'll be happy playing games released by people who don't punish me like I've done something wrong for forking over $50-$80.
Further reading -- this blog post by a commenter at the Quarter to Three forums puts the issue into perspective nicely. Author peterb makes a point worth repeating; it's essentially what Brad Wardell of Stardock has been saying all along.
The damnable thing about Spore’s DRM is that it gives up some of the platform’s few advantages for…what, exactly? Is protecting yourself against pirates who are not and will never be customers really worth infuriating your paying customers and squandering your company’s goodwill?
Let's see if EA takes notice of this consumer insurrection against the DRM used for Spore.

[UPDATE]: In the span of one hour's time, another 42 one star reviews have been added to Spore's Amazon page, bringing the total 1,314 one star reviews.

[UPDATE 2]: It's nearly the end of the day here, so I checked in at Amazon one more time to see where the review count is. As of 4:19 PM, there are a total of 1,551 one star reviews. Looks like this little protest is getting some mainstream news coverage.

[UPDATE 3]: Another full day later -- as of 4:36 PM, there are 1,928 one star reviews. Doesn't look like this is coming to an end anytime soon.

[UPDATE 4]: Amazon deletes all reviews on their Spore page. Looks like it happened sometime today, 9/12/2008.

[UPDATE 5]: Looks like sometime over the weekend, Amazon put the Spore reviews back up. There are now 2,133 one star reviews, as of 9/15/2008 at 9:42 AM.

Friday, September 5, 2008

Copyright Law in the Virtual World

Christian Olsson of ByteShield, Inc. took the time to write an interesting comment on my last post about PC gaming, copy-protection, and piracy. I wanted to respond through another post because I think his comment raises some interesting questions. I'll start first with ByteShield's whitepaper, Is Anti-Piracy/DRM the Cure or the Disease for PC Games?, that Christian mentioned in his comment.

In the introduction of the white paper, it acknowledges that DRM schemes have failed and are rapidly cracked; however, at the same time the white paper acknowledges that piracy would be worse than it is today if no such measures were taken. I can't seem to understand how these two realities can coexist. If DRM has failed, then how has DRM made piracy less of a problem? I don't follow the logic being used here. Again, I see this acknowledgment that DRM has lessened piracy somewhat to be a vapid "conventional wisdom" of the gaming industry, much like peer-to-peer file-sharing is seen as a decrease in sales in the music industry.

The white paper also makes passing mention of digital technology "decimat[ing]" the music industry, as well as mentioning the "threat" to DVD sales. I've written about the music industry before, and there is conflicting evidence about the loss of CD sales due to digital file-sharing. I'm more convinced by the studies that have shown that CD sale losses have lessened as a result of file-sharing, and remember that CD sales were already declining before applications like Napster hit the scene. I'm not familiar with DVD sales, but I'm not convinced that file-sharing is causing a decrease in sales, either.

I'll reference this post again, because I make a point towards the end of the post that I think needs repeating. All too often it is assumed that piracy of digital content equals lost sales. I'm not convinced of this at all because those making this assumption have never provided any evidence to support what is underlying this assumption -- that those who have pirated the content would have purchased the content if there were no means to obtain it otherwise. The music industry makes this assumption all the time -- that a downloaded song is less revenue in their pockets. But they have no reason to think that the individual who downloaded the song would have purchased it in the first place.

There's another piece to this that I think needs to be mentioned as well. Digital content is different from physical content in a number of ways, and the most important is also the most obvious -- digital content is virtual. Why is this important? The virtual nature of digital content means that my consumption of this content does not in any way deprive another of consumption and enjoyment of this content. Perfect copies can be infinitely created at almost no cost. Digital content will never be a scarce commodity, and here lies the problem.

Our entire copyright system is based upon the assumptions and limitations of physical content. Physical content is limited in quantity, deteriorates over time, and the analog nature of physical content means that any copies of the content will be of lesser quality than the original. All of these things make the original more valuable than any copies, which is different from digital content. All the digital copies will be exactly the same, making them the same value. Content producers are trying to force digital content into the limitations of physical content. Copyright works by creating artificial scarcity -- it grants authors/inventors the exclusive right to produce and distribute copies for a set amount of time. DRM schemes are attempts to create that artificial scarcity; however, the nature of computers and software means that copies have to be made in order to run the program. Digital content exists within a realm of infinite copies. Furthermore, making copies of digital content is easier than ever. Just as the printing press lowered the barriers to entry in the book publishing world, computers and software have lowered the barriers to entry in the digital content world.

DRM schemes will always be hacked, bypassed, and subverted. As I argued in the older post, this is because of the nature of encryption. DRM is encryption, but in order to make that encrypted content useful content producers have to provide a means for the consumer to decrypt and read the content. DRM fails because DRM will always give hackers all the tools to crack their code. Without providing those tools, the content is useless and unreadable to consumers who have obtained the content legally.

To bring this all together, I think Brad Wardell sums up everything concisely:

The question our industry needs to ask itself is pretty straight forward: Is the goal of IP protection to increase our revenue or is it to prevent people who aren't going to buy games from playing them?
The white paper does make some good points. There's discussion about the lost trust between gamers and developers, and I think that is a key point. Gamers don't want to feel like criminals, nor do gamers want to be punished with draconian DRM for legally purchasing a game. ByteShield recognizes that, and I applaud them for it. ByteShield also appears to recognize that copy-protection will be hacked at some point in the game's life cycle, but the company doesn't think that DRM is ultimately futile.

The protection scheme in the white paper appears to use some features of the current DRM schemes like StarForce and SecuROM. The key to ByteShield's SUM (Software Usage Management) seems to be a connection to a remote server to run the various security checks. That in-and-of-itself us a huge potential problem for DRM. What happens when ByteShield turns off its servers? Or moves over to a new system, much like what the MLB did for its downloadable game service? What happens when ByteShield goes out of business? There's no guarantee that any of the content protected by SUM will be anything but useless to the consumer.

Also included in the protection scheme are limited number of activations and repeated verification. Gamers screamed to high hell when BioWare announced they were going to use repeated verification for Mass Effect, and the same protest was heard when EA revealed that Spore would do the same thing. Ultimately, that part of the copy-protection scheme was dropped. I don't think that ByteShield is going to have much success with that.

ByteShield is very confident that their copy-protection will be virtually unhackable to all but the most determined programming sadists. I'll be curious to see how their system holds up.

The white paper also goes through a number of common complaints against DRM and discusses ByteShield's response to those complaints. The company claims that SUM will not install hidden drivers or files, and will install transparently. In this spirit of transparency, games loaded with SUM will be clearly marked on the box for consumers. They also claim that they will retain the ability to remove the DRM at any point in the game's life cycle, that the DRM files will not run unless the game is running (gee... where have we heard that one before?), that SUM will not edit the user's registry, that SUM will not require the CD/DVD to be in the drive, that SUM will be uninstalled with the game, and the SUM will not refuse a game launch because of programs like drive emulators. If true, this is all well and good.

There are a couple of things mentioned that trouble me -- number one being the required internet connection to activate the game. Not everyone uses the internet at home, or even has access to broadband. Some gamers have a separate "gaming" PC, which is never connected to the internet. Patches and updates can usually be downloaded from another computer and then transferred to the computer without an internet connection. If repeated verification is used, then I think there is too much of a burden placed on users. What should someone, who has legally purchased a game, do if they lose their internet connection and SUM decides that a verification is in order? Moreover, people should not be required to have an internet connection for a game like Mass Effect, which is entirely single-player.

Another thing that is troubling, and maybe I'm just not entirely clear about it, is the limited user/installation distinction. ByteShield claims that the number of users will be limited, not the number of installations. I'm not sure I understand how ByteShield will go about differentiating the two. Other DRM schemes track the number of installations as if they were users. In any event, I see the potential that a legitimate user could be denied re-installing a game at some point. I need further explanation about how this actually works.

ByteShield is also offering a lot of options to developers -- the ability to offer full feature trial versions is good for the industry. Many gamers complain that demos do not accurately represent what the game is, and therefore, they become less likely to make a purchase. One thing that I think would be beneficial is the full disclosure of all the options a developer has chosen. Since it seems that each developer can customize the copy-protection using ByteShield's system, it would continue that spirit of transparency to be open and up front about what gamers can expect to be able to do with each protected game.

In the end, I feel that ByteShield will be different enough from StarForce and SecuROM to actually respect some consumer rights; however, I think the same potentials for exploitation exist within the SUM system. In addition, I think that these kinds of protection schemes are still missing the point -- digital content is too different from physical content to be treated as the same in copyright law. We need more than just a re-appropriation of existing laws to digital content; we need to recognize that digital content and its copyright needs to be handled differently than physical content, lest we stifle creativity and innovation by overprotecting content.

[UPDATE]: Further reading here (Talkjack's 16 point PC Gamers' DRM Charter, referenced in the white paper), and here (discussion of StarForce DRM by Talkjack).

Tuesday, September 2, 2008

Gamers' Bill of Rights

Last Friday, Stardock, video game publisher and developer, announced a Gamers' Bill of Rights. Here's the full list:

  1. Gamers shall have the right to return games that don’t work with their computers for a full refund.
  2. Gamers shall have the right to demand that games be released in a finished state.
  3. Gamers shall have the right to expect meaningful updates after a game’s release.
  4. Gamers shall have the right to demand that download managers and updaters not force themselves to run or be forced to load in order to play a game.
  5. Gamers shall have the right to expect that the minimum requirements for a game will mean that the game will play adequately on that computer.
  6. Gamers shall have the right to expect that games won’t install hidden drivers or other potentially harmful software without their consent.
  7. Gamers shall have the right to re-download the latest versions of the games they own at any time.
  8. Gamers shall have the right to not be treated as potential criminals by developers or publishers.
  9. Gamers shall have the right to demand that a single-player game not force them to be connected to the Internet every time they wish to play.
  10. Gamers shall have the right that games which are installed to the hard drive shall not require a CD/DVD to remain in the drive to play.
I fully support this idea, and do so further because of Stardock's intention to set up an "independent organization" that would regulate publishers and developers who agree to the terms of the Gamers' Bill of Rights.

I want to not only highlight Stardock's efforts, but to take this a step further. Many of these Rights are specifically worded to relate to video games; however, applied broadly, those same Rights are already held by consumers. The only difference here, and the only way I can see that gamers have been relinquished of these Rights, is that video games are, and always have been, a digital medium.

Games come packaged with EULAs (End User License Agreements), which in some form or another attempt to proclaim that the buyer is not actually purchasing a "copy" of the software, but rather a "license" to use the software. On top of these EULAs, games are coming packaged with increasingly draconian DRM (Digital Rights Management) copy-protection such as SecuROM.

The latest versions of SecuROM can be found in games such as BioShock, Mass Effect, and the hotly anticipated Spore. In all cases, the DRM limits the number of installations arbitrarily and requires an internet connection to activate the game. Mass Effect and Spore both attempted to require that the games be reactivated every 10 days, but reconsidered that requirement when massive amounts of vocal protest were directed at the developers. Instead, the games will only require reactivation when new game content or patches are installed.

Both the EULAs and DRM schemes like SecuROM are attempts to circumvent fair use rights of consumers. Rights such as the Doctrine of First Sale, which grant the buyer the right to resell purchased content without the need to compensate the copyright holder. I see Rights 4, 6, and 9 of the Gamers' Bill of Rights as combating this assault on consumers' rights to used content. Download managers, hidden registry keys, and online activation are all tools that can be used to make your legally purchased copy of a game useless to another person. Limiting the number of installations is another method to make a legally purchased copy of a game useless.

I also see Rights 1 - 3, 5, and 7 of the Gamers' Bill of Rights as affirming consumers' right not to be swindled. People expect a working product when they pay for something with their hard earned cash, and it shouldn't be any different with video games. Through digital distribution systems, like Valve's Steam, refunds are not available at all, even if the software distributed doesn't work. Brick and mortar retailers, like GameStop, won't refund defective games either, only replace them, and only within 30 days. If one copy of a PC game won't run on your computer, chances are that the game isn't compatible with your system specs and any further copies won't work either. Without a refund, the buyer is left with a very expensive coaster.

Right 10 of the Gamers' Bill of Rights I see as a right to convenience. If anything is clear, convenience will win out every time. And if the pirate community if offering a more convenient experience than those offered through legal channels, people are going to be less likely to purchase games legally. Right 8 plays directly into this sentiment -- treating customers like criminals with hefty DRM is another form of inconvenience. The more seamless the install process, the more likely people are going to purchase the game.

What I would like to see is game developers, and other software developers for that matter, to state these rights in more explicitly legal terms. In the end, we're really talking about copyright and how those laws should apply to digital content. If software developers set a precedent of respecting long held user rights, I think they can help stop the perception that DRM copy-protection schemes effectively combat privacy. On the contrary, these copy-protections are always eventually hacked, bypassed, or subverted, while their only accomplishment is to violate users' legitimate rights.

Final Thoughts

Over the last week, I read all about Spore's planned use of SecuROM copy-protection. I read many posts and forums about DRM, copy-protection, and piracy. Stardock's reveal of a Gamers' Bill of Rights gave me the perfect way to frame my frustrations at an increasingly hostile game publishing industry.

I have been looking forward to Spore for quite some time now; I had even purchased the Spore Creature Creator to whet my appetite for the game's release on the 7th. After reading about SecuROM's inclusion in Spore, I won't be purchasing the game anymore. EA, Maxis; you have lost this sale, permanently.

I've had my own trouble with SecuROM before, with BioShock, and I don't intend to relive the experience. In my readings last week, I found this website, SecuROM Must Be Destroyed! This article lays out several of the top complaints why a DRM scheme like SecuROM should be resisted by consumers. What will gamers do when authentication servers go offline, such as what happened with MLB's download service and MSN's music store? Limiting the number of installations can quickly descend into a nightmare due to the nature of PCs -- frequent hardware swaps, OS re-installations, and other PC upgrades. At the rate that computer technology advances, consumers shouldn't have their games become useless after a few years because of new OS installations and hardware upgrades. But this is exactly the kind of system that SecuROM is creating.

For a peak into the minds of publishers who embrace these DRM schemes, take a look at this article from The Escapist Magainze, as well as their imagining of an EA Gamers' Bill of Rights. I'll end with this Penny Arcade comic:

Tuesday, June 3, 2008

Don't Punish Legitimate Customers

Yet, that is exactly what entertainment industries do when they implement intrusive and inconveniencing DRM schemes. Rob Fahey, of GamesIndustry.biz, wrote a few months ago:

The response from the videogames industry to piracy has, thus far, been utterly asinine. Not, of course, that videogames should be singled out here -- the music and movie businesses, too, have done their fair share of asinine things in the last five to ten years as they desperately struggle to understand the changes which internet piracy is causing to their market. Only the music business, which has been struck hardest by online, user-driven piracy, has begun to learn its lesson and adapt its business intelligently. It remains to be seen whether movies and games are condemned to repeat the same costly mistakes, or whether they can learn from their sibling industry and avoid the traps.

The core of the response of both games and movies (although our focus here is on games, obviously) to internet piracy -- the response which leads me, with absolute confidence, to describe these efforts as being asinine -- is to treat their legitimate users as though they were criminals. Almost every single effort which has been made by these industries to protect their products has had the result of inconveniencing, frustrating and disenfranchising honest, paying customers.

[...]

There will always be a core of people who can't or won't pay for things, and who will go to incredible lengths and inconvenience themselves awfully just in order to get stuff for free. However, it's a stupid and useless dogma to claim that all piracy happens because of that impulse. The reality is that when pirates are offering a better user experience than you are, your business model is broken -- and rather than punishing your loyal customers, or whinging to national governments in the hope that they'll cover your backside with unpopular, civil liberties infringing legislation, you need to fix your business model. Or find a new job. [emphasis mine]
Another key thing that Fahey mentions, regarding music, is this:
Lo and behold, consumers aren't actually against paying reasonable prices for music - they're just against having to go out and buy CDs with spyware on them, or having to download tracks that are crippled, locked up and liable to be unplayable as soon as the company you bought them from goes bust. [emphasis mine]
This is exactly the problem with the new trend of game developers requiring gamers to be connected to the internet to play their games. What happens when the developer goes out of business? What happens when the publisher and/or developer cease to support their older titles? The only conclusion I can draw is the same one that Fahey draws -- the games will be unplayable, utterly useless.

I recently installed Company of Heroes: Opposing Fronts. This is an expansion to the first game, Company of Heroes. The Opposing Fronts expansion pack came with some hefty DRM, unlike the original game, which came DRM-free. It took me several hours to install the game simply because of the DRM. My experience was one of frustration.

First, the expansion required that the original game be uninstalled before installing the new DRM-laden expansion. OK, did that, no problem. The expansion took a very long time to install, even on my Intel Core 2 Quad Q6600 processor. After installation, I went to run the game, but was unable to do so because of a required patch installation to play online. I wasn't even interested in playing online; however, I was required to install the patch to play at all. Every time I tried the in game patching process, the game failed to connect to the internet and download the patch (and yes, I had created a firewall exception for Company of Heroes). I was forced to shut the game down and hunt for the patches online (which wasn't easy), download them individually (there were at least a half-dozen), and install each patch individually.

After I had completed this time-consuming endeavor, I opened up the game again. This time, I was prompted to log in with a user name and password in order to play the game. The DRM with this expansion required either the DVD in the drive or an internet connection to play. I had my DVD in the drive, so I was a bit puzzled why the game would require me to create a login. But even this didn't work correctly -- the button to "create" a profile was shaded, meaning that I couldn't access the profile creator in-game. I was forced, yet again, to shut down and create my profile on the developer's website and then start the game back up again. Finally, many hours later, I could play!

To a more casual player, it's likely that s/he would have given up at some point during this ordeal. Perhaps this person would recommend to friends that the game isn't worth the time it takes to install. Perhaps this person is now less likely to buy a future title from the developer. Perhaps this person is likely to return his/her legal copy and instead download a pirated copy because the pirated copy is easier to install. Perhaps this person is now more likely to pirate future games from this developer. Company of Heroes has plenty of pirated copies available on the internet, so all this DRM has done is inconvenience a legitimate customer, potentially encourage a former legitimate customer to pirate games, and/or drive away a legitimate customer from PC gaming to more convenient, legal gaming systems like consoles (PS3, XBox 360, Wii).

Further reading: Cory Doctorow's DRM talk, which discusses all of these issues at great length.

Monday, May 12, 2008

X-COM Rumors Buzz Again

Strategycore reported last week that IGN has unofficially-officially confirmed old rumors that a new X-COM game is being made and that 2K Boston (the team that developed BioShock) is working on the title. IGN's new Warplay column has a piece on the prospects of a new X-COM and what the author, Steve Butts, would like to see in the game. Here's a summary of game mechanics that Butts would like to be maintained:

  1. Realistically modeled tactical strategy game.
  2. The overall atmosphere of an alien invasion as an imminent global threat has to be maintained.
  3. The game really has to offer a sense of attachment and vulnerability for the members of your squad.
  4. We'd love to see the new game emphasize the element of time.
And a couple of improvements suggested by the author:
  1. A much better system for equipping and organizing your soldiers.
  2. The game design from the original redone with the concepts and technologies that have developed since.
The author also seems to suggest that we could be seeing a revival of the failed X-COM: Alliance, because the RPG-based, story driven tactical squad FPS is an industry favorite at the moment (BioShock, Crysis, Gears of War), and it would make sense if the team that brought us BioShock is indeed developing the game. While an X-COM: Alliance game would be alright, I'd much rather see a re-imagined X-COM: UFO Defense, much like what X-COM: Genesis was supposed to be before it was canceled.

In this space, I'd like to offer some game mechanics that I think are necessary for any X-COM sequel to have the same kind of impact that made the first game legend.

First, I think I need to discuss the different kinds of game engines that could be used for a squad-based tactical strategy game. While there are many squad-based tactical strategy games I could discuss and cite here, I'm going to stick only to games that are within the X-COM universe or are inspired by the X-COM series.

X-COM: UFO Defense, and it's sequel X-COM: Terror from the Deep, used a turn-based system, which I believe has worked the best out of all the engines used. In UFO Defense, the player could move one soldier at a time, which I think helped players focus solely on that soldier as s/he executed commands. This kind of focus would help players write their own stories about these characters because everything that happened to each soldier would be right there on the screen. Players would be able to focus on every detail as private Otter Zander successfully guns down several aliens only to have his mind controlled and later turn on his own comrades. Those are the kinds of gaming moments people remember most, not the ones told to them, but the ones players can write themselves.

Additionally, this turn-based system gave the player time to tactically position soldiers around the map, plan ahead, and form mission goals. The most interesting part of any tactical mission was breaching a UFO's front door and watching a carefully planned storm go to shit as aliens inside gun down soldiers or as the plan executes perfectly. No matter how experienced the soldiers either scenario was always possible, and it's that kind of tension that made the game.

Moreover, the pacing is perfect. There's no long planning stage of just setting up moves, which I find to be incredibly boring, or too much happening at once that the player becomes overwhelmed.

X-COM: Apocalypse used a combination of a turn-based engine and a real-time engine, which I believe hampered both gameplay modes in the final release. Turn-based in Apocalypse felt uneven with poor pacing in mission, while the real-time mode was heavily overpowered in favor of fast firing weapons (the machine gun and the chemical handgun). This removed much of the need to play strategically. In real-time, it was much easier to load up on those weapons and run around the map mowing down anything in sight. These aspects of the real-time game bleed into the turn-based game as well, though not the same extent.

Other games, such as the UFO: After... series, used only a real-time game mode. I played the Aftermath game (first in the series) and was really disappointed with the real-time engine. Moving strategically was a chore, mostly because instead of giving a command and watching that command executed immediately (as would happen in UFO Defense), I would have to pause the game, queue commands on multiple soldiers, and then hit play, hoping that I would have the ability to watch several independent teams across a large map react to changing circumstances on the battlefield. If that sounds like a mouthful, that's because it is -- the real-time engine put too many things happening at once in front of the players' eyes. No longer could the player focus of the actions of one soldiers because something else could be happening to another soldier across the map. The game became a pause-fest, which destroyed the pacing in mission. In the end, I would end up just grouping all my soldiers in one clump, running them around the map and focusing fire on one enemy at a time.

Finally, we have the turn-based/real-time hybrid mode of Laser Squad Nemesis. The game is turn-based but the turns are split into ten second intervals. Both players queue up all actions during the same turn and then hit the play button to see what happens. It's a sort of simultaneous turn-based engine, which addresses the issues that some have raised about a purely turn-based game favoring the player who goes first. While the idea works well, I don't think it is as much fun as a purely turn-based game. There's too much focus on planning instead of acting. A lot of time is spent planning moves for a turn, and the only reward is a ten second animation of simultaneous actions across the entire map. I found keeping track of everything that happens to be difficult. Furthermore, the focus on each individual solider that I mentioned above is removed from the gameplay.

Overall, I do hope to see a purely turn-based game because I think the focus on individual soldiers is very important to the X-COM experience. Furthermore, immediate responses to commands are important to keep the pacing smooth, and the turn-based game will give players plenty of time to plan and execute tactical maneuvers across the entire map without feeling overwhelmed.

First, any X-COM game should include the basics of the series -- base management, research, manufacturing, personnel management, geopolitical relations, UFO interception, and squad-based ground investigation of UFO activity.

The game also has to be dark. No cartoony bullshit, please. I want a sense of dread every time I send a squad into a mission. That tension made X-COM the kind of game that the Civilization series is known for being; "just one more turn." A dark motif fits the genre well and gives players a sense of purpose for each mission. I think that prevents missions from becoming like chores for the player to perform in-between building bases and researching alien technology.

That leads me to my next point -- an expansive tech tree is a must. Part of the joy that was X-COM was building a rag-tag organization of rookie soldiers from the pits of human technology into an elite squad packing the superior firepower of the alien menace. I would hope that the game provides a more interesting tech tree that lends itself to re-playability. I want a tech tree that allows for different paths but not enough time to explore all branches in one play through. The player would be given choices like, "should I continue exploring this laser technology, or scrap it for the alien plasma technology?" Either tree could lead to powerful weaponry, albeit with different tactical focuses and usefulness, but the player would have to make a choice between the two because the looming alien invasion will only allow so much time before the earth is overrun.

Re-playability is key to any X-COM game, which is why my next point is about X-COM's randomization. Maps need to be randomized. Players are going to expect to play hundreds of missions in an X-COM game; therefore, it is imperative that each map is different. One of the major failings of the X-COM inspired UFO: Extraterrestrials was the fact that maps were pre-rendered. With only 200 maps, missions quickly began to look the same. Randomization was a big part of X-COM and it created an unpredictability about the game that kept it fresh year after year. In that spirit, randomization shouldn't only be limited to map generation but should be applied to almost everything within the game. Damage, healing, stat increases, etc. should all have a slight random element to keep the game a bit unpredictable. No one likes playing a predictable game for very long.

Mission variety would be a welcomed improvement. Terror from the Deep expanded on the classic mission types from UFO Defense (UFO crash sites, landed UFO sites, alien base raids, and terror missions), but did so clumsily. The sequel added some mission types but also extended missions to make them longer. Terror missions aboard a cruise ship became the equivalent of two terror missions from UFO Defense. More does not always equal better. Rather, I'd like to see more types of missions that have importance for the larger game. For example, raids on supply ships going to an alien base could open a window of opportunity to attack the base when it's supplies are low, thus making the attack a little easier than when raiding when the base is fully supplied. More mission types, not longer missions.

Furthermore, missions should have fully destructible terrain and multi-level buildings for players to explore. Another part of the tension was sending a team into a building and checking each room for any hiding aliens -- the player never knew what might be behind the door. Fully destructible terrain keeps the tactical game realistic while also providing a nice, satisfying feeling when sending a blaster-bomb to level a building holding an entrenched enemy. Destructible terrain opens up more tactical choices.

RPG elements for soldiers are also a requirement. Soldiers should have stats that increase with experience, although, nothing should make soldiers omnipotent. One of the great things about X-COM was the fragility of the player's soldiers, which helped shape that all important tension. Even if you were sending your best soldier with a heavy plasma rifle and power armor into a UFO, you'd still be worried that s/he could die from one well placed shot from the enemy. Stats shouldn't be directly user-directed, either, as that can lead to power-gaming. Stats should increase based on actions performed by the soldiers (i.e., firing a weapon in mission will increase accuracy). Since the actions are commanded by the player, this in an indirect way for the user to influence stat increases. The RPG elements also have the effect of creating a sense of progress, which gives the player a feeling of having created something special and unique. No two soldiers will ever be quite alike, which also has the effect of the player becoming attached to his/her soldiers.

In addition to the RPG elements, soldiers need to have morale effect their ability to perform. Some of the most terrifying moments happen when a soldier panics, drops his/her weapons and walks straight into danger. Even more terrifying were the moments when a soldier went berserk and shot in all directions, sometimes accidentally killing fellow soldiers. Morale keeps that tension going -- the player never knows what may happen.

I think that it goes without saying that any X-COM game should have two interconnected games within itself -- a turn-based, squad-based tactical game as well as a real-time, strategy management game. X-COM split this into the "battlescape" and the "geoscape," and I hope that any further X-COM game would capture this game mechanic in some way. A lot of the fun was building bases, researching technology, and managing relations between X-COM and the sponsoring countries of the earth. A really sophisticated geopolitical model should be a part of any new X-COM; something like a refined political model from the Apocalypse game would be a great starting point.

Base building and management is also key. Extraterrestrials also failed here by automating a lot of the management aspects of the geoscape. Taking control out of the players hands leads to the player feeling less attached to the organization as a whole. With the kind of control given to the player in UFO Defense, the player really feels like s/he is a part of something that s/he has built from the ground up -- a mechanic that taps into the sandbox genre.

Finally, a compelling story needs to be a part of the game. The story should unfold through research, which puts the pace of the game's progress into the players hands. The "UFOpaedia" entries were short and concise, but detailed enough to keep the story interesting. As you may have noticed, many of my X-COM requirements put control of the game into the player's hands. This is on purpose, and I believe this is what makes X-COM so captivating; in a sense, the game is about allowing the player to create a story about saving the entire planet from an alien invasion.

Of course, many small things should be updated (like soldier equipping and the user interface, as IGN mentioned) to the standards that gamers have come to expect in top-tier games today. What I'm most concerned about are the game mechanics I've outlined above.

One last note -- I'd hope that if the rumors of a new X-COM being under development are true that 2K Boston would have enough sense to contact Julian and Nick Gollop!

Here's to hoping that this will indeed happen, and that the developers take care to listen to a fan base that has been aching for a true sequel to UFO Defense for nearly 15 years.

Friday, April 11, 2008

The Pay-Per-Play Scheme

Something I forgot to mention in my previous post came back to me during a conversation on the train the other day. A friend of mine mentioned that Comcast wants to premiere new film releases by streaming them to subscribers on the day of release. This reminded me of some of the proposals of posters in the Quarter to Three forum thread that making video games a subscription service as a solution to large scale, peer-to-peer file sharing.

The pay-to-play scheme is a content provider's dream. Perhaps most importantly, it removes ownership completely from the consumer, and therefore, strikes out one of the content provider's greatest dislikes -- the doctrine of first sale. First sale doctrine stipulates that once a physical copy is sold that the consumer has the right to resell or give away that copy to another without compensating the content provider. First sale is a leak in the system for copyright holders. Pay-to-play schemes do this by not actually "selling" the consumer a physical product, but by instead "licensing" a copy for a one time use.

Computer software companies have been attacking the doctrine of first sale for some time now. According to the EULA (end user license agreement; that dialog box software users will check the "Yes, I agree" box without reading in order to install the software), computer software is not sold but licensed.

There have been differing court court decisions regarding first sale and software. In SoftMan Products Co. v. Adobe Systems Inc., Adobe attempted to prevent Softman from reselling their bundled software programs separately; however, the U.S. District Court for the Central District of California ruled that the terms of the EULA did not apply because Softman had never agreed to them (Softman never ran the program -- installation is the only point in which the EULA is presented); therefore, Softman maintained the right of first sale because a physical copy of the software was sold in a single transaction. In Davidson & Associates v. Internet Gateway Inc., the US District Court for the Eastern District of Missouri ruled that Internet Gateway had forfeited its first sale rights by checking the "I agree" box.

The two previously mentioned cases appear to uphold the concept that software companies can force consumers to forfeit their right to first sale in order to install their software. But the issue is not so simple because other court cases contradict this opinion. Bobbs-Merrill Co. v. Straus introduced the doctrine of first sale in 1908. In this case, the US Supreme Court ruled that the statute of the right to sell does not also grant the right to limit resale. Bauer & Cie. v. O'Donnell supported this decision and also added that simply calling a sale a license does not make it one.

While the Supreme Court decisions set the precedent of first sale doctrine, the previously mentioned lower court cases are challenging the established law. Specifically allowing software companies to force consumers into an EULA which takes away their consumer rights is only the first step towards a pay-to-play system.

Regarding the suggestions from Quarter to Three posters, the only conclusion I can draw is that many game developers and publishers would prefer this system. There are already precedents -- the most well-known being Blizzard Entertainment's World of Warcraft. World of Warcraft is an MMORPG (massively multiplayer online role-playing game) which is subscription based. Players pay a monthly flat-fee in order to play the game. Players have accepted the idea that such games will be subscription based because the game requires the use of the company servers to play. Furthermore, the game is given constant attention by the company through the release of free updates, patches, and additional content to the game. But many of the Quarter to Three posters want to place all games into a subscription system, or even a pay-to-play system.

Some suggestions mimicked the MMORPG system of a monthly flat-fee. Others were for an hourly-rate, i.e., players would pay based on the number of hours logged into the game. This is basically pay-to-play lite, in that there is still an initial sale of software to the consumer, but that there will also be additional charges to play the game. The next step would be to "license" (for lack of a better term) software to consumers free of charge, but then charge the consumer for each time or for how long the game is played, or charge the consumer based on a subscription fee. This would be much like the arcades of the '70s and '80s. The end result would be that no players would actually own their games anymore.

Such systems would also require 24/7 internet connections, which means that all games would have to be played while the computer is online. Some posters pointed this out as a huge drawback that might cause many players who enjoy single-player games to object to purchasing any future games. Supporters of this system argue that it would be an effective way to combat PC game file sharing. The question is, then, would such a system do that?

If Vivendi Universal v. Jung says anything, the answer appears to be no. In this case, bnetd.org was an open-source software package reverse-engineered from Blizzard's battle.net service (Blizzard's online multiplayer service for its games using the company's servers). The software was licensed under the GNU General Public License, and provided an emulation of battle.net for players on their own privately run servers. Of note is the fact that bnetd.org circumvented Blizzard's online CD-key check, therefore allowing invalid CD-keys full access to the emulated multiplayer service. The United States District Court for the Eastern District of Missouri ruled that bnetd.org violated the DMCA (Digital Millennium Copyright Act) by circumventing the copy-protection of Blizzard's games. Despite bnetd.org being shutdown (the website is now under Blizzard's control and redirects to battle.net), other services have popped up in locations that the DMCA does not have influence.

Just as I wrote before, someone will find a way to get around any copy-protection or DRM employed in digital media. The simple fact that in order for encrypted content to be useful for consumers is to hand them the information, decoder, and key will mean that all copy-protection and DRM will always fail at some point. There will never be a hack-proof system that also makes content useful to those who the content provider is trying to prevent certain access.

There are more important reasons than the fragility of such systems for why this is a bad idea. As I have outlined before, these pay-to-play schemes designed to prevent unauthorized copying will stifle creativity and innovation. Users will no longer have access to the content in the same way they would by owning a physical copy. They will be unable to interact with the content to alter or improve upon it. Such limited access cuts a people off from their culture.

Just as the Quarter to Three posters advocate a system of pay-per-play for video games, we see the first steps towards that system with film. Comcast's move to stream new film releases could be the first step in streaming all films in the future. We already have streaming films for a fee via various On Demand services. Adding new releases to the rooster could give the film industry reason to slow, or even halt, DVD/Blu-Ray releases as some point in the future. I don't think it's that much of a stretch.

Wednesday, April 9, 2008

PC Gaming and File-Sharing

I've written before about my opinion on copyright issues, usually specifically regarding music, but I haven't said much about copyright, piracy, and PC video games.

Over the weekend I bought the game Sins of a Solar Empire, a 4x (explore, expand, exploit, exterminate) real-time strategy game in which players create and manage a fleet of spacecraft and conquer different worlds within the galaxy. I went over the the Sins of a Solar Empire forums to get some starting pointers from more experienced gamers and I found this post, which points towards this post by Brad Wardell, President and CEO of Stardock Entertainment (publisher of Sins of a Solar Empire).

Wardell begins by acknowledging the existence of piracy in the PC game market, but dismisses any further discussion on that problem specifically. Instead, he gives a very intelligent insight:

When you blame piracy for disappointing sales, you tend to tar the entire market with a broad brush. Piracy isn't evenly distributed in the PC gaming market. And there are far more effective ways of getting people who might buy your product to buy it without inconveniencing them.

Blaming piracy is easy. But it hides other underlying causes. When Sins popped up as the #1 best selling game at retail a couple weeks ago, a game that has no copy protect whatsoever, that should tell you that piracy is not the primary issue.

In the end, the pirates hurt themselves. PC game developers will either slowly migrate to making games that cater to the people who buy PC games or they'll move to platforms where people are more inclined to buy games.

In the meantime, if you want to make profitable PC games, I'd recommend focusing more effort on satisfying the people willing to spend money on your product and less effort on making what others perceive as hot. But then again, I don't romanticize PC game development. I just want to play cool games and make a profit on games that I work on. [my emphasis in bold]
Sins of a Solar Empire is a game that shipped without any copy-protection at all, but despite this the game was the #2 top selling PC game of all February 2008 releases. Kieron Gillen makes the observation at Rock, Paper, Shotgun that Sins of a Solar Empire is one of the least leeched torrents on Mininova, the largest torrent site on the internet. The point that Wardell is getting at is that game developers should concentrate on the consumer market for games, not the user market -- i.e., make games for buyers, not players.

I don't disagree with Wardell's recommendation, and it's largely because the gaming market is very different from the music market. While research has shown that those who share music files are also the music industry's best costumers, I haven't seen any data to show that those who share PC games are also the gaming industry's best costumers. For example, it was revealed by Infinity Ward that a staggering percentage of online players for Call of Duty 4: Modern Warfare were playing on cracked/pirated copies of the game. Call of Duty has also been one of the top selling PC games since its release.

Of course, all of this is anecdotal evidence, and I know of no such comprehensive analysis of whether or not PC game file-sharing has affected PC game sales. It's difficult to draw any kind of conclusion with the available data, but what we can see is that sharing music and sharing games are two different beasts.

All of this led me to this forum thread at Quarter to Three, in which Michael Fitch, Creative Director of THQ, offered some commentary about the February closing of Iron Lore Entertainment. Fitch immediately assumes that piracy equals lost sales, though I'm not convinced. I'll get to that later, but suffice it to say that Fitch throws this claim out without elaborating. Here's the take home message of his post:
One, there are other costs to piracy than just lost sales. For example, with TQ, the game was pirated and released on the nets before it hit stores. It was a fairly quick-and-dirty crack job, and in fact, it missed a lot of the copy-protection that was in the game. One of the copy-protection routines was keyed off the quest system, for example. You could start the game just fine, but when the quest triggered, it would do a security check, and dump you out if you had a pirated copy. There was another one in the streaming routine. So, it's a couple of days before release, and I start seeing people on the forums complaining about how buggy the game is, how it crashes all the time. A lot of people are talking about how it crashes right when you come out of the first cave. Yeah, that's right. There was a security check there.

So, before the game even comes out, we've got people bad-mouthing it because their pirated copies crash, even though a legitimate copy won't. We took a lot of shit on this, completely undeserved mind you. How many people decided to pick up the pirated version because it had this reputation and they didn't want to risk buying something that didn't work? Talk about your self-fulfilling prophecy.
Discussing file-sharing can be tricky, because it's easy to get backed into a corner of defending theft. That's what happened later in the thread, as poster SirBruce boxed himself in. Ultimately, theft is not the issue, but the copy-protection schemes implemented by developers. Fitch's statement quoted above makes it very clear that the copy-protection scheme used caused a negative side-effect (whether warranted or not) of giving the game a poor reputation. Several posters in the thread hit on this point, and several others seemed to think that solution is more DRM and copy-protection. I'll make my case why this is an incorrect solution.

First, I want to argue from a practical standpoint. I'll need to lay out a quick-and-dry explanation of encryption history to get started. Afterall, that's what copy-protection is -- encryption.

Encryption systems go back a long time in human history. Encryption is used to protect information from being interpreted by people whom the author of the information does not want to give access. For example, say we have two warring nations. The king of Nation A wants to send a surprise attack order out to his/her generals in the field. Obviously, it would not be desirable if this information were to fall into enemy hands -- if Nation B were to get a hold of the message, the attack could be thwarted. So Nation A employs an encryption method -- the message is encrypted and the only way to read the message is to have both a decoder and a key. When the messenger is sent out of the castle gates, s/he is only given the message. Those in command positions will already possess the decoder and key. This makes the information within a closed system -- if Nation B were to intercept the messenger, they would have no way to read the message at all.

But modern digital encryption is quite different. Content producers encrypt their information to prevent unwanted copying; however, all this is for naught. In order for the consumer to be able to use the content, content producers have to provide not only the information but the decoder as well as the key! Using my example above, it is as if Nation A has sent the messenger out with all the necessary components -- message, decoder, and key. In the event of a Nation B interception, the information would surely be in enemy hands.

This is why copy-protection and DRM (Digital Rights Management) will always fail. There is no way to provide useful encrypted content to consumers without also giving consumers the tools to decode and interpret that content. Siva Vaidhyanathan's Copyrights and Copywrongs and Anarchist in the Library discuss this concept at length.

My point is that no matter what type of copy-protection is used, someone will always hack it. Implementing these copy-protection schemes only serve to inconvenience legitimate customers -- i.e., the people who have actually payed for the game. Shitting on your consumer base is never a good idea.

I can relate my own experience with overbearing copy-protection. When I attempted to install my legally purchased copy of BioShock, everything went fine at first. But when I attempted to activate my game through the online activation process, the program was unable to read my disc. I had to contact SecuROM, the company who authored BioShock's copy-protection, to figure out the problem. Eventually, I was forced to manually activate the game through a website they created because of issues like mine. It took days for SecuROM to get back to me. I had even further problems after I updated my computer and had to reinstall the game. This time, the copy-protection was causing some strange problem with my DVD drive -- basically, it didn't like the firmware and refused to read my disc. I am forced to run the game on my other DVD drive (good thing I have two). Again, the point here is that a legitimate customer is being inconvenienced, while at the same time the copy-protection hasn't done anything to stop file-sharing of the game.

The Titan Quest example is different, though, and thus failed for different reasons. The copy-protection implemented made the game appear to crash randomly, which caused the game to earn a reputation as buggy. It was argued that this was not to tip off the hackers about the copy-protection throughout the game; however, it had the effect of bad publicity. In the process of attempting to circumvent hackers, the developers instead turned away likely legitimate customers.

Second, I want to argue this from an ideological standpoint. The idea here is that these types of copy-protection and DRM schemes will do a disservice to innovation and creativity. As Vaidhyanathan also argues, excessive copyright protection in addition to technological quick-fixes will only hamper the people's ability to interact with culture.

Yes, software development is a part of culture. Putting up walls and protecting this information means that interested parties cannot use it for further derivative and transgressive works. I've seen how game developers and publishers will clamp down on modders who alter a game's code to make something different for non-commercial use. There is a much more protectionist attitude in the gaming industry than in music, to bring back my earlier comparison, in that music is more lenient about sharing and reusing information (though, now their are significant licensing fees for samples; see Copyrights and Copywrongs for more on this subject), but that is really for another post. My point in mentioning this here is that games are very protected pieces of culture. People enjoy culture because it is an interactive experience, and so, people will do what they can in order to interact with the culture they enjoy.

Furthermore, we are a democratic society. We should embody and encourage the values of democracy, which includes the free-flow of information. I am not against compensating the developers for their hard work; however, that compensation should only go so far. As with music, these works should eventually fall into the public domain. And considering the incredibly high rate of change within the gaming industry, the current model for copyright extension does not seem appropriate. I'll reference Vaidhyanathan again, as his books offer a unique analysis of copyright law and its effect on creativity and innovation.

Admittedly, this does not directly apply to the situation I've been discussing within this post. However, I add it because many of the posters within the Quarter to Three forum advocate more draconian measures to clamp down on unauthorized copying, while also neglecting to consider the real-world consequences that would have on a culture of open, distributed computer systems. Such measures are likely to increase the barriers to entry of the gaming industry for small, interested individuals. We have seen how such copy-protection has served previous industries, and we can see it in music today -- existing copyright law entrenches established artists while punishing emerging artists.

Finally, I wanted to comment on Fitch's statement that piracy equals lost sales. I'm not convinced of this because it has not been demonstrated that those who have participated in the file-sharing of PC games were likely to purchase the game at all. In fact, Russell Caroll investigated this regarding the casual game genre -- games like Bejeweled and Diner Dash. What he found was that for every 1000 pirated copies thwarted, they only gained one sale. The take-away here is that most people who download games were not going to purchase those games anyway.

This brings us back to the main topic of my post -- that game developers should take Wardell's recommendation to concentrate on making games for those who buy them, not just those who play them. It's a much better solution to the piracy problem than increased consumer inconvenience via draconian copy-protection that can easily be bypassed. Moreover, without the existing protectionist attitude it's likely we'd see more innovation and creativity in gaming titles, because the information to make those games would be available for others to comment on and improve upon.