Update: Class Action Claims Colonial Marines Falsely Advertised

[Caiphus]

Now, let's compare that situation with those of video games, namely, one of the earlier examples where people frequently cried false advertising, Mass Effect 3. A lot of customers said the game was broken and shit and wasn't nearly close to what was promised. A lot of OTHER customers said the game was fine and they kind of liked the endings. Do you see the difference? There's maybe one person on the planet that would disagree with everyone and say, "I think the hot grease spitting dishwasher is great!" And that person would probably be living in a place where everything that ran on electricity was considered magical. The divisive opinions on what do or don't constitute good video games proves there are very few instances when a game can be considered "broken" (for instance if instead of a disk you received a pop tart) and Aliens doesn't even remotely approach those examples.

Nothing in this paragraph would prevent an independent court from objectively determining if the average consumer would have been misled by advertising.

Just because there are few scientific measures by which entertainment can be measured (although there are a few), doesn't mean it cannot be objectively assessed.

EDIT: Although yes, whether or not the game turned out to be fun wouldn't be good cause for false advertising claims. "This game will be fun!" isn't false advertising, even if met with shitty review scores.

The few measures that do exist pretty much just measure whether or not the product in question was actually that product (See pop-tart reference).

Sure, I'm saying you wouldn't need to give the consumer something as wildly different as a pop tart for the advertising to be considered false; we saw this with The War Z.

Advertising (I can't remember actual numbers) 80 player server support and only giving 40 is an objective standard. The same would be said (although none of this is the case with A: CM) of advertising controller support and then not giving it, advertising language support and not giving it, probably even advertising wildly different campaign length (you say the campaign is 40 hours long, while in reality it is 10).

 

[Eclectic Dreck]

I don't see this case going anywhere to be honest. With precisely zero precedent supporting the position and a long standing history in Entertainment of showing a sizzle reel that may (or may not) represent the final product, there really isn't anything to latch on to. The case argues far too tenuous a point to be actionable. My money says that, at best, this gets settled out of court for a trivial sum.

 

[Mr C]

I would like to point out to the naysayers on this suit. The effectively promised a freshly cut two inch Salmon steak and gave you a can of Tuna instead. It was not a case of different features etc it was a case of different ENGINE, and not in the upgrade way either. Even the damn box art on the back does not look like the game.

Quoted for truth

 

[Mr C]

I understand the frustration, but it would be a real shame if something like this made people like Pitchford unwilling to communicate with the fanbase

Actually, it would have been much better if he had kept his stupid fucking mouth closed. Then when the game finally came out we would have ignored it based on the pile of shit it was. Or I may have bought it and then thought, "I'm an idiot for buying this shit - I am to blame".

Yet when promises are made and the guy in charge shows you something that is far superior to what is released - it just makes me mad. Some detractors of this case seem to forget/not realise that the 10 minute 'vertical slice of gameplay' was actually given commentary by Pitchford HIMSELF, who at times gives advice/complements to the person 'playing' the game e.g. "dude the CO-OP guy is getting out of here, you'd better follow him" - "nice shot, watch the acid". He even offers advice in the final sequence before the queen bursts in and criticises the 'player's' shooting skills.

That is bullshit.

EDIT: Pitchford "that is a quick taste of Aliens: Colonial Marines. It is a section from act 2 of the game..hope you enjoyed this clip of gameplay demonstration"

What a tosspot.

 

[Atmos Duality]

It is a dangerous situation. I suppose there are roughly two paths to try and avoid it - 1. don't show anything until the game is almost done 2. only allow preorders if it's almost done and there is material showing the current state of the game and heavily lace every material released before with "NOT THE FINAL PRODUCT!".

What a nasty situation to be in:

If the case succeeds against them, and new precedent is established, game companies are going to have to be extremely careful with their demos to avoid future lawsuits (or probably avoid using them altogether, which is not desirable at all).

If it fails, the informed customer is going to have to just assume that any official demos given are questionable at best or altogether worthless. I know I certainly would not do any business with a company who engages in such practices, period.

Well, if the case against them fails, and the precedent isn't established, we return to the status quo.
Only with more controversial demos in the future (*insert generic useless slippery slope accusation here*) because if Gearbox can get away with flagrantly false advertising that clinched pre-orders, you can bet someone else is going to give it a try too.

 

[pandorum]

I don't know about anyone else but I have lost confidence in Gearbox, and am now starting to think they lucked out with Borderlands maybe. I really do not trust anything that they make now.

 

[maninahat]

Seems like the same could be said of Bioshock: Infinite, being that a lot changed between the early demo trailers (all containing "in game footage") with the final product. Elizabeth completely changed in terms of appearance, powers and situation. Loadsa scripted stuff never appeared in the final product. Even the plot looks to have been entirely re-written in between trailers.

But Bioshock: Infinite was good, so I guess people wouldn't go to the trouble of suing them for false advertising?

 

[timboo_drow]

This lawsuit is stupid. No one forced people to pre-order this game based on incomplete information. The AC:M's customers chose to buy an unfinished product, as is the case with everyone who pre-orders. Publishers are catching on that they don't have to fully deliver on a game because they already have your money. They build up your good will and then cash in on it. It's a 100% un-sustainable business practice, but it's not illegal. It's deceptive, but that is the whole point of advertising, marketing and PR: to trick you into buying something.

The only solution is to stop pre-ordering shit. Don't buy a game until you know it's good, until your trusted reviewers have weighed in. If publishers say they need your money beforehand to finish their game then they need to do what any successful business does: cut costs so they can stay afloat long enough to produce the product that generates revenue. If companies can't do that, then they aren't responsible enough to produce good games either. Companies have been creating awesome games, and remaining profitable, for years without having to fleece the consumer before the game is even available.

The sooner the bloated AAA industry can crash and go away so that real game developers can get back to controlling the industry the better.

 

[Shuu]

Hm... the legal debator in me understands that no real promise was ever made the game would be anywhere near as good as the vertical slice (or whatever they're calling it) made it looked. Buuuut, the decent human being in me does want to see them commit seppuku in front of me to regain their honour...

 

[Strazdas]

Seems like the same could be said of Bioshock: Infinite, being that a lot changed between the early demo trailers (all containing "in game footage") with the final product. Elizabeth completely changed in terms of appearance, powers and situation. Loadsa scripted stuff never appeared in the final product. Even the plot looks to have been entirely re-written in between trailers.

But Bioshock: Infinite was good, so I guess people wouldn't go to the trouble of suing them for false advertising?

Except that people did not pre-order the game based on the early demos of Bioshock Infinte and all changes were announced and made public before the game was released

This lawsuit is stupid. No one forced people to pre-order this game based on incomplete information. The AC:M's customers chose to buy an unfinished product, as is the case with everyone who pre-orders. Publishers are catching on that they don't have to fully deliver on a game because they already have your money. They build up your good will and then cash in on it. It's a 100% un-sustainable business practice, but it's not illegal. It's deceptive, but that is the whole point of advertising, marketing and PR: to trick you into buying something.

so if you go to a restaurant, order food, eat it and get poisoned, you cant complain, because noone forced you to come and buy food here right?

 

[timboo_drow]

[/quote]
so if you go to a restaurant, order food, eat it and get poisoned, you cant complain, because noone forced you to come and buy food here right?[/quote]

Not quite the same thing. The only harm caused by pre-ordering AC:M was butt hurt gamers feeling duped. The crime you describe is negligence causing bodily harm, and is most certainly punishable by law. Over-enthusiastic marketing is not a crime. It's a bad business practice because it hurts consumer happiness and faith, and in any other industry companies like Gearbox would go out of business very quickly, but gamers are not discerning enough as consumers. We allow ourselves to be lead by hype and hyperbole and are attached to nostalgia-fueled dedication to publishers and franchises.

Publishers have merely figured out how to properly market to turn the most profit. It's a short-term gain, to be sure, since even the most egregious fan-boy will eventually lose faith, but publishers know that won't happen until they've made a ridiculous amount of money.

The only way to stop the cycle is to stop pre-ordering and stop buying bad games, period.

*EDIT*
Just to clarify; I hate marketing and I'm certainly not defending the practice, merely stating that it isn't illegal. Perhaps it should be though. Wouldn't it be great if companies were limited in the amount of self-promotion they were allowed to engage in? Then the market system really trully would work because companies would have to rely almost entirely on consumer happiness and word of mouth to promote their products.

 

[Slash2x]

Not quite the same thing. The only harm caused by pre-ordering AC:M was butt hurt gamers feeling duped. The crime you describe is negligence causing bodily harm, and is most certainly punishable by law. Over-enthusiastic marketing is not a crime. It's a bad business practice because it hurts consumer happiness and faith, and in any other industry companies like Gearbox would go out of business very quickly, but gamers are not discerning enough as consumers. We allow ourselves to be lead by hype and hyperbole and are attached to nostalgia-fueled dedication to publishers and franchises.

Publishers have merely figured out how to properly market to turn the most profit. It's a short-term gain, to be sure, since even the most egregious fan-boy will eventually lose faith, but publishers know that won't happen until they've made a ridiculous amount of money.

The only way to stop the cycle is to stop pre-ordering and stop buying bad games, period.

*EDIT*
Just to clarify; I hate marketing and I'm certainly not defending the practice, merely stating that it isn't illegal. Perhaps it should be though. Wouldn't it be great if companies were limited in the amount of self-promotion they were allowed to engage in? Then the market system really trully would work because companies would have to rely almost entirely on consumer happiness and word of mouth to promote their products.

Except it is illegal [http://www.ftc.gov/bcp/policystmt/ad-decept.htm] in the USA...

Read section II. THERE MUST BE A REPRESENTATION, OMISSION, OR PRACTICE THAT IS LIKELY TO MISLEAD THE CONSUMER.
Marketing and point-of-sales practices that are likely to mislead consumers are also deceptive. For instance, in bait and switch cases, a violation occurs when the offer to sell the product is not a bona fide offer.14 The Commission has also found deception where a sales representative misrepresented the purpose of the initial contact with customers.15 When a product is sold, there is an implied representation that the product is fit for the purposes for which it is sold. When it is not, deception occurs.16 There may be a concern about the way a product or service is marketed, such as where inaccurate or incomplete information is provided.17 A failure to perform services promised under a warranty or by contract can also be deceptive.18

So stating that your product will provide X and you give Y and it is not equal to or greater than X, is illegal. Even the screenshots on the back of the box are not from ANY version of the game. The game presented was not the game sold.

 

[timboo_drow]

[/quote]

Except it is illegal [http://www.ftc.gov/bcp/policystmt/ad-decept.htm] in the USA...

Read section II. THERE MUST BE A REPRESENTATION, OMISSION, OR PRACTICE THAT IS LIKELY TO MISLEAD THE CONSUMER.
Marketing and point-of-sales practices that are likely to mislead consumers are also deceptive. For instance, in bait and switch cases, a violation occurs when the offer to sell the product is not a bona fide offer.14 The Commission has also found deception where a sales representative misrepresented the purpose of the initial contact with customers.15 When a product is sold, there is an implied representation that the product is fit for the purposes for which it is sold. When it is not, deception occurs.16 There may be a concern about the way a product or service is marketed, such as where inaccurate or incomplete information is provided.17 A failure to perform services promised under a warranty or by contract can also be deceptive.18

So stating that your product will provide X and you give Y and it is not equal to or greater than X, is illegal. Even the screenshots on the back of the box are not from ANY version of the game. The game presented was not the game sold.[/quote]

All of those conditions you are quoting are not happening in the case of a disappointing video game. It's far too subjective. As far as the courts are concerned Gearbox created a functioning video game, and therefore not guilty of any false advertising; they delivered what they said they were going to deliver, a video game about aliens. Just because customers don't end up liking it doesn't mean that any false advertising happened.

The concept of the "Bullshot" has been with us in the video game community for years, the fact that publishers are getting more bold in how they use them is a shitty practice and one that should be punished by lack of sales, but I still maintain that it is not currently illegal, though I would be happy if this kind of sneaky marketing was made illegal.

 

[jeanfrancis]

Definitely, in light of the fact that the class action law-suites dependably work out. Much the same as Mass Effect 3's, where they even out lied and deceive the buyer base without as a much as a "may not act for last item" notice.

"Decisions will matter and i think it won't make too much differences.

Nothing happened to that. I question anything will happen to this. The measure of safety the diversion business gains is aggravating once in a while. Of course, when they have an amusement with firearms, viciousness or sky deny.It will be everywhere on the news however when they lie and trick the customer "lol its only a film diversion, they're for children, lets not give a second thought or consider it important, move along."

http://www.classaction.ca/classaction/actions

 

[SonOfVoorhees]

Well,the best thing about gaming is that you can chose not to buy the game. An if you did buy it, you can sell or get it refunded and part exchanged for something else. Or just rent it. Also, with the internet, you can communicate how shit the game is to every person ever. Those people wont buy it and A:CM will fail and the companies involved will feel the pain of low sales and low profits. They need to learn that with the internet involved, they cant just release a shitty product, people will be online bitching about it on day one. Its better to just put the game on hold and work on it and thus a positive review on release and more profit made.

My only sadness is that this game had the chance to be an awesome new ip. An now, because of greed, lies and bullshit from developers and publishers, there will never be a sequel made and the Aliens licence will be black balled as being worthless again. I really dont want to wait years for another Aliens based game.

 

[Lightknight]

"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.""

I don't think anyone has a problem with people showing works in progress. The issue comes when what we're shown is a blatant misrepresentation of the work in progress. The demo was FAR more advanced than the game ever got close to being. It's basically a clear cut example of false advertisement when you call it a demo of something that does not and will never exist.

 

[Lightknight]

Well,the best thing about gaming is that you can chose not to buy the game.

When you see something called a "demo" of a game and decide to purchase that game based on what turns out to be a lie, the ability to accurately determine if you want the game is robbed from you by deceit. This is why consumer laws protect us from companies that sell their goods by lying to us.

 

[Colin Bagley]

The problem with all Adverts, not just gaming Ads, is that they simple don't sell their product. They sell the image of their product. Or some magic ticket to an amazing lifestyle. Just look at Car adverts, Alcohol, Fragrance, Movie, Jewelry ect.
I think Cracked.com did an After Hours video about false advertising in regards to foods.

I'm still waiting for Lynx body spray to be taken to court every time a teenager uses some and isn't instantly hounded by hundreds of bikini-clad super models.

 

[lordmardok]

Seems legit. It was horribly falseley advertised to be fair, that trailer looked awesome and then the game is kinda.. not...

Dead horse, lets flog it some more in hopes of it being a money pinata!

Honestly we should support this not because it's a money pinata or whatever, but because the game industry DOES need to be held accountable for the awful business decisions it makes at the expense of the consumer. Even if the class action suit doesn't get through the company will have shelled out tens of thousands of dollars or more that it wouldn't have had to if it had just been fucking honest with us. It will make game companies more careful about how and what they advertise and if the cases gets through and the prosecution wins then they'll have even more incentive to not pull that shit in the future.

 

[RicoADF]

While I won't get into the A:CM press vs actual release issue, this DOES create the potential for a very, very dangerous precedence, as features change all the time in development and often what is shown in demos end up being changed around in the final.

Look at the videos of Bioshock Infinite from last year to the released game now. The original military theme of TeamFortress 2 to it's current incarnation.

What's the threshold for allowable change to not? What's preventing someone from getting hurt over a pet feature being removed from suing the studio to force them to (re)implement it, even though said studio decided it wasn't really that good a feature? Would a "Not final gameplay" subtitle in videos be enough to cover their ass?

It's the same issue that occurs when players build up a game's premise too unrealistic expectations in their mind, and the result game on release is not quite the same, so they go and review bomb it. People need to temper their expectations.

The argument is that they didn't inform people about the change, which they are required to do (atleast in alot of countries), which is why if you lived outside the US you generally could get a refund. I didn't because i was happy with the purchase (I don't let hype get the better of me), but I could have.