The Needles: Michael Pachter, Ubisoft and the Perils of Rights and Wrong

[Therumancer]

Actually I think the problem is that Michael Pachter didn't focus much on the effects on legitimate users. Their rights to own and use their own games as they see fit, which is where he fails. What a company like Ubisoft is doing does not just protect their property, but infringes on the rights of those who purchused the games legally.

This is pretty much exactly what I'm talking about. Where do you get the idea that you have a legal right to own and use videogames as you see fit? It's a completely false assumption from which a lot of seriously misinformed opinions flow.

I've received several posts mentioning functionally the same thing. So I'll respond to you since your one of the red guard.

There is no misunderstanding here, when you buy the game you do have a right to use your own property as you see fit. That copy of the game is yours, period. That's the end of the matter.

Now, I *DO* understand the points being made about the EULA, and game companies wanting to claim that your effectively purchusing a liscence to use the product from them. This is incorrect. Does anything on the box of a video game say this? No it does not. All of the claims to this effect are contained within agreements included in the software, which can only be accessed once you've paid money and cannot gain a reimbursement.

What this means is that those "contracts" are not in any way binding, it's just a giant wall of text in your way to installing the game. You can't sell someone something, and then after the deal is done, try and limit what they do with it retroactively. A contract has to be signed as part of the agreement to begin with, when the money is changing hands.

What's more there are laws specifically designed to protect people from this kind of thing. Among other things that can include misleading language, concealed language, and referancing other documents that are not provided in full. Meaning someone can't just mention there is an EULA involved in a quick line on the back of a box or whatever.

While it can also be touchy people are also protected from their own stupidity in many states. People can, and have, beaten even signed contracts by claiming that they didn't understand what they were signing, and that effort was taken to deceive them into doing so. However this can get complicated. The simple point is that even when all is said and done conning someone (if that's what you did) into signing something doesn't always mean you got away with it.

At any rate, for things to work the game industry wants to claim that they do, they would effectively have to ensure that people sign a EULA as part of the purchuse itself. Meaning that a company like Gamestop would have to keep the paperwork handy, and would also in many respects themselves become liable for any misunderstandings.

I'll also be painfully blunt in saying that I think if the game industry was ever to present this idea of not owning someing your paying a hefty sum for, they would effectively be committing suicide. That's why the EULAs have been presented the way they are with 10 pages of "click through" legalease in front of an install button or whatever, after someone has already paid money. Trying to make a sort of "backdoor" contract and hope it's upheld, when really it's powerless, and as others in this thread have pointed out EULAs have been defeated time and again on various points that have come to conflict.

Simply put, there is no misunderstanding here. People own their games, they always have. I understand what the games industry wants, and I understand how DRM and Digital Downloads play into what they want (which is also why I think a lot of the more savvy consumers have wanted no part of these technologies, despite attempts by the industry to force it through, and present people who dislike the idea as being somehow technophobic).

At any rate, all rambling aside it's very simple. The gaming industry wants to claim we don't own their games, we simply pay them for the right to use them totally at their discrestion and have no rights whatsoever despite giving them money. Comsumers say "we've paid money, and we own copies of these games as our private property". The gaming industry points to the EULAs, and says "well you agreed to this". However given that that was never agreed to when the game was purchused and money actually changed hands, it's effectively powerless, and the gaming industry is blowing smoke.

Besides I think if they made their terms clear, and they were actually legally binding I think there never would have been a gaming industry.

 

[Wuvlycuddles]

Okay, well, you're wrong. That said, assuming your response to Ubi's nonsense is to just not buy the game, then well done, you've made the right move.

That's really kind of the point. Ubisoft has the right to use any DRM system it wants.

I was speaking more of the moral right to employ invasive DRM, which they don't have. Legally though, they can do what they want, doesn't make it "right".

It is never right to punish the innocent in persuit of the guilty.

 

[Therumancer]

Spoiler

Actually I think the problem is that Michael Pachter didn't focus much on the effects on legitimate users. Their rights to own and use their own games as they see fit, which is where he fails.

I believe he actually accounts for this.

What a company like Ubisoft is doing does not just protect their property, but infringes on the rights of those who purchused the games legally.

This is actually at the crux of the comment about actual rights vs. perceived rights.

Let me put it this way, if Ubisoft goes out of business, meaning no servers and online verification, how do I play the game I paid a bunch of money for?

You can't.

I as a consumer have the right to MY property indefinatly.

Strictly speaking, it isn't your property. Read the EULA again, you've signed up for access to THEIR property, and a license to use THEIR property for as long as THEY want. While I can respect the sentiment behind your comment, legally you don't have a leg to stand on, no offense.

Some of us do play old games, some of which are a decade or more old, and I feel that is our right.

Honestly, games like Fallout and Deus Ex are actually over a decade old at this point. The original Doom is almost old enough to vote at this point.

But, again, your perceived rights don't mesh with the EULA you agreed to when you installed Assassin's Creed 2.

As far as Ubisoft being legally right, I am not entirely sure about that one.

I am, and in my opinion (as someone who took more law classes than he likes to admit), the EULAs are contracts, which you agree to. Ubisoft can stipulate just about anything they want to in them and they're legally binding (with one caveat).

I suppose it can be argued legally, but only because I feel the goverment has yet to seriously pay attention to the games industry and what it does.

I don't think Governmental involvement would help. Judicial examination might, but not governmental. (Sorry if that's waht you actually meant and I misunderstood.)

All of this junk about EULAs and the like are legally dubious because they are something that you run into AFTER you've paid money and can't return the product.

And that's the caveat. It used to be that EULAs included a clause saying that if you didn't agree to the terms you were permitted to return it to the store for a full refund, but, obviously that's not the case anymore, and I can't remember the last time I saw that clause.

That's a key element that all of these arguements seem to miss entirely.

Honestly, no offense, this is a caveat, not a logical point to argue off of. If the industry came under serious fire for this, they'd simply start posting the EULAs on their websites, problem solved, and we're back to buyer beware. (Honestly, I'm a little surprised they don't do this now.)

I think to some extent the games industry has gotten away without signifigant legal investigation or action, that it has developed something of a god complex when it comes to their "rights" to abuse customers. Things like price fixing, arranging release schedules to avoid direct competition, and similar things are all illegal at least in the US.

In theory you're right. In practice most of the entertainment industry exhibits similar behavior, particularly when it comes to release dates and price setting.

That said, I do suspect the games industry is hurting itself in the long run with the $50/$60 price point. But I don't have hard economic numbers to say that if games were priced at $20 they'd sell three times as many.

Heck they publicly admit to large scale "game developer conferances" which exist to more or less set industry policy and standards. Before someone questions this, consider that this is pretty much what gas companies have been under investigation/in battle over for years now, over fixing prices at the gas pumps and coordinating price hikes accross the spectrum (which is what the games industry did a few years ago when they raised game prices by $10 accross the board). It's just that nobody yet cares.

The issue with using gas as the secondary example here is, gas isn't a luxury item. It's a vital commodity, so, yes, accusations of price fixing are far more critical (to the economy as a whole) there, and more likely to draw the ire of regulatory agencies, than price fixing in games. (I'm not sure that paragraph's completely clear.)

To me, I think DRM is immoral, hurts legitimate buyers (which some people do mention), and when it's draconian and affects what you can do with your property is not properly presented like a contract should be before you pay money for what is more or less an unreturnable product.

While it isn't your property (and I'm sorry I keep hammering on that point, but legally it isn't), you're right that the nonreturnable nature of PC games these days is highly problematic, and more than a little disturbing

Stop and think about this some time. Pirates aren't right, but neither is the game industry. Neither has a moral high ground here. Legitimate customers are the ones getting hurt by what amounts to two groups of criminals duking it out.

I'm not sure I'd go so far as to categorize the industry as criminal (Ubisoft may be criminally incompetent ). In point of fact, pirates are thieves, simply that. Not the Robin Hood-esq crusaders they try to paint themselves as.

In contrast, while the industry isn't a white knight, it doesn't change the fact that they are operating within their actual legal rights in an effort to stop the continued theft of their property.

Such is my opinion.

Indeed.

Spoilered to save space (and for some reason the margins are messed up so I can't quote it very well to begin with).

I think your missing a key point here. The EULA is not, and never has been, a legally binding contract. At least not in the USA. Simply put, when I handed money to the clerk at my local gamestop, did I sign a contract? Was all of those terms explicitly stated on the box? Even if some game, somewhere had fine print mentioning the existance of a EULA, was there a copy availible in the story for me to read?

The bottom line is that the EULA is akin to taking someone's money, telling them that they have to agree that they don't own what they paid you for, but can use it as long as your good well holds out, and then basically denying them what they paid for all together while pocketing their money if they don't agree to it. That's ridiculous, criminal, and hardly legally binding.

See, the gaming industry *might* be able to make a case if it was possible to return opened software to the retailer, but it's not because of their own anti-piracy paranoia that has created this arguement to begin with. Getting your money back for not agreeing with a EULA is going to take an act of congress, if it's even possible at all.

Stop and think about this.

The logic the gaming industry claims to use only exists because it's never been seriously challenged. It would be like me selling you a microwave, but then after you get home and plug it in, the first time you go to cook food, it flashes up a EULA and demands you press a button to confirm accepting that the store owner actually owns the Microwave and can reclaim it at any time, or do anything else he wants with it. The store you bought from doesn't allow returns on opened electronics, so you can't get your money back. Nobody told you about this when you bought it. Now, if the guy shows up at your house the next day and decides to take back "his" microwave that you just liscenced, do you really think the law would stand for it?

That's functionally what the gaming industry is trying to do, and there are laws in place specifically to prevent that kind of thing.

-

Now in the case of purely digital downloads, you might have a point. After all in that enviroment if they make you click off on a EULA BEFORE they let you complete a transaction and actually take money, it could be legal. I say could be, because it depends on how it's written. While it was over a decade ago, I remember briefly covering civil law, and one point made in most contracts is that they have to be concise and written clearly enough so that the signer can understand them (you can't for example bind a person who is mildly retarded to a contract they couldn't understand), length is also an issue. This is one of the reasons why very long contracts oftentimes have people sign every page, or every couple of pages, that way it can be argued that it was all seperate contracts that worked together (it's a way of fudging the law).

Call people stupid, or sheeple, or whatever else, but the bottom line is that the average common human demoninator is pretty low. Hence why HP Barnum said "there's one born every minute" and why the classic "snake oil salesmen" have been around pretty much since the dawn of time, and continue to exist in some form or other. As a company demonstrated (can't remember who it was, but The Escapist covered it) people don't read these huge, long EULAs
at all. People "signed away their souls" so to speak, though they were returned by the company ( ). In a legal sense chances are any contract, EULA or otherwise, long enough and complicated enough, wouldn't be binding unless there were special considerations as well. In addition to the above you'll notice a lot of contracts for loans and the like that involve a lot of paperwork usually have numerous co-signers. In some cases people might even call in a legally recognized notary to act as a neutral party. The purpose of this is to verify that everyone understood the contract, and saw everyone else sign. So if it went to court, the court could call in the witnesses. If your stupid and had someone explain it to you, and they lied or misrepresented things, what the contract says could very well be overturned if those witnesses happen to agree with you. I actually knew a few people who are notaries, and who have been called in as a "neutral party" and asked to make reports after the fact during contract disputes.

With the length and complexities of some of these EULAs, and given the fact that they are being used to legally bind 13 year olds (the games says "T"! ) that could be an issue as well.

At any rate, that kind of thing is exactly WHY the gaming industry wants to go "digital" it's not a matter of conveinence, as much as it is a way of taking power out of the hands of consumers as much as anything.

See, one thing people have to understand, whether they work for the industry, or are just commenting, is that a EULA is not a legal contract. Heck, there isn't even a way of verifying who pressed the button or anything else.

 

[Therumancer]

I will refrain from commenting on most of this, as it didn't go well the last time, and instead merely note this. Under your and Pachter's rather broad definition of piracy, loaning your mate a game that they play through to completion would also be theft.

If that doesn't show you how laughable the concept of piracy being pushed by the industry is, frankly I don't know what will.

Well, to put this into perspective, this is not a "new" issue. There have been arguements over media rights for a very long time.

Let's take something very low tech, a book. Authors have long argued that they own the content of that book, and that you as the purchuser should be the only one who has the right to the contents of that book. Technically this means that your committing piracy if you read your kids a bedroom story, however we're supposed to accept their word for the fact that they won't pursue us on this. To my knowlege the issue of lending someone a book to read has never been pursued in court.

HOWEVER authors HAVE gone after schools and such for making copies of short stories, or pieces of text books, and then distributing them to the students. The science fiction author "Harlan Ellison" was especially vehement on this point... and schools, both colleges and public schools, have been to court over this.

It's interesting to note also that various writers groups have even gone after college book stores for selling used books. The idea being that if someone buys a used textbook at cut rate from a store, the textbook publisher is losing a sale, especially when you consider that the books in this case are mandatory. You'll notice it's VERY similar to the entire used game issue we're dealing with, with the sole exception that game companies can't consider every used game a lost sale, but sellers of college textbooks can.

To give you some idea of how it turned out, when you were in school your teachers probably still ran off copies of things, especially in public school. This probably included works of very short fiction and the like.

Also the trade in used textbooks still seems alive and well, 16 years later from when I was following the issue. What's more, my local area has TONS of used book stores, despite the fact that at one time there was pressure to kill them.

Some of you might remember a campaign against both used books, and also trying to get people to pass on books with the front cover removed, so called "stripped" books. This was done with printing castoffs, inventory not moved by certain book stores, and by encouragement (to a lesser extent) where authors were campaigning to have people who were done with a book to tear off the front cover before tossing it in the bin, assuming they couldn't burn it, rather than selling it.... it was pretty crazy in places.

Even the bit about hurting authors by selling used books is similar, albiet in the case of game developers typically when a game is sold they already got paid, it's the producers that actually wind up losing anything (ie seeing less of a return on their investment). Sometimes the producer and the development team are one and the same, but that is not always the case (and somewhat infrequent).

 

[Andy Chalk]

I was speaking more of the moral right to employ invasive DRM, which they don't have. Legally though, they can do what they want, doesn't make it "right".

It is never right to punish the innocent in persuit of the guilty.

True, but morality does not equal rights. Is it splitting hairs, an overly fine distinction? Well, no, not really, but I can see where it could be perceived that way. But ultimately, opinion is all it is. Hence, "right" vs. rights.

 

[seditary]

If you feel the need to tell people you're ethical, I'm not going to trust you in any way.

 

[Therumancer]

I've noticed two basic things in my surfings of forum posts, both on the Escapist and elsewhere.

The first is that no matter how one rationalizes piracy, there are really only 3 prime reasons I can see why someone does it: being lazy, cheap, and a self-centered douche-bag; I've heard other reasons, but those reasons turn out to be just covers for this same set of 3. If it's not a necessity of life, like food, air, water, and shelter, you can just live without it.

The second is that nerd-rage always seems to center on a skewed childish sense of entitlement--"I want this; I want that; I want everything. Give me anything, cause that's what I want and that's what I like, and you better give it to me now!"(Hell, many adults are like this.)--which, of course, blinds them to any sort of reason or rationality. Their shrill posts often bare this attitude out when a situation is presented in which they can't get what they want or can't get it easily.

I've mentioned elsewhere that I agree Ubisoft is 100% in their legal, and even moral, right to act as they have, creating the DRM system that they have. However, at the same time, customers are 100% in their right to not purchase a product they deem is devalued(or inconvenient) as a result of such an aforementioned system(or for any other various reasons, such as it being made by Apple, Microsoft, Google, The Favorite to Hate This Week Company, etc.). This does not give license, right, or entitlement to pirate in any way, shape, or form; it is merely a choice to be without the product or find alternatives that can be purchased. This is not a question of right and wrong; it's merely a question of customer choice of values and sound business strategy. Inconveniencing your customers unnecessarily, treating your customers poorly, and devaluing your product, in the judgement of your customers, while continuing to charge a significant price does not lead to a sound business strategy, in my assessment.

Okay first off, I will say that I do not consider "Robin Hood" type heroes or anything of the sort. On this I agree with you, and feel that piracy is wrong... despite the gaming industry being a corrupt group of crooks themselves.

This is why I always refer to the game industry and pirates going at it as being the mafia, and a bunch of gang bangers duking it out. Neither side is right, or has any kind of moral high ground. It's the legitimate users that suffer from the fallout.

That said, Ubisoft neither has a legal or moral right to what they are doing. When it comes to these EULAs and DRMs, basically what they are doing is theft just as much as what the pirates are doing. They are functionally wrangling for a legal way to take your money and not be obligated to give you anything in return. That's what a lot of what they're doing amounts to, and that's functionally what the EULAs say, even if they are not binding contracts (despite the fact that they are trying to find ways of making them so).

The basic arguement comes down to the industry saying, we take your money for a liscence, and we can revoke that liscence at any time, or do anything we want with what you bought, any time we want.

As Andy Chalk pointed out, despite us disageeing on the status of such things, the gaming industry is basically argueing that games were never our property to begin with. On a lot of ways this is another form of theft.

Then of course there are other issues I point out. The gaming industry operates in what amounts to an illegal fashion anyway. They engage in price fixing just like what the gas companies have been accused of (and has been under federal investigation for like forever). They don't compete with each other, and adjust release schedules so nobody is forced to seriously innovate or lower prices and the like.

This does not justify piracy, BUT it does mean that the gaming industry is simply incapable of possessing any kind of moral high ground. I won't say who are BIGGER crooks, but personally I think the game industry needs to be "adjusted" first before any anti-piracy measures can be taken seriously. I mean when you consider the product they are complaining about being stolen is the result of immoral, and illegal behaviors to begin with, you can't complain about they losing what amounts to "dirty" money. It's sort of like trying to say that we should give the Mafia control of the prescription drug trade in an area controlled by gang bangers... the arguement is fundementally ridiculous because your still dealing with what amounts to criminal enterprise.

It's us gamers who suffer.

Oh and for the record, for whatever reason people seem to believe (with some frequency) that I am pro-pirate because I criticize the gaming industry. To clarify: I am on neither side. I want to buy games legally for a fair price (which I believe comes from serious competition). I buy games as it is now, but feel I am being gouged. I also want clear ownership of the games I pay money for, including the right to sell them if I so choose without being artificially penalized for it (ie I support the used game industry, and I *DO* buy games used).

To be honest I feel pirates have their own agendas as well, I am very wary about the idea of letting "Captain 1337 Haxxor" into my system so I can play a $50 game. For all comments from people who claim piracy is safe, and how various "cracker" groups have integrity, I also point to the issue of botnets, as well as viruses, malware, and simply backdooring systems to pull off information. Not to mention the money that can be made from say breaking into MMO accounts, stealing characters for sale, and robbing gold and components and such. Personally *I* happen to think that one of the reasons this kind of thing happens is because the victims pirate games and such, and then people get into their systems to botnet them, keylog passwords, and other things. I especially look towards spyware and botnets and the like.

Just because you feel a game, or a crack group is safe, doesn't nessicarly mean that it's true. Consider that if your dealing with guys who can get past the security/DRM being made by teams of computer programmers, some of who might be hackers themselves, they can probably hide stuff in their "warez" that are going to get past the security a person pirating a game happens to run. It's food for thought... Even given the price of games, I generally do not consider piracy to be worth the risks.

 

[Starke]

Spoiler: OH GOD! WALL OF TEXT! INCOMING! RUN!

Actually I think the problem is that Michael Pachter didn't focus much on the effects on legitimate users. Their rights to own and use their own games as they see fit, which is where he fails.

I believe he actually accounts for this.

What a company like Ubisoft is doing does not just protect their property, but infringes on the rights of those who purchused the games legally.

This is actually at the crux of the comment about actual rights vs. perceived rights.

Let me put it this way, if Ubisoft goes out of business, meaning no servers and online verification, how do I play the game I paid a bunch of money for?

You can't.

I as a consumer have the right to MY property indefinatly.

Strictly speaking, it isn't your property. Read the EULA again, you've signed up for access to THEIR property, and a license to use THEIR property for as long as THEY want. While I can respect the sentiment behind your comment, legally you don't have a leg to stand on, no offense.

Some of us do play old games, some of which are a decade or more old, and I feel that is our right.

Honestly, games like Fallout and Deus Ex are actually over a decade old at this point. The original Doom is almost old enough to vote at this point.

But, again, your perceived rights don't mesh with the EULA you agreed to when you installed Assassin's Creed 2.

As far as Ubisoft being legally right, I am not entirely sure about that one.

I am, and in my opinion (as someone who took more law classes than he likes to admit), the EULAs are contracts, which you agree to. Ubisoft can stipulate just about anything they want to in them and they're legally binding (with one caveat).

I suppose it can be argued legally, but only because I feel the goverment has yet to seriously pay attention to the games industry and what it does.

I don't think Governmental involvement would help. Judicial examination might, but not governmental. (Sorry if that's waht you actually meant and I misunderstood.)

All of this junk about EULAs and the like are legally dubious because they are something that you run into AFTER you've paid money and can't return the product.

And that's the caveat. It used to be that EULAs included a clause saying that if you didn't agree to the terms you were permitted to return it to the store for a full refund, but, obviously that's not the case anymore, and I can't remember the last time I saw that clause.

That's a key element that all of these arguements seem to miss entirely.

Honestly, no offense, this is a caveat, not a logical point to argue off of. If the industry came under serious fire for this, they'd simply start posting the EULAs on their websites, problem solved, and we're back to buyer beware. (Honestly, I'm a little surprised they don't do this now.)

I think to some extent the games industry has gotten away without signifigant legal investigation or action, that it has developed something of a god complex when it comes to their "rights" to abuse customers. Things like price fixing, arranging release schedules to avoid direct competition, and similar things are all illegal at least in the US.

In theory you're right. In practice most of the entertainment industry exhibits similar behavior, particularly when it comes to release dates and price setting.

That said, I do suspect the games industry is hurting itself in the long run with the $50/$60 price point. But I don't have hard economic numbers to say that if games were priced at $20 they'd sell three times as many.

Heck they publicly admit to large scale "game developer conferances" which exist to more or less set industry policy and standards. Before someone questions this, consider that this is pretty much what gas companies have been under investigation/in battle over for years now, over fixing prices at the gas pumps and coordinating price hikes accross the spectrum (which is what the games industry did a few years ago when they raised game prices by $10 accross the board). It's just that nobody yet cares.

The issue with using gas as the secondary example here is, gas isn't a luxury item. It's a vital commodity, so, yes, accusations of price fixing are far more critical (to the economy as a whole) there, and more likely to draw the ire of regulatory agencies, than price fixing in games. (I'm not sure that paragraph's completely clear.)

To me, I think DRM is immoral, hurts legitimate buyers (which some people do mention), and when it's draconian and affects what you can do with your property is not properly presented like a contract should be before you pay money for what is more or less an unreturnable product.

While it isn't your property (and I'm sorry I keep hammering on that point, but legally it isn't), you're right that the nonreturnable nature of PC games these days is highly problematic, and more than a little disturbing

Stop and think about this some time. Pirates aren't right, but neither is the game industry. Neither has a moral high ground here. Legitimate customers are the ones getting hurt by what amounts to two groups of criminals duking it out.

I'm not sure I'd go so far as to categorize the industry as criminal (Ubisoft may be criminally incompetent ). In point of fact, pirates are thieves, simply that. Not the Robin Hood-esq crusaders they try to paint themselves as.

In contrast, while the industry isn't a white knight, it doesn't change the fact that they are operating within their actual legal rights in an effort to stop the continued theft of their property.

Such is my opinion.

Indeed.

Spoilered to save space (and for some reason the margins are messed up so I can't quote it very well to begin with).

I think your missing a key point here. The EULA is not, and never has been, a legally binding contract. At least not in the USA. Simply put, when I handed money to the clerk at my local gamestop, did I sign a contract? Was all of those terms explicitly stated on the box? Even if some game, somewhere had fine print mentioning the existance of a EULA, was there a copy availible in the story for me to read?

The bottom line is that the EULA is akin to taking someone's money, telling them that they have to agree that they don't own what they paid you for, but can use it as long as your good well holds out, and then basically denying them what they paid for all together while pocketing their money if they don't agree to it. That's ridiculous, criminal, and hardly legally binding.

See, the gaming industry *might* be able to make a case if it was possible to return opened software to the retailer, but it's not because of their own anti-piracy paranoia that has created this arguement to begin with. Getting your money back for not agreeing with a EULA is going to take an act of congress, if it's even possible at all.

Stop and think about this.

The logic the gaming industry claims to use only exists because it's never been seriously challenged. It would be like me selling you a microwave, but then after you get home and plug it in, the first time you go to cook food, it flashes up a EULA and demands you press a button to confirm accepting that the store owner actually owns the Microwave and can reclaim it at any time, or do anything else he wants with it. The store you bought from doesn't allow returns on opened electronics, so you can't get your money back. Nobody told you about this when you bought it. Now, if the guy shows up at your house the next day and decides to take back "his" microwave that you just liscenced, do you really think the law would stand for it?

That's functionally what the gaming industry is trying to do, and there are laws in place specifically to prevent that kind of thing.

-

Now in the case of purely digital downloads, you might have a point. After all in that enviroment if they make you click off on a EULA BEFORE they let you complete a transaction and actually take money, it could be legal. I say could be, because it depends on how it's written. While it was over a decade ago, I remember briefly covering civil law, and one point made in most contracts is that they have to be concise and written clearly enough so that the signer can understand them (you can't for example bind a person who is mildly retarded to a contract they couldn't understand), length is also an issue. This is one of the reasons why very long contracts oftentimes have people sign every page, or every couple of pages, that way it can be argued that it was all seperate contracts that worked together (it's a way of fudging the law).

Call people stupid, or sheeple, or whatever else, but the bottom line is that the average common human demoninator is pretty low. Hence why HP Barnum said "there's one born every minute" and why the classic "snake oil salesmen" have been around pretty much since the dawn of time, and continue to exist in some form or other. As a company demonstrated (can't remember who it was, but The Escapist covered it) people don't read these huge, long EULAs
at all. People "signed away their souls" so to speak, though they were returned by the company ( ). In a legal sense chances are any contract, EULA or otherwise, long enough and complicated enough, wouldn't be binding unless there were special considerations as well. In addition to the above you'll notice a lot of contracts for loans and the like that involve a lot of paperwork usually have numerous co-signers. In some cases people might even call in a legally recognized notary to act as a neutral party. The purpose of this is to verify that everyone understood the contract, and saw everyone else sign. So if it went to court, the court could call in the witnesses. If your stupid and had someone explain it to you, and they lied or misrepresented things, what the contract says could very well be overturned if those witnesses happen to agree with you. I actually knew a few people who are notaries, and who have been called in as a "neutral party" and asked to make reports after the fact during contract disputes.

With the length and complexities of some of these EULAs, and given the fact that they are being used to legally bind 13 year olds (the games says "T"! ) that could be an issue as well.

At any rate, that kind of thing is exactly WHY the gaming industry wants to go "digital" it's not a matter of conveinence, as much as it is a way of taking power out of the hands of consumers as much as anything.

See, one thing people have to understand, whether they work for the industry, or are just commenting, is that a EULA is not a legal contract. Heck, there isn't even a way of verifying who pressed the button or anything else.

I'm well aware that a EULA hasn't been an enforceable contract in the US, and basically for the reasons you've identified, you can't see it until you've actually paid for the product. That said, digital distribution EULAs and MMO EULAs (IIRC: because they require additional transactions after the EULA has been presented) have held up (again, IIRC, I'm not going to go digging for legal precedent for this discussion, no offense).

The solution to make EULAs binding would be horrifically simple, simply present them on your website in an easy to locate place, possibly as part of the customer service section, and they would be completely binding because any customer could have perused them, and claimed they had as part of the install process.


To my knowledge, no one has won a case based on claiming "someone else installed it" and I'm aware of at least one case where a user was held liable for the actions on their system, in spite of a third party (her daughter) being the actual user in question.

EDIT: I fouled my snarky spoiler tag...

 

[Starke]

I've noticed two basic things in my surfings of forum posts, both on the Escapist and elsewhere.

The first is that no matter how one rationalizes piracy, there are really only 3 prime reasons I can see why someone does it: being lazy, cheap, and a self-centered douche-bag; I've heard other reasons, but those reasons turn out to be just covers for this same set of 3. If it's not a necessity of life, like food, air, water, and shelter, you can just live without it.

The second is that nerd-rage always seems to center on a skewed childish sense of entitlement--"I want this; I want that; I want everything. Give me anything, cause that's what I want and that's what I like, and you better give it to me now!"(Hell, many adults are like this.)--which, of course, blinds them to any sort of reason or rationality. Their shrill posts often bare this attitude out when a situation is presented in which they can't get what they want or can't get it easily.

I've mentioned elsewhere that I agree Ubisoft is 100% in their legal, and even moral, right to act as they have, creating the DRM system that they have. However, at the same time, customers are 100% in their right to not purchase a product they deem is devalued(or inconvenient) as a result of such an aforementioned system(or for any other various reasons, such as it being made by Apple, Microsoft, Google, The Favorite to Hate This Week Company, etc.). This does not give license, right, or entitlement to pirate in any way, shape, or form; it is merely a choice to be without the product or find alternatives that can be purchased. This is not a question of right and wrong; it's merely a question of customer choice of values and sound business strategy. Inconveniencing your customers unnecessarily, treating your customers poorly, and devaluing your product, in the judgement of your customers, while continuing to charge a significant price does not lead to a sound business strategy, in my assessment.

I was about to question where the Robin Hood self appointed heroes of piracy would fit, thought about the ones I knew, and realized they tend towards the douchey category.

I want to complement you on a very succinct and well thought out post.

 

[Andy Chalk]

That's functionally what the gaming industry is trying to do, and there are laws in place specifically to prevent that kind of thing.

Well, not exactly:

http://en.wikipedia.org/wiki/ProCD,_Inc._v._Zeidenberg [http://en.wikipedia.org/wiki/ProCD,_Inc._v._Zeidenberg]

http://en.wikipedia.org/wiki/Microsoft_Corp._v._Harmony_Comps._%26_Elecs.,_Inc. [http://en.wikipedia.org/wiki/Microsoft_Corp._v._Harmony_Comps._%26_Elecs.,_Inc.]

http://en.wikipedia.org/wiki/Arizona_Cartridge_Remanufacturers_Association_Inc._v._Lexmark_International_Inc. [http://en.wikipedia.org/wiki/Arizona_Cartridge_Remanufacturers_Association_Inc._v._Lexmark_International_Inc.]

http://www.eff.org/cases/blizzard-v-bnetd [http://www.eff.org/cases/blizzard-v-bnetd]

I agree with you, I think, in that DRM in videogames, and copyright in the digital world in general, is a horribly broken, dysfunctional mess. But as long as both sides approach the issue with iron-clad certainty that they're right and the other guys are wrong, things aren't likely to change. If anything, they're going to get worse.

Piracy is not acceptable. Neither is balls-to-the-wall, good-luck-with-this-shit DRM.

So, publishers can implement shitty copy protection, and customers can refuse to buy their games. If we're serious about coming up with fair, workable solutions, that needs to be the starting point. But if all we really want is free games, well, that's a whole 'nother matter entirely and not one that the pirates are likely to be very inclined to "solve."

 

[Aurgelmir]

The middle ground is firmly in the grip of Valve, which has apparently stumbled upon the holy grail with Steam, the one DRM system that keeps (just about) everybody happy.

Thats just is isn't it?
People didn't like steam to begin with, did they? But instead of making it into some unplayable monster, valve made Steam into a product you actually can enjoy. (Making your life simpler)

I know some people are dead set against Steam also; and I hear what you are saying guys, I just don't agree.

The age of DRM free games on PC is over. Let's all just all agree on that. Sure you have some people that will still give you games without it, but they are not really the big wig games you might always want.

So what now? We are doomed to be given some DRM, but what kind? Is Steam really so bad, when you look at all the other options? Its not perfect, but it's still one of the better DRM options.

So Steam = good in my argument, but there is a catch.

You see there are all these other DRM programs, Games for Windows Life for instance. And some games are made to be played with it. So even if you buy your game at Steam (your game already have DRM) you get yet another DRM with it. (and a shitty one at that)

So Steam is good, whats not so good is all these other developers who is trying to cash in on their success, leaving us customers with way to many programs and outlets... and we end up with a lot of crap solution.

This is a problem consoles doesn't have, since they are in essence their own DRM. Sure you can hack the consoles, but then you often loose out on other things. (and its a little more tricky)

 

[Ravek]

If violating copyright is theft, then assault is murder.

I think anything a publisher does to make sure you don't rip off their games is their right, and I think that people who steal should be in jail," he said. "I welcome the flamer comments on this one. If you think that's right, good for you; we have no interest in your business since you don't pay for stuff anyway."

If you don't agree with him, then you MUST be a pirate, and therefore have no rights anymore? Publishers can do anything, even terrorizing their honest customers? What a nice man.

 

[imgunagitusucka]

It's pretty obvious, and has been for a long time, that pirates are killing PC gaming and it's the so called "hardcore" gamers that have the monster PC's and all the technical know-how that are doing it. The average person doesn't know how to hack or crack a gamecode, they only know how to download it. These are the same morons that then complain that developers and publishers are neglecting the PC with their releases. It's enough to make you sick, the blatant arrogance and ignorance of these filthy scumbag criminals that steal from someone and then go on to badmouth THE VICTIM when they stop leaving the front door unlocked for them to continue to do it. And, as always, it's the honest people that pay the price at the end of the day. All of that effort to combat piracy costs money and that money needs to be recouped, from the legitimate consumer at the checkout.

 

[Deviluk]

I've always paid for games, and I even pay for every bit of music I have (off itunes), so I don't really feel like piracy can be excused. Although, I do watch tv shows on the internet, but thats because they don't show them here, or I missed them on the tv.

 

[WhiteTigerShiro]

Ubisoft is completely in their right to put the DRM on their game.
I'm 100% in my right not to buy a game that I would have otherwise bought because it has said DRM.
I still don't own, and have not played, the three DLC packages for Borderlands because of the DRM.

The only problem is that probably less than 5% of gamers in the world have that resolve. Gamers have major entitlement issues. If there's a good game coming out, they seem to think that, as a gamer, it's their right to play this game no matter what. Thus, they see no moral quarrels in pirating a game if need-be in order to play it (be it because of DRM, because they can't afford it, or whatever).

Frankly, I think gaming companies need to start cracking down hard and tracking IPs that are sharing the game. A few lawsuits flying around and people will start to think twice about pirating a game. Oh what's that? They might scare-off a few customers? Why would they scare-off someone they aren't even targeting? Heck, as a paying customer I want to see this happening. If a gaming company is going to waste their money on the non-paying user-base, I'd rather see that money going into lawsuits against the pirates than into a form of DRM that only hurts me.

 

[WhiteTigerShiro]

Long post incoming

Just a couple things I'd like to point-out.

Have I pirated games? Yes. Have I bought some of the games I pirated? Yes. Why? Because the pirated version convinced me that it was good enough to be worth my money.

Now, one reason I pirated those was that I wanted to find out how the games are. And, without a demo and with most review sites horribly unreliable (seriously, all reviews hover around 80-90 percent, meaning that all games are at least good. And when I stumbled upon the IGN review for Mount&Blade, which was 60%, I think, I puked, as they had no taste or feeling for quality), there is simply no other way besides maybe word of mouth/forums to find out how good a game is. For example, I pirated a recent Ubisoft game about the Holy Land and blades to the neck. I found it to be a horribly controlled console port with shallow mechanics, grind-oriented execution, and overally unimpressive behaviour. Now, had there been a demo, I could have dl-ed that, played it, found out that I dont like it, and thus would not have pirated it.

You see, not all pirated games are games that said pirating user would have bought.

Now, if you bring back the demos, I am sure that you could at least reduce some of the piracy. Maybe it would reduce the "try and see" piracy more than the "must have this" piracy, but its a reduction nontheless. Or you could try not buying reviews for your game, but I digress.

I wouldn't count on it. People would still insist that they're pirating a game to try it because "the demo just doesn't show me enough", or "the demo isn't long enough", or any number of excuses. Frankly, I don't honestly know why demos out of style. Back in the PSX days it was common for any game worth talking about to have a demo, but ever since the PS2 era they were few and far between. However, that's beside the point. While I'm sure a few people would be discouraged from pirating a game as a demo, it certainly wouldn't be that big of a dent.

And lastly: someone here said that gaming culture should just accept DRM. WHAT THE HELL IS WRONG WITH YOU PEOPLE????? Isint gaming a youth/young adult thing? Arent the youth supposed to at least challange authority. I know mainstream culture has becume vapid and impotent, but for fucks sake, if you roll over and let the industry (whatever industry, from Hot Topic to Ubisoft) buttfuck you, what do you expect? Gamers swallowed DLC, which is effectively paying for a patch (no DLC was large enough to be an expansion), they swallowed microtransactions, and you want them to swallow DRM? If you are not even trying to resist the stupid and counterproductive ways the indutry hadles this problem, then dont expect any compassion from them. Vote with your wallet, blog, if you must, inform others that is a douche, but for gods sake, dont roll over and take it. You know, fight for what you want, or you might as well let them stomp you in the face and smile to it.

You're sort of right, but not for the reasons you listed. Firstly, saying that we should be defying authority almost makes it sound like you're supporting piracy. Anyway, we shouldn't be against harsh DRMing tactics for the sake of "sticking it to the man", but because we should be opposed to spending our money on such an anti-consumer product. We, as gamers, should be making a stand against such restrictive DRM by simply not purchasing the product. When the PC version of Assassin's Creed tanks and all that Ubisoft can hear is clamoring about the DRM packaged with the game, that sends a pretty clear message about what PC gamers do and don't want when other companies with lesser DRM are selling just fine. So mind you, I agree completely that we shouldn't accept DRM, just saying that we should be against it for a more tangible reason than just sticking it to the man. (( Besides, if we rebel just because we're expected to rebel, isn't that just its own type of conformity? ))

Another thing I want to point out is that DLC is NOT "effectively paying for patches". You really need to do your homework before making such claims. Back before the internet was commonplace enough for a company to consider releasing a download-only content update, they instead released what were known as "Expansion Packs". You had to pay for them just the same as DLC, except that they were typically a little more expensive due to having to package them rather than just being able to put them on a server for download (they usually tried to put a little more into them to justify the effort, too). Patches are, and always were, nothing more than fixing bugs and/or making balancing tweaks. And before you point-out Valve with their free upgrades to Team Fortress 2, that's a little thing we call the exception that proves the rule. Few other companies (if any) release as much content for free.

 

[tzimize]

Andy, you say that piracy is about bad behavior. Is that the case of all piracy? And is that sometimes not a reaction of bad behavior by the publishers/developers? I'm not saying fight fire with fire, but what other choice is there?

Not too long ago I played the demo of Brutal Legend, my mind was blown and I instantly pre-ordered it. When it arrived, I fired it up played a bit and found out the game was not at ALL what was advertised (in the demo). Luckily I still found it to be a decent, if not awesome game and felt that even if my money was lured from me I was happy with the product.

The big problem about games is that they cost a lot. If I buy a product for 1 cent and it sucks I get a tiny bit of dissapointment at worst, and probably I just dont care. What do I expect for 1 cent? If I buy a product for 70? (like some games are some places in europe) and its not what the trailers say it is I will be VERY disappointed.

Is it then strange that a lot of customers dont want to throw 70? out the window to buy a product that might be shit and might be good? I sometimes download to try. I buy what I like, and delete what I dont like. I wouldnt have to do this if game companies insisted on making misleading commercials, trailers and demos. If they try to scam me my conscience can bear the strain of piracy for the sake of finding out if they are full of crap or not.

This is a part of the subject that is not usually touched upon. Do I think I am in the right when I do this? No. Not legally. But I WANT to support the companies/developers that make good games. I WANT them to have my money, because ultimately it leads to more awesome gaming experiences for ME.

If I buy a game that is crap I am doubly *ahem* loved in the buttocks. One: I buy a product that was advertised to be -this- awesome but was really just crap, Two: I actually give money to developers that make crap.

Can anyone blame me for trying to find an alternative?

 

[DTWolfwood]

I agree with what pachter said too, however i've said this over and over again, he totally failed to answer question posed to him and that is what he thinks about Ubisoft's particular brand of DRM. not whether there should be DRM.

always funny to see pirates think its "right" to steal games. Look if u cant afforded it, don't play it. I cant afford a BMW M3 which means i dont drive one. it doesnt mean i have the right to go steal one because its too damn expensive and i still want to drive one.