In the last few weeks, a petition being circulated throughout the European Union has been generating a significant amount of buzz among gamers and the gaming industry. Organized by the Stop Killing Games (SKG) consumer advocacy group, and originally conceived by one Ross Scott, the European Citizens’ Initiative petition recently crossed the 1 million signature threshold (currently sitting at well over 1.3 million signatures as of the time of this writing) needed for the European Parliament to discuss the matter in an open hearing. A similar petition circulating through the UK garnered over 100,000 signatures, which makes it possible for the British Parliament to consider the matter a topic of debate. The petitions seek to make it so game publishers cannot arbitrarily shut down games with online components and make them unplayable after they reach “end-of-life.” The group pointed to last year’s graceless shutdown of The Crew by Ubisoft as the prime example of persistent injury to consumers in the EU and (by extension) worldwide. Given all the commotion the petition caused, it seemed like a good idea to reach out to Scott for an interview, which he graciously granted.
Understandably, game publishers are not on board with this idea. Video Games Europe, an industry lobbying group in the EU, released a statement which rehashed the usual talking points of “this will make games too expensive,” and “this is a potential security risk.” The SKG’s response to their statement made it clear they’re not trying to stop games from ever being shut down. They simply want to make games to remain playable, even if they’re officially unsupported, after the company walks away. It’s a simple problem and a seemingly simple solution.
So why is the industry dragging their heels so badly?
First Blood
To properly examine the scenario, one has to look at the conditions that the industry operates in. Ignoring for a moment the “profit uber alles” mindset of the average corporation and its officers, software of any sort which isn’t operating under the Free Or Open-Source (FOSS) model has long been shackled by End-User License Agreements. It’s a bit of legalistic legerdemain which tries to evade the “first sale principle” in the United States while notionally trying to control how the product gets installed.
Consider this example: when you go down to a bookstore and buy a freshly printed copy of a book, you own that particular and individual copy of the book. The bookstore makes money off that specific sale. The distributor makes their money selling a box of copies to the bookstore. The publisher makes their money selling a pallet full of boxes to the distributor. The author makes their money off the publisher buying the publishing rights to the book (usually for a limited but not necessarily short period of time. You as a consumer have a copy of that book and nothing else. Legally speaking, you can do what you like with that copy of the book, within reason. Photocopies of a page for academic or purely personal use are generally permitted. Photocopying the entire book, not quite so much. Photocopying the entire book and trying to sell the photocopy is illegal. Now here’s the truly critical point. You, as the owner of one specific and distinct copy of a book, are able to sell that specific and distinct copy at your discretion. The bookstore doesn’t get a cut of the proceeds, nor does the distributor, the publisher, or the author. You don’t have that copy of the book anymore, but you do keep the cash. This scenario is referred to as the “first sale principle.” You, as a consumer, bought one particular item and as such have the right to resell it.
This sounds like such a ridiculously simple example that you’re probably wondering why I’d even bring it up. And this is where EULAs come in. Early EULAs usually had a clause buried in their wall of text which prohibited resale of a copy of software. If you bought a copy of Microsoft Office, Microsoft would not permit you to resell it. It was rooted in the not-entirely unrealistic fear that somebody could buy a single copy of a program, and then install it on a bunch of machines. A company which buys one copy of Office, but installed it on a hundred different workstations meant that Microsoft is only getting the money for that one copy. Since the software is digital and able to be perfectly reproduced each time you install it, one copy can theoretically service countless numbers of machines. Unfortunately, somebody did recognize that this created a conflict between the software company’s legitimate desire to sell their software with the possibility of making profit and the consumer’s equally legitimate right to sell a particular item that they bought. The introduction of license keys attempted to resolve this conflict. It still screws over the consumer, however, since trying to sell an CD-ROM of Office without a license key (or with a license key which is specifically tied to the original consumer) means the first purchaser is effectively selling a worthless item. From a purely technical perspective, it is possible to bypass or “crack” the copy so that it can run without a license, but that falls afoul of several different laws.
Video games, for a long time, didn’t have EULAs as such outside of the PC space. Because they were physically restricted to cartridges (and later optical discs), in the US they were treated the same way as used books would be. They were subject to the “first sale” rule, much to the discontent of game publishers. You certainly see them now, thanks in part to the industry’s poorly conceived efforts to make everything “online only.” Thirty years ago, it was a different story.
The Challenger
Ross Scott is not, by any means, a games industry professional. He’s not a PR guy, he’s not a developer, he has no direct connection to the games industry. I recently had the opportunity to interview him and his story seems to be one of an ordinary person who plays games. When I asked him what he did for a living, he replied, “I normally work making videos on YouTube that are usually comedies and often game related, but sometimes make tangential ones.” Outside of his YouTube stuff, Scott’s been around the block: phone support, security guard, even a field assistant for a university entomology program. Yet in the last month or so, he’s become the voice of player and consumer discontent.
His particular tipping point seems to have been Ubisoft’s shutdown of The Crew, which stands out as one of the more obnoxious stunts Ubisoft has pulled in recent memory. His dissatisfaction with Ubisoft’s decision led him to do his homework and try to figure out the best way to get consumer protection groups to look at and protest this sort of decision. I asked him if there was something analogous to the “first sale” principle in Europe. “I believe there is, but that may not be very applicable to many video games right now since they’re embroiled in other laws,” he replied. He went on to reference a 2015 lawsuit filed by French consumer protection group UFC Que Choisir against Valve which reached the French Supreme Court and was decided late last year. The European version of “first sale” is referred to as “exhaustion of the right of distribution under copyright.” Between that and the EU’s stated principle of free movement of goods, the French Supreme Court overturned a lower court’s verdict against Valve regarding the reselling of games, pointing to the WIPO Copyright Treaty as well as an early directive known as “Directive 2001/29/EC.”
When I asked Scott what the next steps would be, assuming hearings actually occur in the European Parliament, he surprised me a little bit. “My influence on the movement falls off dramatically after July,” he said. “As I’m only a resident and not a citizen of the EU, I’m ineligible to officially be a part of the initiative.” He went on to say, “I hope to be invited as an observer to the discussions, but I’ll have no official role there.” Scott wasn’t certain if there’s any sort of public comment period related to the hearings, but pointed out, “The public’s views will obviously be represented by having over a million signatures on the the initiative, trigger this event in the first place.”
Floor Boss
If the gaming public seems enthusiastic by the SKG petition, others are far less enamored. Shortly after the petition reached 1.2 million signatures, Video Games Europe (a games industry lobbying group) put out their statement and proclaimed their willingness to “discuss our position with policy makers” while at the same time cavalierly dismissing legitimate concerns by players and propping up strawmen such as “unsafe community content.” A few days after that, they released a PDF position paper which essentially boils down to, “this is the way it is, this is how it’s always been done. Quit complaining.”
Meanwhile, Ubisoft CEO Yves Guillemot addressed the presence of the petition in a quarterly shareholders meeting. His statement to shareholders, “this is an issue we’ve been dealing with,” might possibly be one of the more useless sentences he’s ever spoken. Combined with the equally condescending admonition, “players and buyers are forewarned that eventually the game may be discontinued,” and the equally unreassuring phrase, “Ubisoft is actively working on solutions,” and one does not get the sense that possibly the biggest offender in the games space as far as consumer-hostile practices is looking to find ways to make their customers happy.
A large number of other publishers have taken roughly the same position as Ubisoft, as have some developer studios. One notable exception is Owlcat Games (Warhammer 40K: Rogue Trader, Pathfinder: Kingmaker), who seem to be throwing full-throated support behind the initiative. Very likely in response to their own travails with regards to updates for one of their earlier titles, Pathfinder: Wrath of The Righteous. Still, you’re not hearing a whole lot from industry figures who are even willing to consider that the players have just as much of a legitimate interest in the games as they do.
The State of Play
I’m going to advance a position which is likely going to be considered unpopular, possibly even inflammatory. But popularity has never been a requirement for veracity. So here it is: The games industry essentially has an Internet addiction problem. I don’t mean constant doomscrolling through Twitter and Reddit, excessive shopping behaviors on Etsy and Temu, or unconscionable hours spent looking at porn. When I say the industry has an Internet addiction, it is manifested in their unwavering belief that the Internet is somehow obligatory, even intrinsic, to video games of every stripe. The Internet must be utilized for video games, therefore, it will be utilized for video games. That massive single-player action-RPG? Internet connected. That match-3 game with the kooky cartoon characters? Internet connected. That visual novel with the cheery high school students and nightmare fuel storyline? Yup, gotta be internet connected.
I suspect a lot of our younger readers really are too young to recall, or at least appreciate, the logistical challenges of multiplayer games prior to the industry’s blanket requirement of Internet connectivity. Couch co-op used to be the norm, not the exception. LAN parties existed because people were willing to drag their rigs over to their friends’ houses (or appropriately advertised venues) to get their game on around other people. Yes, it sounds like a lot of work, and it was. Particularly when we had to haul CRT monitors along with the tower and peripherals. But it was worth it. There’s something a little different about a LAN party that you just can’t quite duplicate with online servers. Plus, it had the bonus effect of being able to go over and… discuss the matter when a player offended in terms of their behavior.
I’m willing to grant that a certain style of game, MMORPGs and their early forebears (the MUSH and MUD), certainly requires a constant connection. The problem is with the games industry attempting to bend, spindle, and mutilate every other genre into that particular paradigm. The rise of “live service” games creates a bastardized MMORPG clone of sorts, all of the backend mechanics shackled to titles which have no reasonable cause to require them. Even the name itself is an attempt to create the illusion that game publishers are not selling a product, but instead offering a “service.” Worse, the publishers and studios who go in on this cannot (or will not) see the inherent contradiction in their position. They blather on about the need for strong copyright protections, yet actual services do not have any copyright-worthy material in and of themselves. Access to a service does not fall under copyright, and yet game publishers will try push the idea that such a thing is perfectly reasonable. Like so many things in the last 15 years or so, those servers are not intended for “protecting players” or “providing a high quality experience.” They’re data vacuums, surveillance instruments hidden underneath high-polygon character meshes and Dolby DTS sound effects. Every single function they claim they’re providing could be done offline or with a voluntary data packet. Stats, analytics, noteworthy events, there’s not a single compelling reason why any of that needs to be done exclusively on a server controlled solely by the publisher. Video Games Europe’s argument is the stupidest of tautologies: We’ve always done it this way, so it must always be done this way. It’s the clumsiest of lies and the weakest of possible arguments to make. They’re banking on laziness and the expectation of convenience to keep things going as they have up to this point.
Worse, the industry as a whole is strongarming the gaming public by inhibiting their inability to meaningfully protest. After all, much like a book or movie, you can’t tell if it’s bad until you experience it. Anything which might taint that experience is withheld from public view until and unless somebody reports on it. And without events like E3, Gamescom, and Tokyo Games Show, the opportunities for reportage are slim. More than a few gamers are of the erroneous opinion that sites like GameLuster and others are nothing more than trained seals for the industry. They’re wrong, but I understand why the perception exists.
Multiple Endings
There are a few ways that this particular situation plays out. The worst, from the perspective of players, is that nothing changes or possibly even becomes more onerous. How it could become worse is a matter of conjecture, but given the unbridled lust notable industry figures have for microtransactions, invasive data collection, and other abhorrent practices, the image of charging players by the reload in FPS and loot shooters doesn’t seem particularly far fetched. The best outcome would be for publishers and developers to realize that, instead of firing developers in job lots that feel more like WWI casualty lists than a cost of business, they could probably save a lot more money if they didn’t try to force online connectivity into every game and work to realign to that standard.
When I asked Ross Scott what he thought a “successful” shutdown for an online-only game would look like, his response was quite sensible: “…giving existing customers the means to continue running the game with most of the functionality it had while being supported.” I think the key word there is “most.” Sure, it might not have absolutely everything that it had before. Scott himself pointed out that the petition (and possibly any actual changes the European Parliament might make) doesn’t necessarily mandate methods, only outcomes. He went on to suggest possible methods such as peer-to-peer hosting (an option Video Games Europe holds as anathema, despite it being implemented in Velan Studio’s Knockout City and Mojang’s Scrolls) or removing server binaries of any now-extraneous elements like MTX or analytics. The point would be a game which is still playable. Something you can pop in the disc or download from your online library and actually play.
The last time the European Parliament considered an initiative like this, the world got the GDPR out of it, requiring certain data “best practices” be implemented for websites. I asked Scott if he thought the Stop Killing Games petition might lead to something equally impactful. His response was quite enthusiastic. “If the outcome is as extensive as the GDPR, I think that would be fantastic,” he said. “That could be an apt analogy in games, since that also caused developers to adjust their coding practices to comply, but it was not an apocalyptic event for the industry.”
The wheels are turning. It’s going to be a long slog between now and the eventual hearings. And it’s not going to be easy. But the fight needs to be made, and it’s one that might well shape the future of the industry and of video games themselves.
Great story. Thank you for the article.