Big Smoke

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

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.

We’re in it for the artists…

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…except when we’re in it for the money.

Dutch anti-piracy group BREIN stole a piece from composer Melchior Reitveldt for use in their ad campaign.

When he discovered this, he asked non-profit copyright advocacy agency Buma/Stemra to support him in getting his due compensation, to which board member Jochem Gerrits replied, “sure… just sign this contract giving us publishing rights to your music, and then allow us to take a third of what you’re owed.”

I count at least three levels of hypocrisy. How about you?

Pirates of the Seven Seas

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“Pirates are not consumers by definition

So says Tycho of Penny Arcade.

Actually, no.

Piracy is something a person does, and thus cannot be exclusive to any other thing a person may conceivably do, including consume. Declaring that a person is a pirate is no more meaningful than defining a person solely by any other activity they may have partaken in. I am a jaywalker: A scourge on traffic engineers everywhere, for I am physically incapable of not endangering myself and others around me via creative, consistent and pathological avoidance of the zebra walk.

Yes, that does sound silly. It sounds silly because it is.

I am not, however, unreasonable in my vocabulary: Judging by what we spend most of our time doing, we are all consumers. Even the most hardcore of criminals legally purchases the vast majority of his stuff. Some of us also pirate. A rare few pirate for a living, and by normal parameters may thus be called pirates. The irony of those professional pirates is that they are by definition the best consumers as they often-times must first legally purchase a copy of the game they mean to reverse engineer.

Pirates, using Tycho’s definition of the term, consume. Indeed, they are the best, most hardcore consumers of the industry, and their mere dross – those who have legally purchased the software – are what have made it thrive and keep it alive. In fact, I cannot imagine somebody who has diligently pirated every game in existence and has never once legally purchased a game – not even for five bucks off of Steam, or bargain-binned in GameStop – and should one exist he deserves all those games because that’s a lot of goddamn work.

The collection of games I have wantonly pirated is matched only by the collection of games I have legally purchased, and I have done a great deal of both. I am a fan of computer games – I grew up on the motherfuckers – and will get them any way I deem best.

The target market has never been bigger. It needs only be tapped intelligently – and therein lies the rub.

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  • Published: Feb 20th, 2010
  • Category: Media
  • Comments: 2

One Last Time

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Shamus Young pitches in to the fray, with statistics about the markets these developers and publishers are catering to; namely, Gamestop, IGN and the console market, whose denizens lash back at the anger directed towards the ridiculous DRM with cries that such is the mere whining of would-be pirates.

The thing is, these publishers are so invested in making sure pirates don’t win that they’ve lost all sight of making sure customers do. This scorched-earth policy underlies how much they miss the point: They’re exploiting the customers and the customers react by exploiting them back.

The message was heard loud and clear for years: “Console gamers are more gullible a market than you. You will accept our crappy console ports and you will buy them six months late and you will pay full price for inefficient code. We do this because you have supported us and made us the big companies we are.”

How RIAA of them. Sounds like Metallica’s infamous argument.

The fanboys that accept the official word and blame this sort of action on pirates are not working in their own self-interest. They’re practically unwitting collaborators. They argue that the companies deserve those profits, and it is the customers’ responsibility to give it to them. The only problem is that it’s not in my interest to prop up publishers regardless of their product, for that isn’t commerce: That’s extortion.

The ‘principled’ customers who say that we should all shoot ourselves in the foot by simply not partaking at all are fooling nobody, least of all themselves, that such will make a difference in the publishers’ eyes.

It’s not a moral issue. It’s an economic one. Ubisoft is poisoning the well it drinks from. Just because they as a business wrap themselves in the flag of moral righteousness does not mean they’re not really bad at business.

But It’s Wrong!

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What may be the single most talked about article on Rock Paper Shotgun’s pages is a raging debate on piracy, DRM and the fate of the PC gaming market. Par for the course, and anybody who’s played PC games through the years has a number of horror stories about Starforce, SecuROM or other intrusive pieces of “security” malware installed without the permission of the user with the expressed intent of denying them the ability to reverse-engineer, reproduce or otherwise crack the program but with the effects of rendering their computers slow, vulnerable and unstable, but folks are hung up on the idea that piracy is unequivocally wrong.

This is the wrong way to go about that discussion. It’s an economics discussion, not a law enforcement one. The product (or “license” bullshit they propagate) isn’t worth the price companies are charging. There is insufficient desire for the product at the price listed, but alternatives abound. Filesharing’s easier than CD-swapping, but the principle is still there.

The music industry as it was – the CD album format with a single’s worth of content – was a cabal. That cabal was broken once people found viable alternatives: Napster, Gnutella, WinMX, KaZaA. The music industry’s inability to adapt was not the consumer’s fault. One can’t go on saying how it’s the consumer’s fault the businessman failed to realize just how untenable his business model was, like it’s our job to line his pockets.

To go back to the “licensing” remark, it’s really not a model of selling a product to a customer – indeed, customers get extremely angry at the number of blocks in place on a piece of software after they’ve bought it, because they expect it, like other products they’ve bought, to be owned by them and used as they please – but instead an information service (content updates, patches, online multiplayer support), and as such those companies are competing with piracy on just that service model. The funny thing is, that’s very much a viable industry. iTunes took over and is beating out pirates not for price (and not by DRM) but by service. Steam is beating out pirates by service.

Bittorrent is clunkier than Steam. There, I said it.

To put it another way, we buy water in bottles! Water is the single most common thing in this world and is nothing if not free, and clean water is as simple as boiling it, yet people spend a dollar a quart on it because it’s convenient. Likewise, we now have the cheapest, most powerful information system the world has ever seen. That’s a revolutionary boon for anyone willing to cash in on its convenience, and lo and behold those people are succeeding.

Instead, the companies have, to their inevitable doom, taken an antagonistic stance against an Other they view as utterly wrong and indefensible, like inner city crime or Hamas. Instead of doing the obvious, which is to stop making these people want to do those offensive things, they put up barricades. And so, as bombing apartment blocks and erecting walls makes people support hard-line militants more, putting up more intrusive pieces of DRM just makes people pirate more.

After all, all that DRM never hurts the pirates. Can’t blame the pirates for doing what they do, because even if they stopped it’s not like the companies would suddenly shift to a viable business model. And until that model shifts, the lid cannot be sealed on piracy, however “wrong” each pirate may seem.

That Showed ‘Em, Huh?

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Honestly, what with the destruction of the music industry’s distribution platform in its quixotic quest to stick it to pirates, why does the games industry persist?

Ubisoft declared that it would require constant online activation in order to play its games, and with its new line-up of games coming out, PC Gamer has already felt the brunt of what that means to the end-user: Namely, when your internet connection or Ubisoft’s servers go down, so does your game.

While you play it.

I shed no tears for the music industry, because I am not beholden to the music industry. I am not beholden to them for the simple reason that they are music itself. I shed no tears for games companies that shoot themselves in the foot like this, because their DRM is not the only place they have stuck it to their customers.

They like to demonize their audience for making the usual pirate’s claim:

  • No pirating ever happens.
  • If pirating does happen it’s your fault.
  • If you try and stop us we’ll pirate your game on principle.

By claiming its justifications as baseless, as if they are catering to an unpleasable base. But it’s primarily that unpleasable base that gave them all their money in the first place.

People do what works best for them. Pirating is a direct response to high prices coupled with mediocre content. Napster was the logical response to the MTV generation of $18 albums of the Backstreet Boys. Bittorrent is the natural response to $50 Halo and $60 Modern Warfare 2. It’s the mind drawing the logical result from the parameters of “nothing today is worth what they’re charging, but I still want to play games.” The market is still there; it’s just not being addressed properly, and that’s not the fault of the consumer.

I’ve pirated a lot of games, for various reasons:

  • Because they didn’t produce shareware or demos.
  • Because the professional reviewers are all in their pocket.
  • Because I lost my original manual with the serial number.
  • Because the CD got scratched.
  • Because the CD check took a full three minutes.
  • Because the game lost company support and couldn’t find an activation server.
  • Because SecuROM bluescreened my computer after finding CD burning software.
  • Because the average game price went up 50% but my income didn’t.
  • Because game’s IP was held by a company that wasn’t putting it on the market.

I’ve also bought a lot of games, for various reasons:

  • Because it got legitimate acclaim from gamers.
  • Because the price went down. (thanks, Steam!)
  • Because it was easier to buy than pirate. (Steam, GOG, D2D)
  • Because I wanted to see that company succeed for its efforts. (THQ, Valve, Bioware)

Money is not an insurmountable obstacle. People will spend money not to go through flaming hoops. That said, if the flaming hoops are hotter after having spent that money, then any rational person is going to go and say, “Hey, only people who legitimately bought this game have to suffer the nonsense of these activation servers when there’s a Day One hack already out to loop the request back to yourself.” And pirating wins again.

The games companies have also focused on console platforms as their answer to the charge of high prices and mediocrity, and cited PC gaming’s high pirating rates as “pushing them away.” Except the PC is still the largest single market despite such high rates, and the creation of the hardcore console gamer is only going to delay the inevitable: PC gamers know mediocre games. Halo 3 and Modern Warfare 2 rather illustrate how certain game genres are new to console gamers and thus they don’t know what they’re missing.

That will change, and the more console gamers play, the more they, too, will chafe at their lackluster choices. For every game companies choose to promote solely on the console – like Alan Wake or Brutal Legend – for fear of being panned on the PC as weak examples of their genre, the more likely console gamers will learn of these things. The companies merely sow the seeds of their own destruction for want of saving their short-sighted business paradigm.

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