As a cynic, I have come to take a lot of things with a grain of salt. As such, I have come to be a very salty person indeed, especially when it comes to video games.
Now, I am not talking about being a sore loser (which I am, but that is not relevant here). I am talking about when something is marketed as “complete” but really is not. This has been an ongoing problem in the video game industry for years and has really spiked with the advent of the Internet becoming highly visible, mainstream, and stable enough for digital downloads to compete viably with physical retail. I love the fact that the Internet has helped move the frontiers of gaming as much as the next nerd, but there has to be a line drawn with where developers and publishers get off with shipping 70% of a game and calling it a day (usually with the promise these days of Day 1 DLC). It is a sloppy practice that infuriates honest consumers, who continue to be at the mercy of this irrational belief that games are not products but something obtained through license.
Allow me to explain. Remember the old days when you bought a video game from Funco Land? You got it in the box, you took it home, you stuffed the massive cartridge in your NES, and presto! That was the end of it. If the game did not work, you brought it back to the store and you were compensated appropriately in some way. Those days are long dead, thanks to the legal magic of licenses. To break it down in very simple terms, a product is a good, and a good has to be treated in certain ways which, in most countries, protect the rights of the consumer under applicable law. Buying a video game from the store is buying a product. That meant that if you bought a copy of Tecmo NBA Basketball from Funco Land and it did not work, either Funco Land or Nintendo was on the hook to resolve that. The reason the sale of goods is given more protection for consumers is that industrialized societies have many specialized fields. There are very few entirely self-sufficient people anymore and, with most people relying on purchasing goods made by others, society has adopted a view that people should be informed about what they are purchasing before they buy it. “Caveat emptor” just sounds like condescension after a Ford Pinto explodes and turns your pet goldfish in the backseat into tonight’s barbecue.
Contrast the treatment of goods with the treatment of licenses. Licenses are agreements whereby the licensor gives the licensee permission to use some licensed thing that belongs to the licensor. In property law, this has many applications. For instance, a property owner with vast acres of forest on his land may grant a license to a logging company to harvest some trees. On the one hand, the licensor (the property owner) benefits because he is likely getting some kind of money or other compensation to grant the license, and on the other hand, the licensee (the logging company) benefits because he is getting to use the licensed thing (the trees) without the licensor being able to sue him. So hey, licenses are great. No one is saying all licenses need to be abolished. However, now that we have more games coming to us as in the form of digital content, video game companies have pushed a legal narrative on the courts that games are licensed material, and the thing about licenses is that they can be revoked. Courts have been complicit, at least in the United States, because video games are still perceived as rather marginalized, and there is no strong consumer rights organization of video gamers that has pushed back against this trend. Basically, rich video game companies got in on the ground floor by selling this story to judges across the nation with no one to challenge them. It is the old capital versus labor set-up, with the one being victorious by virtue of divide-and-conquer methods. Without a disciplined union of video gamers presenting an alternative argument to the courts, publishers have consolidated all the power as a matter of the law.
That brings us to my current problem of games that go gold way before they are ready for prime time. Total War: Rome II, released on September 3, 2013, started off as a nearly-unplayable mess. Even very high-end PCs chugged fiercely when running the game at the start of the game’s life cycle. The backlash against The Creative Assembly and Sega was loud. Community managers ultimately apologized for the horrendous state of the game and promised regular patches to correct the numerous problems from which the game suffered. These patches culminated in a near-total overhaul of the game with the release of the “Emperor Edition” on September 16, 2014, slightly more than a year after the game first went live. Yes, the Emperor Edition finally made the game playable, but for the players who were stuck with throwing down $60 on a game that did not work for a year, that was still an insult.
What galls me is that this continues to happen. It might be easy to write off Rome II as a product of Sega’s ineptitude, with that company having a reputation for questionably intelligent practices, but there are plenty of games that continue to bomb on this score. Recently, the Kickstarter-backed Mighty No. 9 made waves for being the latest scandalous disaster to come from crowd-funding. Mighty No. 9 received four million dollars in Kickstarter donations and was met with incredibly middling reviews, leading most to ask, “Where did all that money go?” The simple answer is into the pockets of someone smarter than the Kickstarter donators, it seems. For whatever reasons, this game was not everything it was expected to be, and with a budget of four million dollars to make a basic Mega Man game (on which Mighty No. 9 was modeled), there was no excuse for failing to deliver a solid final product. Pokemon Go, despite the praise I have given it, started off groaning and shuddering under the weight of millions of people playing it. I do not pretend to be an expert on these things, but when you wave red meat at gamers like the Pokemon franchise, it is better to assume you need more servers than fewer servers to support a massive online game. Even now, Pokemon Go operates in fits and starts depending upon where you are, and there is genuinely little reason Nintendo could not have foreseen this.
Easily the most egregious offender, though, is Blizzard’s 2016 magnum opus, Overwatch. Basically since its release date in May of this year, Overwatch has been plagued by lag and latency issues, casting a pall over what is otherwise an enjoyable game. The tech support forum for Overwatch has had not one, not two, not three, but four (at the time of writing) massive threads complaining of the same basic problems, as well as countless smaller ones. Blizzard has largely ignored the massive threads in an act of silence that could either be characterized as hubristic or an embarrassing acknowledgment of ignorance on how to fix these problems. At best, Blizzard has occasionally responded to smaller threads by saying, “Run a DxDiag. Does it look good? Then you should try a wired connection if you are on a wireless connection.” This has left me flabbergasted. The best they have is that I should plug directly to my router? That is like saying my old tube television will only work when I touch its antenna with a hand and arm wrapped in tin foil and my other hand holding a tuning fork near a window and that is just how it is supposed to be. The upturned middle finger in all of this is that Blizzard imposes a “leaver penalty” for quitting several matches in a row before they are over, reducing the amount of experience a player receives by 75%. That experience is what gives players new cosmetic items and is the only real measure of progress in this game in the first place. I have had to quit several matches because Overwatch has been in a state of decay to the point that I may as well have fewer than two frames per second and I was not contributing to my team, only for Blizzard to castigate me under the assumption that I am a poor sport and need to be penalized. If I went into work and told my clients, “I don’t know what the law is. See if throwing yourself on the judge’s mercy works,” I would be out of a job. That Blizzard gets away with this after taking $60 of my money and has not even pretended to find a resolution to this after two months is appalling. Even if I could get a refund, that still would not resolve the specific fact that Overwatch went gold well before what has proven to be a significant problem was nipped in the bud.
If these were the old days, Blizzard would be shelling out refund money by the truckload to consumers because the consumers had purchased a product on a cartridge or disc. Instead, Blizzard gets to thumb its noses at this turn of events because it has licensed Overwatch to me and thousands of others. In theory, Blizzard could shut down every Overwatch server permanently tomorrow and be completely within its legal rights to do so. Blizzard’s only specific concern is maintaining goodwill with its customers (and I cannot imagine Blizzard deserves any goodwill, given the staggering apathy with which it has met resolving its customers’ problems). Overwatch? More like Overbotched, amirite?
This is a real problem, one that deserves people to call out publishers for it. It is time for consumers to stop pre-ordering games and rewarding publishers for promises they fail to keep. We need a less blasé consumer base; instead, we need the gaming media (whether journalists or cultural tastemakers on YouTube) to point out the broken promises and spread the word of which publishers are acting disingenuously. We need people to refuse to acquiesce to the status quo. We need to stop purchasing games that are broken but presented as complete. Once we start pushing back there, the next step will be to shift the way EULAs are treated in the courtroom. We have a lot of work to do before we get there, though. Our primary focus for now should be one thing: to be treated fairly. Publishers should not be permitted to continue to push broken goods on us with impunity. To those publishers who want to scoff at us, we need to tell them that it is game over.
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