Sony’s latest outage is a timely reminder of our fragile digital gaming rights
Right as Australia’s competition tsar is asking some fantastic questions adjacent to them.
It's unlikely Australia's competition watchdog, the ACCC, took notice of Sony's global outage a few weeks ago. But if they did, it could provide some insightful guidance for its latest inquiry where its touching on the murky framework that governs digital access to games.
Sony's PlayStation Network suffered a major outage in early February that lasted more than 24 hours. It disrupted online play, but crucially for me, cut access to games that required verification from the Sony network to run. So the outage effectively booted me and possibly millions of others around the globe out of the games they supposedly "owned".
Enjoying this newsletter? Help me grow it! Flick this email to a mate or if you are new here, click the button below to sign up.
It's a timely reminder that while we are paying record prices for digital copies of games, we don't necessarily own them like any other good. Typically, the terms in which we engage with them are stipulated by various games' End-User Licence Agreement (EULA), which typically states that players merely pay for access to a title via a licence, which can be revoked under certain circumstances. With some games and some platforms, if that licence can't be verified, the game refuses to boot.
The same could be said of cloud-based gaming platforms. You purchase access to those games via the service. If for whatever reason they get removed halfway through your playthrough of them, that's also fair game.
As timing would have it, the ACCC is actually probing the matter right now, asking some meaningful questions about the sector in its five-year inquiry into Digital Platforms — due to hand down its final report next month. It matters because the ACCC actually has a track record here for changing global gaming consumer practices. Its landmark court case against Steam regarding its refund policy reshaped the way in which the online gaming giant now issues refunds in all jurisdictions.
This is a broad inquiry, and gaming is far from the focus. However, the ACCC is looking into three crucial issues with gaming: The distribution of games and ability to play them across multiple platforms. Using licences to access games, are consumers adequately informed and is this fair? And finally, loot boxes and other manipulative game design choices.
Submissions closed last year. While the overwhelming majority of them focused on the many numerous terms of reference in the inquiry, a few looked at gaming. The most notable was the Interactive Games & Entertainment Association's (IGEA) submission representing the industry. It largely pointed to there being no evidence of a lack of competition and that existing consumer protections within Australia adequately covered consumers with matters relating to games.
Microsoft went straight for the jugular against Google and Apple, saying the rules on their app stores "reduce competition in mobile gaming and not only affect the profitability and innovation incentives for gaming app developers, but also result in reduced choice and increased prices for consumers and players". Google and Apple both pointed to the competition they are seeing from other platforms, including each other, as a deterrent for regulation.
As is often the case with submissions to such inquiries, none of them are wrong. They merely highlight and omit certain points to craft a narrative. This earnings season has more or less vindicated what all the companies are saying about competition. You only have to scan the headlines on GamesIndustry.biz to see what dire state the sector is in, where job losses and falls in revenue abound. It falls to the ACCC to weigh each submission and their evidence accordingly when deciding on regulation.
But one point was seemingly omitted from all of them, that was raised by the ACCC: Consumers generally aren't aware about how all of this actually works. Notably, there weren't any games-relevant submissions from Australian consumer groups for this part of the inquiry. But this hasn't stopped advocacy groups from continuing to argue the issue.
"Games companies - like other digital vendors - have long abused language to deliberately deceive their customers," America's Electronic Frontiers Foundation special adviser Cory Doctorow said.
"For example, by using 'Buy' buttons rather than, say, a button that says: 'licence this under 15,000 words of terms and conditions that neither you nor any other rational person will ever read, but which allows us to terminate your access at will and without warning.'"
While the issue is broad and bleeds into the digital rights surrounding other platforms such as Netflix, Doctorow says gaming could be the epicentre for debate on this ownership of digital goods, given more people feel like they own them. "It's gonna be interesting to see some game exec say, 'Your honour, though the button said "buy this game," we didn't actually sell it to the deceased. So their widow can't possibly inherit it!'" he added.
Electronic Frontiers Australia mirrored this sentiment, but with a greater familiarity with the ongoing inquiry than their US counterpart, added while gaming is included in the ACCC's scope due to its relevance to digital platforms, it's far from the focus. At best, its Vice Chair Kiki Fong Lim and new board member Andrew Roffey told Infinite Lives, it could open up app stores for further activity for indie titles. They also mirrored the point that massive EULAs are ill-equipped to advise consumers on their rights regarding digital games.
Political appetite to act on the ACCC's recommendations from this inquiry may be muted. As of the publication of this article, the prospects of Australia facing an election campaign right as the report is handed down seem likely. And as previously demonstrated, policy makers in Australia seem more determined to regulate against video games than delve into the consumer rights around them. If anything, action on loot boxes would be top of the list.
But if our politicians were locked out of watching their favourite TV shows due to changing and opaque licensing arrangements, well, that would be a different matter.
What do you think about the laws surrounding digital ownership? Should EULAs be (significantly) shorter and clearer? And if you make games, would changing this affect your bottom line? Let me know in the comments.
With physical sales being phased out this is a topic that's only going to get bigger, and likely more heated. Amazon are already fiddling with peoples ebooks and steam now warns you're only buying a 'license'.
At some point something will affect enough of the masses that it provokes a stronger reaction. When your average person 'buys' a game, they (quite reasonably) expect to be able to play it. No matter what the 15000 words t&cs say.
Nice read, it will be interesting to see the ACCC report next month. Anyway, I’m off to play a game I don’t own