Who wanta some Wang? I was hoping, just maybe, that iconic line would make it into the just-announced reboot of Shadow Warrior.

It did not. Instead, we were treated to an artsy video with butterflies and classical music that had no relation whatsoever to the original. What a waste.

Last fortnight, I looked at the class action lawsuit over Aliens: Colonial Marines.  Before release, such a big deal was made out of “staying true to the Aliens universe”. Yeah, well. We all know how that turned out.

Clearly, staying true to the spirit of an IP is hard… really hard. Some developers do manage, such as Firaxis’ excellent remake of XCOM. But most will fail miserably, like Aliens: Colonial Marines. It’s time then, to look at what actually ensures these remakes and IP games are actually true to the franchise.

An interested licensor with commercial trademarks is the strongest protection

Trademarks are the strongest level of protection, providing the best way to ensure something stays true to the source.

Games Workshop is notorious for its trademarks, owning everything about Warhammer and every way to mangle “space marines” in the Queen’s English (for the original DOS-version of Space Hulk, they even had Jervis Johnson do the voiceovers).

These trademarks give Games Workshop a lot of control over where and how each trademark is used. While it doesn’t quite explain why Dawn of War 2 ended up as Necromunda in Space, for the most part Games Workshop is both rabid and successful at ensuring its trademarks are used to represent its current revision of the Warhammer universes (and I do mean revision).

When an interested company like Games Workshop does grant permission, their will is enforced by extra bureaucracy during the game’s development. Typically, they will have say in the various development milestones. If a game does not stay true to the source material, the licensor (i.e. Games Workshop) has the power to put it on hold until it does, lest the permissions be revoked.

Gun names are iffy

Earlier this month, EA decided it would no longer seek permission for using the names of guns. Up to this point, publishers have almost universally sought permission from manufacturers to use the real names of guns.

However, licensing of guns is uncertain. This was shown when Colt sued Bushmaster (a rival manufacturer) over the use of the “M4” name. Despite Colt owning the M4 name, and being the actual inventor of the gun, Bushmaster was allowed to keep using the name. It’s for this reason that EA would be going forward with its decision. Gun names just aren’t as protected as assumed ever since Goldeneye 64 renamed the Walther PPK to the PP7.

The first issue is that there is a difference between the gun’s trademark and the military’s designation. For example, the Barrett M82 is the rifle’s trademarked commercial name. M107 is the military designation and is not trademarked. Similarly, even though Colt owns the M4 trademark, the military designation is very close—M4A1.

The second issue is that such widespread use of the M4 has led to the M4A1 (the not trademark) being shortened into the slang term M4 (the trademark) to describe a carbine. When this happens, a trademark is in danger of becoming generic and losing its protection, as happened with M4.

I can’t say for certain whether EA will get away with it, but gun manufacturers won’t be happy. In some cases, licensing fees for guns could approach many thousands of dollars, even as much as five to ten percent of a game’s retail sales.

There’s also the issue that these licensing agreements have in the past given gun manufacturers some creative control over games. Under Barrett’s licensing agreements, for example, you can’t put the M82 in the hands of the non-American bad guys. But with EA leading the way, now we might see all manner of modern-day commies wielding high-powered sniper rifles.

So what happened with Colonial Marines?

So erm… if IP owners can have such control over the direction of a game, what did happen with Colonial Marines? As we’ve heard before, no one bothered to check up on how it was going. Gearbox was too busy with Borderlands, while Sega seemed out of the loop entirely.

This shows an important flipside to licensing. Usually, licensing is maligned, for completely opposite reasons. Movie licensed games are often bad because of the tight deadlines imposed on the game, or the license takes too much money away from the game’s development.

In the case of Aliens: Colonial Marines, however, the problems came from no oversight at all being applied by the owner of the IP. I was unable to find out who this is, but they had a great chance to ensure the game was up to scratch, by writing milestone agreements and checkups into the licensing agreement.

They didn’t, however, and what we got was the final result of their neglect—treating the Aliens IP as an asset to be flogged off rather than ensuring the proper creative development. They, along with Gearbox, and Sega, are to blame for what happened. In the balance of everything, all franchises should be so lucky to have the Emperor’s lawyers dictating the correct way to pronounce speesh marines.

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.

From the debacle that was 38 Studios, to the sadness of THQ’s closure, studios and publishers go bankrupt all the time. Much-loved gaming franchises linger in limbo as their publishers just… run out of money.

These games face an uncertain future. Homeworld has been in the dark for years, and only recently was picked up by Gearbox. Dawn of War currently lacks a developer, and is at the whims of Games Workshop and Sega working out a deal. Monkey Island is now in the hands of Disney, and frankly I hold no hope for ever seeing the series again.

The only chance these games have is if a new publisher comes along and “buys the IP”. We see these words on gaming websites often. But what does “buying the IP” involve, anyway?

Fire sales in bankruptcy

Once a publisher admits they can’t pay the bills, they’ll file for bankruptcy. This means comparing what they have, to what they owe. 38 Studios ended up with debts of $150 million, compared to $22 million worth of assets and… $336 in petty cash.

Bankrupt publishers are obliged to reduce their debts above all else, so will look around for buyers for the few assets they have left. But publishers must act fast. IP in bankruptcy loses value quickly—as fast as 10% a month. This leads to fire sales where publishers try to sell everything they have, as fast as they can.

The most critical action for a publisher to take here is to value its gaming IP, and thus help find a buyer.

Valuing the IP

IP, of course, stands for intellectual property. In its most generic form, it is the rights to develop and sell a game. These rights mostly consist of the copyright in the game code, and the trademark in the game name. Owning both of these allows a publisher to both develop and sell a game.

Websites usually talk about just the IP as rights to development new games. Like, for example, “We want to see a new Homeworld”. Or, “We want to see another Mass Effect DLC that doesn’t completely shaft Kelly”. However, most of what publishers acquire when they “buy the IP” is the rights to old games. Much of what THQ sold off, for example, were old games that probably only sell for $5 each, if you can find them at all.

If a publisher can manage to sell off its IP, then there is a chance that a game franchise may be resurrected. However, some franchises are forever locked to their creators.

Some IP cannot be sold

EA Sports, Richard Garriot, and Creative Assembly all have something in common: no one would buy their games if made by anyone else. I can’t imagine Total War being made by anyone other than Creative Assembly, nor can I imagine an Ultima without Lord British. I don’t even know the individual games under the EA Sports line, but I mostly assume they’re the same with a different celebrity every single year.

When games are so associated with who created them, then the value of the individual IP can be quite low, as the marketing of these games depends on the name of the original publisher or developer. If another publisher was to pick up the EA Sports line, and brand it, as say, Ubisoft Sports, then I’m not sure if anyone would buy it.

Despite this, the value of these types of gaming franchises is high to the original creators. Lord British has made almost an entire career out of Ultima. But if the games ever get separated from their creator, they can tank quite badly.

Bankruptcy can breathe new life into a franchise

A publisher’s bankruptcy isn’t all bad, however. Sadly, many publishers have a thing for acquiring gaming properties and just doing nothing with them. This is most often caused by competition and conflict between IPs.

Disney bought LucasArts in 2012, and so acquired Monkey Island. However, Disney also owns Pirates of the Caribbean, which is where all its recent piratey-themed gaming efforts have gone. While the original creator of Monkey Island, Ron Gilbert, is looking to license the series from Disney, it’s quite possible that it will stay locked away in a dusty vault.

Homeworld is another example, yet a more hopeful one. In the eyes of many, Homeworld was one of the best RTS’ ever released. Homeworld 2 was released in 2003, but under THQ, saw no real movement since. Relic was, presumably, occupied with another RTS—Dawn of War. And this is of course, despite the fact that Homeworld was a much better game (You’re fired. –Ed). The two were in competition, and due to Games Workshop’s name and clout, Dawn of War was the more profitable game, so Homeworld got left by the wayside.

However, as Gearbox’s recent acquisition of Homeworld  after THQ’s bankruptcy shows, there may be hope yet. Sometimes a bankruptcy is good for shaking up the market and putting IPs in the hands of publishers who might have an incentive to develop them. Let’s just hope Gearbox does something with it.

I’ll tell you why games do not cause murders. Of course, you already know this. However, with all the negative attention games have received on this topic lately, it’s good to look at how games may actually influence the minds of killers. (And to justify that trollish headline.)

Because really, any violent media can inspire someone to kill in a certain way—including video games. It’s been proven. But while the anti-gaming lobby would have you believe that this means games cause murder and should be censored, they are very much mistaken.

To understand why, we need to look at what leads people to murder.

What causes murder?

Proving murder requires proof of deliberate action, or at least extreme recklessness. The stronger the proof of intent, the stronger the case against the accused. Proving the underlying cause, or motive, is important.

To broadly generalise, most murders come from one or more of five causes.

1. Poverty: Many crimes are committed out of a short term need for money, such as a burglary gone wrong.
2. Low social acceptance: Most of the crimes on which games took some blame for were crimes of loneliness. These feelings led to a desire to seek revenge on those who had “wronged” them.
3. Sudden anger: So called “crimes of passion” where an ordinary person flies into a sudden fit of rage, as was my reaction upon finding that Kelly didn’t make the cut for the final Mass Effect 3 DLC.
4. Drugs, alcohol, and other foreign influences: People do weird things under the influence, so drugs are bad, ‘kay?
5. Peer pressure: Some just want to belong. Murderous peer pressure leads to gang warfare and political assassinations.

Neither violent games, movies, or television are on the list. These play a different role entirely.

Media inspires but gives no motive

No evidence has linked the amount of violent media a person consumes with the rate of crime. While increasing poverty, drugs, or peer pressure will lead to more crime, greater exposure to violent media will not. Peer-reviewed studies confirm that you’re just as likely to go on a drug-fuelled Killdozer rampage after watching one violent movie as you are after watching a hundred.

You may, however, decide the Killdozer needs to ride again after reading this glorified account of Marvin Heemeyer.

The copycat effect is a proven phenomenon, and movies, news reports, and games are all potential inspirations. In 1998, Mario Padilla and Samuel Ramirez stabbed Mario’s mother forty five times. Their motive was poverty, because they needed money. They needed money to buy ghostface costumes and a voice changer to go on a killing spree in the style of Scream.

Two other ghostface-style killings followed shortly after. Thierry Jaradin stabbed a fifteen year old girl while wearing the costume after she refused to go on a date. A French teenager known only as “Julian” wore the costume and stabbed a fellow student to death after rejections by other girls. In both cases, the motive was loneliness.

Did Scream play a role in the murders? Yes. But would they have occurred had it not been for Scream? Yes again. The copycat effect suggests that impressionable killers are looking for instruction, inspiration, or justification for the motives they have.

Copycat killers will kill in a certain way, because (perhaps) it has proven shock value. Because the killings would draw attention and make them famous, because the media love a sensationalist story. Or, they could point to media and say “Other people made me what I am, so I am not to blame.”

Again, this is not the deluded ramblings of a gaming apologist. Every university study on copycat crimes has found no causal connection between the media inspiration and the crimes committed. In every crime linked with a violent film or video game, the crime would have been committed anyway, for the underlying motive was there all along. As was the willingness to seek a justification.

Copycat inspiration is everywhere

If some people are so impressionable, couldn’t we just censor the muse? Remove the impressions? That’s what the anti-game politicians say, after all.

No, we can’t.

Violence is everywhere. The news reports killings as they happen, often in the goriest details possible. Violent films hit the cinemas every week. YouTube lets you watch uncensored videos of people being hurt. Even a basic Google image search shows some pretty nasty stuff.

The oft-repeated counter-argument to this is that the interactivity, and seeming innocence of gaming makes it unique. An all-pervasive, malign influence on the mind… like Mass Effect’s reapers.

Yet the copycat effect is not some passive, invisible influence. It has no effect on a reasonable, guarded mind. Instead, impressionable would-be killers actively seek out inspirations, instructions, and justifications for their murders. If not Scream, then perhaps Grand Theft Auto. If not Grand Theft Auto, then CSI. If not CSI, then whatever’s being glorified by the media right now.

In the absence of any one source of inspiration, another one will take its place. Neither video games, news reports, nor films are any worse than each other. They may, however, all serve as inspiration to a vulnerable person. And this is why they mistakenly take the blame.

If we accept this, then the solution to increasing violence is not censorship. Rather, it is providing better role models for the impressionable. Removing drops from the ocean will not address the underlying motives behind murder. In the absence of positive influences on people, you cannot take zero from zero to make two.

Back in the nineties, Lara Croft was actually a man. Yet Larry Croft never saw the light of day, because one sex symbol named Larry was quite enough. Okay, well, actually, Tomb Raider’s creators vetoed him for being too similar to Indiana Jones. Then, they went back to the drawing board.

This hasn’t stopped other developers from copying Indy, however. In The Secret World, my character wields a whip. She found the whip by using a “time tomb”, called the “TARDIS”. She also has a fancy fedora hat. The other day, she wielded her whip, while wearing her hat, riding on a train to recover an ark. The ark, after all, belongs in a museum.

That quest was great fun, but the obvious ripoffness of at least three IPs got me thinking: how far can a game go in blatantly copying someone else? We all know how paranoid publishers can get about gamers copying games. So what gives with the double standards?

Copyright protects the expression of an idea

The reason The Secret World gets away with blatantly ripping off Indy is that copyright only protects the expression of an idea: specific dialogue, picture scenes, and so on. The actual concepts: riding a train, using a whip, or recovering an ark, are not protected.

In games, copyright protection generally extends to the tangible assets of a game: the underlying code, the art, and the sounds. By far the majority of copyright protection focuses on what happens when the code itself is copied, for this is the most secure claim to copyright in a game. It’s easy to tell if someone directly rips your code. Not so easy to argue that Call of Duty and Battlefield are visually distinct.

Most games, therefore, can get away with being similar to existing games, so long as they don’t do something stupid like hire an ex-developer who stole the code before starting work on another game for someone else. (Which has happened before…)

Trademarks protect a name

Every so often, someone gets the bright idea to make a computer game based on a Games Workshop tabletop game without permission. It’s usually Space Hulk. Don’t ask me why Warhammer Quest never gets the treatment, but I digress.

Moving a sight faster than the Imperium’s responses to actual space hulks, Games Workshop is always quick to squash these imitations, and they always succeed. The reason is that Space Hulk is trademarked. It has nothing to do with copyright.

Trademarks protect the important name of a game. Space Hulk, Tomb Raider, and Indiana Jones: these are all trademarks as words and logos. However, they are far more secure—and important—than copyright, for they actually stop people riding off the back of others’ hard work. It is trademarks, not copyright, that prevent someone from making money off a Space Hulk game. Owning the Space Hulk trademark gives Games Workshop the right to sell development rights to make new games every so often. http://games.on.net/2013/03/new-screenshots-of-space-hulk-game-look-dark-grim-and-excellent/

To come back to our Indy example, if The Secret World had called their ark-recovery-train-ride-quest “Raiders of the Lost Ark on the Last Crusade”, then they’d be in the wrong. They’d be wrong because they’d be using LucasFilm’s work in establishing the Indiana Jones movies to sell their own game.

Hence they called it Last Train to Cairo and simply put a picture of an Indiana Jones lookalike on the cover. That was okay.

DRM is just a tool

So what does all this actually mean? Yes, I’m sure you’re all intensely interested by a discussion of copyright and trademarks.

It means that we mustn’t let all the hallulabub over DRM convince us that games have more protection than is sometimes assumed. Indy’s hat, and whip, are not sacrosanct. Games can easily have numerous references to other games, books, and movies. They can ripoff entire storylines… just so long as they don’t copy them word-for-word.

The good thing about all this is that it ensures creative games will copy and build on each other. Indeed, Indy himself was straight out of previous adventure films. Raiders of the Lost Ark was just a blatant copy of the 1954 film Secret of the Incas, right down to Indy’s entire costume. If copyright had been as harsh back then as it is now sometimes portrayed, we’d have no Indiana Jones.

However, this is all dependent on people recognising that DRM does not change actual copyright law. DRM is just a tool to address piracy. Its effectiveness is debateable, but it’s a tool, not the law. Hopefully, DRM debates won’t change people’s understanding of what is fair game to copy, and stifle creativity as a result.

Last fortnight I presented an argument that DRM leads to less abandonware. It was not well received. Yet just as I’ll always argue that Kelly is more attractive than Liara, I stand by every word I said.

Some commentators, though, made the point that DRM was actually taking away gamers’ rights under copyright. It was an interesting argument, so one I thought we’d discuss this week. As it turns out, the best argument against DRM is nothing to do with gamers’ rights — but that publishers themselves have enjoyed huge benefits from breaking DRM in the past.

DRM removes rights under copyright

Quite clearly, DRM goes far beyond what passes for normal copyright. Copyright on a book, for example, lets you sell the book, lets it fall into the public domain after a set number of years, and allows for fair use like copying specific abstracts for research purposes.

DRM, however, removes all of these rights from the end user of a game. You can’t resell most digital games. Instead, DRM permanently binds the game to your account.

In theory, DRM could stay active on a game past the time copyright expires (about a century after its creation) to prevent the game from falling into the public domain. If by some miracle of technology the games of today keep working a hundred years from now, the DRM will probably have locked up the original games, unless it’s removed.

DRM can also stop many fair uses by strictly defining exactly what you can and cannot do with the game. In the case of SimCity, you sometimes cannot, for example, play the game at all.

Yet this IS legal

While DRM does go well beyond copyright, it also has a firm legal foundation for doing so. DRM is legalised by the American Digital Millennium Copyright Act. This U.S. law specifically states that DRM measures are authorised and cannot be circumvented, except in a few specific, niche cases (like when you have personal security concerns). This law is then given form in Australia by our own Copyright Act which has been amended to conform to the American law.

In simple terms, we follow America.

This means that even though DRM may well jeopardise fair use, and may lock games up for centuries, the actual copyright laws permit this pretty clearly. So to all those who wanted to argue the point—sorry. You’ll have to look for some other way to criticise DRM. Fortunately, there is one.

DRM will inhibit technology

A little known fact is that cross-platform porting of games was created by a publisher’s breaking a competitor’s DRM. Back in the eighties, the big console manufacturers all wanted exclusive titles. This was the era of classics like Mario and Sonic. You couldn’t play Mario on a Megadrive, because Sega’s DRM strategy was to restrict development tools. If you wanted to make a game for the Megadrive, then you had to use the tools supplied by Sega. The DRM inside the Megadrive instantly disabled any pirated games that didn’t give the right activation code.

This was blown open, however, when Accolade, a now-defunct publisher, reverse engineered this DRM to create games without using Sega’s development tools. Sega sued, but Accolade won (read up on it here). The court found that this was fair use, especially as copyright was never meant to create monopolies.

Strongly in favour of Accolade was the point that Accolade’s breaking of the DRM opened new markets — now third party developers could create games across multiple consoles. What publishers enjoy now — the ability to publish games cross-platform for profit, was created by one of their own infringing on Sega’s claims to copyright (and ironically, Accolade was created by the founders of Activision).

DRM, however, makes this a thing of the past. End user license agreements mean software can no longer be reverse engineered, and it is now illegal to circumvent DRM. Unfortunately, this also means that technology — and creativity — may stagnate. With software engineers no longer able to disassemble and build on existing software, those who want to do so will need to reinvent the wheel. Systematic DRM — like we see in Windows, can give companies a monopolistic hold over the market, with no way for competitors to easily pursue innovation.

Arguably, this does defeat the original purpose of copyright, by removing the entire point of fair use—technological and creative progress—in favour of short sighted economic concerns about piracy. For my point of view, this is the strongest legal argument against DRM, far more so than personal concerns about being able to play SimCity offline. What do you all think?

Do you remember the Amiga? No? It was, for almost a good decade, the flag-bearer of the Glorious PC Master Race. The Amiga was competing with the NES, SNES, Master System, and Mega Drive—all at once. Against these consoles, the Commodore Amiga had the supreme gameplay, sound, and graphics capabilities, because Nintendon’t (I’m so clever).

Sadly, all good things must come to an end. Commodore made a series of downright stupid decisions, and lost their entire grip on the home PC market. Had it gone differently, you could have been reading this on the Amiga operating system Workbench, rather than Windows. Now, your only views to past greatness are Ebay, YouTube, and emulated abandonware.

This sums up why we need DRM quite nicely. Tis a tale of obsolete hardware, abandoned software, and loose morals.

Abandonware and the greater good

The Amiga was one of the original platforms for the genre-starting Dune 2. Yet your best chance to play this today is to illegally download a DOS version from one of the “abandonware” websites. Not that I’m condoning such actions—just giving the facts—you’d be hard pressed to find a working Amiga copy in 2013 (there’s an online emulator here, too… I have no idea of its legal status).

Abandonware is a catch-all term for when publishers stop caring. No more profit comes from the game, so it gets dropped. Sales aren’t made, and copyright isn’t enforced. Publishers turn a blind eye, and websites are “allowed” to offer illegal downloads in plain sight.

This abandonment is used to justify abandonware (hence the name). While downloaders recognise their actions are technically illegal, they claim it’s a victimless crime.

First is the claim that playing abandonware doesn’t hurt anyone. The publisher isn’t offering the game for sale, and so you didn’t take away from sales. When you download Dune 2, your actions won’t be used as the centrepiece of Ubisoft’s anti-piracy rants.

Second is the claim that without “archiving”, the games will simply be lost to history. If EA dismantled Westwood, and no one bothers to sell Dune 2, how else will you play this classic?

Both these arguments have a grain of truth. That’s what makes them so compelling, on first glance. However, abandonware is illegal, and we need DRM to stop it—for the good of gaming.

Do you want games to live forever?

Justifying abandonware assumes that no market for old games will exist in the future. This, however, has been caused more by retailing methods than anything else. In days past—you may not remember—you’d ride to the local store on your penny farthing, hand over half your weekly earnings of two dollars and one cent (in coinage), and walk out with an Amiga game in a box the size of a large cereal carton. The large boxes, of course, were to occupy shelf space, for this is how games were sold in the Dark Ages.

The problem, though, was that stores had to maintain inventory turnover. Keeping your store stocked costs money. Old games quickly become discounted in a desperate attempt to clear inventory to make way for the next flavour of the month. Popularity is fleeting. Games that leave the store, never return.

Online distribution changes this. It costs but bandwidth to keep an online store stocked. You have no pressure to clear inventory, because you have none.

And digital games can have extreme shelf lives. Doom still sells on Steam. The oldest games at Good Old Games were released in the late 80’s—Police Quest, King’s Quest, and Space Quest. These continue to sell today, despite coming from a time with a distinct lack of imagination for naming.

Only DRM will make this possible

If online stores can stock so many old games and charge for it, what stops them? Obsoleteness. The reason you can only find the DOS version of Dune 2 is that we don’t play Amigas anymore. Even if you had an original game disk, it wouldn’t work in that PC floppy drive you threw in the trash ten years ago.

And what stops obsoleteness? Money. As long as a business case can be justified for keeping old games working on modern systems, they will be. But if they don’t earn anything, they’ll be dropped… abandoned when it becomes convenient. Patching and porting costs money.

So what ensures money? You know where I need to go… DRM. When you’re selling such old games, profits are low. Most of Good Old Game’s stock sells for $5.99.

The argument that “piracy does not cost sales” gets weaker the lower the profit. While you may correctly scoff at Ubisoft’s claims that piracy cost a hundred bajillion dollars of Far Cry 3 sales, it’s harder to claim that an abandonware website offering Shadow Warrior for free didn’t cost Good Old Games $5.99. With prices well below impulse buy level, every Google search for an old game that leads to an abandonware website becomes a lost sale.

Stripped of all its hyperbolic, negative connotations, DRM is simply a means for asserting ownership. You cannot sell something you cannot own, and this is the original point of copyright—that the law protects ownership rights, so the owner can sell and profit, free of unreasonable competition. However, it’s hard to sell a $5 game when you’re competing against freely available downloads. In turn, that means it’s hard to make a case for patching games to be compatible with current systems.

DRM gives publishers the ownership rights that copyright always intended, and hence the small profit needed to continue to offer games past the point when games have previously been abandoned. With DRM, we’ll no longer lose games to abandonment.

Gamers are making half a million a year from selling game mods on the Steam Workshop. Not many, mind you, but just like the existence of aliens… it’s possible. Gabe Newell now wants to extend the concept to the Steam store itself.

Gabe sees Steam as just a boring old store, and wants to change it into a series of mini-stores, with games being sold in personal, individual stores created by gamers themselves. To be quite fair, he didn’t mention giving them any money, and right now, it’s just a pie in the sky.

But given the success of the Steam Workshop, could Steam actually become a store where gamers make money from selling games? “I’d buy stuff from Yahtzee”, says Gabe.

Making money with user content

Right now, there are two main ways gamers can make money with user content—the Steam Workshop, and YouTube.

The Steam Workshop allows you sell your own individual creations for moddable games like Team Fortress 2 and DOTA 2. However, these must be your own creations—you can’t rip off anyone else, or risk being permanently banned from the Workshop.

Youtube lets its “partners” (which is anyone who’s signed up to be a partner) receive a (miniscule) portion of the ad revenue from those annoying YouTube ads shown at the start of videos. The more popular a video is, the more likely it is to have ads, and the more people these ads reach.

A YouTube partner example is FPSRussia, whose entertaining videos of blowing things up with no safety standards whatsoever are watched by millions around the world. FPSRussia occasionally references video games, such as dressing targets up as Far Cry 3 characters…

So given these are the existing models, could a Steam user store work in a similar way?

Ain’t no free lunch

What’s most important here is that there ain’t no such thing as a free lunch. In both of these user content schemes, the user must bring substantial original effort, rather than just shoving random crap online and turning a profit.

This is because copyright gives the original maker a watertight right to exploit their work for profit. A game developer created their game, and so is entitled to decide who profits from the game, and how.

There’s a very good reason The Workshop only allows people to earn money from Valve games—those are the games Valve has full rights to as a developer and publisher. As the full copyright owner for both Team Fortress 2 and DOTA 2, Valve has the right to allow modders to profit from the games. Valve doesn’t, however, have the right to allow modders to profit from their Skyrim mods. That belongs to Zenimax.

In the FPSRussia video above, while snippets of Far Cry 3 were shown, most of the video was original content, and he was making money from the people viewing ads who came to watch him almost get himself blown up. That said, it’s clear he was trying to avoid copyright infringement, since the game footage shown is very short.

How a Steam store would work

This is a problem for any Steam user store. Presumably, any user revenue would be funded from sales of games. Copyright’s right to profit certainly includes the right to decide who can receive profits from the sale of the game, and so stands in the way of developing any user stores.

The first thing Valve will need to do is to convince every publisher it deals with that they should assign this right to the individual Steam users. Currently, Steam’s distribution agreements only give Steam the right to sell games of other publishers. These agreements would have to be extended to every single Steam user.

Next, Valve would need to ensure there was at least some semblance of original content in the user stores. Steam doesn’t run any original advertising for games. It’s just a boring old store with shelf space for the screenshots and videos chosen by publishers.

The reason, of course, is that copyright in the screenshots and videos belongs to the publishers, not Steam or its users. While no one gets shirty if someone posts a gameplay video on YouTube, I highly doubt publishers would give away the right to decide how videos and screenshots of their own game were used for advertising. That just rocks the boat far too much.

And what would be the point of users just reposting the standard advertising trailers, without any of their own commentary? That’s not a user store—that’s a pyramid scheme. Ultimately, this means that the only way I can see Steam user stores as working is with users posting pure, original content. The good ones will rise to the top, while the bad ones won’t make any money. Best get working on those video skills.

Feature image courtesy The Great Jug on DeviantART.

Last week, Chris Taylor described contracts between developers and publishers as so draconian in favour of publishers, that just reading one would melt your face off. Taylor’s a big fan of using Kickstarter instead. In fact, he’s staked the entire future of Gas Powered Games on the Wildman project, a new action RPG funded by Kickstarter. If Wildman fails, Gas Powered Games fails too.

And it’s stalled. With only sixteen days to go before the fundraiser expires, Wildman has only raised $387,575 of a $1.1 million goal. While it’d be premature to write how Taylor bet his entire company on the risks of Kickstarter (the timing for that is better suited for next fortnight’s article), we can still be smug and point out that one of the reasons publisher contracts work is that they avoid this sort of risk entirely.

But are contracts with publishers so draconian that trusting Kickstarter and jumping into the arms of a sometimes-not-very-enthusiastic public is the only way to go? Here, we look at how exactly development contracts screw over developers, and why this makes Kickstarter so popular.

Publisher control

Contracts always allow the publisher to give feedback and creative input. However, publishers will also gain complete control over the development of the game from the development milestones.

A milestone is what the developer submits to the publisher on a regular basis to show how the game is coming along: alpha builds, concept art, and so on. Contracts will have clauses that allow the publisher to reject these milestones and demand they be resubmitted for… well, almost any reason at all.

Not only does this give the publisher full creative control over a game, but can also cause the developer to suffer significant delays. While the developer can negotiate terms that push back deadlines if the publisher causes any delays, they’re likely to suffer delays in receiving advance payments due on delivery of milestones regardless.  This puts the developer’s finances at the mercy of the publisher’s satisfaction with how the game is shaping up.

Royalty wrangling

Development contracts are really just loans. The publisher agrees to pay the developer an advance to cover the costs of developing the game until it ships. This advance is then to be repaid by the developer’s royalty payments—a portion of the game’s net sales figures. This portion can range from as little as 20%—for average developers, to as high as 35%—for top AAA developers. Really favoured developers may command more than this, but then you’re either Blizzard or BioWare, and in bed with the publisher anyway.

A game needs to be really successful to pay back an advance and secure ongoing royalties for developers. AAA games need to make millions (perhaps hundreds of millions) in profit to pay back typical development costs at a 30% rate. As such, often the initial advance is the only money developers will ever see for a game.

More seriously, development contracts often also allow the publisher to detract from the developer’s royalty payments a few random other costs. This includes advertising expenses, compensation for unsold games that get returned by customers, and licensing fees. If the publisher decides what’s needed is a massive marketing campaign six months before release, then the developer is probably financially screwed.

To make matters worse, publishers may also insist on using the royalties of one game to pay for the advance of another. So if a developer is working on several games for one publisher (as most do these days), they may be locked into a state of perpetual debt to the publisher, with royalties of successful games being used to fund all kinds of costs and losses from both ongoing development and unsuccessful games.

Termination and ownership of IP

As Chris Taylor pointed out, development contracts will include terms that allow the publisher to cancel the development of the game at any time, for no reason other than “convenience”. When this happens, contracts will almost invariably give the publisher legal ownership of all the game code developed prior to the cancellation, and often outright ownership of the game IP—all trademarks, copyright, and general rights to develop it further.

This means that if one publisher cancels, a developer can’t just hawk their unfinished game to another publisher. In some cases developers can negotiate around this, but are still required to pay back the first publisher for any advance payments—they don’t just get to keep the money and run.

The real benefits of Kickstarter

I raise a sceptical eyebrow whenever a big-name developer like Chris Taylor claims to be able to make a AAA game for $1 million. It’s clearly a risk. Lacking the support of a publisher, they’ll need to scrimp and save if they want to make an AAA game for that much. Or even just a B minus game. Advertising is expensive, you know. And as Wildman shows, Kickstarter funding is by no means guaranteed.

However, the game development contracts show why this risk is worth taking. First, if they do manage to successfully release the game on such a tight budget, the developers will keep all future royalties, not just 20%. Even though the developers may have sold most of the game copies in the initial Kickstarter drive, anything after that is pure profit.

Second, even if $1 million is not enough to develop a full game, it’s at least enough to develop most of a game, or give capital to approach an investor. Development contracts are so biased towards the publisher because when the developer comes to the publisher, they don’t really have any bargaining power. All they have is their reputation and a crappy little demo pitch.

Things change when you have a marketable product to push, and have a secure hold on the IP. A great example is Path of Exile, which just entered open beta. Path of Exile has no traditional publisher, but Grinding Gear Games do have investors behind them. These are the same type of investors that fund business start-ups all the time, and the terms can be far fairer than a typical publisher contract. A developer with angel investors would easily be able to negotiate keeping full ownership of their IP, and higher royalties.

Kickstarter, then, probably doesn’t remove investors entirely from the equation. But by freeing the developer from the draconian contract terms, they receive far more bargaining power when it comes to seeking other sources of money.

Yesterday, in the New York Times, our former Prime Minister John Howard brought gaming back into the gun control debate, arguing that America needs tougher gun laws…

“Certainly, shortcomings in treating mental illness and the harmful influence of violent video games and movies may have played a role.

“But nothing trumps easy access to a gun. It is easier to kill 10 people with a gun than with a knife.”

…but also “violent video games”. Really, Johnny could have easily made his otherwise decent point without raising the spectre of violent gaming. So here, we’ll compare the documented effects of three influences on violent crime—video games, gun control laws, and policing. Then we’ll ask “So why are games relevant to murder, anyway?”

Games reduce crime overall

First, games can lead to players becoming more aggressive. Some lab tests find that—for male gamers at least—violent games reduce the brain’s sensitivity to violence. Violence, arguably then, becomes a more acceptable response to everyday situations.

However, whether this gaming rage actually leads to more crime is not so clear. For most players, the increased aggression disappears quickly. For fully half the gaming population—females—games haven’t even been found to cause increased aggression. And for those gamers who might get truly unhinged from a game just enough to go beat someone up in real life, gaming keeps these people indoors. Although far from confirmed, this indoor diversion effect has been argued to lead to lower violent crimes overall.

As such, games don’t deserve the blame. Neither do movies, which have also been proposed to reduce crime due to locking people away indoors for hours at a time. Censoring or restricting media may just divert people with already-violent tendencies into actual crimes.

Gun control laws might reduce crime… eventually

On the other side of the debate is whether gun control laws reduce crime. As Howard noted, Australia has had a big reduction in gun-related crime since the bans enacted in the late 90s. Since 1996, there has not been a single mass-homicide involving guns, and the numbers of gun-related suicides and homicides have halved.

However, this is a distinctly Australian phenomenon. Many studies find that gun control in America does not work—that the laws have no correlation whatsoever with reduced crime rates. And this is one reason why video games get the blame—gun control is far from proven.

The problems are twofold. First, America is extremely diverse with a huge number of states, cities, and towns. If one state tries to control guns, and a neighbouring state does not, then guns just come in across the border.

Second, America already has tens of millions of guns in circulation. This leads to the quite real problem of gun control laws simply turning criminals to a ready black market.

While America’s most recent moves to control guns may bear fruit in the future, it will be a long, long time before an impact is felt. While this isn’t an excuse for lax gun control, it is worth bearing in mind when people say “gun control is not the answer”. Realistically, gun control might not have any appreciable short term effect.

However, there is a far better short-term solution than simply throwing our hands in the air, or commissioning yet another study into violent video games.

Better policing is proven to reduce gun crime

The biggest proven influence on what reduces gun crime is, unsurprisingly, policing. While gun bans do not necessarily work, policing that targets gun-crime does.

New York City saw a substantial reduction in its homicide rate in the 1990’s—a decrease of 73%. Of all the factors that could have possible contributed to this, the most significant was the increased arrest rate for murders. Between 1990 and 1999, New York City hired more police, and had a greater focus on making arrests for actual crimes, rather than the vague “War On Drugs”. NYC’s success in this regard is well documented.

This is supported by the experiences of other American cities which have seen police focus on actively reducing violent gun crime. Baltimore City is an example, which once had one of the highest violent crime rates in America. After a period of refocusing police efforts on reducing violent gun crime, making arrests for gun crime, and confiscating illegal guns from the black market, Baltimore has seen a substantial reduction in firearms injuries, homicides, and suicides.

Why are games relevant to gun control?

If we can believe the actual, documented results achieved by different crime-control measures, then:

1. Video games have no appreciable effect on crime, other than a possible small reduction gained from keeping people indoors.
2. Gun control laws have an effect on crime, but have significant challenges to implementation.
3. Policing has the greatest proven reduction on gun crime.

Why then, are games often mentioned in the same breath as gun control, yet policing is not?

The answer is that it is much easier to shift blame than do what works. Both gun control and better policing requires a substantial investment into police resources. Both will also threaten the underlying gun culture. This is a culture that sees putting on a gun in the morning as a normal thing—like pants—and a culture that sees easy access to guns as a God given right. Even shutting down the black market becomes problematic, since doing so would require some harsh measures to stop the trade of guns between private people.

Yet despite these challenges and culture shocks, if America really wants to reduce gun violence, they’re going to have to bite the bullet and do what’s been proven to work—long term gun control and better policing. Video games shouldn’t even be in the same conversation.

This week, Tim told me I couldn’t write about the legality of killing a tiger: Toby already did it. “How about those daylight savings hours, then?” I said. “No? Damn.” In desperation, I turned my mind to the next-most-popular comment-bait topic—copyright and piracy.

Yet even if this article’s merely a shameless grab for page views, copyright is important to gaming. DRM only exists because of copyright. The heavy pirating of games (and movies) is often used to support harsher copyright restrictions. That… and American babies.

The Stop Online Piracy Act was a proposed—and rather harsh—copyright law, but happily defeated by public pressure. One of its supporters, Republican congressman Bob Goodlatte, has said he’d continue to get such internet laws enacted because (brace yourselves) they’d help save American babies who’d otherwise die after eating counterfeit baby formula.

I assume that makes perfect sense to someone on some level.

This man is still banging on about piratical miscreants stealing babies’ internet copyrights and whatnot— getting praised by Hollywood for it, naturally—and was just recently elected to chair the Congress panel that writes American copyright law. Not exactly good news. Today, let’s look at what else has happened in copyright recently, and why you should be concerned.

The United Nations wants to give control of the Internet to governments

While the U.N.’s most known for its general failure to prevent the conflicts that serve as plots of modern first person shooters, its internet arm—the International Telecommunications Union, is intent on succeeding at handing control of the internet to governments.

Much of what’s going on here is behind closed doors. However, leaked documents suggest the binding, international treaty being drafted is somewhat on the totalitarian side. Leaked drafts of the treaty show that the U.N. Is proposing to allow governments to suspend their citizens’ internet access on a whim, and prevent citizens from being anonymous online.

If the treaty went ahead, it would become binding international law, meaning that governments that signed on would be expected to give effect to their international obligations in domestic law. Indeed, our Constitution gives such powers to the Federal Government—almost any law is valid as long as it has an international treaty behind it.

Google wants the world to know about the U.N.

Unsurprisingly, many are unhappy about the U.N.’s new project. Google, known for its strong opposition to the aforementioned Stop Online Piracy Act, has launched its own petition against the U.N.

Google’s main concern is that the U.N.’s international membership allows countries, like Iran, which have traditionally curtailed internet freedoms, to influence policy in the western world. As they state on their website:

“There is a growing backlash on Internet freedom. Forty-two countries filter and censor content. In just the last two years, governments have enacted 19 new laws threatening online free expression.”

Google believes that the internet needs to be regulated by the same people who shape it. In other words, them.

Cyberstalking Bill Defeated in America

Well, cyber intelligence, to be correct, but it may as well be stalking. The Cyber Intelligence Sharing and Protection Act was meant to give American governments the ability to monitor anyone’s internet activity.

While the bill—like everything else—was justified on grounds of stopping terrorism (and by extension saving babies), the provisions also allowed spying on those suspected of copyright infringement.

Fortunately, the law was stopped by a filibuster in the American Senate. A filibuster is mostly just a form of protracted, shoe-throwing argument used to defeat often-needed financial reforms, but sometimes it does good. In this case, senators recognised that the law would be simply too broad. It does illustrate, however, that advocates of strong copyright laws will take some roundabout detours to achieve their aims. Because terrorism.

So what does it mean for gaming?

A recent move by Sega highlights how copyright can come back to gaming, even for those who buy their games legitimately. Sega is releasing a new Shining Force game for the PSP (it’s a console RPG), and by sheer coincidence is on a massive campaign to rid YouTube of anything to do with the Sega Saturn’s Shining Force III. YouTube has to comply with Sega’s requests, since technically Sega does own the copyright.

However, according to Destructoid, even videos made by fans talking about Shining Force III– with no gameplay footage whatsoever—are being targeted for ‘copyright violations’. The only possible reason I can think of for this is that YouTube’s search engine strength means a search for Shining Force will show some random RPG geek talking about Shining Force 3, not Sega’s new game.

Where it gets sobering is there is really no difference between these videos and an unfavourable game review, for example. Extreme copyright laws could allow publishers to take down negative comments about their games on grounds of copyright infringement. It would sound silly if it hadn’t already started happening.

This is clearly beyond the scope of copyright, and an abuse of the service YouTube gives to copyright holders in good faith. It’s a clear example of how if publishers are given the means to use copyright laws for their advantage, they will, even if such uses go well beyond the original intent. If some of the more extreme proposals are enacted, we can expect impacts on gaming that go beyond just DRM, digital piracy, and internet tributes to Kelly.

Mr. Burns image via Gizmodo.

Did you see My Year Without Sex? No? C’mon, it was shown at the Adelaide Film Festival. Funded by Screen Australia?

No, of course you didn’t. It was a complete commercial flop.

On the other hand, you might have seen Saw. I didn’t—too squeamish. But it’s a successful film franchise that was denied Australian funding. So it was made in LA.

Last week, the Federal Government announced the launch of a 20 million grant fund for Australian game developers. The guidelines for who gets these grants will be written by Screen Australia. Fortunately, Screen Australia has recognised that it mightn’t know a lot about funding successful games, and so has reached out to the games industry for input. So today, let’s look at how these grants should be awarded.

Cultural relevance?

The games grants are meant to be part of the Government’s new National Culture Strategy. This raises some questions about how the grants will be awarded, because the film industry has been shackled to Australian ‘culture’ for decades. This is dictated by law—the Screen Australia Act says film funding is to:

“Ensure the development of a diverse range of Australian programs that deal with matters of national interest or importance to Australians, or that illustrate or interpret aspects of Australia or the life and activities of Australian people.”

Which explains My Year Without Sex. And also explains why most Australian films have a distinctly ‘Australian’ theme to them, instead of genres like science fiction or horror. It’s like the Government is funding war propaganda.

Is cultural relevance appropriate for games? Well, many successful games are about American soldiers saving the President, after all. I predict enthusiastic funding for games where you play Australian soldiers badass enough to save the Prime Minister.

Full disclosure?

Rhode Island is currently suing the pants off 38 Studios for the $75 million they allegedly scammed to try and make their failed Kingdoms of Amalur-themed, Copernicus MMO.

Closer to home, the Western Australian Government gave Chicago-based Interzone Studios $500,000 to develop their Interzone Futebol MMO. In a sordid tale that’s been documented well before, Interzone fled the country and ended up owing staggering amounts, to their employees in unpaid wages and to the Australian Taxation Office in unpaid tax.

Both these cases are similar in that the developers were allegedly hoping for new money to materialise out of thin air. The lawsuit against 38 Studios claims that the company knew it did not have the money to complete Copernicus, but lied and said they did anyway. Interzone somehow managed to dodge its financial obligations for years, waiting for… I don’t know. Maybe a lottery win.

It would be a shame if these cases made it harder for more honest developers to gain funding, as avoiding the problems is really quite easy. All developers need to do is give full disclosure about their proper financial position, and for the Government to investigate seriously before giving any grants.

Innovation?

The National Culture Strategy defines Australian culture as innovation. Simon Crean remarked that he’d like to see the fund be “rewarding of something that’s innovative, something that’s new, that sort of excellence criteria”. In other words, something like Fruit Ninja (which he also raved about).

Unfortunately, innovation is difficult. Games have huge up-front costs. By the time they hit market, thousands, hundreds of thousands, or even millions of dollars have already been spent. Unproven IPs have no real way to predict that they’ll recoup their costs, and publishers are wary of this, favouring established series instead. It’s why I’ve got to agree with Tobes—Mass Effect 4 will go ahead with the familiar Shepard (and hopefully Kelly).

This creates a problem for a fund based on innovation, as it might not match up to what publishers want. While it’s fantastic to promote innovation, the grants won’t build the industry if the games are commercial flops.

Not just games?

The best way to address this problem is to be truly innovative with what games are—go beyond entertainment to look at new markets. Currently, the Australian games industry is locked into phone games and contract work. We all know that AAA titles don’t get made here anymore, unless they’re licensed ports.

But the choice isn’t just between AAA titles and phone games. Earlier this month, a British psychologist proposed that games could help treat Alzheimer’s disease, by testing and exercising motor skills, attention, and memory. Currently, no games exist to do this, and yet the cost of treating Alzheimer’s in America alone is expected to hit a trillion dollars by 2050.

Another example is a game called Re-Mission. Made in 2005, it’s still being used to help young cancer patients understand the point of taking medication. It’s still being used because no competitors exist. The next indie hit won’t necessarily be another Minecraft, but rather a game that addresses real world issues.

When the games grants were announced, Melbourne talkback radio host Neil Mitchell described the grants as “Welfare for nerds”, and games in general as “go out and shoot people type games”. As Tony Reed, CEO of the Games Industry of Australia responded, we need to debunk that dated stereotype. The best way to do that will be for the Australian Interactive Games Fund to take the full range of gaming opportunities seriously.

In a century a long time ago, far, far away—1922, to be precise, the Queensland senate voted itself out of existence. After several failed attempts to abolish the State’s upper house, our benevolent leader persuaded the Queensland Governor to hand his party a ruling majority, allowing him to abolish the senate.

And this is perfectly fine with most Queenslanders, who, without fail—vote overwhelming majorities into Parliament every election. We like our dictatorships.

So that’s why, today, we know the R18+ games legislation introduced to the Queensland Parliament a week ago, isn’t going to change. And it’s just as well, because out of all the R18+ laws… it actually makes sense.

No additional classification review

The new Queensland laws are mostly just offences and penalties. The actual R18+ classification scheme in Queensland will be R18+ games are whatever the Australian Classification Board says.

Unlike South Australia, Tasmania, and the Northern Territory, Queensland does not have the power to reclassify games if they do not like the Commonwealth’s decision. This has not changed with the new laws.

Must not show R18+ games to children

The main part of the Queensland laws is the prohibition on showing, or selling, R18+ games to minors. If you do so, you could be fined up to $10,000.

But this is not absolute.

You can show an R18+ game in public… if no minors are present. You can also sell an R18+ game to a minor if you reasonably believe them to be 18 (“I swear she was old enough…”).

Compared to the rather blanket bans put on the public showing of R18+ games used by Western Australia, this is quite sensible.

An emphasis on responsible parenting

A welcome inclusion in the new laws is the emphasis on responsible parenting. You can show R18+ games to minors in private—if you have the consent of the parents. In reality, I imagine “consent” to be little more than “Yeah you can go over to Tim’s house to play that new game”. But at least it gives parents the power to decide if their children can or can’t play games.

In line with this, there are no prohibitions on what minors can or cannot play with their parents’ consent. If mum or dad says yes, it’s fair game.

It’s all up to the Commonwealth

The Queensland R18+ legislation’s about as sensible as we could hope for. It simply restricts public showings and sales of games judged to be R18+ by the Commonwealth. Which seems reasonable. Whether this gives adults the right to play what they want to largely depends on how the Commonwealth applies the R18+ guidelines. In general:

• R18+ games can include high-impact violence.
• R18+ games cannot include high-impact violence that is frequently gratuitous or offensive.
• R18+ games cannot include explicit sex, illicit drug use, or reward sexual violence.

Whether games showing violence, sex, or drugs will be sold in Queensland depends entirely on the Australian Classification Board. This also holds true for the other states that do not allow the decisions of the boards to be changed—so any state other than South Australia, Tasmania, and the Northern Territory.

But is there any point?

In many ways, gaming’s a scapegoat. The simple reality is that much of what would be ‘harmful to children’ is already sold in Australia—unclassified and unenforced. According to the Australian Law Reform Commission, this is for practical reasons as much as any other…

“Any significant increase in the amount of X 18+ content going to the Classification Board would also mean Board members would have to spend a disturbingly large percentage of their working days watching pornography.”

So for whatever reason, most truly objectionable material passes under the eyes of the censor, and can be regarded as unregulated.

The move to online sales has only heightened this problem. Steam has been known to sell Refused Classification games to Australians, and any age checks it does perform can easily be sidestepped. Even if a minor doesn’t have a credit card, they can easily pay a CD key website using PayPal.

Unfortunately, now we know that none of the R18+ laws even attempt to address this problem. Just like X18+ media, it is simply too hard. When the first of January rolls around, our laws will do a good job of stopping teenagers from buying 18+ games in stores, but not a great job of stopping them buying 18+ games across the net. Queensland’s R18+ legislation is sensible for what it does, but is already dated.

The most serious issue in gaming right now: two ArmA 3 developers facing twenty years in prison for allegedly spying on a Greek military base. The two were on Lemnos when they photographed a Greek air base.

While it’s natural to want to side with the developers, the circumstances of the case are important. Next door to Lemnos is Turkey, and between the two countries are recently discovered oil reserves. Sounding like the storyline of any recent brown-sim FPS, the place is just waiting to blow up. Taking any kind of photos of Greek military bases on the ground is somewhat naive.

Today, we’ll look at how circumstances like this will reliably determine whether you get arrested for spying, and why you probably shouldn’t take a camera to Greece right now.

Planespotters almost lost their freedom in Greece

In 2001, a group of fourteen British and Dutch tourists were sentenced to three years in prison for taking photos of a Greek airbase. Greece-Turkey relations were just as bad back then, and to make matters worse, the leader of the group had been invited to Turkey as a guest of the Turkish military just a month before.

The charges were eventually overturned on appeal, but the group faced a year-long ordeal to clear their names. Although the British press lambasted the Greek legal system, when you consider all the circumstances involved, the Greek reaction was pretty reasonable. The tourists were deliberately trying to photograph areas off-limits, and their only safeguard was the organiser’s ‘contacts’ in the Greek military. As such, they came across as spies.

Adelaide planespotters asked nicely to stop

Compared to Greece, Australia is rather laid back about its aviation security. We have no serious threats, and are mostly just used as a staging post for American drone sorties into the Pacific.

In 2006, Adelaide’s West Beach Aviation Group took photos of the ‘secret’ Global Hawk spy drones coming to and from the RAAF base at Edinburgh. They then posted the photos on the internet. But the only military response to this was a visit from the RAAF asking them to not publish pictures of Australian aircraft.

That the incident happened on Australian soil likely curtailed any American response. That the Global Hawk is hardly secret is another reason. While America continues to insist that it is at secret squirrel levels, the drones have no stealth capabilities at all, and can be easily observed by even the simplest radar. So it’s not like a few photos of the things actually mean anything.

In other words, they weren’t actually spying.

Video game developer gets sentenced to death in Iran

Kuma/War is a game made by Kuma Reality Games. This studio is most notorious for being allegedly paid by the CIA to create games designed to make gamers hate the Middle East.

Anyway, Kuma/War’s main claim to fame is its use of real life locations and ‘realistic’ combat scenarios. So it’s basically a way to live out soldier fantasies, much like Mass Effect is a way to live out Kelly fantasies. One of these scenarios is titled Assault on Iran, where the player has to attack Iran’s nuclear enrichment facilities.

Understandably, Iran doesn’t really like the game, and the portrayal of its perfectly harmless nuclear power program. So when one of the game’s developers, Amir Mirza Hekmati (working as a defence contractor after his video game career) went to Iran to visit his grandmother, Iran was quick to arrest him, charge him with spying, and impose the death penalty.

The Iran Supreme Court overruled the sentence, but Amir is still stuck in prison awaiting a retrial. But here the lesson for any budding game designers is that if you make a game about attacking Iran, you probably shouldn’t visit the country. They’re a bit sensitive.

What you need to know about Greece

While the press often makes out the justice system in foreign countries to be unfair, all these cases show that outside circumstances can pretty reliably predict whether you get in trouble for espionage.

So before you do anything like photograph a military base, you should have at least a basic understanding of the relevant political issues. These will influence what will happen should you get caught.

What most gaming news websites are not telling you is just how serious the situation in Greece is right now. In late 2010, huge natural oil reserves were discovered in the Mediterranean. Greece has 22 billion barrels—at least—in its territorial waters, and this would transform the country’s struggling economy into the next UAE.

However, Greece is locked into loans from the IMF. The IMF is demanding that Greece sell off its oil companies to pay off its debts, and Greece, understandably, is not happy. Compounding this is that Greece’s territorial waters are quite shallow. Previously it saw little need to claim maritime territory, and so much of the potential oil is in waters also contested by Turkey. Threats of war have been exchanged between the two countries.

Although largely unreported by the western media, the Mediterranean is a warzone waiting to happen. It has all the elements of a modern FPS storyline. And because of this, the ArmA developers really should have known better. While they’re likely innocent, they should have used common sense, and not done anything that made them look like on-the-ground spies.

In Western Australia, your copy of Dragon Age 2 has some of the same legal restrictions as a pornographic X18+ film. Unfortunately, this isn’t because it included a hot scene with Leliana and Merril post-credits. Rather, the laws of Western Australia just don’t trust MA 15+ games to be suitable for teenagers.

As it stands, Western Australia’s proposed R 18+ gaming laws won’t change this. As we’ll discuss, the new laws simply apply the existing MA 15+ restrictions to R18+ games, and leave the MA 15+ ones alone.

However, there is still a chance of this being changed for the better. These new laws have been called back for review, with a parliamentary committee set to look over the new laws.

Here’s what needs to be changed.

You can show an MA15+ film in a cinema lobby

Walk into any cinema and you’ll be bombarded with advertisements for MA15+ films. You’ll see posters on the walls, and trailers on the screens. This is because Western Australian law contains a specific exception for the public display of films:

“A person must not exhibit so that it can be seen from a public place that is outside the place where it is exhibited —

an unclassified film that would, if classified, be classified R18+ or MA15+; or

a film classified R18+ or MA15+.”

This says that MA15+ and R18+ films may be shown, publicly, in the place they are exhibited. The cinema lobby that’s viewable from outside, in other words. This is slightly different to X 18+ films, which have no such exception:

“A person must not exhibit in a public place a film classified X 18+.”

And X18+ films, of course, are porn.

But you can’t show an MA 15+ game in a store

Now, which of these two laws are closest to what’s in place to regulate games? If you guessed the porn law, you’d be right:

“A person must not demonstrate so that it can be seen from a public place —

an unclassified computer game that would, if classified, be classified MA 15+; or

a computer game classified MA 15+.”

Obviously, because the themes you’ll find in MA 15+ games are just so corrupting that they need to be hidden from the public eye. Well, in all fairness, I’m still scarred over Samantha Traynor’s inclusion in Mass Effect 3. I wouldn’t inflict that on anyone.

But the differences between games and films do not stop there.

You can sell an MA 15+ film in public

Western Australia doesn’t want children mentally scarred by the shrink wrap found on R18+ films, so ensures that they’re sold in separate areas:

“A person must not display in a public place —

(a) a film classified R18+; or

(b) the container, wrapping or casing for a film classified R 18+,

with the intention of selling the film except in an area of the public place set aside by that person, and conspicuously identified, as an area for the display of films, or containers, wrapping or casings for films, with that classification.”

This law does deserves some derision, because no such law exists for MA15+ films. You’ll be able to browse through a store, and holding each, side by side in either hand, compare the benefits of buying The Wedding Party (containing strong sex scenes), with the video sitting right next to it — Pocahontas.

But you need to cordon off an area for selling MA15+ games

The laws regulating the sale of MA15+ games directly copy those laws regulating R18+ films, not MA 15+ films:

“A person must not display in a public place —

(a) a computer game classified MA15+; or

(b) the container, wrapping or casing for a computer game classified MA15+,

with the intention of selling or supplying the computer game except in an area of the public place set aside by that person and conspicuously identified, as an area for the display of computer games, or containers, wrapping or casings for computer games, with that classification.”

The new laws miss the point of an R18+ rating entirely

In Western Australia, MA 15+ games are regulated like R18+, and even X18 films. Even though they’ve been reviewed and accepted for teenagers, the law treats them as if they’re adult porn.

Unfortunately, the proposed amendments to bring in R18+ for games in Western Australia do not change this problem. They simple say that where the law applies to MA15+ games, it will now apply just like that to R18+ games as well.

This fails at respecting one of the reasons for getting the R18+ classification in the first place. Adults will be able to play games made for adults, and such games won’t be squeezed into the MA15+ category anymore. These games will not be bought by children.

But this isn’t good enough in Western Australia. MA15+ games will still be treated like R18+ and X18+ films, and now R18+ games will be too. Western Australia’s R18+ laws do need to be reviewed, because they need to make the distinction between MA15+ and R18+ much clearer.

Everyone’s talking about Kickstarter. Ever since Double Fine Adventures broke the floodgates with their $3.45 million fundraiser, many developers have wanted a piece of the action. Obsidian’s Project Eternity is the latest hot new thing, having just set stretch goals for $2.3 million. While none appear to be a Leliana cameo, I await the $3 million stretch goal with bated breath.

However, Kickstarter’s not all roses. Outside the celebrity developers, plenty of failures abound.

Mythic: The Story of Gods and Men was meant to “combine the gameplay of WoW with the graphics of Skyrim”. That was before backers caught on to that the game’s concept art had been shamelessly ripped from other games. Ninja Baseball aimed to combine ninjas… and baseball! Having raised only $3,796 of a $10,000 goal, the failed fundraiser simply demonstrated the inherent superiority of pirates.

But while these projects failed to get off the ground entirely, a more serious situation is where the Kickstarter does meet its pledge, the backers hand over their money… and a year or two later, the developers don’t deliver on what was promised. What safeguards will stop this from happening?

The legal obligation on kickstarter projects

Every game developer who wants to use Kickstarter has to agree to this:

“If your project is successfully funded, you are required to fulfil all rewards or refund any backer whose reward you do not or cannot fulfil. A failure to do so could result in damage to your reputation or even legal action on behalf of your backers.”

The reputation damage is obvious. But what legal action could anyone take?

A project must deliver on its promises

A Kickstarter project is, essentially, an advertisement. It’s a pitch for money, the same sort of pitch that developers would make to a publisher or investor.

While no real contract is created, this does creates a promise, by the developer, in exchange for the money of the backer. Although untested, this potentially comes under a law called promissory estoppel.

Promissory what?

Promissory estoppel says that if someone promises you something, they must deliver on it. If they don’t, they become liable for what you lost in relying on that promise. There are additional nuances, but that’s the vibe of the thing.

Important here is the reliance by the person who suffers loss. In Kickstarter, this reliance is arguably established by the stated project goals and estimated time of delivery. You’re enticed to hand over money by these details.

Arguably, if a Kickstarter project fails to deliver, there should be no problem in suing the developers (even if it takes a class action).

What’s a failure to deliver?

A failure to deliver could take many forms. Obviously, the developers could spend $2 million on beer and not create a game at all. Clear lawsuit material. The developer must also live up to their ‘added value’ — all the little t-shirts, posters, and other assorted merchandise Kickstarter projects throw around.

More seriously, however, a project would also fail to deliver should it be substantially different to what was originally promised. Should Project Eternity somehow be made into an FPS instead — like Blizzard briefly considered for Diablo III — then any of its backers would have a right to sue.

Kickstarter games cannot change mid-step

The obvious implication is that Kickstarter is just not suitable for games that change halfway through production. Consider if the original Borderlands was funded by Kickstarter. “A Mad-Max style, brown, semi-realistic shooter – fund it today!” Then, two years later… “Here’s your comic book.”

While the traditional publisher model allows these changes to be managed by good communication between publisher and developer, consulting with the fifty thousand or so backers that you want to change your game mid-step is going to be… messy.

Even if the majority agree to the change of direction, many will still be miffed enough to consider demanding a refund. This threat is enough of a risk to throw the entire project into financial problems. Developers are unlikely to be open to changing the game substantially from its original conception.

And even if the refunds don’t come, or the legal action fails, the reputation hit alone is enough to discourage a deviation from the original concept.

To date, few of the large Kickstarter projects have had time to deliver on their promises, so these issues are untested. However, when they do, we’re likely going to see games that have been locked into their concept pitches from day one, for fear of the legal and reputational risks. This, I hope, won’t stifle the innovation Kickstarter is trying to promote.

Disclaimer: As always, this is general opinion rather than advice on specific circumstances. Talk to a lawyer if you need legal advice.

On August 31, 3,000 Guild Wars 2 players were banned from the game for exploiting a bug: an in-game vendor was selling an item for far too cheap, people bought it (repeatedly), and then sold it on for profit.

ArenaNet wasn’t amused. They quickly deployed an emergency hotfix, banned the offenders permanently, and only reduced these bans to 72 hours upon receiving a commitment from the offenders not to do it again.

This caused a bit of a stir at the time. The players weren’t hacking the game, and only taking advantage of one of the few bugs that made it into the final release. Still, ArenaNet justified their actions based on the argument that the players knew they were being bad.

ArenaNet then said that any future exploiting would be met harshly, and that they wouldn’t be so quick to pardon lifetime bans in future. So what else could you get banned for?

Going AFK in PvP

AFKers are the scourge of PvP games everywhere. That’s why they receive special mention in the Guild Wars 2 Rules of Conduct:

“While participating in Plaver-vs-Player (PvP) gameplay, you will not participate in any form of match manipulation. Match manipulation is defined as any action taken to fix or manipulate the outcome of a match or alter or manipulate the rankings or ratings of the ladder. This also includes disrupting other people’s game experience by not actively participating in matches in good faith, a.k.a leeching.”

“Not participating in matches in good faith” seems broad. If you have to take an emergency AFK, is it a violation? Probably, as it would be difficult to prove your sudden urge to go to the toilet. It’s your word against theirs. As such, make sure you relieve yourself before signing up to PvP. Your account privileges depend on it.

Modding the UI

You can’t “Use, or provide others with, any ‘hack,’ ‘cheat,’ ‘exploit’ or ‘mod’”. The inclusion of mods in the prohibited programs list is interesting. Most other MMOs allow and even encourage mods. Half of WoW’s features were built on player-created mods.

I’m guessing that Guild Wars 2 doesn’t even include the code hooks to make a UI mod, so it’s just as well the default UI works. Still, it is a relief to know that damage parses and other such annoying tools will be excluded from the game.

Playing the game at a cybercafé

You can’t, without written authorisation “Be a party to any commercial activity related to the Game, including but not limited to:

1. providing or obtaining any Item; or
2. use of the Service, the Game, Content or Software at an Internet café, cyber café or computer gaming center.”

The first part is a clear prohibition on gold farming. The second part means you can’t play Guild Wars 2 at a cybercafé without the signed, written permission of ArenaNet themselves. I have no idea how this will be enforced, but I suppose you’re best off playing the game from home, anyway.

Advertising your guild

You can’t “market, promote, advertise, or solicit within the Guild Wars 2 Game or on the official Guild Wars 2 websites.”

Obviously, this is more aimed at commercial advertising, and it’s possible I’m using a bit of hyperbole here. But the open wording of this section makes it a bannable offense to recruit people to your guild, in Guild Wars 2, if ArenaNet really wanted to. You never know.

Losing your grip on reality

We all hate those crazy people who believe gamers are itching to take a sniper rifle to the nearest rooftop. However, ArenaNet’s going a step further and demanding you agree to your sanity. This is quite the boon, because if anyone ever tells you that video games have affected your psyche, you can just waive the Guild Wars 2 EULA at them — the bit where you legally agreed that you were untouched by gaming:

“You understand the Game sets forth a virtual world and not the real world, that You understand the distinction between a virtual world and the real world.”

It is, after all, what we’ve been telling to opponents of the R18+ rating for years, so it’s good to see ArenaNet join the cause. But just to make sure you understand the importance of this:

“You understand that Your privacy, as well as the privacy of others who do not know each other personally in the real world, is well served by keeping interactions in a virtual world separate from those in the real world.”

There you go. Don’t name your character after yourself, don’t talk on TeamSpeak with complete strangers, and don’t expect to meet your future next girlfriend in Guild Wars 2.

Gaming is about fun and innovation, you say? Unfortunately, the reality is that gaming — outside of the indie sphere, at least — is about the money. For reference, see Guitar Hero.

Bringing this home is the news of up to half of Funcom employees losing their jobs. Why? Because to secure needed investment for The Secret World, Funcom made promises to shareholders. These promises weren’t met, and so the company had to be ‘restructured’ in light of future expectations.

This raises questions about just how much of gaming today is based on investor relations. Companies are known for their profit motive, and some are more notorious for it than others. But have we gone too far?

Companies must make money

Companies do have a duty to make money. With companies financed by other people’s money, these laws exist to ensure that investors don’t lose their life savings.

The theory’s good, but it’s led to some rather extreme views. The Harvard Business Review noted that a good number of company directors would go so far as releasing dangerous toxins into the environment if it meant increased profits.

However, this single-minded profit motive is built on ignorance.

Shareholders are not the company

A company is not its shareholders. When a company does anything, it acts in its own name, not those of the shareholders. This is supported by law. In America at least, when directors have gone against shareholders, the courts generally sided with the directors. Yet still company directors often lack the courage to do so, even when they’d be right.

The Harvard article blames this on directors simply not understanding the law. The actual legal duty is that the company’s best interest is what’s important. This is more than just short-term profit. It includes things like long-term value, innovation, and market positioning. All can be hurt by increasing shareholder profits, and all can be defended in court.

Like any big business, this affects gaming too. It’s unlikely that gaming companies are going to be making any three-eyed-fish. But what would change in the industry if we all actually understood the law?

We’d judge games by their quality, not their financial reports

Whenever a company releases a financial report after a game, it’s often treated to more media attention than the game itself. Funcom’s recent restructuring announcement was aimed squarely at its shareholders, yet received wide coverage.

While it’s good that we know these details, these reports are meant for investors, not customers, and it’s easy to draw mistaken conclusions. The most common is to say that a game is a ‘failure’ because it isn’t meeting investor expectations. But if we judged success or failure by investor relations alone, we’d be calling toxic waste dumps a raving success.

There are more to games than revenue reports, and just because a game doesn’t topple WoW, does not make it a failure.

We wouldn’t pull support for old titles

EA infamously cuts support for old EA Sports titles. Every year they release essentially the same game, maybe endorsed by a different celebrity. And periodically they pull multiplayer support for the older titles.

This is also a (legitimate) worry many have about always-on DRM. When online servers shut down, will we be able to still play the old games, like we can play Tekwar today? After all, the kids have to learn about Tekwar sooner or later.

Cutting customer support for older products is a similar tactic used in many industries to increase short-term gain at the expense of long-term customers. It ignores the contribution that existing customers made to the company’s success, by reducing the value of what they paid for.

We wouldn’t make baseless piracy allegations

When Ubisoft CEO Yves Guillemot justified the company’s move to free-to-play titles, many of us wondered what he was smoking. Apparently, anywhere from 93 to 95% of Ubisoft’s profits are lost to piracy. But simple math would make Ubisoft, with profits multiplied by two, richer than God.

The free-to-play model is definitely viable, but I can’t help but feel the piracy argument is getting old, with no substantial figures to back up either side of the debate. Arguments have been repeated, over and over, until we half expect everything Ubisoft says to be about profits and piracy, like a broken record harping on about the same old obsession.

We wouldn’t cut Kelly out of the Mass Effect 3 Extended Cut

So I have no evidence for this one. But really, not even an epilogue slide? Come on. You can hire a freelance artist for like, $50. Money may not grow on trees, but Mass Effect 3 did suffer from a problem of pandering to the lowest common denominator. Anything that didn’t appeal to the widest number of players got chopped out, like many of the roleplay options that were in the first two games.

As games get more expensive to make, they have to sell more copies to be considered a success. ‘Niche’ becomes a dirty word, and every AAA title today is filled with compromises. The world, and the Citadel, would be a much better place if investors were told to calm down, lower their expectations, and explore other ways of turning a profit than just milking games for everything they’re worth.

In a sure sign that the world needs more lawyers, Valve just removed at least 1,400 copycat items from the Steam Workshop. These items had no original creativity, and were simply ripped from other games.

Valve’s mod-purge started after finding that a particular mace from the MMO Aion was copied and sold as an item to buy in DOTA 2. The plagiarist won’t be seeing any money from the sales, but what is more interesting is the money-centric line some drew afterwards. Apparently, charging money for rip-offs = bad, making them for free = open season.

I can’t agree with this. Modder plagiarism is bad for reasons more than financial rewards, as we’ll discuss today.

Why copyright exists

Copyright rewards creative expression. It takes a lot of work to make creative assets from scratch—art, sounds, and general game design. It takes much less work to simply copy. Copyright is meant to stop others from making these easy copies.

As such, the basic justification for copyright is that without protection from piracy, creators won’t have incentive to make new works. Our law lets creators sue pirates for economic damage caused by copyright infringement.

However, copyright protects more than just financial profits. Reputation is a big part of copyright, and Australian copyright law guarantees that creators are identified as part of their moral rights. As such, copyright also ensures that you’ll be able to build a track record based on your original work.

Arguments against copyright

Against these justifications, two main arguments are used to justify copycat mods. First, that the mods aren’t hurting the creators. If a mod is distributed for free, then it’s arguably not taking any money away from the creator of the original game. As such, the economic justification doesn’t apply.

Second, that the mods are paying homage. The view goes that the mods are just an expression of fandom, and imitation is the sincerest flattery. As such, original creators should welcome, nay feel privileged that their works have inspired such copying. Therefore, the moral rights justification is sidestepped.

However, I can’t agree with either.

Copycat mods hurt a creator

One thing mods do is put a liked feature of a one game into another game. This is fine, when the feature is fairly generic, like when I put redheads into Skyrim. However, if a game has a really specific feature, like particular art or models, then a mod that copies these removes the need to actually play that game to experience that feature.

A great example is mods that place Forza car graphics into Grand Theft Auto . If you want to drive those cars, you don’t need to play Forza anymore. You can just play Grand Theft Auto, a game made by a completely different—and competitor—developer. This type of modding erodes the differences that people play different games to experience, and so hurts the uniqueness of the original game.

Copycat mods give undeserved recognition

Modding is big business these days. No longer dependent on simple community sites, mods enjoy large distribution channels like the Steam Workshop, and the attention of large gaming sites. We’ve personally covered mods like DayZ and Tekkit.

For many people, this kind of internet fame is sweeter than money. Saying that “I didn’t receive any money, therefore I didn’t profit from my thievery” is disingenuous. Of course the modder profited from the attention, and if their mod contains work ripped straight from another person, the profit was unjust.

A true homage has original effort

Of course, there are homage mods that no one has a problem with. GoldenEye: Source comes to mind. While almost a direct copy of GoldenEye 64, it is far more original than most of the mods on the Steam Workshop.

While GoldenEye: Source shares many aspects of the original, all the code was created from scratch. All-new music was written. This makes GoldenEye: Source much more than just a slapped-together collection of someone else’s art. As such, the publishers of GoldenEye 64 presumably haven’t had a problem with it, which brings us to…

A true homage allows the creators to object

Many times an original creator will actually allow copyright infringement to pass. Gaming fan-art is a good example—Bioware has a very liberal approach to it. When a fan draws an erotic picture of Kelly and Leliana, together, the benefits of further emotional investment into the Mass Effect and Dragon Age franchises are seen as outweighing the costs of the infringement.

However, the sheer number of mods for a popular game like Skyrim will often make this difficult for a publisher to monitor, unless they have an army of lawyers scrutinising the internet. In contrast, a high-profile homage, like GoldenEye: Source, is easy for the original creators to monitor, approve, or deny as they wish.

For a mod to be ethical, it needs to either respect the right of the original creator to object, by informing them of any copying, or be original and not copy. Just because the Grand Theft Auto Forza-cars mod hasn’t drawn the attention of Microsoft doesn’t make it OK. It’s just a copycat that tries to sneak under the radar, and the modders should feel bad.

Disclaimer: As always, this is general opinion rather than advice on specific circumstances. Talk to a lawyer if you need legal advice. 

Americanism strikes again. Yesterday, Valve updated their Steam user agreement. If you’re a Steam user, you’re now prohibited from suing Valve in a class action. The good news, however, is that Valve will pay the costs of you and them having a private, gentlemanly tiff. That is, if you accept their choice of judge: the American Arbitration Association, with offices in every American mall.

Now, if Steam locks me out of seeing Kelly in Mass Effect 2, I may well be pissed enough to fly all the way to America. However, if something goes wrong for the rest of you, you’re out of luck. Valve won’t be paying the costs for you to sue them. And they’ll probably still try to argue that you can’t bring a class action lawsuit, either.

So… what will happen if you find cause to sue Valve? Let’s talk it through, starting with America: the land where everything begins.

These agreements ARE enforceable

“I can’t sign my rights away!” says a random commentator on every EULA piece I’ve ever written. Well actually, you can – in America. The issue was decided by the United States Supreme Court in the landmark AT&T Mobility v. Concepcion case of 2011.

AT&T sold a phone to Vincent and Liza Concepcion, advertised as free but coming with a hidden $30 sales tax. $30! You could buy ten bags of pretzels for that.

One thing led to another, and soon a horde of pretzel-less, angry customers were descending on the courts in a class action. Anyway, the sales contract had a term prohibiting a class action, much like Valve’s new thing.

To cut a long and probably boring story short, the Supreme Court found the term enforceable, and the class action failed. Crap. No more pretzels.

The case is important because previously, such terms were generally limited to employment contracts. But now they can be in all kinds of contracts, including the contract you have with Valve for using Steam. And the American courts will enforce them, requiring you (if you’re American) to pursue the arbitration, not a class action.

The only times when American courts haven’t enforced class action waivers is when the terms were unfair, such as requiring the customer to always pay the costs of arbitration. This is why Valve offer to pay all arbitration costs: they don’t want their contract thrown out of court.

But will Australian courts enforce the agreement?

“I can’t sign my rights away in Australia, though!” you might say. Well… Australian law says both yes and no.

First, several state and federal laws say that Australians are entitled to bring class actions. That would be the strongest argument for saying the new Steam agreement does not apply to you.

However, we also have the International Arbitration Act, which directly contradicts this. It says that courts are required to refer cases to arbitration where a valid arbitration agreement exists. Several recent Australian court decisions do favour arbitration strongly, so, my guess, if push came to shove, the International Arbitration Act would win out.

If that happened, the main limit on Valve’s agreement would be the Australian Consumer Law, which says contracts can’t include unfair terms. Obviously, having to fly to America to resolve your dispute with Valve would be unfair.

The most likely outcome would be a court finding the American-centric terms are unenforceable, leaving us with the bolded “YOU AND VALVE AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN US IN INDIVIDUAL BINDING ARBITRATION.” That is the sum and substance of the new Steam agreement for Australian gamers. Nothing unfair with that, so you’d still have to sit down to arbitration.

Valve is jumping on a bandwagon, and we should be concerned

Valve justified its new agreement with a statement that, among other things, claimed that lawyers are money-grabbing bastards. It then went on to say that prohibiting class actions is cheaper for the whole community.

My problem with this is that class actions have a real, justified place in our legal system. Doctors now report child abuse after the landmark case of Landeros v Flood. The case wasn’t brought for profit; it was to stop doctors wimping out of their responsibilities.

Class actions are also justified when a company has done substantial wrong, but the victims have no money to bring individual lawsuits. The best example would be a superannuation company shafting retirees out of their life savings. In such a case, black and white arbitration is not suitable, and neither is individual legal action.

On this note, Valve’s ‘it’s for the greater good’ statements read like PR spin. Valve did not craft their agreement with the gaming community in mind: they’re jumping on the bandwagon of American companies in every industry having these agreements. And by doing this, they increase the strength of such agreements across a wide range of industries—medical, insurance, superannuation, and everything else besides. The more companies that use these agreements, the stronger they become.

Class actions can be a waste of money, but the problems usually lie at other stages of the process, such as insufficient gatekeeping to prevent frivolous claims from gaining legs. It’s these problems that need addressing, not denying class actions as a whole. At this rate, we may end in a situation where companies get to do whatever they want and no one can stop them.

Disclaimer: Anything written here is online opinion. As always, you should seek your own individual advice if you wish to pursue any personal matter.

The Secret World, unlike Age of Conan, does not show bare breasts. Wait… it does… sort of. On the demon succubi. And the zombie broodmothers, too. You can see everything there.

But what it doesn’t show is human female breasts. And nary a male nipple to be found. This oversight—of immense disappointment to roleplayers, naturally—was explained by the game’s director as being caused by the European ratings system. The naked truth in Sweden is that games for sixteen year olds can show demonic boobs, but not human knockers.

This raises the question: how will our future R18+ rating match the American and European ratings? Each ratings system is different, making the vaunted goal of being in line with the rest of the world perhaps difficult to achieve.

What’s allowed under R18+

Once the R18+ rating for games becomes law, games will be able to show ‘adult’ material. This is everything that’s unsuitable for minors, with two important exceptions. First, anything involving explicit, offensive sexual violence, or abhorrent fetishes will be refused classification. That stuff isn’t even allowed in film.

Second, anything involving actual sex between two real people will be refused classification. Films can be rated X18+ for that, but not games. Sadly, I’m going to have to abandon my hopes for Mass Effect 4: Kelly and Shepard’s Life After The Reapers In Glorious FMV.

However, R18+ will still allow us full-frontal make-believe nudity, which I’m sure will please the makers of The Witcher. Likewise, graphic, bloody violence, as long as it isn’t sexualised, will still be allowed.

Differences with America

The American games market is huge, so America’s ESRB system will often be the first influence on a game’s content. Here we need to make one thing clear: our future R18+ rating is in no way similar to the American ESRB 18+.

America’s obsession with free speech makes government classification of games illegal in itself. Instead, games are classified voluntarily by the industry, and major retailers have agreed to only stock classified games.

This also makes the ESRB ratings somewhat… open. While our R18+ games will still have many restrictions, ESRB Adults Only (18+) is anything goes. However, only 1% of games get an Adults Only rating. Most games fall under ESRB Teen (13+) or Mature (17+).

The classification issue this causes for us is that our MA15+ games could well be 13+ in America, and our R18+ games could be 17+ in America. Games that could fit into the ESRB 18+ rating could still be refused classification in Australia.

Differences with Europe

Just as big as America, the Europe games market includes all the members of the European Union. Each of these countries is regulated by the PEGI system. PEGI has most games falling under PEGI 12, 16, or 18.

PEGI is best described as tame at the low end but hardcore at the high end. While The Secret World at PEGI 16 cannot show human female breasts, PEGI 18 is closer to America’s ESRB 18+. PEGI 18 allows sexual violence, sadism, and many other uncomfortable pursuits.

PEGI 16 games will fall under Australians MA15 rating. However, PEGI 18 games could still exceed our R18+. Incidentally, as a PEGI 18 game, Dragon Age 2 could have been much more graphic than it was. Merril could have been so, so bad.

R18+ is still restrictive

Whenever people talk about R18+, they always do so in terms of “Bringing Australia in line with the rest of the world.” However, that’s not quite true. While R18+ will open some games up, it is not a free pass for content.

R18+ will still impose on us one of the most restrictive classification schemes in the world. Much of what will be disallowed under R18+ would still be happily stocked in Britain. And if you’ve watched V for Vendetta, that is quite something.

What R18+ really does is allow the selling of games that are ‘commercially acceptable’—those games, like the refused classification Syndicate, that are graphic enough to be confronting, yet tame enough to sell.

On the other hand, a game where you play as a serial rapist may well be legal in America and Britain, but wouldn’t sell very well. So publishers wouldn’t take it on. But in Australia, it just would just be refused classification. Unlike America that uses the market to regulate, we use the government.

This, of course, is not necessarily a bad thing. Who would want to play such a twisted game? But at the same time, the arguments of those who see Australia’s R18+ rating as ‘evil’ should be put in context. We’ve still got the most restrictive classifications out of the major western countries, and we’ve still got a long way to go before someone needs to think of the children.

Who’s to blame for cybercrime?

Cybercrime costs Australians billions, now rivalling burglary for damage caused. With the future of gaming digital, gamers are increasingly stepping into the fastest growing criminal environment in the world.

Common opinion likes to blame the victims. When the Playstation Network was hacked last year, the debate focused on Sony’s security rather than the hackers. Whenever a Diablo III player is hacked, they’re guaranteed a response of “No authenticator, no sympathy.” At the lowest point, some even side with the perpetrators. “Lulzsec is performing a public service by testing security”, or “Lulzec is a protest group.”

With the sheer numbers of scams, you’re almost guaranteed to be targeted. Is it enough to just keep your antivirus up-to-date, and trash any emails that promise naked pictures of Leliana if you click this link?

Are victims to blame?

Some truth does lie behind the common opinion. Recent studies suggest that many neglect simple measures that would otherwise protect themselves. Many don’t update their anti-virus software, and many click on phishing emails or vague promises of nudity.

However, antivirus software is not infallible. New viruses are constantly created, and security companies battle to keep up. While rigorous security would reduce the occurrence of crime, even the best anti-virus programs cannot stamp it out entirely.

Furthermore, much cybercrime is real scams where the victim cannot be blamed. The most concentrated financial damage these days comes from romance scams, where the victim’s emotional desperation leaves them vulnerable. Police lament that even when they do warn people they are being scammed, in over 75% of the cases, these warnings are ignored. While these scams aren’t that relevant to gaming, if a Kelly-lookalike ever tried to scam me… I’m not sure I could resist.

Finally, blaming the victim is simply inappropriate. In the offline world, even if a house was left completely unguarded, a theft is still a theft. While precautions can and should be taken, the responsibility for all crime lies on the perpetrator.

The rise of Skynet

The activities of obvious hackers like Lulzec attract media attention. However, it’s not these hackers that you should fear. Rather, it’s the bots.

Botnets are responsible for most cybercrime. Just like how Skynet was created, a botnet is thousands of computers unknowingly infected with a bot. This botnet is then used to conduct crime on a large and dispersed area, by running mass phishing scams and fraud across multiple states and countries.

This works because police investigations are prioritised by damage. No one, for example, will seriously investigate a $10 theft. Unfortunately, that’s what the majority of cybercrime is. Criminals will use a botnet to steal small amounts, such as $10, from a hundred people in each state. Done across all seven Australian states, that’s $7,000. Rather than lose your life savings, you’re far more likely to get pinged for a small amount.

How do we combat cybercrime?

Because botnets are so important for cybercrime, ‘making an example’ out of individual hackers is pointless. Instead, identifying and disrupting botnets is key.

The first step’s to make it harder for bots to take hold. Very basically, this requires better internet security from PC users. If you’re not using an anti-virus, you really should. If you’re downloading copyrighted material illegally, you really shouldn’t—bots will piggyback on it.

The second step’s to identify botnets. This requires a more focused effort from government. Currently, the government’s cybersecurity focuses on protecting national security. However, that’s not where the problem lies. Organised cybercrime is growing at a far faster rate than espionage.

The third step is to clean infected computers. Japan runs a model program for this—the Cyber Clean Centre. The Centre is a partnership of government, ISPs, and internet security companies that assists PC users in identifying and removing bots from their computers.  When an ISP detects bot activity, the user is informed, and asked to take action. The Centre then assists the user to remove the bot.

Australian ISPs are running a similar system to the Japan model, called iCode. This is based on cooperation between ISPs to detect bots, and help users remove them. It’s a start, though completely ISP-based.

We need more investment

Currently, Australian Government efforts to disrupt botnets are inadequate. The problem is not enforcement—it’s investment. Our traditional enforcement agencies are simply incapable of dealing with the problem. We have no real centralised agency to address the problem, and little collected data on cybercrime in Australia.

Until we get this investment, Australian internet users will be vulnerable. Protecting your own PC is good, but it doesn’t stamp-out the existing botnets, used to make further attacks on you. It doesn’t identify cases where bots manage to run the gauntlet of antivirus software, evading deletion. It’s not enough for the Government to leave it to private companies.

Cybercrime is a complex, wide-ranging problem. Blaming the victims is unnecessary. Blaming hackers misses the point. What’s needed is a rigorous attack on the real enemy—Skynet.

In yet another Diablo III debacle, serial key websites have threatened to sue Blizzard for bricking their stock of foreign Diablo III keys. A recent hotfix has seen gamers unable to use the English language patch on Russian and other foreign versions of the game, getting stuck with skill descriptions such as “Target impales you for 250% damage”.

games.on.net reported earlier that the issue exploded over the Blizzard forums. Hundreds of gamers are upset that the games they bought under an assurance that they’d be able to convert them to English no longer work. However, we need to be careful and not jump to conclusions before the evidence is tallied.

Two sides to the story

The case of the serial key sellers hinges on what Blizzard said to them before release. They’re claiming that Blizzard sold them fixed-language games promising that they were the standard editions. If this is true, then it’s possible that the serial key sellers have a case to sue Blizzard for fraud. However, it’s also possible that the key sites simply didn’t pay attention at time of purchase, and passed this ignorance onto their customers.

Unfortunately, we can’t know which of these scenarios happened. The only way to work this out is to know the private discussions between Blizzard and the key sites. Without this knowledge, speculating on who said what is pointless. Proving fraud is difficult, and requires more than someone simply losing money. It would have to be shown, for example, that Blizzard purposefully misled the serial key sites. We don’t know this.

However, what we do know is that serial key sites are calling for gamers to stand behind them. So what we can do is to look at whether gamers themselves have legitimate reason to be angry at Blizzard.

Blizzard’s defence: buyer beware

Blizzard has been quiet on the issue, simply pointing to their Global Play FAQ. This FAQ states: “Your game language and interface will remain the same when you change regions. If you purchased the full-language version of Diablo III, you will be able to play in all available languages in all regions. To play in a different language, you will first need to download the Diablo III game client for that language from Battle.net.

If you purchased the Korean, Russian-language-only, traditional-Chinese-language-only, or another language-limited version of Diablo III, you will only be able to switch to the languages you’ve purchased. You will, however, be able to play in all three game regions using the language you purchased. Note that the Korean-language client does not contain the real-money auction house interface.”

If I saw this on a website, then I wouldn’t buy a Russian version of a game. To have a character with hundreds of hours of play suddenly speaking Russian because you were accidently given the wrong version of the game is too big a risk.

So this does have some clout if we’re talking about gamers who bought Russian keys just to save money. They didn’t do their research, took a risk, and got burned. This happens every day, and doesn’t justify a lawsuit in itself.

Legitimate complaints

The gamers with legitimate complaints are those in foreign countries who don’t speak the native language. As anyone who’s ever travelled overseas knows, arriving in this position is quite easy. It appears that all physical copies sold in foreign stores are language-limited, and that furthermore, nothing on the game boxes mentions this limitation.

If you buy the game in France, expecting to be able to run it in English because you a) don’t speak the language, or b) can speak both languages but don’t like that the localisation makes Leah sound like Leliana (shame on you), you’re out of luck. You’re stuck with Diablo III in French, even though English patches have been readily available from Blizzard.

Unfortunately, it’s unlikely that these gamers have any direct case with Blizzard. Because the problem was created by not buying from Blizzard in the first place, no contract was created between the gamer and Blizzard. These gamers will have to return the game to their retailer, and hopefully that retailer will help.

EULA fail

The Global FAQ states that limited versions simply won’t work in English. But what’s happened is the games did indeed work in English… and then Blizzard discovered they hadn’t activated the language restriction. Gamers were caught out by the sudden change.

This is important because the Diablo III EULA is meant to give the gamer protections to stop this from being an issue. The EULA allows you to seek a refund direct from Blizzard if you decide you don’t want to play the game before installing it. Unfortunately, because this hotfix has come so late, and because gamers were given no other indication that they may be playing a limited version, no one was able to take advantage of their legal rights under the EULA. No one was able to say “Oh it looks like my game won’t work in English, best get a refund before I sink a hundred hours in.”

Rather than illegal, Blizzard’s actions in this whole debacle are best seen as a large company using their own power, and customers unable to exercise their own rights. The most we can hope for is that Blizzard has enough profit motive to listen to the complaints, and not just pass them off.

Play games online, and you’ll suffer lag. With each of us living an entire ocean away from the nearest American servers, we’re lucky to get under 200ms latency.

Our most recent lag debacle was Diablo III. While touted as being completely playable for Australians, when it launched the problems became obvious. Yellow and red spikes have been common, making play difficult at times. Other countries also suffered, even those with local servers. In Korea, the situation got so dire that the Korean Fair Trade Commission raided Blizzard’s offices to find evidence about whether enough servers were provided for smooth play.

In response to these problems, some gamers have sought a refund. This is just the beginning, too: the problem will get worse as more games come online. So today we’ll look at when lag entitles you to a refund.

Reasonably fit for play

The Competition and Consumer Act (formerly the Trade Practices Act) entitles you to seek a refund if the product or service is not reasonably fit for the purpose you bought it. With physical goods this is easy—a shoe, for example, shouldn’t fall apart.

‘Reasonably fit’ for games hasn’t been defined yet. However, I’d argue that constant yellow latency fails the test (anything over 300ms). Games are designed to work at green latency, and if you can’t achieve this regularly, then playing the game is somewhat like wearing a shoe and having the heel fall off mid-step. You can still wear the shoe, but walking becomes uncomfortable.

These rights of yours as a consumer override anything in the game’s EULA. Even though Blizzard says that a refund will only be granted if you don’t install Diablo III, this is incorrect. Regardless of what the EULA says, you are entitled to seek a refund if you often struggle with yellow latency.

What about overseas companies?

The Competition and Consumer Act applies to companies trading in Australia. With all publishers being overseas-based, whether our laws apply or not depends on the size of their Australian presence. It’s reasonable to argue that Blizzard trades in Australia. They even have an Australian Business Number: 90 054 096 883.

They provide goods to Australian retailers. They also supply Australian-specific items, like Australian versions of account authenticators. As such, they’re bound by our laws, regardless of where their website comes from.

On the other hand, Funcom is not bound by our law. They don’t have any Australian presence, and when you play Age of Conanor The Secret World, you’re buying a service from a Norwegian business.

Getting a refund

If everything said above applies to your case, then the Trade Practices Act entitles you to cancel your purchase. The seller is then expected to honour your decision and refund the purchase price. This means that getting a refund is a private dispute.

As such, your first option is to write to the company, seeking to cancel your purchase and ask for the refund. Generally, if you write respectfully, and highlight your rights, you’ll probably get a refund. For most companies, paying a refund is cheaper than getting lawyers to advise them on the merits of your claim, especially if the buyer knows what they’re talking about.

If this fails, you can complain to the Australian Competition and Consumer Commission, but they’ll probably tell you that you need to start private legal action. However, this would be the end of the line for most people. While it would be amusing to see Blizzard sued in the Small Claims Court for $80, it’s probably not worth it, as this would cost you more than $80.

It all comes down to money

For most large publishers, everything comes down to money. We lack local servers for many games because they would cost more than the publisher would gain. Star Wars: The Old Republic is the exception, but this also comes down to money: it’s a way to steal buyers away from their main competitor—World of Warcraft.

If you want lag-free, local servers for games, then what’s needed is simple: all Australians must refuse to buy overseas-based games. Obviously, this is a tall order. As a huge Diablo fan, I myself won’t do this. Spending intimate weekends with Kellygrrl the Demon Hunter is better than showing nationalistic solidarity.

The next-best action is to complain. Even if you don’t seek a refund, simply starting a game petition whenever you encounter latency problems will keep the issue on the radar. If enough Australians do this, such regular petitions may prompt the publisher to take action. Maybe it’s self-entitled, but we shouldn’t have to suffer through lacklustre play when no other options exist.

Piracy’s a dying profession. Pirated games are now lonely affairs, ripped from their multiplayer and online achievements. Such pitiful shadows are worthless to many gamers.

Cloud gaming will continue this trend. Diablo 3 launches next week, being the first online-only game of the series. With critical files stored on Blizzard’s servers and streamed to players in-game, pirating Diablo 3 will be difficult: simply removing DRM won’t work.

Enter the ninja

Bypassing cloud protection requires a form of reverse-engineering. Files need to be intercepted from the server, and reconstructed by the client. Eventually, an emulator is made which mirrors the official server, allowing offline play. While technically possible, it’s no longer piracy: it’s espionage—the realm of ninjas.

Server files are trade secrets. To use the Diablo 3 example again, Blizzard’s not giving the server files to players, nor give any real insight into how they work. Reverse engineering’s the only way to acquire them, which is prohibited by Blizzard’s end user agreements. This combination of secrecy and prohibition makes the workings of the game servers secret.

Secrets deserve to be protected

Piracy is often justified on grounds that it doesn’t hurt anyone. That pirates weren’t going to buy the game anyway, and that piracy is ‘copyright infringement’, not ‘stealing’. However, stealing trade secrets is just that: stealing. Secrets get their value from being, well… secret. The information advantage is lost if a competitor gets their hands on them.

Non-disclosure agreements are used to protect trade secrets in beta tests. A competitor developer can’t mine a beta for game data, because if it showed up in their games, the original developer could take legal action. The only reason that gamers are allowed to play betas is because NDAs protect against corporate espionage.

Cloud gaming also depends on keeping its server files secret. Not only does it protect players against hacks, but the technology itself is valuable. When I played the Diablo 3 beta, for example, I experienced no lag—it felt like a single player game. In a worldwide market, where many customers live far from the server, Blizzard wants to keep this technology from competitors.

Publishers are justified in using the often aggressive means they take to protect their secrets. Taking secrets isn’t a victimless crime—it removes something that’s real.

Do ninjas fight DRM?

The counter-argument is that reverse engineering helps overcome harsh DRM. Who is Blizzard to tell you that you can’t play Diablo 3 on your outside toilet in Tasmania that lacks an internet connection? Reverse engineering is arguably justified when DRM is simply stopping you from experiencing something you already hold. A good example is region restrictions on DVDs: these simply scramble the code to make Australians pay higher prices. There’s no good argument for publishers being allowed to do this: you’ve already paid the publisher for the DVD, and you’re entitled to import it cheaply.

But cloud games aren’t fully held by you, the gamer. The gamer only gets enough code to display the game on their computer. Critical data is stored on the server and streamed during play.

This is more than DRM because the gamer gets substantial benefits from the online connection. Two of the biggest are easy access to multiplayer games and increased protection from hacks. Neither could be provided without the online requirement—online-only means a large multiplayer population, and protecting the server code makes it difficult to hack.

Converting a cloud game to a single player game through reverse engineering is taking what the publisher hasn’t given you, and changing it to something else—with completely different benefits. It’s not fighting DRM. It’s taking what’s not yours.

Serious consequences await ninjas

In 2010, Blizzard was awarded compensation of $88.5 million against the makers of one World of Warcraft emulated server. The server allowed players to play WoW without any fee, and had also taken several million in donations. Blizzard did not approve.

This also demonstrates how the damage from emulated servers can be calculated, rather than the constant questioning of ‘Did pirates really want to buy the game anyway?’ If players make the effort to connect to a server, and play over a period of time (not to mention donating to keep it running), this demonstrate that yes, they do want to play the game. The direct losses to the publisher can then be calculated with some certainty.

As more games enter the cloud, these sorts of cases will become more common, and pirates who just remove DRM will become a thing of the past. Instead, future pirates will need to actively hack the data coming from the game server: true espionage that interferes with property that was never given to them. While the debates about piracy will continue, arguing that ninjas are as righteous as their pirate forebears becomes much more difficult.