September 24, 2021

Bonus Round: The Minefield of Microsoft’s DRM Maze.

Class is now in session.

Still reeling from the XBox One DRM Reversal, and the loss of digital sharing?

You’re not the only one. The last few days has seen a massive division spring up in the wake of the massive change of heart deep inside Microsoft. There’s no question that this was through three key points; the first was the massive backlash from gamers, who took to Twitter and every available means to express their disapproval of what the company had planned in terms of the future of their content. The second was clearly even more painful; its rivals were profiting greatly from its consumer backlash. Nintendo saw Wii U sales dramatically rise, as well as watched its share price jump as well. Sony were watching as the pre-orders flooded in for the non-DRM laden PlayStation 4, and its share price also leapt in the wake of Microsoft’s little issue.

The third is less tangible but the most crushing of defeats; the news outlets, widespread press and late-night topical chat shows all grasped the nettle of the XBox One and drove the negative connotations deep into the hearts and minds of the more mass-market consumer, the average Joe who obviously likes to have a new bogeyman to whip. Microsoft at that point had no recourse left to them, because the gaming press and the gaming community it could handle – or rather, it thought it might be able to handle, to change and compromise on its ideals. Once it’s out there in the widespread media, such stories tend to take on a life of their own, and the genie is a lot, LOT harder to squeeze back into the bottle. At that point, Microsoft knew this was a battle that it was going to lose – had already lost, really. It was change, or be relegated outside the accepted norms of the industry. Considering the time and investment that Microsoft have put into pushing the XBox brand the last twelve years, it didn’t matter if it believed in its aims. You adapt, or you die, and Microsoft begrudgingly must have had to accept that this was the only way to carry on.

Of course, not everyone is happy and it comes right back to “Used Games”.

The problem is that the solution Microsoft was proposing for “Used Games” is fundamentally flawed, the most dramatic and hilarious series of Catch 22 situations that many missed in the panic over losing the right to own their copies of a game. Many have missed the real meat and two veg of the issue, and missed it by a long, LONG way. Because what Microsoft was proposing was not, as it appeared, the saviour of the industry – no matter what Cliff Bleszinski may have wanted to impress upon us. It was the death of the industry, painting it into a dead end from which there would be no escape, no survival, no mercy.

How? Well, it’s down to the definition of what we buy. Is it a product, or is it a service?

We’d say goodbye to titles like this…

Here’s the thing; look at the used games market now. You will go into a shop and likely see a lot of used copies of games like Fuse. Ever wondered why that is, aside from the fact the game is rubbish and no-one really liked it? I’ll let you in on a little secret; actually, it’s not a little secret, it’s a huge scandal. Your consumer rights only cover the sale of the product. You are sold a disc. If the disc works, and the game runs, and doesn’t give you an error, then it’s not a faulty product. Indeed, this is largely why stores remind you that you can’t just return a game because it’s “crap”. They have sold you a product, and the product – whether you like it or not – works as they sold it to you. That shiny disc is the product you have been sold. The industry often counts on this, because “statutory rights” can only cover a few base notes of the sale. The real meat of it, the game itself, well – legally, that’s a secondary concern and nothing to do with whomever sold you the product in the first place.

It’s this reason why we are seeing a class action lawsuit aimed at Sega and Gearbox Software over Aliens: Colonial Marines. As much as this hurts; yes. It had one week of amazing sales, largely down to pre-orders. The end result was a game which was so hatefully bad and so failed to compare to the promotional material that aggrieved customers can only take their anger out on Sega and Gearbox. The only way we, as consumers, can “stick it” otherwise is to toss the game into the second hand market, where stores take on the task of resale. The more used copies of a game flood in, the less value the new game tends to have, and the more it dents their sales. This is why publishers hate the second hand market; but ultimately, it’s a direct consequence of not having any other way to dispose of our product, or get a refund for a shoddy product. The industry, for good and for bad, has pushed us into an arena where this is the only way to get the message through to them; money.

But ultimately, they DO make money. And this is a big key point.

Consider what Microsoft were proposing. Games not as a product, but as a “service”, one which you pay for a license to access. This is where the law changes; and arguably for the industry, changes for the worse. You see, there are far more stringent laws in place for digital services. You can expect a reasonable product. You can expect a reasonable delivery time. You can expect a reasonable price and most importantly of all, you must above all else have time to change your mind, whatever the reason and whatever the cost. This is the law. A service can be cancelled. A product… cannot.

Can you imagine if Aliens: Colonial Marines was sold under this system? A game so broken, so faulty, so terrible that it made me swear out loud and curse the day Randy Pitchford ever got his hands on such a license. I bought the disc – not much I can do about that, sadly. However, if gaming is redefined as a “service license”, that would have changed. I could quite rightly have taken it back to the store and asked for a full refund, no questions asked, because what I was sold does not resemble what was advertised. ┬áThe store, as a seller of that service, is legally obligated to refund me. The same would go for all those who downloaded it digitally. Redefined as a “service”, the likes of Steam and Gamefly would have had no choice but to issue refunds – because they too were caught using promotional material and taking pre-orders for the game, and can only get away with their sales by saying that you have downloaded the product – as a service, that excuse it jettisoned out of the nearest airlock.

The change of just one word can do that. Just simply redefining how we own our games, and what our rights are, really puts retailers and sellers in a tight spot. They’d much rather not have to deal with that. They might have to worry about quality control then…

Of course, this would be fantastic for you and me, as consumers, because hey! We have consumer rights again! HUZZAH! Except, you know what? Those refunds mean stores don’t make money. That means they can’t sell stock, which means publishers are out of pocket with supply they can’t sell and deals with digital sellers which aren’t worth the expense, which reflects badly on developers which means – really, it means that the games industry would no longer have that safety net. It wouldn’t have that cushion, where it sometimes gets abused sure but it also sometimes takes risks, big risks, and the reality of that situation is games publishers take fewer and fewer risks. More and more developers are shut down to save money. Sure, we get our consumer rights – but the industry seizes up, plays it safe and then there is less and less content for us to consume. It creates something far less experimental, and far more cold and calculated.

Also, a used game marketplace on Live? Sure, everyone goes there, drives the used game prices down, which means games get clogged up and the actual value of their product still continues to drop. The industry cannot survive this way either – it can take a slice of the sale all it wants, it will be pittance compared to a real sale, and ultimately it means people feel less guilty buying used cheaply anyway. “The industry is getting paid!”, people will tell themselves, surprised that actually – they’re not. They make less and less and less, as consumers flex their rights and the tools at their disposal, undermining the very things the industry and Microsoft were hoping to fix. Publishers may make money on each sale – but it will be a tiny, tiny fraction of what it needs to be making to cover its costs.

So, unless the industry were to radically drop the cost of their games and include more content for those who buy new, then a digital marketplace would only serve to lower the actual value of their product. Would you, as a company, support a system whereby your product can only ever go down in value? Where people can undermine your retail price by simply choosing to buy from the Used Marketplace? Somehow, I doubt it.

… but we’d lose the chance of games like Haunting Ground.

I’m not saying for a moment that the current situation is good – far from it. But I do think we need to realise what Microsoft was proposing was BAD. Terrible, in fact, because either way, the industry and retail market suffer. If the industry is already hurting at us flexing what few rights we have now, then it is unprepared for the consequences of redefining our relationship between us, them and the content that lies between us. The added control they want, the added mechanisms Microsoft was proposing, were not good for the industry; Microsoft was set, along with retailers like GameStop and GAME, to make a killing from the used market, as only “authorised retailers” could accept trade ins. And they could offer a minimal amount and you had to be happy with it. Developers – the people who make games – wouldn’t have seen a penny (although reality check time is developers are already paid, and if EA promised the Fuse team bonuses for sales targets that’s a whole different ball game of stupid!).

But that simple redefining of the line, that subtle change of wording, would have given us power. Power, sadly, that we likely would not have used wisely – a quick glance at how we treat the product now will given you some indication as to the attitude of disposable entertainment. Sure, crap games shouldn’t happen. I think really broken games should be defined as a “product”. I think a game like Aliens: Colonial Marines should warrant a refund because sure, the disc is fine. What’s on the disc… isn’t. Perhaps one of these days the law will get around to that little quirk (which the music industry profited from long before the games industry got hold of it!).

But the reality is, a refund means the sale is cancelled out. No money, no sale, sales numbers drop, less money, projects are cancelled, jobs are lost. One of the biggest criticisms of the industry is that it’s often far too “safe”. So sure, let’s implement a system which makes them even MORE risk averse! Great idea!

All joking aside, anyone who looked closely at what Microsoft was planning could see that it was unable to come to terms with this. The whole “Family Share Program”? Great, ten people can access one account and all the games on it individually. Except, you know, that’s 10 games condensed into one sale. And it would have been unlikely that any extra was paid for it. To the industry – that’s nine sales gone. As Microsoft tried to dig its way out of draconian online checks, mandatory installation (Games at 30-40GB on a 500GB hard drive? The firmware is likely to take up a fair chunk of that, so hope you’re not planning to have more than ten games over the next few years…) and that nasty Kinect 2.0 (which is supposedly non-negotiable, which is likely to see it banned in some countries over privacy laws!), Microsoft couldn’t square used games into the equation. The change was too dramatic, too complex, and the laws that surrounded it no longer had that pleasing give that it had become so used to.

Microsoft was indeed brave to want to move in that direction – heck, anything that gives us decent consumer rights back would be a godsend. However, you can’t tip the balance completely in our favour either; petty squabbles and silly issues would make it an unmentionable mess and we wouldn’t know where to draw the line, where boycotts and silly campaigns would cripple the most well-meaning of releases (after all, a developer is not the same as a publisher. Hate EA all you want, but developers shouldn’t be made to suffer for their sins…). A balance is needed; a middle ground by which the industry can protect itself, but the consumer can maintain a reasonable expectation of competency and a right to dispose of the game if they so choose, for money. Heaven knows what it’d be like if I sold some of my collectable games now, which are far above their original retail prices. That’s a legal complication I’m hoping to never have to go through… not that the industry cares, although give it time….

Of course, if there were no rubbish games like Aliens: Colonial Marines, Fuse and the like, then we’d not be here discussing this. We’d be in a magical happy land of unicorns and fae people, dancing along hand in hand to “The Age of Aquarius”, long flowing hair swishing and swaying in a cool, refreshing breeze. A realm where the likes of Michael Bay do not exist. A place where everyone is honest and decent and offers a great product at a sensible price. Where there is no hate, no pain… and no real reason for violent games to exist at all. Ha ha ha.

But rubbish games do exist. And we can continue to exercise our very real duty to trade in games, thereby devaluing rubbish products to the point that publishers notice the damage to their bottom line. It’s the only means we have to communicate with them and they need to pay attention to it, because we wouldn’t be hurting them if they didn’t give us the reason to hurt them. It’s often lost in the process; if your game is hitting the second hand bins that hard, maybe your product isn’t as good as you think it is…

Just know this; what Microsoft was looking at, the future as they saw it, was a complex mess of consumer laws, service agreements and expensive compensation packages to publishers. The more Microsoft disclosed, sure, the sweeter it sounded. But the less rosy it looked to the publishers, and they too have a few rights of their own. Like the right to choose to release their product on a rival product on the market. Something a little more Sony. Something a bit like a PlayStation 4. Or perhaps rushing to the Wii U. It would have crippled retailers, and seen a wedge driven sharply into the more independent chains. It would have caused a cacophony of legal wrangling, some of which could only be lost.

Microsoft would have seen more and more titles fall into the hands of its rivals, and less and less games overall (considering it’s distrust and discarding of the indie market, it wouldn’t have even had that to rely on!). Thereby defeating itself, as a product. With less and less reason to buy one, it would have been a crushing defeat. And Microsoft will not tolerate failure. Oh no…

This is why the change was so inevitable, why the U-Turn shouldn’t have been a surprise to anyone. Microsoft was digging its machine an early grave, caught between retailers, consumers, publishers, developers and the law. And none of them were happy. Some of them still aren’t; the Kinect 2.0 is going to be the next thing of interest, as the requirement of it in the bundle and the fact it can “listen in” to your commands in standby mode conflict with some countries various laws on privacy. People don’t like the idea of it as a “requirement”. But unless Microsoft compromise on that, there will be countries that will flatly refuse to allow it on sale.

The minefield that Microsoft tossed behind it, it now needs to walk back across. And it’s unlikely that this will be smooth, and at least one big Executive appendage will be lost in transit. There is still a long way to go – don’t think for a moment Microsoft has made this easy for itself. But make the journey back it must, and address the issues that still surround it. Not everything is fixed yet. We still have that scummy Kinect 2.0, we still have some issues yet to come with the Interactive TV (which Microsoft at first said wasn’t going to happen outside the US. Obviously forgetting that Europe, Canada and Australia do have these remarkable new teleboxes as well!) and of course it will need more games as well. Investing in a games exclusive DLC is a short-term fix at best; Microsoft needs to think unique, varied first-party content. And it needs to think it yesterday (and not Killer Instinct. That mess needs to stop now Microsoft!).

Microsoft made a massive hash of things so far. It didn’t look silly; it looked incompetent, even amateurish, with a comical support team, a self-destructive PR posse and executives who really need to be introduced to the life-changing invention that is gaffer tape. The very visible meltdown has given rise to “XBox One Eighty”, a derogatory term that will hang over the next ten years in the same way the Red Ring of Death did the last seven or eight years. It’s not out of the woods yet. All it has done is realised how far into the woods it has gotten itself; now the journey back begins.

It’s digital vision of the future sounded lovely though. It’s just a shame in the real world, it was impractical at best, and impossible at worst…


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