Video Games: Goods Or Services?

silentbrad points out an article about the gradual shift of video games from being 'goods' to being 'services.' They spoke with games lawyer Jas Purewal, who says the legal interpretation is murky: "If we're talking about boxed-product games, there's a good argument the physical boxed product is a 'good,' but we don't know definitively if the software on it, or more generally software which is digitally distributed, is a good or a service. In the absence of a definitive legal answer, software and games companies have generally treated software itself as a service – which means treating games like World of Warcraft as well as platforms like Steam or Xbox LIVE as a service." The article continues, "The free-to-play business model is particularly interesting, because the providers of the game willingly relinquish direct profits in exchange for greater control over how players receive the game, play it, and eventually pay for it. This control isn't necessarily a bad thing either. It can help companies to better understand what gamers want from their games, and done properly such services can benefit both gamers and publishers. Of course, the emphasis here is on the phrase 'done properly.' Such control can easily be abused."

Comments

Services Rendered or Ongoing?

[Anonymous Coward]

Seems to me that whether services are ongoing or have been completed is an important question in the eyes of the law..

Re:Services Rendered or Ongoing?

[Anonymous Coward]

Along those lines I view the difference between goods and services to be if the game is run locally or not. For games that connect you to a server owned by the makers, those servers and the continued development of the game are services. So situations like Halo 2's online multiplayer getting shut down removes what remains of the services and leaves only the goods.

Re:Services Rendered or Ongoing?

[Imrik]

So what do you consider games that require connections to a server to play? (think Ubisoft)

Re:Services Rendered or Ongoing?

[Anonymous Coward]

a severe obstacle for the sales department

Re:Services Rendered or Ongoing?

[The_Crisis]

So what do you consider games that require connections to a server to play? (think Ubisoft)

Coasters, frisbees, signal mirrors. (think AOL discs)

Re:Services Rendered or Ongoing?

[Defenestrar]

What about software patches? Is that a service provided for licensing the product, a fix of defective goods (like an auto safety recall), or a gesture of good will freely given to encourage additional/future purchases from the same creator?

Re:Services Rendered or Ongoing?

[Anonymous Coward]

At least AOL gave them away for free. Ubisoft wants you to pay for the priveledge.

Onw way to kill

[future assassin]

Well that's one way to kill the first sale doctrine or second hand market. Its a service and in the TOS "No reselling allowed" Luckily for me between my NES/SNES/N64/GameCube/Sega Master/TG16/Jaguar/Dreamcast/Saturn there's enough games out there that I never have to bother with buying/supporting anything as a service for the rest of my life.

Re:Onw way to kill

[chispito]

Well that's one way to kill the first sale doctrine or second hand market. Its a service and in the TOS "No reselling allowed" Luckily for me between my NES/SNES/N64/GameCube/Sega Master/TG16/Jaguar/Dreamcast/Saturn there's enough games out there that I never have to bother with buying/supporting anything as a service for the rest of my life.

I love retro games. I just don't see how any games on those systems can be substituted for modern online multiplayer games.

Re:Onw way to kill

[Defenestrar]

Well that's one way to kill the first sale doctrine or second hand market. Its a service and in the TOS "No reselling allowed" Luckily for me between my NES/SNES/N64/GameCube/Sega Master/TG16/Jaguar/Dreamcast/Saturn there's enough games out there that I never have to bother with buying/supporting anything as a service for the rest of my life.

I love retro games. I just don't see how any games on those systems can be substituted for modern online multiplayer games.

Or legally obtained and used as the second law takes its toll on the physical products. There's only so long that you'll be able to find Pitfall or Zelda in the pawnshops you know...

Just because you've got the dog chewed or cosmic ray struck cartridge/disk sitting on top of the PC doesn't make emulators legal.

Withdrawing from the market through hoarding or black market (self-disenfranchisement from the dollar vote) isn't a sustainable solution

Re:Onw way to kill

[Truekaiser]

And that my good sir or madam, is the whole point of the change over!
most if not all of the console makers as well as the studio's and publishers have looked at the multi billion dollar industry that the second hand game market has become. with the likes of game stop, Babbages, vintage stock, etc earning large profits off of re-selling games after the original owner has payed them when buying them and thought. hey how can we get a piece of this action.

so they have tried a few different things. some have draconian drm that tie the game to the machine as long as the registration servers exist. this works but it also pisses off the original owners because hardware failure and upgrades can render the game unplayable.

in the case of a resident evil game on the nintendo ds, the cartridge is coded not to delete or reset game data making the game only playable once. this also did not fly to well as many people like to play games over and over multiple times to find everything.

some others have tried online pass codes that are only good once, this allows the game to be sold at a second hand store but the new owner would then have to pay another 12 to 20 dollars to get a new code from the publisher. and on top of this they limit or shorten the 'single player' part of the game to make the product worthless without that code.

I am guessing then some bright but not necessarily nefarious executive took a look at major it software where the 'software as a service' idea was born and thought. 'hey why don't we do that too'. combine that with the idea of digital distribution and similar minded t.o.s. that steam has claiming physical ownership of the parts of the hard drive that steam and the games reside on, and you have the modern digital black hole of gaming.

you are correct in that today about 20 years after a nes cartridge was made you can go out, get a copy legally(as well as download roms of it.) and be able to play it at any time. the same can not be said in 20 years or so, or even as little as 3 to 5 years from now with the modern games.

Because there is a irony in this killing of the second hand market. while it increases the short term profits of these people by forcing more people to buy new or don't buy at all. it also kills what makes large franchises with staying power or gaming culture as a whole. not to mention with tie in to digital distribution services which in turn are solely reliant on the existence of a certain company to continue to run. the long term prospects of modern games to last very long is not very good. all it takes is valve for example to have a bad year or two and boom. steam goes down for good, same with games for windows aka xbox live though it may take more then a bad year or two. Sega isn't even a hardware company anymore, but i can still go out and buy any of their systems and the games run just fine.

Re:Onw way to kill

[Mister Whirly]

Not to mention the fact that NES doesn't really look quite "spectacular" on a 60 inch HDTV like modern consoles do. Unless you want to really go for the retro thing and play on a 20" wooden console TV - extra credit for knobs and dials and not buttons.

Re:Onw way to kill

[future assassin]

>I love retro games. I just don't see how any games on those systems can be substituted for modern online multiplayer games.

It all depends on what you get out of it. I personally never liked 3d multi player games so no loss to me even my son who is 13 loves old school games. YES he does like to play multi player games BUT the games he spends most time on are basic games. I prefer a game to look like a game and not real life, so I can immerse myself into the "fake game" world.

Re:Onw way to kill

[future assassin]

Why does it have to look spectacular? I want game play and I want it too look like a game, if I wanted to see spectacular real life Id take up paint ball or car racing or pull out a gun and start shooting people.

Re:Onw way to kill

[Mister Whirly]

Because I can do all of those things you mentioned virtually at a fraction of the real life cost and risk.
Because hardware is at the point now where near realism can be properly done.
Because I can still go back and enjoy the old games AND ALSO enjoy the new ones as well.
Because sometimes I want more than 8 bits and 256 colors.
Because the rare game that actually combines fun gameplay and decent graphics does sometimes pop up.
Because other people like things and want things from a game than you do.

I mean I owned an original Atari 2600, and sure some of those games were fun. But when I got the Intellivision, I never played the Atari anymore. Why? Because the Intellivision had better controls and better graphics. But playing either of them now is purely an exercise in nostalgia as most of the games were not the greatest, but it is what we had at the time. The old Atari Football game with the X and O and the trackball was fun, but so is Madden 2010. I don't see why I would ever need to choose between one or the other though. Just because a game looks good does not mean the gameplay automatically sucks, nor does a shitty looking game mean it will automatically have awesome gameplay.

Re:Onw way to kill

[Defenestrar]

Just in case that's not all hyperbole.

I know my own psuedo-anonymous internet arguments tend to verge on the mockheroic, so if that's the case with you as well, you can just have a nice laugh at my expense or give me the finger. But as a couple of school tragedies in the US reminded me this week, it's always worth asking someone how they're doing.

You ok?

Re:Onw way to kill

[Dynedain]

The problem is that classic console resolutions aren't scaled up linearly to HD resolutions.

What I'd like to see is linear scaling, so crisp pixel edges and lo-def lines remain sharp at high resolutions. But because of the bicubic and other scaling algorithms, the edges of pixels* are blurred on higher-resolution displays, so everything just looks fuzzy. It's not all that noticeable for live-action video footage, but put something like an NES on there and its almost painful to look at. Even the Wii looks horrendous on a large-screen 1080p display because it only does 480p.

Basically, everything looks like if you put your LCD monitor into 640x480 mode... blurry as hell.

*(yes I know NTSC scanline doesn't map equivalently to modern pixel-based displays, but I'm illustrating a point)

Re:Onw way to kill

[NIN1385]

This entire comment sums up why I am done purchasing any new video games until the industry goes back to the "Goods" way of thinking, and with the way the MPAA and RIAA have been I've been boycotting them as well. The final straw for me was when I took my old PS3 Madden video games into gamestop for trade in value on the next year's version and they gave me $0.75 for 2010 and 2009. FUCK that shit.

If I am only going to get less than a dollar of trade in value on what I initially thought was purchased as "goods" for about $65 then I am now going to refuse to do business with an industry that only sees us as sheeple put on earth to make them money. The days of actually feeling pride in your work and building a working relationship with your customer is not dead but it is on life support this very day. Take customer feedback serious, work to develop a quality product and allow people to resell that product without loss of functionality when it changes hands and you will be rewarded with happy customers and more money to expand your place in the market.

What you are doing by only allowing the original customer to use the "goods" he/she purchased is hurting everyone involved in the whole economy of video games and it is completely trying to kill off one section of that economy in the used games section. This in turn hurts the entire video game economy both nationally and globally, which then affects the whole economy. In the end it appears to be just one more form of wealthy corporations(some may even say monopolies) wanting their hands on every single cent that can be made from this particular industry and I guarantee you there is an army of lawyers and lobbyists waiting for their call to defend this self destructive business model.

I wonder what will happen if we go back to playing the old DVDs, and console games we've had stashed away for say a year or two? I am glad I am awake and aware of the problem at hand, and therefore they wont be getting anymore of my money which is the only real statement a private citizen without loads of cash can truly make in this country anymore.

Re:Onw way to kill

[Half-pint HAL]

This entire comment sums up why I am done purchasing any new video games until the industry goes back to the "Goods" way of thinking, and with the way the MPAA and RIAA have been I've been boycotting them as well. The final straw for me was when I took my old PS3 Madden video games into gamestop for trade in value on the next year's version and they gave me $0.75 for 2010 and 2009.

Hmmm... methinks you've got that back-to-front. The very fact that you were given a trade-in proves that Gamestop is still engaged in the "goods" way of thinking. The fact that you got 75 cents for the games is simply a matter of supply-and-demand. Remember that you were trading them because you wanted the new version. A great many people do the same thing. Madden has a very limited market as a second-hand game.

Re:Onw way to kill

[AmiMoJo]

if I wanted to see spectacular real life Id take up paint ball or car racing or pull out a gun and start shooting people.

You just answered your own question. Those things are physically demanding, expensive and illegal. Not everyone can be a world class footballer but we can play FIFA.

Re:Onw way to kill

[NIN1385]

Okay, you've convinced me that I may have been thinking a little backwards on that one. I guess I have a bigger problem with how you have to purchase extra licensing to play them online on a different console. The way they are requiring additional purchases for games that are bought second hand is straight up robbery in my mind.

Thank you for offering your point which did cause me to alter my opinion a bit.

Re:Onw way to kill

[trdrstv]

I have a NES hooked up via composite to a projector and play it on a 97" screen. It seems that the people who have an issue with this generally are the types that wouldn't play it on a smaller screen anyway and it's their loss.

Goods, always.

[JustAnotherIdiot]

The game itself should always be classified as a "good", and should be able to be used in some form or another on it's own.
Connection to a server in order to play with others, however, is a service.

Re:Goods, always.

[American AC in Paris]

Absolutely. What you're going to see more and more of, though, is a move towards thin game clients that are effectively valueless without the service--even in situations where you don't actually need to interact with other players.

You'll still have your "good", and you'll still be able to sell your "good" to another person. The issue here is that said "good" is going to be effectively worthless without the service, much like a (non-smart) cell phone is.

As I've posted elsewhere in this thread, this is the game maker's natural response to piracy. DRM stinks for the end user and publisher alike--and is impossible to manage once a crack is out in the wild. Server-based game content, however, is a very different beast. It's hard to cross-engineer, run, and maintain an unofficial game server. What's more, it's easy to track down such servers and shut them down for, say, illegal redistribution of copyrighted materials. All a cracker needs to do is drop a patch on the 'net once, and the cat's out of the bag.

Re:Goods, always.

[parabyte]

More precisely:

If the game state is maintained and processed on "their" computer, it is a service. Otherwise I would regard it as a "good" that is executed on my computer.

p.

Re:Goods, always.

[Kenja]

Remember that the next time you ask for a game to be patched or updated.

Re:Goods, always.

[Anonymous Coward]

Absolutely. What you're going to see more and more of, though, is a move towards thin game clients that are effectively valueless without the service--even in situations where you don't actually need to interact with other players.

Probably, but only because gamers are dumb enough to buy that shit. I stopped buying games that require "phoning home" to play single player games, or have intrusive DRM, but everyone else seems to cheerfully throw their money at such things, so it isn't going to stop as long as people don't seem to mind it.

You get the world you deserve.

Re:Goods, always.

[mrchaotica]

Not only should the game itself always be classified as a "good," but nothing should be allowed to infringe on the buyer's right to modify the good he purchased. This includes, but is not limited to, the right to create his own service that interfaces with that good (e.g. bnetd).

Re:Goods, always.

[0123456]

DRM stinks for the end user and publisher alike--and is impossible to manage once a crack is out in the wild. Server-based game content, however, is a very different beast.

Server-based single-player games are just like traditional DRM, only worse.

If I want to play a server-based game there are about a bazillion MMOGs already.

Re:Goods, always.

[Anonymous Coward]

Digital products in the general market are neither "goods" nor "services". Because their mass-production is trivial (to the point of being zero-cost), and their destruction yields no waste (deleted information is obliterated, there is no reclamation), they are something more than what can be defined by the traditional Industrial Economic model. Digital media is a consumable product, but lacks the scarcity necessary to drive value in a supply-demand curve. Value is determined by the consumption experience, and is determined by the consumer.

Connection to a server hosting a game OTOH is definitely a "service" - the host provides the environment, controls the experience, and so long as they are the only one in possession of the server software, they have a viable "service"; there is market control, so it can be shaped into a "service" model. If the server software is released to the wild, or if a functional competing server is released, then their server only has value if the consumer base prefers it over competing server(s).

Re:Goods, always.

[Jonner]

The game itself should always be classified as a "good", and should be able to be used in some form or another on it's own.

Connection to a server in order to play with others, however, is a service.

So, where does that leave multiplayer only games? It makes sense to consider a multiplayer game than can connect to a server run by anyone a good. For example, most of the Valve engine based games like Counter Strike seem to be this way. However, for many multiplayer games, each player only has a client and the server functionality is never released in any form. Most MMORPGs are this way as well as many games of other genres. Does it make sense to consider the World of Warcraft client a good when it's utterly useless without the service?

Re:Goods, always.

[Defenestrar]

Probably, but only because gamers are dumb enough to buy that shit. I stopped buying games that require "phoning home" to play single player games, or have intrusive DRM, but everyone else seems to cheerfully throw their money at such things, so it isn't going to stop as long as people don't seem to mind it.

You get the world you deserve.

You also get the world you live in. Most consumers either don't know or don't care about these issues (they've got bigger issues than worrying about the legal details surrounding their short escape from stretching paychecks and herding children). The thing is that these are the people who will drive the dollar vote and it's up to those who care about the legal issues to protect the general public (or defraud them depending on POV).

This is why we have the FDA to prevent snake oil salesmen and the EPA to prevent chemical dumping; what's needed is an equivalent for consumer level IP. Perhaps the new Consumer Protection Bureau could be petitioned to take up the task, but until then it's up to aware citizens to vote with their dollars on products, support groups like the EFF, write letters to congresspersons, and caution their friends and associates to do the same. Otherwise, if you have these feelings about the process, it's similar to knowingly letting an apothacary sell saccharo et aqua to a parent trying to treat his/her child's pneumonia (pick your own degree of severity).

Re:Goods, always.

[Defenestrar]

Like fixing a software bug on their own (through decompiling & etc...) instead of purchasing the patch from the provider of the original goods? Help me get a feel for your perspective here because I'm not sure if my interpretation of your thoughts is internally consistent.

Or are you talking about making and selling your own goods that would have no value without being based on the original work (which is a violation of even the original US copyright law). Could that be what you were talking about?

Re:Goods, always.

[mrchaotica]

Like fixing a software bug on their own (through decompiling & etc...) instead of purchasing the patch from the provider of the original goods?

Absolutely! Software is a tool no different from a car; people should no more be prohibited from modifying their own software than they should be from fixing their own cars.

Re:Goods, always.

[Anonymous Coward]

Yes and no. Games which do not require access to a centralized server are goods (a product). Console games are a good example. The ability to play multi-player via a provided server is a service requiring a subscription (microsoft live). MMO's are goods requiring service similar to cell phones with lock-in (original Apple/AT&T agreement). Unfortunately, publishers are trying to blur the lines between the two separate products to increase profits.

Re:Goods, always.

[schnell]

people should no more be prohibited from modifying their own software than they should be from fixing their own cars.

Not trolling, genuinely curious... I am not legally prohibited from fixing my own car (thank goodness). But I am legally prohibited from certain kinds of tinkering. I can't disable the seatbelt warning. I can't remove the muffler. I can't disable the distracted driving warnings on my GPS system. I can't change it in ways that would make it violate emissions laws.

If you return to the software/car analogy, do you think there are things like the above that *are* fair game to prevent people from tinkering with? Do you think that no modifications should be prevented legally to the car that you own? Or do you think the analogy is inapt?

Re:Goods, always.

[Anguirel]

Or are you talking about making and selling your own goods that would have no value without being based on the original work (which is a violation of even the original US copyright law). Could that be what you were talking about?

What? All those unofficial iPhone covers (or similar sorts of accessories) are a violation of original US copyright law? Third-party PS3 controllers? Windows for Dummies (and equivalent types of books)? VMWare? Multi-chat clients like Trillian (particularly before the non-proprietary service interfaces like Jabber were added)? Any number of other unofficial add-ons and mods for popular programs?

I get not being allowed to use the Trademarked name, or being required to state that you aren't officially licensed and there was not official compatibility testing, and even bnetd-style DMCA violation, but in violation of the original US copyright law?

Re:Goods, always.

[mrchaotica]

But I am legally prohibited from certain kinds of tinkering. I can't disable the seatbelt warning. I can't remove the muffler. I can't disable the distracted driving warnings on my GPS system. I can't change it in ways that would make it violate emissions laws.

On the contrary; it's perfectly legal to do all those things. You just won't be allowed to register it for use on public roads later.

If you return to the software/car analogy, do you think there are things like the above that *are* fair game to prevent people from tinkering with?

Sure; my above car example is just like banning cheaters from MMOs, which is perfectly fine.

The problem only comes when the company tries to legally enjoin the cheaters from connecting their hacked game to their own servers, analogous to the owner of a non-registered car driving on his own property (which is actually a common use-case on farms).

Re:Goods, always.

[Defenestrar]

I was referring to derivative work under copyright (not patent), which is what protects much of the consumer viewed portions of software. Patents are increasingly becoming part of software, particularly the back end, but there's even a trend toward front end software patents. Most of the examples you provided were not violation of copyright (especially derivative work). So reference books are allowed, but fanfic or game mods are not. Fan art needs to pass the transformative test (much easier to do when illustrating from the text of a novel than painting an actual scene from a game/movie). Making software that interfaces with another software while not stealing code or graphics is usually allowed (independent or symbiotic not strict-derivative).

Captain Obvious

[loufoque]

Thank you Captain Obvious, but we'd already realized the game industry was going towards game-as-a-service years ago.

Software as a service

[Hatta]

Is never a good idea for the purchaser. This doesn't change when it's video games instead of spreadsheets or databases.

Re:Software as a service

[Mitreya]

Software as a service ... Is never a good idea for the purchaser.

Why do you say that? Game as a service _may_ be a good idea for the purchaser. Of course game publishers implemented it in the greediest way possible, so it isn't currently. For example, if I could subscribe to World of Warcraft for a month and try it out, I probably would. But somehow I need to pay $60 for the game and _then_ the monthly subscription. Game itself should be free if you are selling a service.

Re:Software as a service

[Hatta]

Because software as a service is fundamentally incompatible with your software freedoms.

Re:Software as a service

[msobkow]

That depends entirely on what you're buying.

The whole point of the SaaS industry is not to sell you the software, but to sell you the services around maintaining and deploying that software. If it's "never a good idea for the purchaser", there are a "few" people in North America and around the world who've made a "mistake" in the hundreds of billions of dollars per year.

SaaS is the very heart of most open-source based businesses. The software is free; the packaging, testing, support, and distribution media are not.

We've come full circle right back to the leasing models that served the industry from the 50s to the 80s before there was a spurt of the concept of "software ownership" during the CD media package distribution days of the heyday of the PC. But that heyday is gone -- even "purchased" software like accounting packages now come in annual distributions with upgraded tax regulation code.

Re:IT IS A BAD!

[Barefoot Monkey]

But which are they: bads or disservices?

It's a general problem of the software industry

[Eli Gottlieb]

Our product is bits. Bits are arbitrarily reproducible by anyone with network bandwidth and storage space. Copyright laws are only a partial success in locking up our product as property we can sell in a shrink-wrapped box or rent-seek upon via licensing.

What we want is an income for our work. What companies want is ever-growing profits. What customers want is either free stuff (as always, ultimately) or a concrete product they can buy and own like a car.

Post-scarcity production and distribution technology is clashing with industrial-capitalist economics.

Re:It's a general problem of the software industry

[Alwin Henseler]

Post-scarcity production and distribution technology is clashing with industrial-capitalist economics.

While I somewhat agree with that, I see no conflict between modern digital distribution of software products, and shrink-wrapped boxes.

You provide me a copy of software product, I pay you 1x fixed amount for the privilege of having & using that copy. Whether that's shrink-wrapped box or download only is irrelevant for this purpose. X people buy their copy, developer gets X times fixed amount. If developer sells X copies / month, then developer has X times fixed amount / month coming in to support that software and work on new products. If developer sells too few copies, or takes too long to produce something new that also sells, too little money will come in to make a living from it.

Nothing new there, no conflict with modern distribution in the digital age. Whether customers should be forced to pay for their copy, and/or keep paying after getting it, is another matter (or different matters, in fact).

Re:It's a general problem of the software industry

[mcgrew]

You're thinking like the RIAA. They used to be in the RECORD business, but now consider the "music business". It doesn't work like that.

If you're trying to sell bits, someone else will sell competing bits in a shiny box that they don't need a network connection for that the customer can resell and run you right out of business.

Fear of piracy is stupid unless your product is shit. Most people have no qualms about paying for what they get, and to make your product less desireable to them in order to keep it from those who aren't going to buy no matter what is incredibly stupid.

The RIAA isn't after "pirates", they want to kill their independant competetitors by making everyone think "piracy". They have radio, the indies don't. They know full damned well that "piracy" sells goods.

I'll never "buy" your software, no matter how good it is, if I can't box it up and resell it. If your business model demands that I lose my right to resell what I bought legitimately, fuck your business model and the horse it rode in on. I want nothing to do with it or you.

Harming your paying customers to get at those you percieve as harming you is brain-dead stupid. Another reason for not wanting your software -- I don't like doing business with idiots, or by people who sell to idiots.

If your business model involves fooling idiots, you're a thief.

Re:It's a general problem of the software industry

[Vario]

Unfortunately the situation is not as simple. Just one example: With physical items it takes time and effort to share them. You own a book, the neighbor down the street might own the same book. The likelihood that you are reading it at the same time is pretty low, so why not share it? In a digital world this is no problem, just send some bits, use dropbox or something similar.

Or think of network licences in a company. For a lot of special programs we only have around 10 licences for 250 employees. It's never a problem usually, as very few people are working with the same software at the same time. So we only pay for 10 instead of 250 because sharing the licences is seamless. If the software company would charge the same amount for the 10 network licences than for 250 regular licences they would damage their business model quite a bit. In comparison we use a lot of reference books. I would guess we have around 100 copies of the most used ones, so that you don't waste your time looking for one. It would be painful to only have 10 and then search the whole place to get hold of one.

This is just one aspect but illustrates that there is a conflict. I personally also prefer a game that I can buy and sell as I want to like a physical item but I have tons of games that I only play for a few days per year. In principle I could give away all those games for most of the time on some kind of lending model but that would definitely influence sales of all those companies that produce games, software or other digital items.

Re:It's a general problem of the software industry

[Eli Gottlieb]

You are agreeing with me quite vehemently.

If you're trying to sell bits, someone else will sell competing bits in a shiny box that they don't need a network connection for that the customer can resell and run you right out of business.

The problem is that, often enough, that someone else is living in their mother's basement without paying rent, or permanently squatting at MIT with administrative permission (Stallman).

Even without "piracy", competitive markets cause prices to converge to the marginal cost of production. For bits, that cost is zero, so prices converge to free. The only way to counter this is to circumvent a competitive market: copyrights, patents, and ultimately Software as a Service (in which you keep the actual bits under lock and key but hire out your trained priests to operate on the bits for a monthly service fee), Cloud Computing (in which you compete to offer a pseudo-hardware paltform for other people's bits), and User as a Product (in which the user pays nothing, because someone else pays for access to the user).

Basic capitalist economics is, lacking government intervention on behalf of software firms, incompatible with making a living writing software-as-a-product. This is exactly the reason that some of the largest players in the software industry (IBM, Amazon, Google, large parts of Microsoft) have gone for these models, and many others (Apple, EA, Ubisoft, Sony, MS) have gone in for the Digital Restrictions Management tech necessary to lock down their products and pretend they have a nonzero marginal cost of production.

Re:It's a general problem of the software industry

[Eli Gottlieb]

If you don't force people to pay the developers' price, especially if they can just share and duplicate the software amongst themselves, nobody but the early-adopters will ever buy the software for money. Everyone will torrent it. This is an economic fact.

Re:It's a general problem of the software industry

[Jonner]

Indeed, traditional ideas of property and copyright are no longer sufficient. I think the solution for code is that it should all be released as Free and Open Source at the same time a game or other product or service using the code is released or made available to the public. That allows for service models without the downsides for users. I'm far more likely to pay for a service if I know that I'm not locked into the one provider by their proprietary server and/or client software. If all services were like that, the market would be much more competitive than it is now since anyone can start a directly competing service at any time and customers aren't locked in.

However, that only partly solves the problem when there's a significant amount of the software that's not code, as is the case with games. Perhaps the non-code parts of games should continue to be covered by ordinary copyright with simple proprietary licenses. If you pay for a copy of the game, you are given permission to use art, map designs, music and other non-code parts on your machine. That permission would be separate from use of any services while playing the game.

Of course, this scenario is extremely unlikely since established game designers and publishers like the proprietary advantages they currently enjoy. They don't want a world in which they have to compete on quality of game design and service alone.

Both...

[AngryDeuce]

This is based on the RIAA's argument that mp3s sold online were merely licensed when arguing in the ReDigi lawsuit, but asserted they were sales through iTunes when arguing that they didn't need to pay an artist the contractually higher percentage of royalties due her for licensing her music as opposed to selling it.

My guess is video games are goods and/or services depending solely on which is more beneficial to the MAFIAA goon in court, and nothing at all logical.

Re:Both...

[AstrumPreliator]

This is what I see in games, cherry picking the best of both world.

For instance, say I buy a physical copy of an Xbox 360 game. If I lose or break the disc I'm boned, I'll need to buy it again. Of course I can also sell it to someone else when I'm finished with it. So it seems like a good to me. However, what happens if there's a part of the game that's only available if you buy it new? All of a sudden I don't own part of the game, it's more like a service (a non-transferable license). When it comes to digital distribution like Xbox Live or Steam things do a 180. Now if my Xbox 360 blows up I can just download the game from Xbox Live on another machine. Of course I can't sell it to anyone else. So I don't seem to own it at all now, I merely have a non-transferable license.

Basically if it's a good I should due able to do with it as I please, including selling it to someone else. If it's a service then I'd like to download it and use it anywhere (within reason of course), even if the physical copy is destroyed.

Resisting services

[Oswald McWeany]

I for one am resisting the "services" model all I can. I will not pay to play a game more than once.

There again, I'm a cheap barsteward who won't spend more then $9.99 on a game anyway. I gain no extra pleasure from playing a $60 game than a $2.99 game that is a few years old.

Rather than paying a $15 subscription- wouldn't it make more sense to buy a "new" cheap older game once a month- surely they're worth more for a month of novelty than it is to play the same old thing month in month out on a subscription game?

As for steam- nothing but added problems... you get whatever bugs the game may naturally have- compounded by the extra bugs that running something through steam adds. I avoid steam when I can.

Re:Resisting services

[phantomfive]

I for one am resisting the "services" model all I can. I will not pay to play a game more than once.

Paying twice isn't even the biggest problem, the biggest problem is when you want to go play your game and you can't anymore because the servers are down, or worse, down permanently. In those cases, sometimes you'd be WILLING to pay twice, if they would let you. But you can't, so you go outside instead. Climb a tree. And never buy from that company again. Which isn't hard since the company is out of business. So you cry.

Re:Resisting services

[El Torico]

Team Fortress 2 is free to play now and it's still the most fun multi-player game I've seen. They now sell in-game items, but they don't really alter the balance of the game; mainly it's just silly hats, which fits that game well. Most of the items can also be crafted, so no one is compelled to buy the in-game items. However, you still have to deal with Steam.

Re:Resisting services

[Oswald McWeany]

Aye, the free ones I can handle.

Got a little addicted to Puzzle Pirates for a few months. It's just- don't expect me to keep paying over and over for the same thing.

Re:Resisting services

[Imrik]

Actually, depending on how much time you have to play, $15 for a subscription can be cheaper than the older games would be. (ignoring the availability of free games)

Re:Resisting services

[Alwin Henseler]

I for one am resisting the "services" model all I can. I will not pay to play a game more than once.

Actually "services" isn't a bad match: you play a game 1 week, you pay for 1 week. You play it all year, you pay for a full year. With shiny boxes it's kind of the same: buy box, play for some time, buy another box, play for some time, repeat. With appropriate pricing levels, this could average out to the same overall costs of playing games X, Y and Z over random periods of time.

However I also resist the "services" model, but in principle because what's paid doesn't match the work done by vendor: When vendor works 3 months on a pile of artwork, boxes it up & I buy one of 100k copies, I'm taking a 1/100k share for the work required to produce all that code & artwork. I'm NOT taking that share to provide 3 months income for that vendor.

After-sales work to produce patches is basically fixing a defective product. Large add-ons can be sold as such separately, and the cost of running servers for online play can be dealt with in different ways (buried in the initial cost, paid separately as a service, or perhaps even a community-run p2p style setup).

Re:Resisting services

[Culture20]

However, you still have to deal with Steam.

You had me until this line.

Re:Resisting services

[Jonner]

I have adopted a hybrid approach. Like you, I usually wait until I can get an older game at a significant discount since the quality of a game has little to do with whether it was released in the last year. However, there are some which I'm willing to pay full price to get as soon as possible.

Although I hate DRM in principle, Steam is the least problematic DRM system I've encountered. In my experience, Steam has not generally interfered with what I want to do with games and the automatic updates are convenient. It has not prevented me from heavily modifying a number of games it manages. The one thing it makes impossible or very inconvenient is to transfer a copy of a game to someone else. Most of the games I've obtained using Steam have been heavily discounted compared to the full retail price either because they're part of a bundle or several years old so the tradeoff has been worth it for me so far.

Re:Resisting services

[Anonymous Coward]

of course, those large add-ons may very well have been part of the game you already paid for. it probably started out as a deadline thing, then someone realized they could just sell the rest of the game to you later. fuck, they are even charging pc users for the dlc now, when map packs used to be free, and it's not like they let users mod the games like they used to. fuck them all, i say.

Not conceptually hard

[Spazmania]

My television is a good. The DVD in my DVD player is a good. The programming sent to my television over the air is a service.

If it runs on my computer, it's a "good." If it runs on somebody else's computer, it's a "service." If part runs on my computer and part elsewhere in order to get the whole experience, the portion that runs on my computer is a "good."

Re:Not conceptually hard

[Anonymous Coward]

So if I went to a store, and bought the boxed version of SW:TOR, and installed it on my computer, that is a good? Even though it is completely worthless without the service? So why am I paying $60 for a good that is utterly worthless? You're trying to separate these two pieces, but you can't, as they are fundamentally intertwined (in this example).

Re:Not conceptually hard

[Spazmania]

Rewind to 1960. Why did you pay a couple hundred dollars for a television (goods) that's utterly worthless without programming from the local TV stations (services)?

Re:Not conceptually hard

[LanMan04]

The programming sent to my television over the air is a service.

Not quite. The programming is a good as well, being delivered BY a service.

Re:Not conceptually hard

[Anonymous Coward]

I think your analogy work today only the price is higher. A TV is still worthless without Internet (service), cable(service), or Over Air (service), or a DVD player (maybe a good but still a separate one necessary to gain value from the TV. Using the parents logic buying a TV is a bad decision, same with a radio. Of course you can extend that pretty far really, I mean what use is a car without fuel?

Re:Not conceptually hard

[Spazmania]

Nope. Transmitting programming that your TV can view does not confer on you ownership or even simple possession of a copy. Its display on your television is strictly ephemeral. Hence not a good.

Re:Not conceptually hard

[Spazmania]

Fuel is a good too. You buy it, you own it. But what use is a car without -roads-? Roads are a service.

This legal issue has been around for years...

[bfwebster]

...not specifically for video games, but for software in general and particularly for custom-developed software. I've seen this a lot because of work on "failed IT project" lawsuits -- the goods vs. services distinction brings different legal standards, requirements and remedies to bear. Generally speaking, commercial off the shelf (COTS) software is usually seen as "goods", but the more customization and original development involved, the stronger the "services" argument. And, of course, the whole movement towards "software as a service" and cloud deployment muddies the waters more. ..bruce..

Makes perfect sense

[American AC in Paris]

If you sell gaming as a service, you're effectively eliminating piracy. You're also entering an area where the legality of the contract between the two parties involved is much less of a gray area. True, you need to maintain the server environment to support the gaming experience, but that's easier to plan and budget for than trying to account for how piracy will affect your sales.

Understand that the gaming industry's shift from a goods model to a services model is, at its very root, a direct response to piracy. It's quite the effective response to piracy, at that. No matter how much DRM you put on a game, it's easy enough to crack an installed game and send it into the wild. It's virtually impossible to effectively recreate a game where content is delivered on-demand by a server environment, though--especially when that content is player-driven to some degree.

To my mind, this makes perfect sense for a game maker. Make a game a service, and you pretty much completely eliminate resale and piracy issues.

Re:Makes perfect sense

[0123456]

Make a game a service, and you pretty much completely eliminate resale and piracy issues.

I see you finally mention the real reason right at the end. Game developers are far more concerned about evil consumers who resell their games than they are about pirates, because pirates would never have bought it in the first place.

'Game as a service' is excellent for them because they not only eliminate the evil resellers, they can also turn off the servers and force you to buy the new version of the game at any time.

Re:Makes perfect sense

[Anonymous Coward]

Understand that the gaming industry's shift from a goods model to a services model is, at its very root, a direct response to piracy.

That's bullshit, though. The goods model to services model is the "I get paid $60 today, and then $10 every month for a year!" model, but it sounds downright greedy and abusive to the consumer when you put it that way. Turning games into services has never stopped piracy, it has only inconvenienced the purchaser. Let's go over some basic, theoretical economics to show that what you said is bullshit, though:

How much did Company A spend on "anti-piracy DRM" last year? Five million dollars.
How much will it cost for someone to pirate their entire library? Zero dollars.
How much did Company B spend on "anti-piracy DRM" last year? Zero dollars.
How much will it cost for someone to pirate their entire library? Zero dollars.
How much money can Company A extort from people who they caught pirating their game? $5,000 dollars.
How much money can Company B extort from people who they caught pirating their game? $5,000 dollars.

Can "copy protection services" make money? No. By their very nature, they cannot. You can not make money fighting pirates. You can only lose money. You can, however, make money by retro-actively suing them, or by pumping your current livestock for more milk -- and only one of these two methods is covered by turning software into a service.

Re:Makes perfect sense

[American AC in Paris]

You're absolutely right--and as many other people in this thread have pointed out, the appropriate response to this if you do not like it is, very simply: do not give that company your business.

You do not need to give these companies your money, and a company is not obligated to tailor how they provide their product to suit the demands of the consumer.

Re:Makes perfect sense

[Anonymous Coward]

A pirate is someone who got ahold of the software and then gave copies away at a discounted price (or free).
The only difference between a pirate and a reseller is that the reseller doesn't increase the number of copies on the market.
As such, your point is irrelevant noise.

Re:Makes perfect sense

[Xenx]

A pirate is someone who got ahold of the software and then gave copies away at a discounted price (or free). The only difference between a pirate and a reseller is that the reseller doesn't increase the number of copies on the market. As such, your point is irrelevant noise.

No, the point still stands just fine. Pirates are less likely to pay for the game, even the used game price. So, the effective loss in profitable sales is much less than when dealing with the 2nd hand market. Now, that argument does assume that the number of pirates that would of paid the full retail price are fewer than the number of people that buy second hand.

Re:Makes perfect sense

[chispito]

Game developers are far more concerned about evil consumers who resell their games

Don't you mean Game publishers are far more concerned?

Re:Makes perfect sense

[brit74]

I see you finally mention the real reason right at the end. Game developers are far more concerned about evil consumers who resell their games than they are about pirates, because pirates would never have bought it in the first place.

100% of pirates would've never bought it in the first place? Nonsense. I know people who converted from being good paying customers to saying "why pay for anything when you can get it free [through piracy]?" If you could eliminate piracy, they would go back to paying because they want the stuff bad enough to pay for it if they have to (just like they used to do).

It's also factually incorrect to say that game developers are far more concerned about reselling of games than pirates. (Yeah, some game developers have complained about game reselling, but they're a minority and they're on game consoles - which are much more free of piracy than the PC. On the other hand, the game developers I know spend far more time talking about piracy and how to fight it than they are concerned about game reselling.)

Re:Makes perfect sense

[GmExtremacy]

You can, however, make money by retro-actively suing them

That'll be good PR.

I find it funny how anyone thinks it's acceptable to harm all of your customers with DRM because there's a few pirates out there. I find it even more funny that people put up with this nonsense and keep buying these products with DRM.

Re:Makes perfect sense

[GmExtremacy]

The reasons make sense to me.

But I think these people are imbeciles. They're so concerned about people copying their precious games that they want to screw over the customers in an effort to stop them. To me, this is just like draconian legislation that is intended to stop criminals, but ends up taking away the rights of innocents. On a smaller scale, maybe, but the "harm innocents to stop criminals" mentality is present in both situations.

Re:Makes perfect sense

[Mitreya]

You're absolutely right--and as many other people in this thread have pointed out, the appropriate response to this if you do not like it is, very simply: do not give that company your business.

Problem is, they are not disclosing everything in big red letters. If I buy a game, I reasonably expect single-player to run without internet connection. I also expect that I will be able to re-sell that game. Because I certainly know that there is no way in hell I can return the game if it is not adequate
Otherwise they sell me a game that is defective and I am left with no recourse. Would be better if I could make the decisions to not give them money _before_ I purchase.

Re:Makes perfect sense

[American AC in Paris]

Five years ago, this argument carried a lot more weight than it does today; in another year or two, it'll be largely invalid. One of the great benefits of the growth of the professional blogosphere is that there are now sufficient eyes looking sufficiently hard at this sort of thing that news of a company's attempted shenanigans tends to break even before the game is released to the public. Case in point: we, the gaming community, knew all about Blizzard's always-connected brouhaha before Starcraft II had been released. They hardly sang this information from the rafters, but because so many people were paying sufficiently close attention, it became common knowledge to gamers in a matter of days. Another case in point: Apple's locking out of third-party code utilities was hitting the wire mere hours after they updated their terms, and they'd pretty clearly taken no pains whatsoever to make it common knowledge, basically burying it in the depths of the developer's agreement.

The window is closing on companies' ability to bury gotchas in the fine print. This is arguably one of the most significant positive consumer benefits of the growth of the Internet: it's becoming increasingly difficult for companies to use massive contracts to bury reprehensible terms of service, simply because we're hitting a critical mass of people who care enough to parse these things posting their findings to the 'Net.

Re:Makes perfect sense

[drinkypoo]

You do not need to give these companies your money, and a company is not obligated to tailor how they provide their product to suit the demands of the consumer.

At issue is the question of your rights vis-a-vis the game client. Are you within your legal rights to modify it, under first sale law? Or to reverse engineer it for the purposes of interoperability, as guaranteed by the DMCA?

Re:Makes perfect sense

[Anonymous Coward]

Yeah, yeah, I always hear this "vote with your dollars". The problem is, the 13-18s always have plenty of disposable income and not a lot of sense as consumers.

Black's Law Dictionary

[debrain]

As a matter of interest, Black's Law Dictionary, 6th Ed., defines the relevant terms as:

Good: 1. Tangible or movable personal property other than money; esp., articles of trade or items of merchandise. ...

Service: ... 3. The act of doing something useful for a person or company for a fee. ...

License: 1. A revocable permission to commit some act that would otherwise be unlawful; ...

In the case of a software game:

1. the box, CD, manual etc., is a good;
2. permission to use the software in spite of copyright and patent protections is a license; and
3. the interactive online access is a service.

It is not apparent to me what is "murky" here.

Re:Black's Law Dictionary

[Anonymous Coward]

It is not apparent to me what is "murky" here.

Buying a box that contains a Steam code.

Re:Black's Law Dictionary

[VGPowerlord]

2. permission to use the software in spite of copyright and patent protections is a license;

Assuming US law, let me fix that for you:

2. permission to use the software in spite of copyright and patent protections is unnecessary.

Copyrights due to Title 17 S 117 (part a1 for the most part), patents because you don't need a patent license to use goods created by someone else.

As much hate as Congress gets, Title 17 S 117a1's wording is very flexible. For instance, if the instructions for using a program say you have to install it to a hard drive, that copy is "created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner." Same goes for the copy in RAM when you load it.

It does say "and that it is used in no other manner," which, strictly speaking, makes reverse engineering it illegal, but I seem to recall other laws protect that.

Re:Black's Law Dictionary

[magisterx]

#2 is murky. Clearly the box and physical items are goods, and interactive online access is a service. But it is not clear that a license should be needed for software. While there is now some case law on EULA's it is far from clear yet. After all, I do not need a license to read a book. Why should I need a license to use software I purchased? And even the cases that say a EULA is enforceable generally view it as a contract of adhesion, which means it is subject to scrutiny for what the company can put in it and so those contours are very unclear. And you mention copyrights and patents, but I only need to worry about copyrights and patents if I am doing something which is protected by those. It is fairly clear that most uses of most software (even software that in some way invokes a patent) are *not* covered by patents. Most uses of software do involve some sort of copying, but that kind of transient copying which is necessary to make any use of the purchased software at all would almost certainly fall under fair use. So, #2 is extremely murky. And there are plenty of software cases that don't implicate 1 or 3 and some of those are murky. Do I buy anything when I use GoodOldGames.com (great site incidentally), or am I licensing it? Is it a sale of a good or a service or neither?

Re:Black's Law Dictionary

[debrain]

I do not need a license to read a book.

You are not copying the book by buying it. The copy was made by the publisher, which has a license from the copyright holder to make said copy (or is violating copyrights).

You are likely copying software when you install it but that being said, we do not have strong and clear relationship for lawful use of software. We have instead pigeonholed the issues into traditional copyright, patent, service and license agreements. The results have been ugly at times, but I would not now describe them as murky - with the exception of fonts I do not see much issue around software use and online service rights.

GoodOldGames is a great site and example. I would expect a Court to call the entitlement upon purchase to download the games a license to copy. As a matter of policy, it is against the economic interest of this site, which provides service considered useful, to prohibit subsequent sharing of these games as if they were effectively in the public domain. Since it is not a stretch for copyright to apply, and it is useful to do so in cases such as this, it probably will be deemed to apply (or so the argument goes, though with some variation, throughout the common law).

The legal question has typically been whether the software is a "work" to which copyright law applies. There are weird edge cases, such whether fonts can be copyrighted or protected by some other intellectual property. I do not believe this to be an issue now (though, of course, I always stand to be corrected).

Re:Black's Law Dictionary

[debrain]

Assuming US law, let me fix that for you:

2. permission to use the software in spite of copyright and patent protections is unnecessary.

Nonsense. You have fixed nothing, and completely misconstrued the law.

Software is a literary work under Section 101 of the USC. Case law has held that the code, audio and visual work of software is protected by copyright.

Customers are liable for operations that violate the patent. Users have generally been saved by the impracticality of such litigation. For example, Apple has sued Samsung for the patent violations of the Android software that was developed by Google.

As for Title 17 s. 117, that relates to copying necessary to use the software, archival backups, subleasing (with permission), and temporary copies for maintenance. Suggest you re-read. It is here:

17 U.S.C. s. 117 : US Code - Section 117: Limitations on exclusive rights: Computer programs

(a) Making of Additional Copy or Adaptation by Owner of Copy. -
Notwithstanding the provisions of section 106, it is not an
infringement for the owner of a copy of a computer program to make
or authorize the making of another copy or adaptation of that
computer program provided:
(1) that such a new copy or adaptation is created as an
essential step in the utilization of the computer program in
conjunction with a machine and that it is used in no other
manner, or
(2) that such new copy or adaptation is for archival purposes
only and that all archival copies are destroyed in the event that
continued possession of the computer program should cease to be
rightful.
(b) Lease, Sale, or Other Transfer of Additional Copy or
Adaptation. - Any exact copies prepared in accordance with the
provisions of this section may be leased, sold, or otherwise
transferred, along with the copy from which such copies were
prepared, only as part of the lease, sale, or other transfer of all
rights in the program. Adaptations so prepared may be transferred
only with the authorization of the copyright owner.
(c) Machine Maintenance or Repair. - Notwithstanding the
provisions of section 106, it is not an infringement for the owner
or lessee of a machine to make or authorize the making of a copy of
a computer program if such copy is made solely by virtue of the
activation of a machine that lawfully contains an authorized copy
of the computer program, for purposes only of maintenance or repair
of that machine, if -
(1) such new copy is used in no other manner and is destroyed
immediately after the maintenance or repair is completed; and
(2) with respect to any computer program or part thereof that
is not necessary for that machine to be activated, such program
or part thereof is not accessed or used other than to make such
new copy by virtue of the activation of the machine.
(d) Definitions. - For purposes of this section -
(1) the "maintenance" of a machine is the servicing of the
machine in order to make it work in accordance with its original
specifications and any changes to those specifications authorized
for that machine; and
(2) the "repair" of a machine is the restoring of the machine
to the state of working in accordance with its original
specifications and any changes to those specifications authorized
for that machine.

Please refrain from misleading people in future.

Re:Black's Law Dictionary

[Anonymous Coward]

It does say "and that it is used in no other manner," which, strictly speaking, makes reverse engineering it illegal, but I seem to recall other laws protect that.

That will be Title 17 S 1201 (f):

(1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.

(2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.

(3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.

(4) For purposes of this subsection, the term "interoperability" means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.

Re:Black's Law Dictionary

[tepples]

You are likely copying software when you install it

This sort of copying is not an infringement under United States law, 17 USC 117(a)(1): "Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner".

The legal question has typically been whether the software is a "work" to which copyright law applies.

Computer programs are literary works, which United States law defines as "works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia". Scalable fonts are considered computer programs whose output is a glyph picture, but the glyph pictures themselves are not considered original enough for U.S. copyright.

Re:Black's Law Dictionary

[debrain]

I have a point that you may find interesting or illuminating.

You are likely copying software when you install it

This sort of copying is not an infringement under United States law, 17 USC 117(a)(1):

Copying without permission is infringement. However, one is not liable for infringement where (1) you have permission to make the copy through a license of the copyright holder, or (2) alternatively through exception set out in 17 USC 117(a)(1).

There is an implied license upon purchase of software, essentially an implied warranty for fitness of purpose. I believe 17 USC 117(a)(1) is a statutory codification of that sort of implied license.

By installing software, there is a prima facie case of infringement. However, it is a complete defence to have a license permitting the installation, or alternatively the copying falls under a statutory exemption such as 17 USC 117(a)(1).

The shift in onus is an important practical consideration, and the distinction is helpful to understanding how our legal system operates. This is why organizations such as the BSA can make accusations of infringement and require proof of licensing compliance. The burden is not on the BSA to prove that infringement exists - the case for that is in the installation; the onus is on the accused to prove they have a license.

As a lawyer I have argued copyright law as it relates to software, including in federal court. However that was a decade ago; some things have changed, and I always appreciate illumination. Recent issues around intellectual property for fonts I am unfamiliar with, but interested in.

Of course, none of the above is legal advice - seek legal counsel for advice on any particular situation.

I hope the above is interesting or helpful.

Re:Black's Law Dictionary

[tepples]

the onus is on the accused to prove they have a license.

Why wouldn't a 117(a)(1) defense be easy to argue in summary judgment?

Recent issues around intellectual property for fonts I am unfamiliar with, but interested in.

Are you familiar with the Best Western case? This logo is not copyrighted because this letter from the Copyright Office says it isn't.

Re:Black's Law Dictionary

[debrain]

Why wouldn't a 117(a)(1) defense be easy to argue in summary judgment?

If you had a license or proof of purchase, it ought to be straightforward to succeed whether in summary judgment or another method for a determination on the merits.

Practically speaking, a proceeding is unlikely to get to any summary judgment as on the presentation of proof of a licence a plaintiff/copyright holder will likely dismiss its claims.

Are you familiar with the Best Western case? This logo is not copyrighted because this letter from the Copyright Office says it isn't.

I am not familiar with this case. I understand the USCO to have jurisdiction to determine the suitability of works for copyright protection. I recall their decisions being subject to review by the federal courts.

Incidentally, I agree with the decision of the USCO in this case, though not for their reasons (I take no opinion on their reasons, as I have at best cursory experience in this sort of "copyright prosecution"). From a social policy perspective, I believe the BW logo is properly protected as a trademark, and at the same time the objective of copyright is not met by granting copyright protections to the logo.

I wonder what BW hoped to achieve with copyright protections, given that it already has trademark protections. Perhaps they would use it to demand licensing fees from web-sites that have listings with their logo?

Not a murky difference

[Todd Knarr]

To me it's fairly clear that there's two components:

1. The goods. The actual game software delivered to you, whether in a box or via download. It can be purchased and paid for, or provided for free, but it's a good delivered into the hands of the buyer.

2. The service. This would be access to the servers run by the game company and technically needed to run the game, verify account authorization and such.

You can have a mix of the two, depending on the degree to which the game does on-line play. You have completely stand-alone single-player games, completely on-line games, and ones that're a mix of the two (eg. single-player games with a multi-player on-line mode). The law ought to have no problem with this, after all it's got no problem dealing with the sale of a car (goods) that comes with a maintenance contract (a service).

Note that in the above servers not technically needed to play the game are excluded. Ie., the law shouldn't count as a "service" a DRM server whose only purpose is to block disallowed play of a game that's otherwise completely stand-alone and single-player and wouldn't need to interact with a server for any reason other than the game designer's choice to make it dependent on their server. This is distinct from eg. World of Warcraft where the whole point of the game is to interact with a world inhabited by other people, which you can't do without interacting with a game server that maintains the world.

Re:Not a murky difference

[GmExtremacy]

Agreed. Sadly, many companies don't feel this way...

Supposedly some of them are trying to say that even when you buy the game, it stills belongs to them. All you've bought is a license to use it.

Team Fortress 2

[Anonymous Coward]

Team Fortress 2 is an example of game as a service. I bought the Orange Box in 2007, and what was known as Team Fortress 2 then is not what we know as Team Fortress 2 today. In 2007, TF2 was a game with a very specific set of weapons and style of play. Through time, Valve have added hats, new weapons, item drops, crafting, crates and unboxing, community supported items and maps, holiday events, etc. TF2 today is not the product that I bought in 2007.

I don't know if TF2 as a service is a good thing. I'm still playing this since 2007, so they certainly have added value over time. The move to a free to play model has also increased the number of players, which has made the community bigger for our gaming group. However, I can say that I miss the game that I had in 2007, would that mean that I would still play that game today? I don't know, but I would love to still have that choice.

Meaningless distinction

[Kohath]

The fact that it takes this much discussion to determine the answer should tell you you're probably asking the wrong question. There's no need to classify things as either a good or a service. Those classification categories are obviously lacking nuance and don't fit modern reality. So stop using them.

And if you're using these categorizations to try to re-mold reality into a shape that personally benefits you, then stop pretending and stop being deceitful. Reality doesn't cater to your needs. It just is.

I refuse

[P-niiice]

I refuse to play along with the 'games as service' model although I did bend over and spreadem for THQ this week because who can play UFC without having Alistar Overreem in there?
So yeah, I bought a damn online pass AND overreem and i'm not happy with myself.

Ahem

[Anonymous Coward]

The program you run to play the game: good
The data files used to unlock additional game-play: good
Access to servers for online play: service
The availability of downloads and re-downloads: service

Most games today are a combination of goods and services (like buying a car and an OnStar subscription as a package).

Short answer: Yes.

[JoeMerchant]

Coleco 21 LED football handheld game: good.

WoW: service.

What I don't like are the games that masquerade as goods, but want to suck you into services after you're hooked. It's more obvious (and acceptable) when it's a free to play teaser, but paying a $50 entry fee for something that doesn't clearly spell out what you'll be spending later on, or that the service will be shut down at some future date, (GT5 online racing, I'm looking at you) is wrong.

Re:Short answer: Yes.

[idontgno]

Coleco 21 LED football handheld game: good.

In 1979, it was more than good; it was PURE AWESOME. Too many hours wasted playing that damn game.

What I don't like are the games that masquerade as goods, but want to suck you into services after you're hooked.

Games (even single-player ones) that are crippled "out of the box" after paying $50+ and make you buy DLC to get more than a couple hours of play are another example of this trend. They certainly fail on the "bang for the buck" criterion, and publishers who do this to me once never get my return business.

Re:Short answer: Yes.

[Mister Whirly]

Coleco 21 LED football handheld game = about 3 years total time of my life playing this game. How awesome watching a few led lights flash on a tiny screen. Could you even imagine if you handed this to a 10 year old today? They would look at you like you were stark raving insane.

Re:Short answer: Yes.

[JoeMerchant]

Coleco 21 LED football handheld game = about 3 years total time of my life playing this game. How awesome watching a few led lights flash on a tiny screen. Could you even imagine if you handed this to a 10 year old today? They would look at you like you were stark raving insane.

Tell them it's cultural history - immortalized in SuperTramp's "Logical Song."

http://www.handheldmuseum.com/Movies/LogicalSong.htm

Re:Short answer: Yes.

[Mister Whirly]

I could tell them that, and of course their next question would be "Who the hell is Supertramp?"

Re:IT IS A BAD!

[Defenestrar]

That depends - do you have to only pay once, like cement bricks from the mafia, or is it a recurring cost like taxes?

Wah???

[Anonymous Coward]

You forgot to mention how the Italian Islamocommunists are involved in this.

Son, I am disappoint.

In a world...

[rullywowr]

In a world where online connectivity is not only the norm, but absolutely REQUIRED for modern games (WoW, CoD, etc)....we will only see this trend shift more towards the service based model.

Of course, it doesn't hurtthe game manufacturer to insist you buy a base copy of their game (for $60 or so) and THEN basically force you to subscribe to the service going forward. This puts more money in their pocket even before the game is available as well as keeps you hooked. We see this paradigm shift in games such as Call of Duty - MW3 where the "ELITE" service is an additional add on, just as the map packs that everyone just has to have.

Goods Are Usually Good, Service Is Usually Bad

[tunapez]

I'll take a good. Don't need the bad. The last thing I need is a new, grubby friend who's always mooching money off me.

Goods.

[GmExtremacy]

I bought the game and the data is stored on my hard drive. I don't see how it could be called anything but a good that belongs to me.

Box = "Good"?

[Anonymous Coward]

What about games like Skyrim where the DVD in the box is merely a convenience so you don't have to download 4Gb before playing the game, but you are still required to activate the game on Steam in order to play? The box lead me to believe it was a "good" I could loan to a friend when I was done, but it is effectively a "service" since no one else can play my copy after I activated it on Steam.

Re:IT IS A BAD!

[man_the_king]

Video gamse are bad for your health, and they are a disservice to our Nation's morals. Anyone who plays video games should have to do equal time community service washing my cars. Everyone knows I am right so don't even bother modding me down or flaming me you pathetic nerd vergins.

Kinda sad that the guy who modded you a troll did not recognize bilious sarcasm.

Read the EULA

[WillgasM]

It is whatever you agreed to in the EULA. Short of that, if it's a good that depends on a service to function, and it's infringement to recreate that service on your own, then which are you really paying for; the good or the service? I'd say it's a bundle. If each is useless without the other, then what's the point. Sure, I have WoW installed on my computer, but I can't do jack without signing up for the service (rogue servers aside). What about a game without a subscription? Congrats, you bought the good and got the service for free. What about FTP games? Congratulations, you bought the service and got the goods for free.

Re:until the industry goes back to "Goods"

[TaoPhoenix]

The scary thing lately is that the "questions" asked in one story/thread are answered within a week in a subsequent thread. From a few stories above this one:

"A few years back, Sony bought up a small company running an online collectible card game called Star Chamber: The Harbinger Saga. Two days ago, they announced that the servers will be shutting down on March 29, 2012. All of our virtual collectible cards? Poof. It's not surprising - the user base is small and dwindling - but it's proof that any server-based digital goods you 'own' can vanish on a corporation's whim."

http://games.slashdot.org/story/12/03/02/214243/sony-to-delete-virtual-goods

Re:until the industry goes back to "Goods"

[NIN1385]

Yeah I commented on that story too. My only comment was titled "The old saying..." I then said "If you want something done right, do it yourself. A lot of wisdom there."

In other words, if you don't own or obtain a physical copy of whatever it is, it does not exist. The cloud is a joke and a grand illusion so that your private info is eventually readily available online somewhere. Hard to see when you're on the inside looking out.

Up-to-date rosters

[tepples]

I took my old PS3 Madden video games into gamestop for trade in value on the next year's version and they gave me $0.75 for 2010 and 2009. FUCK that shit.

Or you could just continue playing with the old rosters. Perhaps you want this to be a service if you want to play with up-to-date rosters. Or you could buy one of the various Mario sports titles for Wii if you want an environment where rosters don't go stale.

Multiplayer

[tepples]

How many people can play together with the copy of the game stored on your hard drive? Online multiplayer requires a matchmaking service. As for offline multiplayer, PC game developers have historically ignored the market of people who have connected two to four gamepads to a PC.

Re:Multiplayer

[GmExtremacy]

Well, I meant that I think the version of the game that is stored on storage devices belonging to me is mine. Any servers are theirs, and are thus services.

Some companies seem to be under the impression that the game isn't actually yours. They think you only get a license to use it.

Re:Multiplayer

[tepples]

Some companies seem to be under the impression that the game isn't actually yours. They think you only get a license to use it.

Which is leading to development of more multiplayer-centric games, where "the version of the game that is stored on storage devices belonging to me" is useless without the server.

Piracy is caused by arbitrary pricing

[Kethinov]

Post-scarcity economics leads to some fun debates about pricing. I've found that many people want to pay for good software but not many people can agree on what a fair price is. Most indie houses I've visited tell me they struggle mightily on deciding what the "right" price point is. Ultimately their answer boils down to "whatever the market is willing to pay." They just sort of take the pulse of the market and set a price that seems consistent and fair with respect to similar titles.

But that seems wrong to me because it's arbitrary and subjective. If I ask five different Slashdotters whether an Android app is priced reasonably or not, I may get five different answers. Some will think it's too expensive, others will think the app is worth more. The users who think the app is too expensive will pirate it. The users who think it's worth more will only pay as much as the author charges, since they're not furnished with an easy way to give more to the author. This all leads me to believe that we go about pricing software entirely wrong.

If the right price is whatever the market is willing to pay, then why not let the market decide the price itself? Users should be able to decide how much they're going to pay you when they buy your software. If they pick a number below your recommended price (which should be the default), then show them some ads or something. That way at least you're getting the ad revenue instead of piratebay.

But it cuts both ways too. If you let users pick their own price, generous users will have an easy way to give you more money for your work. Some outliers that really like your work may even donate large amounts.

By using this pay-what-you-want model during the app purchasing experience rather than a donations button off to the side, you create an integrated experience which benefits from convenience psychology. The more convenient it is for people to pay you more, the more you will get paid because you've made it easy for your users to be generous.

And by making "free" an option in exchange for some ad impressions, you've completely abolished piracy. Why visit a shady torrent site that has shady ads when you can get it straight from the author and see their less obnoxious ads?

Whenever I meet with and indie developer, I always strongly encourage this model. The biggest reason: the market already functions this way. When you price your app, the user always has piracy as an alternative. If they don't like your price, they'll simply pirate your app. Let the user make the arbitrary decision of what price is right. Don't pretend you can make it for them. You can't.

BSA wants receipts

[tepples]

If you had a license or proof of purchase

Hence the common perception that the BSA wants receipts.