Big Smoke

'cause it's hard to see from where I'm standin'

The ESA is the next RIAA

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The Entertainment Software Association, which is the video gaming industry’s version of the Record Industry Association of America, is similarly finding itself, with its support of the Stop Online Piracy Act, on the wrong side of business.

So what’s SOPA? In short, it’s an internet censor machine: Any streaming of any protected creative work – for promotion, for reviewing, for satire or parody – is a felony, and any site that is suspected of doing so or merely ‘harboring’ users (as part of its business model, like Facebook, or even on ancillary user forums) can be shut down pre-emptively – by DNS filtering enforced through ISPs – until it can prove its innocence. What this means is that file-sharing sites like Pirate Bay will move webhosting offshore and periodicals and content hosting sites like the Escapist and Flickr will suffer as collateral damage. It means that the advertising dollars that the internet relies on may dry up due to the Sword of Damocles looming over so many legitimate websites and many internet-based companies will be forced to drop employees – if they don’t just shutter altogether.

Suffice it to say, this is like stopping burglary by demolishing homes. Through the proceedings, congressmen admitted ignorance of the very things they were debating, and dismissed actual experts on the field, but this isn’t surprising because it’s at heart the last gasp of economic dinosaurs watching their model destroyed by a new dynamic. They’re lashing out at piracy in the most draconian ways possible when their original business model’s simply outdated, like the RIAA and MPAA did before them. In fact, they’re lashing out at it similarly to how the RIAA did, and with similar incompetency – which is to say, like current DRM, the bill will affect everybody except pirates, as previous attempts to block the Pirate Bay through the proposed measures have proved laughably easy to bypass.

Further, their arguments are, like the RIAA, for people they don’t actually represent: They claim that it will hurt artists overall, but artists aren’t hurting, their publishers are. Another way of saying that is if the artists are hurting, it’s by the publishers – publishers like Electronic Arts, Sony and Nintendo – just like musicians were being summarily screwed by Sony and Universal (…hey, I just mentioned Sony twice). Indeed, your average programmer for a game nowadays is likely to be laid off directly after release, no matter how successful the game proves to be, the games industry is one of the most exploitative industries today, and one of the ironies of the new internet business model is that the much greater ease and ability for self-publication in all fields of art and entertainment actually empowers artists.

In effect, it’s as if we learned nothing when the RIAA and MPAA fought this fight a decade ago: Piracy is just people fixing what is a fundamentally broken system by themselves, and piracy can be solved by giving people what they want: If piracy really destroyed movies and music, Hulu, Netflix, iTunes and Rhapsody wouldn’t be printing money right now. E. D. Kain of Forbes says this much, and Forbes had an interview with Gabe Newell of Valve doing the same for computer gaming with Steam. That said, despite Forbes’ generally progressive views, I’d like to go one further than Kain:

The entertainment industry is held aloft by piracy.

It always was. You think people become movie buffs, music fans or video gamers out of the blue? No. They ingest lots and lots of examples of the medium before that happens. Nobody buys collector’s editions without first becoming collectors, and starting such is prohibitively expensive. Drug dealers know the golden rule: The first hit is free. Every year in the gaming industry hold record profits, despite rampant, widespread piracy, because the people who swapped disks and cracked copies and exploited shareware twenty years ago got bit by the bug and are hooked for life. (Indeed, the median age of the PC gamer is 37, a number which rises by one year every year. That would place the average gamer in the current sales boom as somebody who was a teenager just when file-sharing took off. Funny that.)

As such, when senators like Roy Blunt (R-MO) argue that “business have lost $135 billion in revenue annually as a result of these rogue sites,” not only are they using the same specious “counting chickens before they’re hatched” arguments that the RIAA and MPAA did before, but are ignoring that the only reason people are aware of these products in the first place is due to that same apparatus, and fans wouldn’t exist to be exploited as customers were it not for such ‘rogue sites.’

The gaming industry will shrink overall if it’s allowed to shoot itself (and the whole internet) in the foot with its support for the bill. The irony is that, again, the gaming industry is having yearly record profits – despite the economic downturn – and is growing faster than any other entertainment industry today, so kill that goose, why don’t you.

Sign Here at the Dotted Line

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Part of Section 9 of Electronic Arts’ Terms of Service – the End-User License Agreement that everybody signs after buying (or, rather, in the software world, leasing the rights to use) a product and before installing it:

EA may also terminate access to EA Services for violation of this Terms of Service (in its sole discretion) … You may lose your user name and persona as a result of termination. If you have more than one (1) Account, EA may terminate all of your Accounts and all related Entitlements. In response to a violation of these Terms of Service or any other agreement applicable to EA Services accessed by you, EA may issue you a warning, suspend your Account, selectively remove, revoke or garnish Entitlements at an Account and/or device level , immediately terminate any and all Accounts that you have established and/or temporarily or permanently ban your device and/or machine from accessing all EA Services or certain EA Services. You acknowledge that in such an instance EA is not required to provide you notice before taking action to suspend or terminate your Account, temporarily or permanently banning your device from some or all EA Services or selectively removing, revoking or garnishing Entitlements associated with your Account. If EA terminates your Account, you may not participate in an EA Service again without EA’s express permission. EA reserves the right to refuse to keep Accounts for, and provide EA Services to, any individual. You may not allow individuals whose Accounts have been terminated by EA to use your Account.

If your Account, or a particular subscription for an EA Service associated with your Account, is terminated, suspended and/or if any Entitlements are selectively removed, revoked or garnished from your Account and/or if your device is temporarily or permanently banned from accessing some or all EA Services, no refund will be granted, no Entitlements will be credited to you or converted to cash or other forms of reimbursement, and you will have no further access to your Account or Entitlements associated with your Account or the particular EA Service.

Part of Section 11 of EA’s ToS:

You may violate the Terms of Service if, as determined by EA in its sole discretion, you:

[long list of actions]

Specific EA Services may also post additional rules that apply to your conduct on those services.

In short: “You agree that we can cut our services to you with no prior notice or compensation if it should break rules that we can invent after the fact, as interpreted by us only.”

In shorter: “You agree that fuck you.”

This has come to light of late mainly because Electronic Arts’ forums are tied to the same account as their games – with their new digital download service named ‘Origin’ – which means that any disputes over forum conduct has ended up in the permanent suspension of more than a few people’s game accounts. In one case, a gamer used the word “badass” on one of EA’s forums and, being banned due to a word filter, found he was banned from every game he purchased from EA as well.

Now, the funny aspect of this, if you can call it that, is that Terms of Services and End-User License Agreements are largely untested, legally, and as such their status as binding contracts are currently dubious. Indeed, it is hard to imagine that Section 20 of the ToS, which categorically denies customers the right to trial by jury and class-action lawsuits as well as severely limits the window of time in which they’re allowed to dispute anything at all, would be all that defensible if actually challenged.

Indeed, consumer rights legislation requires that, if a service is paid for, it remains available, and if it stops being available, a refund is offered. However, on the internet, the rules (seemingly in outsize response to piracy) have become fantastically draconian and currently exist largely because nobody’s taken the time to fight them yet. They’ve attempted to redefine products as services (for instance, a piece of software that you purchase for use offline is not a “product,” but a “service” that you lease the rights to use – a service that can be revoked), and now they’re attempting to redefine the parameters of services themselves.

Clearly this is just reality being a few years ahead of legislation, but it’s an incredibly sour note in the rather hostile relationship between corporations and consumers of late. At least, in the internet, nobody has yet and nobody likely will able to put a lid on piracy, so the consumers, for the moment, still have the upper hand.

Stay Classy, EA

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PC Gaming Nerdgasm

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In the inevitable bile-spewing hatefest I get for the PC gaming industry for primarily producing…

  • graphically updated yet oversimplified sequels to cult classics, aka the same game for $50 but worse*
  • licensed crap to fill (aka drown) a niche market into oblivion**
  • FPSs with “innovative” MMO elements that boil down to repetition as an artificial gameplay lengthener***
  • Our Warcraft Is Different+
  • sequelitis in general++
  • console ports++

…I have to give credit where it’s due. Read the rest of this entry »

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