Update: Class Action Claims Colonial Marines Falsely Advertised

[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

 

[Vivi22]

I'm 10% on GearBox and Sega's side on this. I don't want companies to feel that they can't put out demos at E3 or release videos online because the final product may have some compromises in it.

Companies really don't deserve that kind of protection if it means that some take advantage of it to the degree Sega and Gearbox did. I'd rather companies be a lot more careful in how they represent their game and consumers not get taken advantage of in the future than leave things open for a company to deliberately mislead them so they can make as much money as possible before the truth comes out. Companies willing to do that do not deserve to be protected.

And looking at the updates with the comments, I can understand that they can't say that the case has merit and they're not going to defend it since obviously both of those things are bad for them financially, but a simple "we won't comment on pending litigation," or something similar would feel like far less of a slap in the face to the people they screwed over.

 

[LordLundar]

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

While I can agree to the sarcasm usually, it doesn't apply itself so well in this case.

The bulk of the sales of the game were pre-orders which were based on the information at the time which was almost exclusively the demo itself. The demo was not promoted as "in progress" nor did it have the standard "end game my be different" on it and actually took a legal order in Europe for that to be applied. In fact, They're STILL promoting the demo as representative of the game. That, combined with the review embargo which ensured that anyone who pre-ordered the game was essentially going in blind does lend credence to the case.

Now if it was a case of someone buying it today, then I'd fully agree, but not if the argument is made on the pre-order basis.

 

[Deathfish15]

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

The problem is that those other things weren't specifically shown opposite in a demo and said to be a "vertical slice" of the game that players will actually get to experience. See, that's what Gearbox did. I never bought the game, never was interested in yet another Aliens game (last 5 sucked, what makes this one different?). However, I can see a HUGE difference in how the E3 -and other video game shows- Demo looks completely different than the retail versions that showed up on Youtube and game review sites (such as Escapist).

Things falsely advertised:

-Enemy AI => apparently so stupid that they'll walk into walls and ignore the players entirely. They won't climb the walls (like their demo showed), dodge humans by going into vents and around boxes and objects (like they showed in their demo), and will just run a straight line directly to the player in front of their gun just begging for a bullet (unlike the dodging that was shown in the demo)

-Textures and graphical features => Seems like even the highest setting computers aren't able to extract the textures and lighting from the real game that were shown in the demo. They look like a muddy mess, and lights aren't dynamic or reflective as advertised.


Those are the things that I know of, which to some may be like "really, that's it?". There might be more, but again I didn't buy the game or care about it. However, those things that I did list are key features to a video game and are a huge matter when purchasing said game. When they use fake materials to advertise features that aren't there to make people purchase a product that isn't as advertised, that's FALSE ADVERTISEMENT. Being a bad game isn't worthy of a lawsuit, but faking that bad game into looking good to sell more copies IS.

 

[Xarathox]

Would a "Not final gameplay" subtitle in videos be enough to cover their ass?

Actually, yes it would. Disclaimers exist on every other product these days for a reason; to keep lawsuit happy people at bay.

 

[Vivi22]

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

What research, may I ask, could have lead to customers knowing they should cancel their preorders? The only available trailers and demos were basically complete fabrications and reviewers were legally prevented from saying anything prior to the games release despite knowing the game wasn't even close to what the demo promised.

Sure, it makes an argument for not pre-ordering in the future, but that doesn't negate the responsibility Sega and Gearbox had to not outright lie to their customers and cover it up until the very last second.

 

[Ukomba]

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

What research, may I ask, could have lead to customers knowing they should cancel their preorders? The only available trailers and demos were basically complete fabrications and reviewers were legally prevented from saying anything prior to the games release despite knowing the game wasn't even close to what the demo promised.

Sure, it makes an argument for not pre-ordering in the future, but that doesn't negate the responsibility Sega and Gearbox had to not outright lie to their customers and cover it up until the very last second.

Exactly this. It's one thing to go in and pre-order blind. It's your own fault at that point, but to pre-order, or even buy the game on release day based on advertising that used falsified game footage is not something that a consumer can be expected to avoid. It's clearly predatory and false advertising. Slapping a small 'alpha' label on an out of the way corner of the footage shouldn't be a get out of jail free card.