Wednesday, September 2, 2015

Gearbox Week: Trimming the EULA's Claws

I really only expected to have two pieces for what I've been referring to as "Gearbox Week," which I'll admit isn't much of a "week." Fortunately, I took a closer look at one of the Orders that came out in Perrine v. Sega of America, Inc. (that's the official name of the big suit about Aliens: Colonial Marines being fraudulently marketed) and found something that might be important in the future.

People have been discussing this suit and it might end up being a turning point for how video games are marketed from now on. This is the most obvious issue, and the one we can get good and mad about, but since I'm a minutia loving nerd I've been focused on this one section from an old order back when Gearbox hadn't been dismissed from the suit yet. To me, this section says a lot about how those cryptic, seemingly all-encompassing EULAs we all blindly agree to are going to be treated when push comes to shove.

Speaking of cryptic, I need to stop burying the lead and just cite the text:
The Court finds "Licensed Works" to mean the "online features of Gearbox games and products." 
To me, that's a bomb going off. Developers and publishers might not be able to control how people use their product post-sale with quite the iron fist it seemed they had. This is a really narrow definition for a term that shows up in most video game EULAs and in context looks like it's trying to talk about a lot more than online content. Hell, Gearbox even argued that in their motion. They said in their filings that "licensed works" meant "Gearbox games and products," so when their EULA said  "Gearbox may limit or prohibit access to the Licensed Works in its discretion," they wanted it to mean that they could shut off your access to the game itself. The judge rejected that definition and said that it meant only the online stuff because Gearbox could control that with login credentials.

That sounds awesome, right? A company thought they had the right to yank a game out from under people through the terms of their EULA that they know no one reads, but now they can't. What could be bad about that?

Don't get me wrong. I love the narrow definition. I'm just less enthused about how the judge came to that decision because it looks like it came from a less than fully up-to-date place. His big point for why it would be impossible for Gearbox's "licensed works" definition to include the game itself was "Gearbox definitely does not have the right to go into consumers' homes and remove their copies of ACM."

We're right back to an over-reliance on physical objects to base decision on rights of the consumer. I don't know about you guys, but I can count on one hand the number of actual game discs/cartridges I've bought this year on one hand. What if there weren't actual discs of A:CM out there? Would the judge have decided differently? Would he have thought Gearbox had the right to keep the buyer away from the game they purchased then?

The bigger issue to me, though, is how this narrow definition separates the idea of the game from its online aspects as if they're two totally different things. Nope.Two words, Your Honor: SimCity 2013.

More and more, the games we buy ARE online features, even when it barely makes sense. Where do you draw the line between "game" and "online feature" for something like Destiny? Sure, you bought the physical Destiny disc, but you can't do anything with it unless it can constantly talk to the Bungie mother-ship over the internet. Even without an "always online" component, you can't really avoid "online features." I go out and buy a physical copy of Pokemon Y-Fire-Alpha-Heart, pop it into my 3DS, and promptly can't do anything until I let it go online and get the update. The update is not optional. The game will put its metaphorical hands on its metaphorical hips and stubbornly wait for me to press the A button and accept the update. This is the new normal. 

And there is not enough time left before the inevitable heat death of the sun for me to get into games like Hearthstone and League of Legends and how they fit into this mess.

To wrap this up, that line from the judge's order might be really important to establishing and protecting the rights of consumers when they buy software that comes with these really broad EULAs attached. On the other hand, the same line might have already been rendered irrelevant by the constantly thinning line between "game" as a stand-alone product and "game" as an every evolving service whose provider can deny access to at any moment through login rights.

Something to think about next time the game you're playing asks if you want to activate the online features.

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