27 September 2008

A note for developers/publishers on selling things:

Okay, first off i'll get used games sales out of the way: You do not have the right to expect monies from second hand sales. No other business on the planet does this or has ever done this for products sold to a consumer.

Right, now that the definitive statement is out of the way we can move onto the more nebulous discussion at hand: selling a game. Developers and publishers would have you believe that you are buying a licence to run the game - i do not believe that this is the case. Simply put, games are a commodity. They are bought and sold under this simple premise - they are not a service:

"an article of trade or commerce, esp. a product as distinguished from a service."

A licence is something that is provided to determine whether you have permission to do something, or not:

"permission to do or not to do something.

exceptional freedom allowed in a special situation.

the legal right to use a patent owned by another."

Now this strikes me as kind of obvious but apparently the aforementioned parties seem to have trouble grasping this simple concept and they use this mis-use of the term licence to try and do a couple of things:

  • Limit the number of users of a game to one - requiring more purchases for people to use the content.
  • Deny the user ownership of the product - removing established rights for purchase of commodities.
  • Limit the ability of the user to actually use the game whenever they want - i.e. a timed obsolescence.
Before i get to these three points i'll spell out why this approach to 'believing' how you sell the game to the public is flawed. A publisher or developer would have you believe that they own the content on the disc because they coded it and assembled it and therefore have the rights as the 'artist' and the reason why this has lasted as long as it has is because it's partially true.... but here's an example of why they're wrong:

You buy a car (or anything else). You own the car - everyone know this - therefore you can use it as you wish; damage, repair or sell it on. However, (and this is where the publishers/developers are correct) you do not own the patents that went into producing the car - you have no permission to reproduce the car or reverse engineer its operation.

This is exactly how game sales should be perceived. If a game is sold it becomes the property of the purchaser: they have the right to use it as and when they wish but do not have the right to use the content (i.e. game code or art assets) to produce other items for sale - they do not own the base of the game but the implementation of the game.

Let me give you an art example: You can buy a painting from an artist and you own the painting to do with as you wish. You don't have the right to the ideas behind the painting or the right to reproduce it and sell it off as your own work (or even the artist's work) when it isn't.

So actually saying you're selling a licence is not correct but that doesn't mean that you aren't still protected from all the crap that goes on in counterfeiting and piracy etc. Games are sold under the term 'licence' only that it really isn't a licence in any normal sense of the word that could differentiate it from the meaning of commodity.

Back to those three points i made above.

Point 1. : Imagine if the movie industry tried to limit the use of a DVD to the person who bought it through a 'licence' (or even the music industry)..... i think there would be a general uproar from the public. It just doesn't make sense. I have a driving licence but that doesn't restrict people without a driving licence from being able to be in a car with me when i drive.... this reasoning could be extrapolated to any number of products.

Point 2. : You can't resell the game if you don't like it. In fact for PC games you can't even return the game if you don't like it or it is buggy. You have no recourse (only because consumer protection laws have been slow in catching up to the new digital era) but to eat the loss of money on your purchase. Developers/publishers would prefer to make it so that you buy your product and then have no rights or expectations - even if it's the most buggy unfinished game ever made. Their point of view seems to be that 'well, we made our money.... so suck it!' and this is becoming more prevalent with the increasing restrictions of DRM (Digital Rights Management) or as us consumers like to call it: removing the 'rights' of the legitimate customers. [I place rights in apostrophes because there are no laws governing the right to sell your purchase in my country and there are no laws allowing people to share the use of a commodity but they are accepted practice by the whole population and so are taken to be law - in the same way that copying music from one device to another is now becoming legal due to the politicians changing the law to reflect a user's rights]

Point 3. : This overlaps with point 2 by a large margin but is important to list separately because of the emerging types of DRM on the market. No longer do you even get a licence to play the game as you see fit but now you get a licence (at the same price as the originally, 'owned' unlimited game) to possibly use your game.... if the company lets you. Online activation means that your game is tied to the company - you're running it on a sanctioned terminal linked to the mainframe whose connection could be revoked by the company any time they wish whether it be through conscious decision such as banning or through accidental mishap as when authentication servers break or go offline. All the users have to hug themselves to sleep at night with is the promise (for whatever little that is worth) of a patch being made available at some later unspecified point for your games to be freed from this limitation.
These measures inherently devalue the product... however the product is still sold at the same price.

All these measures and efforts aren't particular to gaming though, oh no, they come from the ill-defined world of 'services'. Services are a different matter entirely though because you enter the contract knowing that you have a limited service and a fixed term - much like a movie rental or your phone contract - you are provided with a worthy service for which you pay a (usually) constant fee for continued use of said service and the worth of the service increases or stays static with the use of the service - it does not diminish.

Let me give you an example of what i mean here - i know it can be a bit confusing. Imagine if you were tied to a phone service like Orange. You are happy on the normal form of connection (GSM) and all is going well. When 3G is launched the company do not drop the use of GSM, when a new version of a phone is released your old platform doesn't suddenly become unusable. Those points i made above make sense when combined with the benefits provided by a service. There is no need for the service operator to try and force you to change because they are paid regardless of the situation and quite often it is actually in the interests of the consumer to upgrade. The worth of the service does not diminish.

Take those points and put them into your commodity system instead and all of a sudden you have a problem. A game is not normally supported by a developer or publisher past a year (and frequently less) and certainly you will not receive a free upgrade to a port onto a new console. Nor is it in the publisher/developer's best interests to keep your access to the original game because they want you to buy their latest version due to the fact that they don't get any money in the intermediate period between games from a person who has purchased a game. A consumer could play their game for years and not need or want to buy another in that time frame therefore the publishers/developers have to create a way to force people to 'upgrade' by implementing DRM with planned obsolescence.... they release games that are buggy because they do not see the worth in waiting a little bit longer and spending a little more money to release a more playable game. The whole way that the games industry is set up happens to be antagonistic to the consumer and the way that the consumer/producer relationship has worked for hundreds of years by trying to apply service logic to a stand alone product. By buying a game with DRM in it your purchase diminishes with value upon use and with time and it's planned rather than natural.

There are a few options open to the industry to actually make things work:

  1. Return to simple non-reliant copy protection schemes such as CD/DVD-ROM protection. This stops casual piracy/copying from friend to friend but does not stop people exchanging their paid-for commodity. It has exactly the same effect on proper piracy (i.e. torrent downloads and illegal sales of mass copied content) as DRM schemes do but does not require the continued maintenance of an authentication server, the costs of purchasing and applying DRM to a game and also (if the publisher is being honest) the cost of removing that DRM scheme.
  2. Move to a proper service model where games are released in an unbuggy state, all problems are supported and games are brought forward onto the latest system. This, of course, requires a subscription to the service but means that you have an ever increasing library of games to choose from on the service and thus increases the value to the consumer. It does have its downsides though: it will not stop proper piracy and the service will actually increase in cost to deploy as time goes on.
  3. Change the system so that you only rent games. You pay a LOT less than we currently do but the consumers know that they only have access to the product for a limited time.
Take your choice developers and publishers..... but don't keep things the way they are because sooner or later these business practices are going to end up in court and be found at worst illegal and at best shady and immoral. But know this: I and many other legitimate consumers will not keep buying games if the current model is extended with ever more restrictive DRM.... nor will i follow over to option 3 if it is the only method of acquiring games. I won't resort to piracy to get my gaming fix - i'll just play my bought property from the last few years until i am unable to do so - however, i can't guarantee that other consumers won't turn to piracy though it would be very ironic. Don't you think?


Tesh said...

I've written about part of this over here:


I like your take on things. I work in the game industry, and I see some deep problems with the service economy mentality. If we're not careful, we're going to get gangrene from that bullet wound in our foot.

Duoae said...

Thanks for commenting - i've visited your blog and there's loads of good points.

I'm just glad that someone actually reads my crap and it seems to make some sense to someone other than me :)