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.

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.

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.

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.

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: