The A:CM Lawsuit – Meritless? Depends Who’s Asking…

Awkward questions…

So Sega and Gearbox Software are being sued in a class action lawsuit.

What is most interesting is not that the class action suit gained traction – Aliens: Colonial Marines was awful, truly hateful, and there were going to be repercussions in some form or another. A class action suit may simply suggest that it is those who bought the game who feel the most aggrieved, which is to be expected. Nor is it the bland response from Sega; “Sega cannot comment on specifics of ongoing litigation, but we are confident that the lawsuit is without merit and we will defend it vigorously.”

Of course, Gearbox were happy to provide another more… succinct statement. “”Attempting to wring a class action lawsuit out of a demonstration is beyond meritless,” a representative said. “We continue to support the game, and will defend the rights of entertainers to share their works-in-progress without fear of frivolous litigation.”

Meritless. Frivolous. Interesting choice of words for a developer who, it now transpires, did nothing but dick about with the Aliens licence for years, thrusting it away at any given opportunity and painting a very different story in the demo trailers that it revealed. Because yes, we get that demos are a work in progress. We get that quality can go down as well as up. We get all of that. However, when your game bears little resemblance to the demo at all, with characters and scenes removed, with worse textures and lighting and an engine that positively creaked, you do have to ask the question – can Gearbox not see the hole it’s about to dig itself into?

The suit has been filed via Edelson LLC, whose filing had this to say; “Each of the ‘actual gameplay’ demonstrations purported to show consumers exactly what they would be buying: a cutting edge video game with very specific features and qualities. Unfortunately for their fans, Defendants never told anyone – consumers, industry critics, reviewers, or reporters – that their ‘actual gameplay’ demonstration advertising campaign bore little resemblance to the retail product that would eventually be sold to a large community of unwitting purchasers.”

It’s true. That “demo” footage was used to advertise the game on UK Television. It was still being used after we knew it was all faked to sell the product, and I believe it was withdrawn from our screens, despite being forced by advertising watchdogs here to include the “Does not represent in-game footage” at the bottom of the screen (which, as I recall, it did for all of two seconds!). You can argue the semantics of the lawsuit but there is no question that there was some pretty blatant dishonesty in selling the game, both before and after the fact. So yes, customers feel aggrieved. There’s no question of that. And without an apology, without recompense, without anything that could justify what happened, the aggrieved are now being invited to take to a class action lawsuit in order to, perhaps, just get their money back.

Gearbox and Sega may obviously feel they have a strong case and did nothing wrong. Except here’s the problem; they both did something wrong. Gearbox delivered a product that was nothing like what it was promising and had been showing the press and public at every opportunity. That contravenes several business laws. Sega allowed themselves to push advertisements which depicted this ideal demo situation when it bore no resemblance to the product they were publishing. That’s also against the law. On both counts, you can argue that perhaps they are minor infringements and technicalities, but the truth is that both of them are treating this as somehow not important, when it absolutely is. And it’s not important because the lawsuit says it is.

Gearbox have suffered tremendously from it. Without any sympathy for their customers, without the slightest hint of remorse, their credibility in the industry nose-dived like nothing I’ve seen before. Staying stoic and resolute in the face of such anger is admirable, but – ultimately – foolish. There are numerous questions surrounding how it financed Borderlands 2 and Aliens: Colonial Marines, what money went where, and how they treated both projects in their development cycle. There are suggestions that much of the money intended for Aliens: Colonial Marines was simply assimilated into the company coffers and redirected to their main project, which was Borderlands 2.

Sega, who have had money problems in recent years again, may have suffered lesser tremors but there’s no doubt that a protracted legal battle, and the costs it would amount to, are unwelcome at a time they appear to be trying to cut back. It’s an unpleasant development that they absolutely should have foreseen coming, but did not.

However, let’s take a step back from the legal stuff, because I understand consumer outrage. Aliens: Colonial Marines is unique in what happened, and there’s obviously a hell of a lot more to the tale than a few dodgy demo reels. The lawsuit is not without merit, or frivolous – because if you treat your customers like crap, they will bite back. This is what happens. Apple said that parents suing it over IAP’s made by their children were never getting that money back. It has since had to pay back millions to parents. What the companies say is not always how the law sees it. Gearbox may yet win; it may very well yet lose. It all depends on how the courts see Aliens: Colonial Marines, and whether they sold a shoddy product on the back of pretenses.

Because a lot of this could have been avoided. And it could have been avoided by a little humility and a little more honesty.

I understand this might expose Gearbox to some harsh criticism, but ultimately is that necessarily a bad thing? In doing so, others could learn and the industry could move on, take lessons from it. A little more humility might have sated the consumer ire that came with the product, and I played the game. I am not the biggest Alien fan in the world – I like the movies, but that’s really it – and I thought it was a vulgar, hateful pile of crap. It was obvious the demo and the end product were two completely different objects – two entirely different engines, even. Defending the end result was never a good option; defending the right to show false demos as representative of your final product, even less so.

Most of us know demos aren’t always finished products. But I don’t think I’ve ever seen such a massive discrepancy between the demo of a game and the final product in terms of build quality. Sometimes a game picks a great ten-minute stretch of content buried in hours of mediocre tedium. But the build quality is generally speaking there. You never look at the engine powering it and think, “Is this better than the real version?”. It’s like selling a car on the back of a test drive, when it had a twin-turbo V8. And then you get a crummy little diesel engine with one stonking great big turbo on it that has achingly awful turbo lag. We’ve rarely in demo terms had to concern ourselves on that front, because generally speaking, the game engines end up slightly better than the demo, because they are still work in progress and optimisation tends to come towards the end of a project. Aliens: Colonial Marines is special in how much worse the end product was – and I use the word “special” in a myriad of ways there.

What it boils down to is whether or not Gearbox in particular set out to actively deceive us as consumers. I think consumers know the difference between alpha footage of a game and a commercial release, even if the industry would like to argue otherwise. I genuinely think we all know the difference between a demo and a final product. However, when the gap between the finished product and the promotional demos is so vastly different, yes. There will be questions and people will ask the awkward ones – like, “Isn’t this false advertising?”. The industry can’t have it both ways. You can’t have protection of your demonstrations when it is those demonstrations that are being used to obtain pre-orders and sell a product. The relationship between the press releases and demonstration previews and generating interest and sales for the finished product are there. You can’t so coyly deride one to justify the other, or you may as well never release any demo, or screenshots, or even talk about the project to the media, and let us judge based solely on the end product; often this would likely mean more money spent on advertising, as such things are often cheap or even free ways of marketing a title. And we’re all guilty of it. Even me.

Again, most of the time we’re very tolerant of some minor discrepancies. We understand things can vary. But it’s rare that we see something like Aliens: Colonial Marines, if not the very first time I’ve ever seen a product that is so blatantly, obviously, categorically different in every way to its demonstration. Graphically, it was worse. AI, in the demo Aliens crawled from ducts and through shelves to get to people, in the final product? They would run endlessly into a shelving unit, trying to get to the player, and most of the xenomorph AI was hopeless anyway. Friendly AI was atrocious. Boss fights were laughably bad. Everything that was good in the demo was bad, awful and rubbish in the finished product. I did feel deceived. There’s no other way to say it. I feel like I was conned. There’s no nice way to put it.

So taking that into consideration, is the lawsuit really “Meritless”? Hardly. Most class-action suits are, of course, and there’s no polite way of putting that. However, in this instance we have an arguably strong case to argue; that Gearbox may have committed fraudulent advertising in order to sell what it likely knew was to be a hideously broken, buggy, worthless product that the free Cry of Fear betters on the aging Half Life 1 engine! This is the one thing we can attempt to nail them for, and the law can then argue whether or not they intended to deceive us – which will be easy, because they will no doubt be forced to reveal whether or not the demo was on a different engine. For everything else – the monetary issues, the focus and the mysterious case of the disappearing good game engine – we will have to trust the industry itself to be wary of this in the future. Gearbox will no doubt find things harder to do following Aliens: Colonial Marines – anyone who trusts them with a licence in future is just asking to be mocked, and publishers will no doubt be more wary of being attached to a Gearbox product.

And “frivolous”? Gearbox have to be very careful. Its customers are angry, furious even, and the treatment of them by Gearbox has been nothing but frivolous. That’s why they are angry. Gearbox has made foolish tweets and silly statements and have done little to douse the ire that the game has generated. Even in interviews and videos, Randy Pitchford expressly stated the product they were pitching was “the game”, even commenting on scenery in the distance that was, in the final product, walled over or blocked by debris. The treatment throughout Aliens: Colonial Marines life and subsequent death on the market has been nothing but frivolous. Everything about this product has been phoney, fake, lacking in truth and substance, treated with a cavalier attitude to the facts. It has to concede at some point that this is their darkest hour. That this reflects very, very badly on them.

And more importantly for Gearbox, is that the people who bought Aliens: Colonial Marines and now feel so aggrieved are the same customers for whom they want to buy more Borderlands games in the future. The market is the same, and the more it continues to be so dismissive of those angers and concerns, the harder a sell any future game from them will be.

It should never have come to this, of course. A class-action lawsuit is, for the moment, the ultimate expression of a consumer base that is seeking answers to questions that no-one is willing to answer. No doubt that they hope that the truth will come out in court, where under oath things may finally be unravelled. That we can finally make sense of why things ended up the way they did.

But similarly, I think even if it does – will the truth be any easier to stomach? What happens if we do reveal that Gearbox intentionally produced and promoted a false demo in order to sell a rubbish game? Will this really help us, help Gearbox? Or will it, as I suspect, bury Gearbox in that hole they dug for themselves? Some people who are intending to participate in this lawsuit think in doing so they will “clean up” Gearbox and make it more accountable. If the truth is as horrible as people suspect, it’s going to destroy them as a developer. For the truth to come out, we will have to cut open Gearbox. And when that happens, they really will be dead. There will be no going back from this. There will be no happy ending, or ever after. It will destroy the developer, destroy Gearbox.

But such is the way of truth sometimes. Truth can at times be a destructive force. Sometimes the lie is easier to tolerate, and sweeter too. Like, “This will help Gearbox clean up for the future!” When the reality is that you are pouring acidulated boiling liquid over the issue. Sure, you clean stuff up, but there’s unlikely to be anything left to save afterwards.

I only hope people realise that they are seeking the ultimate destruction of Gearbox through this. Dress it up how you will, but you are going to utterly destroy the developer in this manner. In the eyes of the law, the media and the public, there will be no-where to hide. Everything can look like shit when you put it under a powerful-enough microscope. We’re going to make Gearbox look awful, when in some cases other developers are getting away with worse and getting much better press. And no, this doesn’t mean Gearbox should get away with what they did. Far from it.

But is a death sentence really the right answer? I suspect people may have convinced themselves it won’t come to that.

I only hope their optimism is proven right.

Update: For a stance on the OTHER big lawsuit, that of memes vs. WB, please check out the latest Jimquisition at The Escapist.
It was one or the other. The A:CM one allowed me to just have a Devil’s Advocate moment. Which I like.
Jim Sterling covers the other one with more fervour. Saving me some trouble!

Oh, and as always, Jimquisition may be NSFW and contain bad language and disturbing images.

Lead image promotional Aliens : Colonial Marines image. Little text joke on it obligatory by me.

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