Our gaming lawyer examines the case.
By Patrick Vuleta on May 10, 2013 at 12:07 pm
If BioWare had shown Kelly in the trailers for the Mass Effect 3 Citadel DLC, I’d be pissed — because they completely left her out of the final product. I’m still pissed, but I’d be even more pissed if they had my hopes up.
A (somewhat) similar issue occurred with Aliens: Colonial Marines. The game was possibly the worst game ever made (in 2013). Our own review called it “an embarrassment that should never have been released”.
This was particularly cutting because the work in progress demonstration trailer had previously showed a far better game. Some gamers were so riled up that they launched a class action lawsuit against Sega and Gearbox for false advertising.
Opinion around the interwebs has been divided. While most players support the lawsuit, some just aren’t sure whether it has a chance of succeeding. Today, we’ll be looking at whether the Aliens: Colonial Marines pre-release demonstration trailer was false advertising enough to give grounds for a lawsuit.
Is it advertising?
First up, we need to get away from the idea that there is actually a distinction between a game demonstration and an advertisement. In Australia, false advertising standards are broad, and apply to everything a business does. The ACCC writes:
“The ‘do not mislead’ principle applies to all commercial dealings. It is not only advertising that can potentially mislead. The principle covers any kind of commercial dealing—for example, selling presentations, product descriptions, packaging, contract terms, negotiating, representations—where a message is sent that creates or is likely to create the wrong idea or wrong impression on the part of the recipient.”
Under Australian law, a demonstration at a convention could indeed be capable of being illegally misleading. But whether such a finding actually leads to a penalty, or simply a slap on the wrist, is really a question of what damage was actually caused to the buyers. Under American law, this question is even more relevant: the demonstration needs to have misled the buyer to the extent they made a mistaken purchase.
Therefore, our next step is to consider what part the demonstration played in convincing people to buy the game.
The hype problem
False advertising is usually cut and dry. You write on the packaging of a breakfast snack that it contains essential vitamins and minerals, when in actuality it contains radioactive ooze. Or (more commonly) the snack contains so little vitamins that they give no dietary value. In both cases, the customer was enticed to make a purchase by a benefit that didn’t exist.
Games introduce a thorny issue because so much of what convinces people to buy is not traditional advertising. It’s hype. Games are heralded by a deluge of previews, gameplay demonstration trailers, teasers, viral marketing, developer interviews, and convention showings.
All these are important for at least creating awareness in the gaming press. This exposure builds up until people are convinced that the game is worth buying. Without the pre-release demonstration trailer, Aliens: Colonial Marines would have had much less exposure, and therefore, less sales.
This was recognised, at least, when in response to the Colonial Marines controversy, Sega was ordered to put “work in progress” notices more prominently on its demonstration materials. Therefore, there is clearly “a” problem. But whether this means gamers are entitled to damages also depends on whether the demonstration actually misled them to lose money.
The pre-order problem
The key moment for deciding this case is the point at which gamers handed over money, and what led them to do so. Aside from Kickstarter (which has its own problems with this), gaming is perhaps the only industry that lets you buy something before it even exists.
In the comments on one of our news articles, an example was given of a concept car demonstration. However, no one hands over money based on seeing a concept car at a show. Advertisements are there to entice a person to enter the showroom and take a test drive. False advertising cannot occur at the concept car stage, because this is not accepted to be reliable.
In contrast, many people do buy games based on pre-order hype. This was certainly the case with Colonial Marines. The problem was exacerbated by Gearbox not keeping its pre-release gameplay footage current after they knew they had a serious problem.
Although this has not really been tested in a court, these issues make the gaming hype roughly equivalent to more traditional advertising. Arguably, the gamers that were enticed to pre-order based on this footage (even if they should have waited for reviews) are entitled to some compensation.
The vertical slice problem
Gearbox’s comment on the lawsuit is quite… angry.
“Attempting to wring a class action lawsuit out of a demonstration is beyond meritless,” was their response. “We continue to support the game, and will defend the rights of entertainers to share their works-in-progress without fear of frivolous litigation.”
Ouch. The problem with this attitude is that the trailer does not appear to be a true work in progress. Given the sheer quality difference between the trailer and the final game, it’s clear that the trailer was a “vertical slice”: a marketing creation filled with custom textures, animation, sounds, and sequences that were never intended to go into the final game at all.
These slices divert resources from the actual game, because their sole purpose is to invent something pretty that can be used to drive hype. Possibly, if the developers had spent the time on the actual game instead of their marketing creation, the game wouldn’t have been such a disaster.
That is really a separate legal issue and one more suited to an epic battle between Gearbox and Sega. However, it does come back to the point of false advertising laws. False advertising is prohibited because marketing is not meant to cover the flaws of a product so brazenly: consumers are entitled to make purchases based on true merits. When a vertical slice has such a huge difference with the final game, this is exactly the kind of thing that false advertising laws are trying to stop.
As such, on principle the lawsuit is worth bringing — at least as a test case. There are interesting issues about whether hype can be advertising, and whether these laws can extend this far.
But even these aside, the point worth proving is that developers should not spend half their budget on marketing hype in an attempt to secure pre-orders.