Bonus Round – The Grey Zone, Act One.

Chaos control!

So, unless you’ve been under a rock this week, it’s hard to not have noticed EA have had serious problems with its new release of SimCity.

Not that I have such an issue – I have been burned twice thus year already and have learned that it is probably for the best to steer clear of the good-ship S.S. SimCity as it runs aground on rocky shores. I wouldn’t anyway as I find Origin to be the most anti-consumer pile of garbage I’ve ever had the misfortune to place on my hard drive, I got rid of it after a terrible few weeks in The Old Republic and I’ve not looked back since. But it is interesting to watch the sparks fly in this instance, partly because the last week has been a complete and continuous public relations disaster for EA and many of its studios and partly because it’s kind of fun to watch consumers run around squealing at how badly they are being treated.

EA offered refunds, but in typical EA fashion, this also came with a caveat as one unfortunate person discovered; threaten to dispute charges or ask for a refund for what is a fundamentally broken experience and the spokespeople are trained not to empathise, or to acknowledge the faults at hand, but instead threaten to close the whole Origin account and wipe out any and all purchases made through it; the technical term for this is blackmail, and it is something that rightly we should all have seen as a screenshot of the conversation spread like wildfire, going viral and muddying the waters to such a degree that it’s impossible to know what exactly is going on. The problem isn’t that the support staff were allowed to do this – it’s that there is no legal recourse for them doing it.

Consumers like you and me are protected by certain laws, but the first thing we must do is remember that such laws were not expressly designed for the purpose of protecting consumers of the games industry; retailers are bound by law to refund games which do not work or are faulty because they have sold you a physical product that does not work. Whatever that product may be – a toaster, a shower unit or a video game – the person who sold you the product is legally bound by strict rules and codes to refund you if you choose to be refunded. If they cannot refund you, then they must provide an alternative that is acceptable to the consumer in question, but mostly refunds are given. There is very little point in many chain stores and Internet retailers to being dragged into a messy small courts claim which the press could latch onto. Often it’s cheaper and quicker to refund the money and be done with it. The company doesn’t tend to lose out; if a product is faulty, then their supplier is made to shell out the difference. And so it goes – turtles all the way down, so to speak.

When you come to the rush that we have to get us all online and buying digitally, the first thing we should know is that we’ve already sailed into dangerous waters as consumers. We have entered the dreaded “Grey Zone”, a place where laws have yet to touch and cases have yet to set a precedent. We’re navigating new, uncharted waters. Whilst politicians the world over tussle with each other over base economics and their own job positions, the law hasn’t yet caught up in most countries to really be up to speed. For example, we can get a refund if we have not downloaded a game; this comes under Distance Selling Regulation which stipulates a fourteen-day cooling off period. You can claim a refund and cancel any contract within that time for no penalty – years ago, cold callers would target people and draw them into long-term mobile phone contracts. Often they would not allow any cooling off period and this was a serious problem, because people were being hoodwinked into it via various means, especially if they already had a mobile phone and the company selling could claim it was a “renewal”, when it was anything but. Clamping down on the loophole meant that the law made sure that any product sold via cold-calling or online had to have a certain period where the consumer could return it, and cancel any contract therein, without being taken to court. Digital downloads do technically come under this. If you don’t download it, you haven’t technically used it yet and returning it isn’t an issue.

The problem is, most of us don’t know if a game is broken or non-functional until we’ve downloaded it. This is one of those blind spots in which the law isn’t as clear as it should be; the companies running these services are – in the nicest possible way – making it up as they go along. And it’s not merely digital downloads; we have the still-awkward proposition that comes with Cloud Gaming. OnLive was in the news not too long ago as it was sold to a new investor, but the worry was there; some people had bought games through it. Money had exchanged hands. If servers went down, who owned the product in question? You were streaming it through their servers so you had no physical code to use to get a download copy, and if servers shut down then you couldn’t play the games you had paid often full retail price for in the first place. We have the self-resolving issues that come with DRM, as many companies already turn away from it realising that it penalises legitimate consumers and doesn’t do a damned thing to deter piracy. We also have Sony, pushing a new PS Network on the PS4, one that so far they have made clear will not transfer your purchases over. This is all well and good, and you can keep your PlayStation 3 for it, but eventually those servers will go offline. Is it really right in this modern world that Sony can so wilfully discard its past in pursuit of a cheaper future?

The world has moved quickly into a digital era that most laws are yet to truly grasp; any protections we do get are often because of broad wording in the letter of the law. We as “consumers”, games as “product”, companies as “outlets”. In the last eight years, as games consoles braved the online world, there have been gigantic leaps in terms of what is possible; cloud gaming is a reality. Digital downloads are easier than ever before, payments can be entirely automated and even Valve’s eponymous Steam system now allows you to buy games from its library on your mobile phone. Companies have offered convenience that is irresistible; but it is convenience that pushes us into the unknown, the unfamiliar and the never-before-seen. We have charged headlong into this bright new future only to find out that for the moment, things are still decidedly murky and obscured.

Some may argue what we need is regulation – outside regulation, as it is becoming more clear than ever before that self-regulation doesn’t really work in favour of the consumer. This is a fair point, because you need only look at the UK Press in order to see how far standards slipped over the years; where laws were broken quietly and no-one paid the slightest bit of attention, or asked questions. They were supposed to work together in order to protect their business – and they did, but to their own benefit, not the customers or the publics. Games companies have the same thing slowly eroding it from the inside – we have plenty of studios and publishers all vying to protect their content, and it doesn’t work for the consumers. The expectation being placed on it by consumer watchdogs is to “clean up its own act”, but without the teeth required to have a proper bite, barking doesn’t quite get the message across. There is no end-result punishment for these companies, save losing consumers, and when it’s controlling its own press, advertising and digital purchases in order to make more and more money, consumers are a commodity that can be abused and kept down to the point where fighting back feels futile and pointless.

The problem with outside regulation is that you would need an entirely independent body internationally employed at the expense of taxpayers. Now, this might sound like a good thing but with so many cuts, you need only take a look at the UK again, in recent weeks we’ve watched as our Food Standards Agency admitted it has had to cut staff, therefore cutting unannounced visits to check quality controls to pre-arranged visits with two or three weeks notice. We’ve sat in horror as more and more food manufacturers withdraw food from the shelves that have been contaminated with horse meat – and in some cases, horse meat tainted with the drug Bute. Whether or not Bute is harmful in small doses is irrelevant; the law states that any animal treated with Bute cannot enter the food chain. And we’re finding out – they are! Horses at the end of their working lives, horses which fall and are shot in racing – all entering the food chain. The regulator is supposed to make sure this doesn’t happen. But it did, because even the regulators are stretched to breaking point. They cannot cope. They simply don’t have the manpower, nor the finances, to operate in an efficient manner. It’s at this sort of time, when money is tight, that companies clearly make full use of the loopholes and blind spots in order to profiteer and hoodwink consumers. Their whole shtick is to make money. But the manner in which they are doing it is, of course, really close to illegal. Even if horse meat is safe to eat, selling it off as beef and putting it into chicken and poultry products is… well, it’s supposed to be illegal. But no-one will be prosecuted. Too many companies failed to check. Too many sources got away with it for too long. The reality is, the outrage makes them sound off that they will be more careful – more careful to ensure it doesn’t happen again? Or more careful to ensure they don’t get caught doing it? With so many doing it, the reality is that no-one is likely to pay for it – and, more worrying, if anyone does pay for it, it may be prejudiced from the off and not perhaps aimed at the correct people.

It seems horrible. But the thing is, the Grey Zone cuts both ways.

EA have lost billions over the last five years, and sales of Dead Space 3 were well below targets. The volatile consumer reaction to SimCity has further thrown EA into the spotlight, as their more pernicious comments from recent weeks and months bubble back to the surface to haunt them. Bigger companies are suffering from more clever consumers. It’s not piracy hurting them – it’s their own ineptitude, coupled with consumers simply looking for something a little less… insulting. UbiSoft have in recent months backtracked on their DRM measures. Capcom too are backtracking. The balance of power has slowly and long been shifting back to the consumer in many ways, even if we’re not aware of it yet. Companies are realising that the Internet revolution that made it so easy to lure us into traps now, in 2013, also gives us the ease of power to undermine them as well, to share our horror stories and to talk openly about the likes of the SimCity “refund discussion”, about the server crashes, about the problems in the games themselves. People are talking and communicating, the industry lured us all into this area and now seems ill-suited to a tightly-packed consumer base that can swiftly share links on Facebook, or note events on Twitter. The industry used to sweep much under the carpet; now, your public mistakes live on, such as EA’s ill-suited “all our games will have micro-transactions”, and “single player isn’t beneficial to what we do”. These moments are kept on the Internet, crystalline, and it takes little effort now to employ their own words against them.

Game budgets are rising exponentially, and the industry itself knows it cannot continue to survive in this manner. So we’re seeing more emphasis on lower-budget titles and independent games making their way towards us. We’re seeing even Nintendo push it’s eShop more and more, with more content. This is an inevitability when games aren’t around to buy, or that they’re still in production, you need to encourage the correct online approach. Sony had to drop it’s no-second hand sales idea due to the backlash not just from consumers, but from retailers. Retailers themselves are one of our biggest vanguards, because they have to sell consoles at the end of it. They won’t if they’re being cut out of the games arena. Sony learned this one with the PSP Go!, and no doubt the heat rising from a potential scrap with retailers again proved to be more than it was prepared to take on in its current financially-precarious state. Many companies still need retailers – retailers still account for the lions share of sales across the globe, and anything directly intended to screw them out of money will be fought tooth-and-nail. Big companies may need consumers, but retailers need them more. As middle-men, they ironically now act as our protector as they compete with other retailers to offer games at the best prices.

The thing is, the law will eventually cover these bases. There will come a point when the world catches up. But as horrible as what EA are doing is – you can also argue that it’s the frantic arm-waving of a company in serious trouble, with deep-seated issues that has long been mismanaged and poorly-run. EA are not dominating the market – rather, it seems as if they’re losing control of it, of themselves, and are fumbling around in the grey zone for a crutch, a hand-hold, stable footing – anything with which to cling onto so it doesn’t fall into what lurks below the grey mist at our feet. EA are losing it – and we should let them. If EA survive, then there will be new bosses and management put in place, and things will invariably change. What it has been doing may not be technically illegal – but it’s certainly not moral, or in the interests of the consumer, and this is what is ultimately destroying them. It’s a rot that has been seeping in for some considerable time, and we’re just realising how deeply damaged it has become.

We may be in oft-uncharted waters, but we’re not defenceless. And we’re still capable of fighting the good fight. As I said earlier, the irony for the games industry is that in dragging us into an only-online world, it has pushed technological development on faster than ever before, which unfortunately means that consumers now have more ways of getting the message out at how bad something is. Twitter allows swift, quick access to links and stories and tales of the misdeeds of companies, or to remind them of their own past comments. Facebook and other sites allow for vocal groups to organise and push an agenda. Blogs are taking the strain where the gaming press cannot – talking about things without fear of losing advertising revenue, or the ability to grab review copies of games in advance. Where once we were rushed into the online space, we’ve been here long enough as a public to mobilise, organise and utilise everything at our disposal. And that does, and should, terrify companies like EA. It’s never been easier to undermine them – last weeks Dead Space cancellation rumour a case in point. It wasn’t true but it exposed a shocking lack of communication within EA. It demonstrated a complete failure of its own PR team to squash a rumour when they had a chance. It may not have been true; but the damage it caused was significant enough for that not to matter.

We may only now be rushing past the sign to end Act One, and Act Two – the PlayStation 4 and the new X-Box – are on the horizon. But we’re home and dry and we can now all take stock of what we have been through. The industry is learning as much as we are, and yes, sometimes they look for ways to exploit us. But we’ve got means and ways to fight back. Look at the market as an old Sonic level – there’s a lot that can be done by jumping up and down. We don’t need anything but the one button – jump onto something, pop, move on. If we’re in this Grey Zone, then the failings EA are running into are like a sub-boss. We’re fighting it. EA are trying to fight back, but they are predictable. They have set ways of doing things and we can now see how limited they really are. Whereas we, with our “jump” feature, have numerous more possibilities at our disposal, it may seem crude but it is surprisingly flexible and effective. EA may run away to fight another day, or crumble, but that’s not for us to know yet. We just need to expect that little spinning signpost, run past it and move onto the next zone.

No doubt we’ll see more morally dubious stuff in the new generation, the next act. But you know something? We’re awesome. And we’re going to win.

The industry can fight all it wants… we’re going to get those emeralds, we’re going to beat the end boss and we’re going to win. We have far too many lives now. Far too many continues. Far too many voices. It can fight all it wants, but hilariously, it’s given us the very things we need to survive, thrive and win.

It won’t always be a clean fight. It may even sometimes be cheap, and we may still run into a few hard obstacles. That much we should know by now. We will have moments of despair, of outrage, of anger and resentment. But they will pass. They will learn.

We will win.

 

I’d also like to apologise for making a Fifty Shades of Grey joke in the header.
It seemed like a good idea at the time.
But on the bright side, at least it’s not a Twilight reference.
I do have some standards…

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