Friday, September 4, 2015

Gearbox Week Finale: Contracting Around Blame

Well it's finally Friday and I can finally stop taking pot shots at the developer responsible for one of my favorite games. I certainly haven't enjoyed doing three whole posts about missteps in Gearbox's history, but I think the outcomes were too important for a blog specifically about law and video games to overlook. I mean, who wants to take swipes, pitiful though they may be, at developers? We all love developers! They're the artists who create new worlds for us to enrich our lives with! Developers aren't the bad guys. It's publishers who exist only to crush the hopes and dreams of creators who just want to bring joy into the world, right?


The problem with reality is that the characterization is really muddled, and we can't really count on the plot lines playing out the way we expect. And the plot line we expect is that publishers are the meddling, money grubbing middle-men who are at best a necessary evil providing the money developers need to make their dreams come true and at worst actively undermine the purity of creators' visions by polluting them with corporate mandates. I agree that it's a really satisfying plot, but it assumes development studios are all wilting flowers unable to exert any control over their own destinies.

So what does it do to our narrative if the developer does have a spine? What does it mean when the developer has more cache in the industry than the publisher? Does it still feel good to think of the publisher as the big bad?

I'm focusing so much on the "heroes and villains" dynamic because our legal system seems tailor made to let the parties fall into those roles. It's so much easier for us to understand the outcome of a suit when we know that the blame has fallen on the bad guy. That feels right. That feels like justice.

Justice is powerful. But you know what else is powerful? Contract law.

And contract law apparently gives you the ability to contract around accepting responsibility for your actions. Just ask Gearbox. Even though a huge amount of the marketing that lead to the "Aliens: Colonial Marines" suit consisted of statements and presentations made by Gearbox itself, their contract with publisher Sega said that it was Sega that would be in charge of the marketing. It doesn't matter that Sega appears to have about as much clout in the industry as a third grader would at an astrophysics conference ("That's a very nice diorama of the solar system, Timmy, but you need to be quiet so the adults can talk."), they're ultimately responsible for the actions of the people the contracted the game out to.

This principle comes up constantly in civil law. It's called "respondeat superior," and yes we lawyers do use the Latin Harry Potter phrases for stuff like this. The idea is that when someone is on the job and they do something in the course of that job that results in a lawsuit, it's the employer who has to answer for it rather than the employee. Let's say there's a truck driver who works for....let's call it "Ball-Mart"...and he's out on the road doing his job driving widgets from one Ball-Mart to another. It's winter, he's going kinda fast, his truck hits a patch of ice, jack-knifes, and clips your car in the process. You are hurt and since this is the United States of America, your health insurance is acting like it's not their job to do something about the medical bills. You get a lawyer for a personal injury suit so you can pay those bills and maybe be able to get some physical therapy later down the road, and it's time to put someone in the defendant slot.

Who do you want on that side of the "vs?" Do you want to be suing the trucker who is probably broke from his own medical bills? Or do you want to sue Ball-Mart which, if nothing else, has insurance that covers this sort of thing and is able to handle this kind of liability while not becoming completely destitute? Well it doesn't matter what you want because the legal system has already said that you can't sue the driver and Ball-Mart has to be who you target.

Does that feel satisfying? If we're looking at assigning blame, it wouldn't. It's the trucker who caused all the damage, so shouldn't he be to blame? Liability isn't the same as blame. We allow people to contract around liability all the time, especially when it's in an employment context.

Like publishers who hire devs on a contract basis to make a game based on an intellectual property license that the publisher owns. See? I got us back to video games!

Sega's still on the hook for the marketing of ACM, even though its been all but admitted the Gearbox did the majority of the questionable marketing. To the courts, it doesn't matter who's to blame. The court only cares who's liable. I think this is important and wanted to call it out because this might be one more excuse for publishers to essentially put a gag on developers instead of letting them talk about their games. Gearbox was getting more leeway with the marketing of ACM than their contract apparently accounted for, but that itself isn't too weird. Parties push the boundaries of their contracts all the time, and as long as no one cares, they can get away with it. But I have a feeling that publishers are going to care a hell of a lot more now.

I think the interplay between developer and publisher in the ACM suit is going to have a ripple effect. Even if Gearbox got away with it this time, a less established developer probably isn't now. Whatever freedom they may have been able to keep for themselves before might not be so available to them now that publishers can see what happens as a result of that freedom. It may not look like much now, but lessons were learned. I just think they were learned by the scariest people possible.

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