Update: Class Action Claims Colonial Marines Falsely Advertised

[laserwulf]

Pardon my ignorance, I haven't played A:CM and tend to ignore preview articles in favor of reviews of the final product. Which features in Gearboxes advertisements and/or press releases for A:CM were not present in the final game? Having been a gamer since 1990, I've seen plenty of games release that -technically- had all the features as advertised, but were so bare-bones or poorly implemented that you have to wonder why the devs even bothered. It's called being a smart consumer; if you pre-order a game and/or buy it before any reviews are available, don't be surprised if you sometimes choose unwisely. (I'm guilty of this myself on occasion.) It's a sad state of affairs that the game industry seems to be banking on this, by offering pre-order swag/content, especially retailer-exclusives. It's in their best (short-term) interest to get as many people buying their product as possible before any negative opinions get out. Besides, no one really -wants- to admit that they made a bad decision by buying a bad game based on excitement overruling reason, so "it MUST be the fault of anyone other than me."

The developers promised!
The publishers lied!
The reviewers are all industry shills!

Every time I hear someone say "but they PROMISED" regarding a feature, I can't help but hear a whinny little kid's voice. If a person involved with the game (vs. the company in official releases) overhyping their project is grounds for legal action, then Peter Molyneux would be serving consecutive life sentences. Of COURSE the developers want to have -every single- amazing feature in their game, with human-level AI, orchestral score, and A-list Hollywood voiceacting. Ya know what they also want? To make Game of the Year, the whole dev team become millionaires, zero piracy, and a perfect 100 Metacritic score. Guess how likely those all are? As the game gets closer to release date and/or the budget gets closer to $0.00, they have to make realistic, hard choices about which aspects of the game receive the most attention. What may have been the pet-feature of the lead designer may have to get axed in favor of making sure -everything- else works. If the official press releases and/or advertisements say a specific, bulletpoint-worthy feature is going to be present (split-screen co-op, create-a-character, 128-player online battles, etc.) and it isn't, THEN I could see claims of false advertising being warranted.

TL;DR
One programmer twittering his feature wish-list means jack, reviews of final products are your friend.

 

[Lightspeaker]

Won't go anywhere. Mass Effect 3 proved that already.

ME3 had a FAR STRONGER CASE for false advertising since things about the game were explicitly announced in interviews, by some of the most senior people involved in it, after the game was already completed and they turned out to be lies. So it wasn't even a case of "this feature did not make it to the final product". In the case of A:CM its based on a trailer, and trailers ALWAYS come with a "may not be representative of the final product" warning.

Based on that, no chance this is going anywhere.

 

[f1r2a3n4k5]

Every time I hear someone say "but they PROMISED" regarding a feature, I can't help but hear a whinny little kid's voice

Let's look at the facts. ACM released a demo which are generally, intended to be a reasonable representation of the final product. Pre-ordering is simply buying a product in advance. A product which you would expect to work as advertised.

So no, it's not whining to expect what is promised.

For example: I sell you an airline ticket to Paris. You've not received the promised service yet, but you give me your money on the goodwill that my airline will take you to Paris. A few months down the line, you get on the plane and I drop you off in Cairo. But I sold you a ticket to Paris. You'd be justifiably unhappy.
If I couldn't get a flight to Paris, I should have offered the passengers a refund to anyone that had no desire to go to Cairo. So you call a lawyer and he agrees to file a suit on behalf of everyone on the plane that was supposed to go to Paris. The airline is fined which will discourage my airline from dropping people off in Cairo instead of Paris.

I do accept though, that a better way to function as an industry (and for people that are Peter Molyneux) is to stop promising features which are unfeasible.

 

[Requia]

Doesn't this kinda go with Mass Effect 3? I remember people wanting to sue because it was marketed as a game where all your choices had impact to the story.

Your choices DID impact the story of Mass Effect 3. The problem was that most of them did not impact the story in super significant ways like most people expected (Which was honestly a foolish expectation in the first place). Most choices worked out to be you get a letter or a brief meeting with a character from a previous game.

What people WANTED was for every tiny little choice that they made in the game to have some impact on the very final ending of the game. The problem there being that you have WAY too many variables to account for and if they tried that, they'd have to write 7 billion different endings.

Also, personally, I kinda liked that in a game all about choice, the ending was sorta like "Nope, this is all you get" which to me kinda drove home the point of sometimes despite our best efforts, we don't get what we want.

Hardly, the core Fallout games have been handling radically different endings since the early 90s. You just have a short ending for each subplot, as these aren't really dependant on each other, and you can get away with skipping the really minor stuff.

 

[Mahoshonen]

It's important to realize that the law does allow differing degrees of interpretation-it doesn't have to be all or nothing. A court can decide on one had that a movie didn't mislead its customers just because the producer left a half second of footage in a TV spot on the editing floor, but a movie that looks like the next summer blockbuster in the adverts only to turn out to be an even worse redub of "Manos" The Hands of Fate most certainly did.

Gearbox has two problems: First the playable demo. While you can say that you mentioned that the demo might not reflect the final product, there's a point when that argument doesn't fly. It would be like if you ordered some hi-def TV online only to be sent some ancient Black-and-White set that hardly works-most juries won't be sympathetic when you cry "caveat emptor."

Second, Randy Pitchford's tweets can be presented as an admission of wrongdoing. While it's always a bit infuriating for a company like EA to plug it's ears and insist their's no problem, if your committed to not fixing whatever it is people say is broke, then you probably shouldn't concede that it's broken in the first place.

 

[Dogstile]

I guess I should start making class action lawsuits against movie trailers for including scenes that aren't in the actual film.

Depends, did they advertise the film as being a horror in those scenes and actually make a chick flick? Then sure.

That's what Colonial Marines did, I recall seeing a section when you hold out with the other marines, they were so proud of it that they showed it off relentlessly and then... Took it out. Nothing like that ever happens. They didn't bother mentioning that the welding of the doors and the frantic retreating with other troopers, etc was never going to happen in single player because they overestimated themselves.

Films aren't even a good comparison, beyond a genre change, you can't really go "that wasn't what I was expecting, I want my money back" because all trailers i've seen are 99% scenes that are actually in the film. Colonial marines wasn't even half that.

 

[senordesol]

Entertainment Journalism is in essence tabloid journalism. If they have a story about Mary Kate and Ashley with photos of a cocaine fueled escapade they'll be hitting the front cover. Aliens should have been considered a Front Cover disaster, and Yellow Journalists would have printed it in a second. Movie Critics, anther kind of entertainment journalist, may get embagos, but not with a dead line that makes the reviews not come out until the movie is released. Rather they just keep the critics in the dark to avoid a bad early review which tells most people that the movie sucks and is best avoided anyways.

The game industry needs game journalism as much as game journalism needs the industry. Without the journalists triple A titles would have to do a hell of a lot more marketing to get the job done. As it stands, the journalists reduce the marketing burden for triple A and give good Indie titles a chance to have some marketing, if they get noticed.

If the journalists bothered to unionize they could fix this embargo problem. The real issue is if the embargo is set on or after the games release. If someone breaks the embargo they get black listed, and future work goes to those that followed the embargo. A journalist union could dictate that no embargo could be set that didn't allow at least 1 week for the reviews to hit prior to release. Since most games are released on a Tuesday in the US it's pretty easy to spot a publisher trying to set a bad embargo with a Tuesday. Breaking the rule would have the result of the entire union pulling future reviews for the publisher. Similar to how Total Biscuit refuses to give Sega any reviews after they did a take down notice over Shining Force related content. Though he was more than willing to give Sega a negative review over Aliens.

The problem is that Game Journalist have no spine, and have a weakness for publisher bribes.

Yes, the Triple A's would have to work 'harder', that's not the same as 'cease to function'. If your GJ outlet, however, gets a reputation for breaking embargoes -even if it was absolutely justifiable like this garbage- then not only can you say goodbye to exclusives from that dev; you can say goodbye to exclusives from ALL devs who hear about it. No one will trust you with the delicate business of a game release if you prove you can't be trusted. Tabloid journalism is completely different; they're about ambush photography and snooping -GJ doesn't do that.

Also given the amount of freelancers who work for the Games Journalism industry, I imagine it would be rather tough to unionize. I've never worked for a union, nor really know anyone who has, so I can't say for sure; but it seems it would be nothing but a burden. But even if they could, how would they 'dictate' an embargo? Again, the devs don't have to show them anything - which would deny the outlet content and, thus, harm their business. It's a system that would only work so long as there were no weak leaks in the chain, and there will always be someone who wants the preview badly enough to agree to what the devs say so they, you know, actually have some content to show. If site 'x' has the exclusive preview of game 'y' and site 'z' doesn't; which one are people going to go to? Even if all the heavy hitters stood fast and held their ground, there are a bunch of independent outlets who would JUMP at the chance.

As for the bribes comment, I understand there may have been a few isolated incidents (mainly incidents where the journo said 'no') but I find the notion that the industry is on the take laughable (particularly without proof).
One: there's really no point to take a bribe from a developer/publisher because...
-A: if it ever gets out, no one will trust your reviews again.
-B: if it ever gets out, you will never work again.
-C: you'll probably get arrested or at least sued.
-D: it means the publisher owns your ass if you ever get the idea to write a bad review...ever.

Two: There's no point to bribing Games Journalists because...
-A: the sheer amount of outlets available means you're going to have to bribe multiple people in order for your ends to be effective.
-B: if just ONE of those outlets report it, you face serious charges.
-C: you have to bank heavily that the amount you committed to bribes will translate to actual sales (and there's no way to track that)
-D: if you've got so much money to toss around for bribes, you could have just put it back into your game to make it better.

As for GJs being 'weak'...what the hell do you expect. Their job -their only job- is to look at/play video games and tell you their opinion about them. That's not exactly herd-hitting investigative reporting. Again, the game industry can survive without them; they cannot survive without a cooperative games industry.

 

[Olas]

>fail to do research
>Buy shitty game for 60$
>sue
>receive thousands of dollars
>???
>Profit
American legal system, fuck yea.

You have a point, but deliberately misrepresenting a product to consumers shouldn't be tolerated simply because there are ways of looking around it IMO, especially in a world where pre-orders are pushed so heavily.

Personally I'm happy to see this happening, if you don't set a precedent that developers are to be held responsible for your marketing, the problem will get worse.

 

[Karadalis]

It worries me that people around here are so complacant with accepting that the games industry is the only industry that should be allowed to flat out lie to the consumers in order to increase sales.


Imagine this happening in the food industry and being brought to light... oh wait it did, very recently too... anyone want to have some nice horse meat of questionable quality declared as premium cow meat?

What you say? But i thought it was okay to falsly advertise the quality/makeup of your product till the day said product reaches retail?

OR what about the car industry? If they claim their car will come with AC, dont allow anyone to sit in/talk about the car till the car was sold and then you find out the car doesnt even have AC... would you still say its a-okay since things can "change" during production?

No one here argues that games will oftentimes change during development, its about lying about said changes thats being taken to court here. In colonial marines case they lied till the day it was sold about their product.

And with the nature of especialy the PC market where once bought you dont get your money back this is especialy troublesome since the customer had no way of informing himselfe beforehand about the product because all information provided was false.

 

[Troublesome Lagomorph]

I'd be lying through my teeth if I said I found this in any way disagreeable.

 

[Strazdas]

Also, his name is Pitchford. almost Pitchfork, explains a lot.

Doesn't this kinda go with Mass Effect 3? I remember people wanting to sue because it was marketed as a game where all your choices had impact to the story.

except that in ME3 the marketign wasnt false.

Also capcha asked me which one is easiest. i answered rocket science and it told me its not.

I'm sorry. You lost the right to say anything the moment you claimed that buying a $60 video game is at all comparable to buying a house. That's called stupid on it's face. Yep, that would be your face, and there's the stupid on it.

So its OK to scam people as long as the item price is not in thousands?

 

[HalfTangible]

Great! Now sue Capcom for Steel Battalion.

 

[Abomination]

Update: Sega and Gearbox have both responded to the suit.

Sega: "Sega cannot comment on specifics of ongoing litigation, but we are confident that the lawsuit is without merit and we will defend it vigorously."

Gearbox: "Attempting to wring a class action lawsuit out of a demonstration is beyond meritless. We continue to support the game, and will defend the rights of entertainers to share their works-in-progress without fear of frivolous litigation."

Gearbox's stance on this smells very similar to the bullshit of the Mass Effect III debacle. Gearbox do not speak of all 'entertainers' they're speaking for themselves and how they royally fucked up the advertising for one of their games.

A 'work in progress' is not an excuse for charging $60 and then expecting people to finally receive the item advertised 'when you get around to it'. How about you give me a car and I'll pay you 'when I get around to it'? Oh, and you can't sue me if I don't pay you within a reasonable time because my payment is a 'work-in-progress'.

 

[fwiffo]

So, We're suing EA next for simcity's broken traffic right? Next we gotta sue blizzard, remember that dance studio or what the fuck ever for some wow xpac?

People need to stop buying shitty games. There are written reviews, video reviews, streams. Use em. Also, stop preordering stuff ;D

 

[Pickapok]

They didn't falsely advertise at all. This is the reason you see that disclaimer on the front end of demos saying something along the lines of "This demo is from an in-production build and does not reflect the quality of the final product."

 

[Something Amyss]

A 'work in progress' is not an excuse for charging $60 and then expecting people to finally receive the item advertised 'when you get around to it'.

It doesn't help that it wasn't a work in progress. more after this quote

They didn't falsely advertise at all. This is the reason you see that disclaimer on the front end of demos saying something along the lines of "This demo is from an in-production build and does not reflect the quality of the final product."

Except it wasn't from an earlier build. It was a specially polished, on-rails piece which they claimed was a "vertical slice" of the game.

 

[dakkster]

Doesn't this kinda go with Mass Effect 3? I remember people wanting to sue because it was marketed as a game where all your choices had impact to the story.

Your choices DID impact the story of Mass Effect 3. The problem was that most of them did not impact the story in super significant ways like most people expected (Which was honestly a foolish expectation in the first place). Most choices worked out to be you get a letter or a brief meeting with a character from a previous game.

What people WANTED was for every tiny little choice that they made in the game to have some impact on the very final ending of the game. The problem there being that you have WAY too many variables to account for and if they tried that, they'd have to write 7 billion different endings.

Also, personally, I kinda liked that in a game all about choice, the ending was sorta like "Nope, this is all you get" which to me kinda drove home the point of sometimes despite our best efforts, we don't get what we want.

No. Just no.

Casey Hudson said several times that they would make a game with several distinct endings, where the difference wouldn't just be some detail in the end cutscene. He lied. Several times. THAT'S why people like me are pissed off.

 

[Farther than stars]

To those who claim that BioShock Infinite and Kill zone 2 are guilty of the same crime you have to remember that Sony and 2K eventually showed us what those games really looked like before those games released.

Gearbox and Segacon the other hand continued to only show doctored footage.

Definitely. Aliens Colonial Marines is textbook false advertising and there isn't any way around it unless someone wants to try driving the argument through a three ring circus of circular logic, and if some defense lawyer wants to really do that I'd question their moral integrity.

"Textbook false advertising"? I don't think there's such a thing as "textbook" false advertising of video games. There simply isn't any legal precedent. Even in the movie industry, which has been around for far longer, examples are few and far between.
The problem is that Edelson LLC would need to prove that:

A) Consumers were expecting something different when they bought the video game.
B) That expectation was caused by the demo.
C) The publishers deliberately tried to deceive the consumers, using the demo.

A and B are hard enough to prove as it is, but neither of them are as difficult to prove as C. The fact that advertising may have deceived someone doesn't mean that this is attributable to the salesman. For instance, when buying a video game someone expects it to be fun, but if it turns out not to be fun, that doesn't mean the salesman tried to trick you into thinking it was fun.
However, supposing that C was true, there's an implicit requirement in A that there is a large difference between what the game is and what the game was expected to be. If the game that was sold in the box turned out to be bunny rabbits hoping around in candy land for ten hours, then yes, it's pretty easy to prove that the consumers were expecting something else.
But it's not illegal to pretty things up in advertising and promotion material. Producers of food have been doing that for decades, using egg glaze on food for packet photographs. Also, models with highly stylized hair are used to advertise shampoo. Discrepancy is tolerated in advertising laws and it falls on the consumers to separate fact from fiction and make a prudent choice.
So with all that in mind, no, this is not a textbook example of false advertising. And as a matter of fact, I think this law suit has very little chance of success.

 

[FoolKiller]

The real problem with all this is that no one wins.

Its a Pandora's Box. If the people win then it will open the opportunity to sue them over little changes. It may be a slippery slope but it'll happen. Maybe not successfully, but it will waste time and cause EULAs to get even more ridiculous than they already are.

If the dev/publisher wins then they will use it as free reign to show all sorts of bullshit in their trailers.

The one thing I agree with most of you is that the trailer for the game was dishonest because the images they showed couldn't actually be run.

 

[GAunderrated]

The real problem with all this is that no one wins.

Its a Pandora's Box. If the people win then it will open the opportunity to sue them over little changes. It may be a slippery slope but it'll happen. Maybe not successfully, but it will waste time and cause EULAs to get even more ridiculous than they already are.

If the dev/publisher wins then they will use it as free reign to show all sorts of bullshit in their trailers.

The one thing I agree with most of you is that the trailer for the game was dishonest because the images they showed couldn't actually be run.

It is only pandora's box for the industry as they started to rely on bullshit practices in order to get more sales instead of making great products. Whether this lawsuit wins or not it needs to stop