The Needles: Michael Pachter, Ubisoft and the Perils of Rights and Wrong

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Don't know if anyone mentioned it yet, but there was any article on this site a few days ago that mentioned what some pirated copies of Arkham Asylum used as a way to deter pirating: it removed a small game mechanic, but this made a portion of the game near impossible to beat. It took out the ability for Batman to jump/glide. Regular bought copies of the game functioned as normal. I think doing something like that would target the people the companies are trying to target without hurting those of us who purchase the game.

Thoughts?

Srdjan:

theSovietConnection:

Srdjan:
I say that piracy isn't as bad as you all say. When I copy game, I don't steal anything and I don't stop company from gaining money from that game

Actually, you do.

Suppose I were to pirate a copy of Medal of Duty 5: The Nazi Zombie Horde. Am I playing the game? Yes, that is an inarguable fact. Has the publisher made money off me playing the game? No they have not. Regardless of whether or not I would have bought the game anyways, I'm playing it, and the publisher hasn't made money off it. So it is in fact a lost sale and money not gained off a copy of their game.

They couldn't lose the sale because don't have sale until I purchuse the game, which I, in any scenario, wouldn't do. They could gain off their copy because I didn't steal their copy I made my own, which they couldn't gain off because it didn't previously existed, so I didn't damaged their interest.

But at the end of the day, you are playing a copy of their game. It's like the example of the winning the lottery that Vorocano posted.

Vorocano:
For example, let's say you win $500 in the lottery. That night, your friend goes into your room and takes $250. When you confront him about it, his response is, "Well it's not really stealing, because it didn't cost you anything. You're still $250 ahead." That's logic that wouldn't fly with anyone that has more than two brain cells to rub together.

You are playing a copy of their game, a copy which was not paid for. If you weren't going to buy the game, don't play it.

Once upon a time I used to be someone that bought tons of games. I have bookcases full of old games. However, a ways back the publishers decided to start treating me like I was a criminal. They started implementing restrictive, intrusive, annoying, and in some cases, downright harmful DRM into their products. Since these companies are so hell bent on treating their customers like criminals they shouldn't start crying when that's ultimately what they become.

It used to be that the customer gave his hard earned money for a game he could play whenever they wanted, a game they could resell or give away or trade in. Now though the publishers want to get as much of our money as they can and give us back as little as humanly possible. They want to charge us MORE and give us a glorified rental in return.

The way I see it is two can play their game. If they want to give us virtually nothing for our hard earned money we can in turn give them the same for their products. Admittedly they have the law on their side but we have obscene numbers and virtual anonymity our side. Also I admit it's a viscous cycle and both sides are firmly entrenched. However, let's not be so blind as to assume these companies like Ubisoft, EA, and the like are any less driven by greed than the pirates.

theSovietConnection:

Srdjan:

theSovietConnection:

Srdjan:
I say that piracy isn't as bad as you all say. When I copy game, I don't steal anything and I don't stop company from gaining money from that game

Actually, you do.

Suppose I were to pirate a copy of Medal of Duty 5: The Nazi Zombie Horde. Am I playing the game? Yes, that is an inarguable fact. Has the publisher made money off me playing the game? No they have not. Regardless of whether or not I would have bought the game anyways, I'm playing it, and the publisher hasn't made money off it. So it is in fact a lost sale and money not gained off a copy of their game.

They couldn't lose the sale because don't have sale until I purchuse the game, which I, in any scenario, wouldn't do. They could gain off their copy because I didn't steal their copy I made my own, which they couldn't gain off because it didn't previously existed, so I didn't damaged their interest.

But at the end of the day, you are playing a copy of their game. It's like the example of the winning the lottery that Vorocano posted.

Vorocano:
For example, let's say you win $500 in the lottery. That night, your friend goes into your room and takes $250. When you confront him about it, his response is, "Well it's not really stealing, because it didn't cost you anything. You're still $250 ahead." That's logic that wouldn't fly with anyone that has more than two brain cells to rub together.

You are playing a copy of their game, a copy which was not paid for. If you weren't going to buy the game, don't play it.

Example is not in place and not nearly of what I am saying, He did steal money that you in one time had. Developers never had that money and under no circumstances they wouldn't have that money.

You people just can't fit in your heads the logic. Next time read all my posts on this subject and when you come near of the point, then answer, until then you are just wasting time of both of us.

Andy Chalk:
But all that hair-trigger anger seems to have blinded us to the rather important fact that Pachter is absolutely, 100 percent correct.

"...and I think that people who steal should be in jail," he said.

Perhaps not 100% right. Depending on your definition of stealing and jail, otherwise Warner Bros. are in for a long spell in the clink.

Therumancer:
Actually I think the problem is that Michael Pachter didn't focus much on the effects on legitimate users. Their rights to own and use their own games as they see fit, which is where he fails. What a company like Ubisoft is doing does not just protect their property, but infringes on the rights of those who purchused the games legally.

As far as Ubisoft being legally right, I am not entirely sure about that one. I suppose it can be argued legally, but only because I feel the goverment has yet to seriously pay attention to the games industry and what it does. All of this junk about EULAs and the like are legally dubious because they are something that you run into AFTER you've paid money and can't return the product. That's a key element that all of these arguements seem to miss entirely.

I think to some extent the games industry has gotten away without signifigant legal investigation or action, that it has developed something of a god complex when it comes to their "rights" to abuse customers. Things like price fixing, arranging release schedules to avoid direct competition, and similar things are all illegal at least in the US. Heck they publicly admit to large scale "game developer conferances" which exist to more or less set industry policy and standards. Before someone questions this, consider that this is pretty much what gas companies have been under investigation/in battle over for years now, over fixing prices at the gas pumps and coordinating price hikes accross the spectrum (which is what the games industry did a few years ago when they raised game prices by $10 accross the board). It's just that nobody yet cares.

To me, I think DRM is immoral, hurts legitimate buyers (which some people do mention), and when it's draconian and affects what you can do with your property is not properly presented like a contract should be before you pay money for what is more or less an unreturnable product.

Stop and think about this some time. Pirates aren't right, but neither is the game industry. Neither has a moral high ground here. Legitimate customers are the ones getting hurt by what amounts to two groups of criminals duking it out.

Such is my opinion.

This is basically what I came here to say.

You like gabbing off about legal rights (directed at the OP), and "actual" rights, but the fact of the matter is that many times DRM, in addition to not affecting pirates at all, infringes on the LEGAL RIGHTS of legitimate customers.

So yeah. Sorry, but your article is wrong. Any "actual right" which infringes on the legal rights of others is not a right at all but something we have allowed a company to get away with.

I wish people would stop seeing the word "EULA" and reading "legally binding contract," because in truth it's as Therumancer said-a big part of why game companies get away with what they do is because it's never been popular for lawyers to defend the legal rights of gamers.

If you want to present this article as 100% opinion, then fine. But when one argues about objective morality or at least legal morality, I feel obligated to point out (even if I was beaten to it slightly by the fine fellow I quoted) the massive holes in your argument.

Irridium:

EULAs are not contracts people need to stop pretending they are. Copyright laws are pretty clear in countries and all countries that are a part of the Berne Convention for the Protection of Literary and Artistic Works (almost all of them) share copyrights across boards and have the same basic protections.

First Sale Doctrine (using the US example but mostly the same everywhere) means you own a copy of whatever material you bought. Inherent is the rights to sale the copy, and use the copy how you please. Think of a book. This is the traditional way to view copyrighted materials sold on some type of media, and the one I believe they should force companies to abide by.

Software companies try to get around this by saying they are selling you a license to use their product, not a copy of the software. The EULAs are to that effect. However courts have held up in some situations where if the EULA was not fully disclosed to the customer prior to the sell (remember not agreeing means you can't use it, and since you have to start to install it to see it you can no longer return the opened copy of the software) that the EULA is void that First Sale Doctrine applies.

Just because they put it in writing does not mean it's legal.

Also, this.

For me, the bottom line is this: while this particular system of DRM is in place, I'm not buying new games from Ubisoft. It may be your "right" to make legitimate consumers navigate a maze of barbed wire and attack dogs just to get to the content they allegedly, in the consumer-screwing pile of licenses and small print that constitutes a modern EULA, purchased. Just as it may be your "right" to carry assault weapons in heavy populated public areas, or scream that the person whose funeral is being held is going to hell (your local laws may vary, lucky you.) But that it is a "right" you're exercising doesn't mean you aren't a huge asshole.

What I want to know is this: Why does anyone give a shit what Pachter has to say in the first place?

But if I had to comment more specifically on this, I'd say that I don't like that he seems to think anyone disagreeing with Ubisoft's right to make consumers jump through hoops is automatically a pirate who doesn't "pay for stuff". I pay for plenty of stuff, thank you very much. Just no stuff with the Ubisoft logo (and EA logo on a PC box) because their DRM is shit. And by not paying for that, I don't mean pirating. I mean not playing it at all.

I came to grips with this before Pachter ever opened his mouth.
Ubisoft wants to force DRM down my throat? Fine. I don't do business with Ubisoft. If it says "Ubisoft" on the package as either publisher or developer, I don't even look at it.

Vote with your wallet.

Srdjan:
Example is not in place and not nearly of what I am saying, He did steal money that you in one time had. Developers never had that money and under no circumstances they wouldn't have that money.

You people just can't fit in your heads the logic. Next time read all my posts on this subject and when you come near of the point, then answer, until then you are just wasting time of both of us.

I think they point they were going for here is "If you didn't pay for the game, you don't have the right to play it."

You can try to justify your piracy all you want, but if you didn't buy a copy, you shouldn't get to play.

mjc0961:

You can try to justify your piracy all you want, but if you didn't buy a copy, you shouldn't get to play.

Heh. And Ubisoft responds with "You bought the game, you might get to play."
Legally, that is barely inches above being a scam.

Piracy is piracy. It is not justifiable by law. Ever. No argument presented to date can change that.

To quote a (butchered) old proverb.
"If there is poison in the wound, it must be cut out before it spreads."
Vote with your money if you think DRM is wrong. Don't buy. Don't pirate. Let them die in obscurity.

Atmos Duality:

mjc0961:

You can try to justify your piracy all you want, but if you didn't buy a copy, you shouldn't get to play.

Heh. And Ubisoft responds with "You bought the game, you might get to play."
Legally, that is barely inches above being a scam.

Piracy is piracy. It is not justifiable by law. Ever. No argument presented to date can change that.

To quote a (butchered) old proverb.
"If there is poison in the wound, it must be cut out before it spreads."
Vote with your money if you think DRM is wrong. Don't buy. Don't pirate. Let them die in obscurity.

Yeah, I knew all that already. I don't pirate anything, I just don't play it at all. I'd love to play Command and Conquer 4, but what's this? Always online DRM scheme? Suddenly I don't want to play anymore.

Atmos Duality:
I came to grips with this before Pachter ever opened his mouth.
Ubisoft wants to force DRM down my throat? Fine. I don't do business with Ubisoft. If it says "Ubisoft" on the package as either publisher or developer, I don't even look at it.

Vote with your wallet.

Exactly. For those wanting to send a message to Ubi, this is the only way to do it. Don't like how they're running things, then don't play their games, period.

When Ubi sees you pirate their games all they are seeing is people who want their games. The jury is still somewhat out on just how many extra copies would be sold if piracy was literally impossible, but Ubi doesn't see it that way. All Ubi sees in pirates are people who are playing their games who didn't pay for them and all they want is to make those people pony up.

mjc0961:

Srdjan:
Example is not in place and not nearly of what I am saying, He did steal money that you in one time had. Developers never had that money and under no circumstances they wouldn't have that money.

You people just can't fit in your heads the logic. Next time read all my posts on this subject and when you come near of the point, then answer, until then you are just wasting time of both of us.

I think they point they were going for here is "If you didn't pay for the game, you don't have the right to play it."

You can try to justify your piracy all you want, but if you didn't buy a copy, you shouldn't get to play.

Agreed

StriderShinryu:

Atmos Duality:
I came to grips with this before Pachter ever opened his mouth.
Ubisoft wants to force DRM down my throat? Fine. I don't do business with Ubisoft. If it says "Ubisoft" on the package as either publisher or developer, I don't even look at it.

Vote with your wallet.

Exactly. For those wanting to send a message to Ubi, this is the only way to do it. Don't like how they're running things, then don't play their games, period.

When Ubi sees you pirate their games all they are seeing is people who want their games. The jury is still somewhat out on just how many extra copies would be sold if piracy was literally impossible, but Ubi doesn't see it that way. All Ubi sees in pirates are people who are playing their games who didn't pay for them and all they want is to make those people pony up.

Also this

TheKruzdawg:
Don't know if anyone mentioned it yet, but there was any article on this site a few days ago that mentioned what some pirated copies of Arkham Asylum used as a way to deter pirating: it removed a small game mechanic, but this made a portion of the game near impossible to beat. It took out the ability for Batman to jump/glide. Regular bought copies of the game functioned as normal. I think doing something like that would target the people the companies are trying to target without hurting those of us who purchase the game.

Thoughts?

Pirates can undo that kind of thing too. It's inventive, I like it...but it's a stall at best.

I think it's sad that pc gaming is heading this way. I already have steam and games for windows live and...god knows what else installed. I don't want it to get to the stage where every company has their own form of protection that requires a login and a constant net connection.

As for "100% correct"...when is any position ever 100% correct? He may have touched on truths, but he was meant to be answering a question from a fan, who asked specifically if the online DRM was a good idea, not whether it was morally right...Mr Pachter vaguely addressed the issue of DRM and otherwise completely missed the point of the question. He may have made a decent point or two, but in the context he sounded like an asshole.

If the implication is that we should expect Mr Pachter to go off on a tangent and adjust our understanding accordingly, maybe he shouldn't mislead us by posing a fan question to himself and then ignoring it. Context matters...

"Games developers don't care if you resell it, or give it away"
Wrong. They care very much.

I remember back in the day, when PC gaming mattered. It doesn't. Not anymore. And DRM helped cause that, big time. You don't hear about the cool new RPGs or first-person shooters made special for the home computer like you would in the 90s, because that market is becoming more restrictive while other avenues have opened up. Instead of seeking ways to bring in new gamers, companies focus on punishing existing offenders. This is not a strategy that leads to long term viability.

I wouldn't be surprised if this arms race keeps going. Ubisoft and the like aren't going to be shutting down their PC development wings for some time, and so long as they keep going, the hackers and crackers will keep going, releasing both direct digital copies and CD cracks intended to circumvent this sort of DRM on legally obtained copies. No, digital piracy isn't right. If you enjoy something, then logically, you should pay for the enjoyment. Just because you think a movie is going to suck doesn't mean you can walk into the theatre and have a seat in the back row without paying. In doing so, you'e not sticking it to the man; you're hurting everyone involved in the process, from the guys who made the movie down to the guy at the front selling tickets.

But what Ubisoft and their ilk don't get is that they're poisoning the watering hole to kill the bandits. Long term, this WILL end the PC gaming market as anything but a platform for casual, indie, and MMO games. And even then, those three are starting to look to home consoles as brighter waters with better sales figures. Gamers are looking for ways to avoid restrictive DRM schemes so they can play what they bought with their own money; consoles provide that out of box.

And to all those who harp on about PC games being unresellable, there's a website. It's called eBay. No, it's not a perfect fix, but if you're so damn desperate to sell your games, you DO have options, regardless of what the companies or GameStop or any of that ilk might say.

My problem with Pachter in this article is not so much his stance on DRM but his closing attitude of "If you disagree with me, you're a bloody pirate and you should be in jail."

Questioning this stance doesn't make me a pirate. I did not buy Assassin's Creed 2 and I am not going to. Nor am I going to pirate it. I'm going to choose to avoid it altogether because I refuse to accept the terms required for it.

Sure, lots (hell, maybe even most) of the people who disagree with Pachter here are going to pirate the game. But that doesn't mean everyone will and it doesn't make everyone who thinks differently a criminal. The implication of criminalising dissent is definitely not a place he wants to go.

I've noticed two basic things in my surfings of forum posts, both on the Escapist and elsewhere.

The first is that no matter how one rationalizes piracy, there are really only 3 prime reasons I can see why someone does it: being lazy, cheap, and a self-centered douche-bag; I've heard other reasons, but those reasons turn out to be just covers for this same set of 3. If it's not a necessity of life, like food, air, water, and shelter, you can just live without it.

The second is that nerd-rage always seems to center on a skewed childish sense of entitlement--"I want this; I want that; I want everything. Give me anything, cause that's what I want and that's what I like, and you better give it to me now!"(Hell, many adults are like this.)--which, of course, blinds them to any sort of reason or rationality. Their shrill posts often bare this attitude out when a situation is presented in which they can't get what they want or can't get it easily.

I've mentioned elsewhere that I agree Ubisoft is 100% in their legal, and even moral, right to act as they have, creating the DRM system that they have. However, at the same time, customers are 100% in their right to not purchase a product they deem is devalued(or inconvenient) as a result of such an aforementioned system(or for any other various reasons, such as it being made by Apple, Microsoft, Google, The Favorite to Hate This Week Company, etc.). This does not give license, right, or entitlement to pirate in any way, shape, or form; it is merely a choice to be without the product or find alternatives that can be purchased. This is not a question of right and wrong; it's merely a question of customer choice of values and sound business strategy. Inconveniencing your customers unnecessarily, treating your customers poorly, and devaluing your product, in the judgement of your customers, while continuing to charge a significant price does not lead to a sound business strategy, in my assessment.

Sabrestar:
My problem with Pachter in this article is not so much his stance on DRM but his closing attitude of "If you disagree with me, you're a bloody pirate and you should be in jail."

Questioning this stance doesn't make me a pirate. I did not buy Assassin's Creed 2 and I am not going to. Nor am I going to pirate it. I'm going to choose to avoid it altogether because I refuse to accept the terms required for it.

Sure, lots (hell, maybe even most) of the people who disagree with Pachter here are going to pirate the game. But that doesn't mean everyone will and it doesn't make everyone who thinks differently a criminal. The implication of criminalising dissent is definitely not a place he wants to go.

I'd argue criminalizing dissent is EXACTLY what the industry would like to accomplish. If you can't argue against it, you can't fight it. You can only accept it.

Therumancer:
Actually I think the problem is that Michael Pachter didn't focus much on the effects on legitimate users. Their rights to own and use their own games as they see fit, which is where he fails. What a company like Ubisoft is doing does not just protect their property, but infringes on the rights of those who purchused the games legally.

Let me put it this way, if Ubisoft goes out of business, meaning no servers and online verification, how do I play the game I paid a bunch of money for? I as a consumer have the right to MY property indefinatly. Some of us do play old games, some of which are a decade or more old, and I feel that is our right.

As far as Ubisoft being legally right, I am not entirely sure about that one. I suppose it can be argued legally, but only because I feel the goverment has yet to seriously pay attention to the games industry and what it does. All of this junk about EULAs and the like are legally dubious because they are something that you run into AFTER you've paid money and can't return the product. That's a key element that all of these arguements seem to miss entirely.

I think to some extent the games industry has gotten away without signifigant legal investigation or action, that it has developed something of a god complex when it comes to their "rights" to abuse customers. Things like price fixing, arranging release schedules to avoid direct competition, and similar things are all illegal at least in the US. Heck they publicly admit to large scale "game developer conferances" which exist to more or less set industry policy and standards. Before someone questions this, consider that this is pretty much what gas companies have been under investigation/in battle over for years now, over fixing prices at the gas pumps and coordinating price hikes accross the spectrum (which is what the games industry did a few years ago when they raised game prices by $10 accross the board). It's just that nobody yet cares.

To me, I think DRM is immoral, hurts legitimate buyers (which some people do mention), and when it's draconian and affects what you can do with your property is not properly presented like a contract should be before you pay money for what is more or less an unreturnable product.

Stop and think about this some time. Pirates aren't right, but neither is the game industry. Neither has a moral high ground here. Legitimate customers are the ones getting hurt by what amounts to two groups of criminals duking it out.

Such is my opinion.

I do beleive that you are 100% right, at the very least someone in the courts (not just in the US but in Europe and other places needs too) take a serious look at the game develpoer's policy and actions.

as for the Ubisot thing the consummers I think need to get their colective acts together and get them to provide some form of provision for when they go out of buissnes. A petition maybe?

All in all I think Valve's steam stystem is as stated in the article, something of a holy grail when it comes to this kind of thing, monitering games via user acounts and passwords (which as i'm sure everyone hooked up to steam in any way knows) allows you to install steam on multiple computers and just re download your games onto multiple machines. Barring ilegal hacks and account sharing there seems to be little worng with that system. Although I must admit having no DRM whatsoever and trusting to goodwill seams like it would keep everyone happy =D.

poiuppx:
I remember back in the day, when PC gaming mattered. It doesn't. Not anymore. And DRM helped cause that, big time. You don't hear about the cool new RPGs or first-person shooters made special for the home computer like you would in the 90s, because that market is becoming more restrictive while other avenues have opened up. Instead of seeking ways to bring in new gamers, companies focus on punishing existing offenders. This is not a strategy that leads to long term viability.

I wouldn't be surprised if this arms race keeps going. Ubisoft and the like aren't going to be shutting down their PC development wings for some time, and so long as they keep going, the hackers and crackers will keep going, releasing both direct digital copies and CD cracks intended to circumvent this sort of DRM on legally obtained copies. No, digital piracy isn't right. If you enjoy something, then logically, you should pay for the enjoyment. Just because you think a movie is going to suck doesn't mean you can walk into the theatre and have a seat in the back row without paying. In doing so, you'e not sticking it to the man; you're hurting everyone involved in the process, from the guys who made the movie down to the guy at the front selling tickets.

But what Ubisoft and their ilk don't get is that they're poisoning the watering hole to kill the bandits. Long term, this WILL end the PC gaming market as anything but a platform for casual, indie, and MMO games. And even then, those three are starting to look to home consoles as brighter waters with better sales figures. Gamers are looking for ways to avoid restrictive DRM schemes so they can play what they bought with their own money; consoles provide that out of box.

And to all those who harp on about PC games being unresellable, there's a website. It's called eBay. No, it's not a perfect fix, but if you're so damn desperate to sell your games, you DO have options, regardless of what the companies or GameStop or any of that ilk might say.

Agreed

Ubisoft needs a serious slap round the face, but so do the pirates.

I expect to be banned for this post but it has to be said so here goes.

Anyone who thinks piracy is theft is a FUCKING MORON!

If walk into my local game shop and STEAL a copy of Dragon Age (for example) then said game shop (and potentially the publisher and developer, more on that in a moment) has just lost money because they will never be able to sell that copy and get a return on their investment. however, if I download a torrent then game shop, publisher and developer have only potentially lost money (depending on whether I was ever actually going to buy it). Piracy is wrong, theft is wrong, but they are two different things and one is the lesser of two evils. just because someone will play your game when they have access to it for free, does not mean that they are willing (or able) to pay to play it.

Therumancer:
Actually I think the problem is that Michael Pachter didn't focus much on the effects on legitimate users. Their rights to own and use their own games as they see fit, which is where he fails. What a company like Ubisoft is doing does not just protect their property, but infringes on the rights of those who purchused the games legally.

This is pretty much exactly what I'm talking about. Where do you get the idea that you have a legal right to own and use videogames as you see fit? It's a completely false assumption from which a lot of seriously misinformed opinions flow.

Wuvlycuddles:
I don't think publishers have the right to do whatever they want to stop piracy, there is a line in the sand and that line is making things difficult/annoying/restrictive for PAYING customers. Ubisoft crossed it, which is why i haven't bought the latest Settlers game in spite of being a huge fan of the series.

Okay, well, you're wrong. That said, assuming your response to Ubi's nonsense is to just not buy the game, then well done, you've made the right move.

That's really kind of the point. Ubisoft has the right to use any DRM system it wants. We have the right to call bullshit and not buy. Full stop. That's where a real dialog about piracy should begin, but it can't because people insist on clinging to selfish, sometimes idiotic ideas about what they're entitled to.

Samurai Goomba:
You like gabbing off about legal rights (directed at the OP), and "actual" rights, but the fact of the matter is that many times DRM, in addition to not affecting pirates at all, infringes on the LEGAL RIGHTS of legitimate customers.

Such as?

Before you bring up the Sony thing (as someone else already did) do bear in mind that I specifically stated that companies have the right to employ whatever DRM methods they like "within the confines of the law." (Something like that, anyway.) Obviously they can't come over to your house and kneecap you if they catch you downloading their stuff.

But this is all missing the point. This isn't even about DRM, it's about talking about DRM. And the point is that it's impossible to have a meaningful conversation about DRM and how we, collectively, can come up with effective, consumer-friendly methods of copy protection because everyone involved is just way too hot and ready to jump into the action with both guns blazing, no matter how misinformed or wildly off-base their opinions may be.

Case in point: Read up.

Andy Chalk:

Therumancer:
Actually I think the problem is that Michael Pachter didn't focus much on the effects on legitimate users. Their rights to own and use their own games as they see fit, which is where he fails. What a company like Ubisoft is doing does not just protect their property, but infringes on the rights of those who purchused the games legally.

This is pretty much exactly what I'm talking about. Where do you get the idea that you have a legal right to own and use videogames as you see fit? It's a completely false assumption from which a lot of seriously misinformed opinions flow.

I've received several posts mentioning functionally the same thing. So I'll respond to you since your one of the red guard.

There is no misunderstanding here, when you buy the game you do have a right to use your own property as you see fit. That copy of the game is yours, period. That's the end of the matter.

Now, I *DO* understand the points being made about the EULA, and game companies wanting to claim that your effectively purchusing a liscence to use the product from them. This is incorrect. Does anything on the box of a video game say this? No it does not. All of the claims to this effect are contained within agreements included in the software, which can only be accessed once you've paid money and cannot gain a reimbursement.

What this means is that those "contracts" are not in any way binding, it's just a giant wall of text in your way to installing the game. You can't sell someone something, and then after the deal is done, try and limit what they do with it retroactively. A contract has to be signed as part of the agreement to begin with, when the money is changing hands.

What's more there are laws specifically designed to protect people from this kind of thing. Among other things that can include misleading language, concealed language, and referancing other documents that are not provided in full. Meaning someone can't just mention there is an EULA involved in a quick line on the back of a box or whatever.

While it can also be touchy people are also protected from their own stupidity in many states. People can, and have, beaten even signed contracts by claiming that they didn't understand what they were signing, and that effort was taken to deceive them into doing so. However this can get complicated. The simple point is that even when all is said and done conning someone (if that's what you did) into signing something doesn't always mean you got away with it.

At any rate, for things to work the game industry wants to claim that they do, they would effectively have to ensure that people sign a EULA as part of the purchuse itself. Meaning that a company like Gamestop would have to keep the paperwork handy, and would also in many respects themselves become liable for any misunderstandings.

I'll also be painfully blunt in saying that I think if the game industry was ever to present this idea of not owning someing your paying a hefty sum for, they would effectively be committing suicide. That's why the EULAs have been presented the way they are with 10 pages of "click through" legalease in front of an install button or whatever, after someone has already paid money. Trying to make a sort of "backdoor" contract and hope it's upheld, when really it's powerless, and as others in this thread have pointed out EULAs have been defeated time and again on various points that have come to conflict.

Simply put, there is no misunderstanding here. People own their games, they always have. I understand what the games industry wants, and I understand how DRM and Digital Downloads play into what they want (which is also why I think a lot of the more savvy consumers have wanted no part of these technologies, despite attempts by the industry to force it through, and present people who dislike the idea as being somehow technophobic).

At any rate, all rambling aside it's very simple. The gaming industry wants to claim we don't own their games, we simply pay them for the right to use them totally at their discrestion and have no rights whatsoever despite giving them money. Comsumers say "we've paid money, and we own copies of these games as our private property". The gaming industry points to the EULAs, and says "well you agreed to this". However given that that was never agreed to when the game was purchused and money actually changed hands, it's effectively powerless, and the gaming industry is blowing smoke.

Besides I think if they made their terms clear, and they were actually legally binding I think there never would have been a gaming industry.

Andy Chalk:

Okay, well, you're wrong. That said, assuming your response to Ubi's nonsense is to just not buy the game, then well done, you've made the right move.

That's really kind of the point. Ubisoft has the right to use any DRM system it wants.

I was speaking more of the moral right to employ invasive DRM, which they don't have. Legally though, they can do what they want, doesn't make it "right".

It is never right to punish the innocent in persuit of the guilty.

Spoilered to save space (and for some reason the margins are messed up so I can't quote it very well to begin with).

I think your missing a key point here. The EULA is not, and never has been, a legally binding contract. At least not in the USA. Simply put, when I handed money to the clerk at my local gamestop, did I sign a contract? Was all of those terms explicitly stated on the box? Even if some game, somewhere had fine print mentioning the existance of a EULA, was there a copy availible in the story for me to read?

The bottom line is that the EULA is akin to taking someone's money, telling them that they have to agree that they don't own what they paid you for, but can use it as long as your good well holds out, and then basically denying them what they paid for all together while pocketing their money if they don't agree to it. That's ridiculous, criminal, and hardly legally binding.

See, the gaming industry *might* be able to make a case if it was possible to return opened software to the retailer, but it's not because of their own anti-piracy paranoia that has created this arguement to begin with. Getting your money back for not agreeing with a EULA is going to take an act of congress, if it's even possible at all.

Stop and think about this.

The logic the gaming industry claims to use only exists because it's never been seriously challenged. It would be like me selling you a microwave, but then after you get home and plug it in, the first time you go to cook food, it flashes up a EULA and demands you press a button to confirm accepting that the store owner actually owns the Microwave and can reclaim it at any time, or do anything else he wants with it. The store you bought from doesn't allow returns on opened electronics, so you can't get your money back. Nobody told you about this when you bought it. Now, if the guy shows up at your house the next day and decides to take back "his" microwave that you just liscenced, do you really think the law would stand for it?

That's functionally what the gaming industry is trying to do, and there are laws in place specifically to prevent that kind of thing.

-

Now in the case of purely digital downloads, you might have a point. After all in that enviroment if they make you click off on a EULA BEFORE they let you complete a transaction and actually take money, it could be legal. I say could be, because it depends on how it's written. While it was over a decade ago, I remember briefly covering civil law, and one point made in most contracts is that they have to be concise and written clearly enough so that the signer can understand them (you can't for example bind a person who is mildly retarded to a contract they couldn't understand), length is also an issue. This is one of the reasons why very long contracts oftentimes have people sign every page, or every couple of pages, that way it can be argued that it was all seperate contracts that worked together (it's a way of fudging the law).

Call people stupid, or sheeple, or whatever else, but the bottom line is that the average common human demoninator is pretty low. Hence why HP Barnum said "there's one born every minute" and why the classic "snake oil salesmen" have been around pretty much since the dawn of time, and continue to exist in some form or other. As a company demonstrated (can't remember who it was, but The Escapist covered it) people don't read these huge, long EULAs
at all. People "signed away their souls" so to speak, though they were returned by the company ( :) ). In a legal sense chances are any contract, EULA or otherwise, long enough and complicated enough, wouldn't be binding unless there were special considerations as well. In addition to the above you'll notice a lot of contracts for loans and the like that involve a lot of paperwork usually have numerous co-signers. In some cases people might even call in a legally recognized notary to act as a neutral party. The purpose of this is to verify that everyone understood the contract, and saw everyone else sign. So if it went to court, the court could call in the witnesses. If your stupid and had someone explain it to you, and they lied or misrepresented things, what the contract says could very well be overturned if those witnesses happen to agree with you. I actually knew a few people who are notaries, and who have been called in as a "neutral party" and asked to make reports after the fact during contract disputes.

With the length and complexities of some of these EULAs, and given the fact that they are being used to legally bind 13 year olds (the games says "T"! ) that could be an issue as well.

At any rate, that kind of thing is exactly WHY the gaming industry wants to go "digital" it's not a matter of conveinence, as much as it is a way of taking power out of the hands of consumers as much as anything.

See, one thing people have to understand, whether they work for the industry, or are just commenting, is that a EULA is not a legal contract. Heck, there isn't even a way of verifying who pressed the button or anything else.

sosolidshoe:
I will refrain from commenting on most of this, as it didn't go well the last time, and instead merely note this. Under your and Pachter's rather broad definition of piracy, loaning your mate a game that they play through to completion would also be theft.

If that doesn't show you how laughable the concept of piracy being pushed by the industry is, frankly I don't know what will.

Well, to put this into perspective, this is not a "new" issue. There have been arguements over media rights for a very long time.

Let's take something very low tech, a book. Authors have long argued that they own the content of that book, and that you as the purchuser should be the only one who has the right to the contents of that book. Technically this means that your committing piracy if you read your kids a bedroom story, however we're supposed to accept their word for the fact that they won't pursue us on this. To my knowlege the issue of lending someone a book to read has never been pursued in court.

HOWEVER authors HAVE gone after schools and such for making copies of short stories, or pieces of text books, and then distributing them to the students. The science fiction author "Harlan Ellison" was especially vehement on this point... and schools, both colleges and public schools, have been to court over this.

It's interesting to note also that various writers groups have even gone after college book stores for selling used books. The idea being that if someone buys a used textbook at cut rate from a store, the textbook publisher is losing a sale, especially when you consider that the books in this case are mandatory. You'll notice it's VERY similar to the entire used game issue we're dealing with, with the sole exception that game companies can't consider every used game a lost sale, but sellers of college textbooks can.

To give you some idea of how it turned out, when you were in school your teachers probably still ran off copies of things, especially in public school. This probably included works of very short fiction and the like.

Also the trade in used textbooks still seems alive and well, 16 years later from when I was following the issue. What's more, my local area has TONS of used book stores, despite the fact that at one time there was pressure to kill them.

Some of you might remember a campaign against both used books, and also trying to get people to pass on books with the front cover removed, so called "stripped" books. This was done with printing castoffs, inventory not moved by certain book stores, and by encouragement (to a lesser extent) where authors were campaigning to have people who were done with a book to tear off the front cover before tossing it in the bin, assuming they couldn't burn it, rather than selling it.... it was pretty crazy in places.

Even the bit about hurting authors by selling used books is similar, albiet in the case of game developers typically when a game is sold they already got paid, it's the producers that actually wind up losing anything (ie seeing less of a return on their investment). Sometimes the producer and the development team are one and the same, but that is not always the case (and somewhat infrequent).

Wuvlycuddles:
I was speaking more of the moral right to employ invasive DRM, which they don't have. Legally though, they can do what they want, doesn't make it "right".

It is never right to punish the innocent in persuit of the guilty.

True, but morality does not equal rights. Is it splitting hairs, an overly fine distinction? Well, no, not really, but I can see where it could be perceived that way. But ultimately, opinion is all it is. Hence, "right" vs. rights.

If you feel the need to tell people you're ethical, I'm not going to trust you in any way.

geizr:
I've noticed two basic things in my surfings of forum posts, both on the Escapist and elsewhere.

The first is that no matter how one rationalizes piracy, there are really only 3 prime reasons I can see why someone does it: being lazy, cheap, and a self-centered douche-bag; I've heard other reasons, but those reasons turn out to be just covers for this same set of 3. If it's not a necessity of life, like food, air, water, and shelter, you can just live without it.

The second is that nerd-rage always seems to center on a skewed childish sense of entitlement--"I want this; I want that; I want everything. Give me anything, cause that's what I want and that's what I like, and you better give it to me now!"(Hell, many adults are like this.)--which, of course, blinds them to any sort of reason or rationality. Their shrill posts often bare this attitude out when a situation is presented in which they can't get what they want or can't get it easily.

I've mentioned elsewhere that I agree Ubisoft is 100% in their legal, and even moral, right to act as they have, creating the DRM system that they have. However, at the same time, customers are 100% in their right to not purchase a product they deem is devalued(or inconvenient) as a result of such an aforementioned system(or for any other various reasons, such as it being made by Apple, Microsoft, Google, The Favorite to Hate This Week Company, etc.). This does not give license, right, or entitlement to pirate in any way, shape, or form; it is merely a choice to be without the product or find alternatives that can be purchased. This is not a question of right and wrong; it's merely a question of customer choice of values and sound business strategy. Inconveniencing your customers unnecessarily, treating your customers poorly, and devaluing your product, in the judgement of your customers, while continuing to charge a significant price does not lead to a sound business strategy, in my assessment.

Okay first off, I will say that I do not consider "Robin Hood" type heroes or anything of the sort. On this I agree with you, and feel that piracy is wrong... despite the gaming industry being a corrupt group of crooks themselves.

This is why I always refer to the game industry and pirates going at it as being the mafia, and a bunch of gang bangers duking it out. Neither side is right, or has any kind of moral high ground. It's the legitimate users that suffer from the fallout.

That said, Ubisoft neither has a legal or moral right to what they are doing. When it comes to these EULAs and DRMs, basically what they are doing is theft just as much as what the pirates are doing. They are functionally wrangling for a legal way to take your money and not be obligated to give you anything in return. That's what a lot of what they're doing amounts to, and that's functionally what the EULAs say, even if they are not binding contracts (despite the fact that they are trying to find ways of making them so).

The basic arguement comes down to the industry saying, we take your money for a liscence, and we can revoke that liscence at any time, or do anything we want with what you bought, any time we want.

As Andy Chalk pointed out, despite us disageeing on the status of such things, the gaming industry is basically argueing that games were never our property to begin with. On a lot of ways this is another form of theft.

Then of course there are other issues I point out. The gaming industry operates in what amounts to an illegal fashion anyway. They engage in price fixing just like what the gas companies have been accused of (and has been under federal investigation for like forever). They don't compete with each other, and adjust release schedules so nobody is forced to seriously innovate or lower prices and the like.

This does not justify piracy, BUT it does mean that the gaming industry is simply incapable of possessing any kind of moral high ground. I won't say who are BIGGER crooks, but personally I think the game industry needs to be "adjusted" first before any anti-piracy measures can be taken seriously. I mean when you consider the product they are complaining about being stolen is the result of immoral, and illegal behaviors to begin with, you can't complain about they losing what amounts to "dirty" money. It's sort of like trying to say that we should give the Mafia control of the prescription drug trade in an area controlled by gang bangers... the arguement is fundementally ridiculous because your still dealing with what amounts to criminal enterprise.

It's us gamers who suffer.

Oh and for the record, for whatever reason people seem to believe (with some frequency) that I am pro-pirate because I criticize the gaming industry. To clarify: I am on neither side. I want to buy games legally for a fair price (which I believe comes from serious competition). I buy games as it is now, but feel I am being gouged. I also want clear ownership of the games I pay money for, including the right to sell them if I so choose without being artificially penalized for it (ie I support the used game industry, and I *DO* buy games used).

To be honest I feel pirates have their own agendas as well, I am very wary about the idea of letting "Captain 1337 Haxxor" into my system so I can play a $50 game. For all comments from people who claim piracy is safe, and how various "cracker" groups have integrity, I also point to the issue of botnets, as well as viruses, malware, and simply backdooring systems to pull off information. Not to mention the money that can be made from say breaking into MMO accounts, stealing characters for sale, and robbing gold and components and such. Personally *I* happen to think that one of the reasons this kind of thing happens is because the victims pirate games and such, and then people get into their systems to botnet them, keylog passwords, and other things. I especially look towards spyware and botnets and the like.

Just because you feel a game, or a crack group is safe, doesn't nessicarly mean that it's true. Consider that if your dealing with guys who can get past the security/DRM being made by teams of computer programmers, some of who might be hackers themselves, they can probably hide stuff in their "warez" that are going to get past the security a person pirating a game happens to run. It's food for thought... Even given the price of games, I generally do not consider piracy to be worth the risks.

I think the problem now is that we are all getting used to "cloud" computing where the burden is now going to be on companies to hold the data instead of the consumer. So in a way to protect their content from pirates more companies are wanting to make that transition as ugly and as quickly as possible regardless of the flaws and how the change affects the old guard.

For example I'll use myself. Now I need to fill out this job application but the company wants a printed version only but their pdf did not allow editing, thus I needed Adobe acrobat standard or professional instead of the adobe reader. Now the price of the full version is three hundred dollars, now I've been unemployed for some time now and that cost of entry is too high for a basic low paying job where even local government resources are not capable of helping me. So I did the logical thing being part of the old guard, I asked my mother if I could use her copy of Adobe acrobat to put the program on my computer.

So I took the cds that had adobe acrobat and installed the program. Now the question. Did I steal from adobe? If you say yes then you do believe I should be put in jail for theft. If you say no then you believe that the property is now my mother's to be distributed to others. Does adobe lose profit? Yes. Also would it be any different if I just used the program on my mother's computer instead of installing the program on my own?. The more important question is that are we now going to no longer recognize the ownership of the consumer when it comes to purchasing goods? Because of the lack of a powerful internet and no cloud computing to actually share content across the world the consumer and company were basically put into this little happy place where sharing was caring. Now with that internet and cloud computing it is getting to the point where we have to ask should everything now only be accessed with a 1:1 ration with no sharing and no caring?

Cloud computing takes this problem and makes it a bit more complex as well as bit torrents. First cloud computing essentially dissolved any physical form of ownership from the user however the burden of having to install the game and have the save files still belong on another part of a person's property, their hard drive. So the question now becomes with this is does Ubisoft now own your hard drive due to part of the data being a program they developed? This is where Valve and Ubisoft are right now, they still require the user to own a computer with a competent computer to play the games while they still distribute the data except they deliver the data over the internet and not a disc.

The real solution and the ugly truth that makes people like me cringe is that the next step because the consumer will no longer be able to afford and the best way to protect companies from piracy is being done from the most hated form from the old guard...Onlive. Regardless what you think of them they have perfect cloud computing where the consumer no longer owns the property but the company who has the true form of cloud computing down instead of that swampy middle ground. It is perfect for those who don't actually want to invest in owning anything but instead renting their life away because the consumer no longer has to worry about buying a new console or a new computer or new hard drive. The companies no longer have to worry about consumers rights and ownership but instead just focus on creating games and hosting services where they can control when they can kill games from being played anymore at anytime.

The sad part is that I really don't know of an alternative path due to our current obsession of racing towards the bottom to cut costs and production in order to save money. No current game company especially Valve will be able to stay in business forever and there will be a time where when the company goes bankrupt that all the content that both the company and consumer had will be lost forever because Valve and other companies that are embracing cloud computing will not be able to truly distribute the physical property of data to their consumers should they find themselves having to shut down.

EDIT: My last paragraph and sorry to get semi-political here is the current BP oil spill in the gulf of mexico. Basically cloud computing is a lot like that should a company go bankrupt. We are so far ahead of investing in cloud computing that no one has really thought of a solution should a company like Valve or ubisoft or even Microsoft goes belly up. No company has a backup plan if their oil well breaks should the consumer demand for the content in a physical form they paid for. We just don't have the technology to actually fix a problem on that scale and no company has prepared that backup plan. We have sit ins when servers for games like Halo 2 go down? Try losing your entire library of games.


I'm well aware that a EULA hasn't been an enforceable contract in the US, and basically for the reasons you've identified, you can't see it until you've actually paid for the product. That said, digital distribution EULAs and MMO EULAs (IIRC: because they require additional transactions after the EULA has been presented) have held up (again, IIRC, I'm not going to go digging for legal precedent for this discussion, no offense).

The solution to make EULAs binding would be horrifically simple, simply present them on your website in an easy to locate place, possibly as part of the customer service section, and they would be completely binding because any customer could have perused them, and claimed they had as part of the install process.

To my knowledge, no one has won a case based on claiming "someone else installed it" and I'm aware of at least one case where a user was held liable for the actions on their system, in spite of a third party (her daughter) being the actual user in question.

EDIT: I fouled my snarky spoiler tag... :(

geizr:
I've noticed two basic things in my surfings of forum posts, both on the Escapist and elsewhere.

The first is that no matter how one rationalizes piracy, there are really only 3 prime reasons I can see why someone does it: being lazy, cheap, and a self-centered douche-bag; I've heard other reasons, but those reasons turn out to be just covers for this same set of 3. If it's not a necessity of life, like food, air, water, and shelter, you can just live without it.

The second is that nerd-rage always seems to center on a skewed childish sense of entitlement--"I want this; I want that; I want everything. Give me anything, cause that's what I want and that's what I like, and you better give it to me now!"(Hell, many adults are like this.)--which, of course, blinds them to any sort of reason or rationality. Their shrill posts often bare this attitude out when a situation is presented in which they can't get what they want or can't get it easily.

I've mentioned elsewhere that I agree Ubisoft is 100% in their legal, and even moral, right to act as they have, creating the DRM system that they have. However, at the same time, customers are 100% in their right to not purchase a product they deem is devalued(or inconvenient) as a result of such an aforementioned system(or for any other various reasons, such as it being made by Apple, Microsoft, Google, The Favorite to Hate This Week Company, etc.). This does not give license, right, or entitlement to pirate in any way, shape, or form; it is merely a choice to be without the product or find alternatives that can be purchased. This is not a question of right and wrong; it's merely a question of customer choice of values and sound business strategy. Inconveniencing your customers unnecessarily, treating your customers poorly, and devaluing your product, in the judgement of your customers, while continuing to charge a significant price does not lead to a sound business strategy, in my assessment.

I was about to question where the Robin Hood self appointed heroes of piracy would fit, thought about the ones I knew, and realized they tend towards the douchey category.

I want to complement you on a very succinct and well thought out post.

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