The A:CM Lawsuit – It Must Go On…

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… for the sake of the games industry.

In what must have been a blow for Sega and Gearbox, last week saw their attempts to dismiss the class-action lawsuit pending over Aliens: Colonial Marines itself dismissed, largely on the grounds that there was a serious case to be made.

This in itself is perhaps not a surprise – most intelligent people can look at the evidence against Aliens: Colonial Marines and make a half-decent assumption as to the relative immorality of the situation. Contrary to the opinions of Randy Pitchford, most purchasers of the game were disappointed and you cannot undo that feeling of having been misled, no matter the pretense. What is a surprise is that the lawsuit may indeed get the go ahead, and be a case heard in front of an actual judge. And my personal opinion is that this is a case that needs to be heard. This is not merely, however, because Aliens: Colonial Marines was a frankly appalling mess of a title. This much is known and has been known for a while now. It’s because I want this to be the tip of a very big iceberg, one that may crash into the industry in a powerful way and leave it permanently changed.

Look, I like Sega. I like Gearbox. But someone has to be made an example of to start with, and unfortunately for Randy and his cohorts, they just happen to have painted themselves as a blissfully easy target. The discrepancy between the game we were shown, and promoted, and the game we got – regardless of the promises and the excuses – was vast. And no, artistic representation is not a valid excuse under law. Promoting a product that is then not delivered is false representation and should be answered; ultimately, that is the underlying case that needs to be answered. How far can you promote a game based on teasers and trailers and end up not delivering on that product? Admittedly, not all games manage to do this – but the majority of games improve on their demonstrations. It’s extremely rare to find a product whose rolling demo that was trotted out repeatedly weeks and months in advance to drum up sales actually ends up being both visually and technically inferior to the promotional material.

And it’s an important case; one that may end up making the industry require adjusting to a brave new world of consumer law.

It doesn’t take long to find examples that currently look extremely dodgy; Gearbox themselves sold a “Season Pass” to Borderlands 2, which in the end didn’t end up including all the content they were making. Killzone: Shadow Fall is already selling a season pass – the game isn’t out, and neither is the console! At a time when people are being asked more and more to trust the games industry with money well in advance of a product – be it via a pre-order or via crowdfunding means – there is a notable and concerning lack of legal protection for us all as consumers. Pre-orders can be refunded, or – as some retailers are doing right now – changed, therefore demanding that prices be raised in order to partake of the content (a recent new PlayStation 4 bundle has caused controversy for this very reason!). But once the money has been taken, directly or indirectly, the legal case states you only need to be delivered a ‘product’.

As we’ve discovered over the years, it doesn’t matter how broken the game is technically. You are sold a product by a retailer. The contract is made.

The industry laments the second-hand market and is doing its damnedest to kill it; and worryingly, it’s likely to succeed. Without a flood of the mediocre to offset the new sales of a product, there’s less incentive to do better for companies I fear. Greed is normal; but it’s concerning that it is done to things that cost so much money. With next-gen games going up in price, there’s a serious point to be made for holding games companies who don’t deliver a product to a satisfactory level of standards to account.

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As much as I enjoyed it, playing Zombie Tetris is perhaps not the intended means of play…

This is however not about quality; quality is a debatable commodity. I enjoyed The Walking Dead: Survival Instinct to a large degree – but at the same time, I won’t deny that the game was technically broken on a level that bordered on sloppy and slapdash. Aliens: Colonial Marines and Ride to Hell: Redemption together serve to unify this years unholy triumvirate of filth; games that seem like no-one cared at all. Couple this with a frankly lazy Resident Evil: Revelations port, the SimCity disaster and the frankly awful porting of Darksiders 2 to the Wii U and what you have right now are plenty of examples of an industry where technical quality isn’t important anymore. Making money is the only end-goal; what we feel about the product at the end doesn’t matter, because they have our money and they are under no rule or regulation to give it back, no matter how unbelievably slapdash the product is or how unplayable it is at times.

As a consumer, I don’t mind not liking a game for various reasons. If I feel disappointed, I shrug it off. If I feel upset about it, I deal with it. I can understand subjectively-identifiable content; I for example found the bar-room scene in The Last of Us to be extremely nerve-wrecking. Others thought it was too much; others, it barely caused a ripple of excitement. This isn’t about the content itself because content is always up for discussion. However, unlike film where bad direction just makes for a bit of a visual mess, in video games poor direction and sloppy technical workmanship can make a product utterly impossible, near-unplayable and generally nauseatingly awful.

This was the greatest – and most serious – accusation against Aliens: Colonial Marines. A bad game, we could have dealt with. We’ll never trust anyone with the licence again; but Twentieth Century Fox must by this point be aware at just how much damage Colonial Marines has had on any future attempt to revive the Aliens franchise. Bad is one thing; the fan-fiction plot, the bland level design and the generally lacklustre atmosphere are debatable. What isn’t debatable is the myriad of YouTube videos of users deconstructing every square inch of the game, and every technical foible, every stupid bug, every dumb crash. Rather like Ride to Hell: Retribution, Aliens: Colonial Marines is a game that can only have been made in a blind panic in a very short timespan. The question for hardened fans might be what Gearbox did with all that time and money they had for the product, but my issue is simply; why can’t I get a refund?

This is the great unanswered question and one that the games industry would probably much rather we didn’t ask, but at a time when technical quality has slipped quite substantially in many areas and at a time when prices are on the increase, it’s a question we should all be asking. “Why can’t I get a refund?”

Well, again, it’s down to the definition of how you sell a ‘product’. A retailer is your middle-man, really. Steam also stands as a middle-man. They sell you a product. The onus is on us, as consumers, to be educated enough to make an informed decision. The issue comes when the industry itself is being less than upfront about a product; Aliens: Colonial Marines was still being advertised on TV with the false demo footage weeks after its release when most of us knew it was phoney. Gearbox had a clause in place prohibiting any publication from an early review; it also made damned sure that no early sales happened. It did everything to keep a lid on the horrid reality of the true product; and then let go. Most feel that is at best dishonest; some outright accuse Gearbox and Sega of a deliberate campaign to mislead purchasers of the product.

But this will become the norm. Pre-order bonuses and season-passes are all the rage in the industry because often, it’s money already securely nailed down. But it’s also a product unseen; we have no control over the end product, and the end result is an industry that isn’t being tightly bound by critical press nor consumer interaction. It has found a means to circumvent that and gain access to money outside the box, and while this is extremely clever it’s also bad news for our consumer rights, reflecting a troubling trend that desires our money over all else, and doesn’t seem to care how it gets it. Such loose ethics do the industry a massive disservice, tainting the market.

If Sega and Gearbox are found guilty? One would hope a refund is in order; and ultimately, that would set a precedent. There are many more issues in the games industry that need tighter rules and regulations, admittedly, and some perhaps more pressing than others. However, we cannot simply dismiss this as a lesser battle; it is one that has been conveniently dropped into our laps and we must be seen to be fighting it, otherwise no lessons can be learned from it. It also means that a judge may be made more aware of the legal loopholes in consumer law that the industry is prone to in the modern era, and ignite a serious legal discussion on how to best close these so that consumers are not taken for a Burton.

It’s an important step on the way forward. We may be careering into the eighth major generational iteration, but the speed at which the industry has developed has been dramatically at odds with the legal systems of the world. When consumers are being held to ransom and ultimately dismissed and treated at suckers, there’s a real problem and it is one that is going to rear its looming presence over the next generation; a foreboding sense of dread that we may not always get what we are promised, or even see in a trailer. Even Sony know this; a company well-known for perhaps overstating the status of its demonstrations in the past. No-one is immune here; not even Nintendo. We can’t just somehow expect a worse enemy to make a better case; there’s an opportunity there right now for the legal system to get in and actually see the seedy underbelly of the industry, and what it does. Why wait around?

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Deep Silver want to be taken seriously as a publisher. Ride to Hell: Retribution is perhaps not going to help their case…

From there, who knows. But there’s a lot to fix. And true, the Aliens: Colonial Marines thing may be a small crack in comparison to much of what is wrong in the market; however, if it provides the entry point for the legal system to get inside and start cleaning it up, then it will go down in history and perhaps be seen a little more fondly in peoples eyes. Because it would be nice that for all that was wrong with Aliens: Colonial Marines, that it was the straw that broke the camels back – the title that ultimately drove a lot of gamers into pushing for a more serious investigation of the industries business practices.

And if there is one thing you learn; change happens fast. No doubt even the decision to allow the case to be heard is a major step; one that the industry is hoping we won’t notice, but you can be damned sure that they noticed. The idea that consumers may be ready to hold developers and publishers to account for second-rate products is a massive issue. But we should not make this a witch hunt; this must not be about subjective arguments over the material in question. It must remain solely focused on the actual discrepancy between the promotional material and the end product; it must be therefore focused on the technical level of the end product, and be about demanding, if nothing else, a level of technical competence in what we are sold – if not a product at least as good as the one promoted. And if we feel it has not been delivered; it must focus on what we, as consumers, can do to get our money back.

We should be aware that the case has yet to be fully heard; I personally find it hard to believe Sega and Gearbox can defend themselves in the face of it, but you never know. Stranger things have happened. But for now, we should take the small victory. It’s a stepping stone to bigger, more pertinent questions. Ones that consumers should be asking. This is the ideal time for change; the generational transition means little is nailed down fully yet. And yes, I know this might hurt some “smaller” studios.

But really, if a publisher can’t guarantee the technical competence of a $70/£50 game, then they don’t deserve to be defended. We’re being asked to fork over a lot of money for these things.

It’s about time we asked why we can’t expect something as fundamentally basic as a refund for a shoddy product…

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