Smacking Down Publisher Entitlement in the EU Court


(This is another edition of /RANT, a weekly opinion piece column on GameFront. Check back every week for more. The opinions expressed are those of the author, and do not reflect those of GameFront.)

Gamers get called “entitled” a lot, due to their complaints and their demands. Sometimes they really can be entitled (and I include myself here) while other times the complaints are perfectly valid. Nobody, however, talks much about entitlement on the other side of the consumer divide – publisher entitlement. If we think the videogame community can be unreasonable in its demands, it’s amazing when you think about what the corporate entities ruling our hobby expect from us. It’s doubly staggering when you remember that this industry is fueled by our purchases. I am consistently amazed at how publishers need us to survive, yet we all act is if we’re the ones that need them.

Nowhere is publisher entitlement more rampant than in the seedy underbelly of barely legible text buried in the product manuals and pop-up boxes of our favorite videogames. The end-user-license-agreement, or EULA, is one of the more outrageous examples of a corporation that believes it deserves far more than it’s earned. On the surface, the EULA is simply a form of self-protection, as it covers the company against many perceived infringements that could see it sued in a court of law. However, over the years, it’s been exploited as such things often are, with little clauses and rules introduced to systematically strip away the basic rights of the consumer. The most egregious idea introduced over the years is the suggestion that a gamer does not own the game he or she has paid for. As the name EULA implies, it’s been said for years that gamers pay for licenses to games, not for the products themselves. They bought a ticket, but they don’t own the auditorium.

This is a fairly despicable suggestion, reeking of the kind of arrogant attitude prevailing in big budget game development today. The idea that a company can sell you a game, yet still own the thing it just took money for, is a grosser entitlement attitude than pretty much anything a gamer could suggest. Forget the complaints about Left 4 Dead 2, ignore the demands for a better Mass Effect 3 ending. Those situations pale in comparison to the idea of someone who wants to sell you something without actually giving you what was sold … and expecting the customer to be grateful for it. That is, however, how publishers think. It’s prevalent in the lack of refunds for digitally purchased goods. It’s prevalent in the infantile demand for a cut of the profit on used games. It was prevalent back when Blockbuster was enemy #1 for letting consumers rent games. Publishers want to keep selling you games, but they don’t want to part with them. They want total, dominating control. Not only do they want it, they believe they deserve it. They believe they have a right to it.

Today’s news that the European Court of Justice has overruled this attitude is a thing of beauty. Recently, the EU Court said that any piece of downloaded software, paid for by the consumer, is the property of the consumer. This utterly undermines the assertion found in a EULA that consumers have merely bought licenses — glorified rentals — and have only the right to play a game. They own the games themselves, the product they paid for when they handed their credit card details over. If they can find a way to sell their digitally obtained games, the publishers have no legal recourse to stop them, despite whatever was “agreed” to in the EULA. In short — the entitled attitude that publishers can still own what they sell was given a big “fuck you” in Europe today, and I couldn’t be feel more smug about it.

Now, don’t get me wrong. I’m not expecting much to change thanks to this. In fact, with services like Origin and Steam tying purchases to accounts, it’ll be pretty damn difficult to sell a digital game. However, merely giving consumers the legal right to do so is a beautiful example of just how toothless the concept of the EULA is. It sends the message that, just because a corporation put a little bit of text in a manual somewhere, that doesn’t give them any extra or undue power. It’s a nice example to give the corporate toadies who hang around the Internet, judging angry consumers by saying, “WELP IT’S IN THE EULA YOUR FAULT FOR BUYING THE GAME LAWLS!” In Europe at least, it effectively eradicates the assertion that a seller still owns the product it happily took money for.

Sadly in the United States, crony capitalism allows a lot more leeway and a lot more protection for those that want to persist in anti-consumer practices. With corporate lobbying and paid-for legislation going on in North America, a lot needs to change before I’d reasonably expect a similar ruling over here. Nevertheless, it’s a step forward for anybody that cares about the consumer rights of the average gamer, and might worry about the all-digital future that the likes of Electronic Arts dream of. The total global control of sold products will no longer be total, and certainly won’t be global.

At any rate, one important message to take away is that just because a publisher tells you that you’ve got no rights, that doesn’t make it true. Companies aren’t entitled and do not deserve everything they demand. Keep that in mind the next time someone calls you entitled for registering a complaint over something you bought and own.

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3 Comments on Smacking Down Publisher Entitlement in the EU Court

MartinB105

On July 4, 2012 at 12:43 am

I don’t really understand this article. All digital content – and indeed, all forms of media such as music, films, etc. – have always been licensed rather than sold. This is the way it’s always been, because giving true and complete ownership of a game (or film, album, song, etc.) implies that you have the freedom to do whatever you like with it, which would include piracy. After all, if you can’t make a copy of something you own and give it away (or sell it) to your friends, then in what sense do you really own it?

The real issue with licensing is the introduction of unfair limitations and restrictions on what you’re allowed to do (such as selling your licence when you no longer need it). Licensing itself is entirely justified, reasonable and absolutely necessary.

Nulltron

On July 4, 2012 at 1:36 am

@MartinB105

In the case of software, license and product are the same. As long as the one that the license is transferred to by the customer can own the license under the law in the first place, the product is the same as license.

By your reasoning, a car cannot be sold either, because nobody can legally make an exact copy of a Toyota or Ford. In a sense you are buying a license to your car, too.

Having said that, the idea of selling a “license” to software is flawed in the first place. In the early days companies like IBM would not “sell” their software. They would rent it, on multiples of six months or quarters. It could work for big companies and telephone and fax lines of the day, but not with millions of users with their PCs. So the software companies replaced it with software license. The cloud computing paradigm is making the resurgent of the old model possible, though.

The idea that you can resell your copy of the software product, exactly like it is, without having modified it, is perfectly sane and legitimate. When you pay for something you should be able to sell it in the same legal and judicial framework and environment that you paid for it in the first place.

The software companies are still wrong if they see the idea of attaching the software to the consumer as a way to circle around the rights of the customer. If the software and the customer are one and the same, the customer still has the right to sell its own services to anybody it chooses under the law. The software companies do not have the right to own a part of a citizen.

The digital age has changed things. If those who are controlling it are left on their own, in no time they will acquire powers over the lives of people, greater than anything that any totalitarian regime has ever dreamed of. Just because that dream is made of money does not mean that it has the right to become true. Unfortunately capitalism has a very weak spot for capital. It is like AIDS. What is supposed to protect its body is also what is used to destroy it.

Tiagonal

On July 22, 2012 at 11:27 am

If you ‘just play’… and ignore everything else… It’s not a big issue. That’s the only mindset cloud-gaming could prosper with. So wipe your brain out, become a mindless player.. and summit to the cloud.