Legal analysis roundup (for USA)

Ross Scott · May 4, 2019

Since I've made the "Games as a Service" video, several US attorneys have weighed in on the legal portions of my video. There's not a total consensus and in some cases there was minor misunderstanding, but the conclusions all point in the same direction: GAAS is either not fraud or else extremely difficult to prove it's fraud. Furthermore, even if it was established as fraud, it would be on such a minor level under the law, that it may not even carry a penalty. Barring new information, I'm leaning towards declaring the USA a lost cause on this manner and focusing on countries with stronger consumer protection laws.

Anyway, here's a list of the legal analyses, and some additional appearances I had in responding. I recommend not watching these unless you're bored or doing something else as most are quite long:

"YouTuber Law" video analysis
I think this is the best one (also the 2nd shortest). He grasped my arguments well and gave a realistic look at the situation.

Leonard French long video analysis
A longer look at the laws in the video, I also had some audio appearances in this one where I asked more questions.

Leonard French short video analysis
A quick look at the laws in the video, he made some conclusions that weren't quite applicable, which prompted the longer analysis

Hoeg Law video analysis
I thought his legal portion was relatively good, though there was a small misinterpretation on the legal portion and a major misinterpretation on my stance.

Hoeg Law audio discussion / debate
I appeared with Hoeg Law to go over his rebuttal and debate was was said in the previous video. Discussed the larger issue also and not just the law in this one.

Nick Rekieta Law discussion

mirror
A more casual discussion, he takes a differing view than most other attorneys, but still comes to a similar conclusion, that working within the confines of existing law is unlikely to work in USA. We talk about various other things too.

Anyway, sorry to flood the site with all this legal analysis, I swear that's not the long-term direction things are taking, more regular videos coming!

ADHD version: Ross was right on some things, wrong on some things, doesn't matter for USA; the situation there is basically hopeless on legal protection against destroying games.

This is a blog post. To read the original post, please click here »

Im_CIA · May 4, 2019

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the situation there is basically hopeless on legal protection against destroying games.

gg

Im_CIA · May 4, 2019

It was always over for me. Now it's negative not over. But if we treat the phrase "not over" as an immutable variable and put it in absolute form, then yeah.

Im_CIA · May 4, 2019

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Can we go back to having fun again.

What+went+so+right+taken+from+philosophy

Raider · May 4, 2019

At this point ,I'm still really not that interested in the whole "dead games" battle going on. Mostly because it has not hit a game I really enjoy and miss.
Although I will say this:
After being informed about the current trend and status of the practice of killing games as well as reading what Ross is trying to do about it ,AND seeing the responses he got from a couple of "law students"(I doubt it's JUST in my opinion) it really got my blood boiling to say the least.
I fear this whole issue is rooted sooo deeply in politics, government, global corporations and world monopoly that we would like to believe. What I'm saying here is ,this ISN'T just about games. It may start out from that ,but I truly hope that this movement that Ross is trying to create will spark a revolution in how we let the majority set the rules of the entire population.

P.S.: Internally I actually broke my ass laughing at how these so called "lawyers" on YouTube tried to debunk Scott's arguments with written laws that are inherently immoral when it comes to such practices as destroying games. Just because someone isn't making enough money from their precious product. So yeah I sincerely hope that the - "F you society. Shut the hell up and do what you're told ,because we know what's best for you" mentality can actually be broken ,burned and reformed as to actually benefit all sane minded humans on this planet.... although I'm quite pessimistic about that...

RandomGuy · May 4, 2019

I'm not really interested in this whole ongoing discussion because I fundamentally don't think that online-only games dying is the biggest problem facing gaming today (and of course, in the context of society as a whole, it's so minuscule as to not even be worth thinking about). I'd say the biggest issue facing gaming today is actually that online-only games are increasingly becoming the only way to make big games profitable in the first place. This seems to be because of absurdly high PED (games today cost about half as much to buy as games 25 years ago accounting for inflation, yet cost far more to make, and consumers have gotten used to it), rampant piracy ("indie games will save us when AAA can't" is a common refrain yet they can reach literally 98% piracy rates), and overall just how absurdly profitable microtransactions are compared to literally everything else (Clash of Clans, a crappy primitive freemium phone game, made more money than most of the actual biggest game franchises: $6 billion). It's gotten to the point that when opportunity cost is considered, publishers are effectively losing money by making single player games at all.

I don't want every game to become CS:GO or LoL.

Edited May 4, 2019 by RandomGuy (see edit history)

ScumCoder · May 5, 2019

12 hours ago, RandomGuy said:

It's gotten to the point that when opportunity cost is considered, publishers are effectively losing money by making single player games at all.

This is only one half of the truth. The other half is that it's become ridiculously cheap to create a game that looks good enough because numerous engines, tools, assets etc. are now in abundance. It was impossible to even imagine 7 or 10 years ago that a team of 3 guys with a shoestring budget will be able to make a game that looks and plays almost like a AAA title.

Now add this fact to the notion that there will always be creative and talented people obsessed with making a great game first and foremost, and considering money as nothing more than means to achieve this goal, not vice versa; and you'll see that we will never see great games stop being made. Gaming world is like a vessel and developers are like gas that always fills all available volume; as soon as some corporate creep starts talking bollocks like "PC is dead" or "nobody plays singleplayer games today" or other bullshit like this, projects like Star Citizen (proudly PCMR) or Witcher 1/2/3 (proudly singleplayer) instantly emerge.

RandomGuy · May 5, 2019

10 hours ago, ScumCoder said:

This is only one half of the truth. The other half is that it's become ridiculously cheap to create a game that looks good enough because numerous engines, tools, assets etc. are now in abundance. It was impossible to even imagine 7 or 10 years ago that a team of 3 guys with a shoestring budget will be able to make a game that looks and plays almost like a AAA title.

It really hasn't. Making a game still takes enormous amounts of resources that are becoming increasingly harder to justify with piracy increasing, real game prices DECREASING, and online microtransaction-ridden MP games becoming increasingly popular.

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Now add this fact to the notion that there will always be creative and talented people obsessed with making a great game first and foremost, and considering money as nothing more than means to achieve this goal, not vice versa; and you'll see that we will never see great games stop being made. Gaming world is like a vessel and developers are like gas that always fills all available volume; as soon as some corporate creep starts talking bollocks like "PC is dead" or "nobody plays singleplayer games today" or other bullshit like this, projects like Star Citizen (proudly PCMR) or Witcher 1/2/3 (proudly singleplayer) instantly emerge.

These are both absolutely terrible examples of whatever point you're trying to make. Witcher is viable because costs in Poland are very low and CDPR treats its workers like absolute dog shit. Star Citizen is viable because it scammed hundreds of millions in crowdfunding money for promises they'd never deliver on and is, you know, a multiplayer game loaded to the brim with microtransactions. The exact kind of game I am talking about.

Neither model is remotely sustainable, in fact had a big game corp done the same things as these companies in the USA they'd probably have gotten sued by the federal government.

Edited May 5, 2019 by RandomGuy (see edit history)

Enguzrad · May 6, 2019

Even in the case of games becoming completely unprofitable there will still be people making them.
There were and still are people who make flash games and freeware games. They didn't see any money from that yet they made them because they wanted to.
Sure, there probably wouldn't be any AAA ultra realistic graphics games anymore, hardly anyone could raise money or have time for it, but there would be enough passion projects, some crowd funded games and maybe even more open source games (think of the modability).
And personally I am more interested in these than what major publishers shell out lately. Most of it is stuff we have already seen wrapped in better textures. I have already big enough backlog that I am not even seeking good games but games which do something I didn't see yet. Weird genre hybrids, unseen gameplay concepts... stuff like that.

Depending on how you look at it, stopping these practices is not even that important if the point is to keep as many games playable as possible. Only major publishers are pursuing GAAS and from the total yearly releases they produce only minority of games. I think backwards compatibility is more of an issue for average player. You can also consider the growing number of games which are forgotten and you would be hard pressed to find a copy, or even games which could potentially exist but the creative person didn't get the opportunity to make it.

RandomGuy · May 6, 2019

2 hours ago, Enguzrad said:

Even in the case of games becoming completely unprofitable there will still be people making them.
There were and still are people who make flash games and freeware games. They didn't see any money from that yet they made them because they wanted to.

People will still make mods for 20-year old games or flash games, but no one is going to hire hundreds of people (from programmers to to managers to artists to voice actors to writers) and spend tens of millions of dollars and 2-4 years making an actual high-quality modern game (or anything close to one) "just because."

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but there would be enough passion projects, some crowd funded games and maybe even more open source games (think of the modability).

I have no confidence whatsoever in crowdfunded games, at least not without severe reform in that area to bring it in line with 'regular' businesses. It's way too easy to scam people.

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And personally I am more interested in these than what major publishers shell out lately.

Good for you, but I'm not, and neither are the vast majority of people who play video games. I'll also reiterate that soon enough there won't even be much room for these smaller developers.

Edited May 6, 2019 by RandomGuy (see edit history)

Enguzrad · May 6, 2019

1 hour ago, RandomGuy said:

People will still make mods for 20-year old games or flash games, but no one is going to hire hundreds of people (from programmers to to managers to artists to voice actors to writers) and spend tens of millions of dollars and 2-4 years making an actual high-quality modern game (or anything close to one) "just because."

Yes, I said the same ("Sure, there probably wouldn't be any AAA ultra realistic graphics games anymore,...").
Point is the only high-quality thing here are the graphics and voice acting. The actual gameplay is on par with what we had 10 years ago (sometimes worse, depends on microtransactions). There is nothing wrong with liking high fidelity graphics, but you can make serviceable looking yet fun small game in your free time. Thats why I am not worried about games being profitable (don't take it as a support for piracy though, I do buy my games).

1 hour ago, RandomGuy said:

I have no confidence whatsoever in crowdfunded games, at least not without severe reform in that area to bring it in line with 'regular' businesses. It's way too easy to scam people.

Yes, thats why I said "some". I agree there is too much scamming there. Though too many people will throw money on promises. You could say publishers were scamming people for a long time already with unfinished products, preorders and now GAAS.

1 hour ago, RandomGuy said:

I'll also reiterate that soon enough there won't even be much room for these smaller developers.

Could you elaborate on that? How would a bunch of friends be unable to work on game in their free time? Heck, what would push small developers out of the market? People buy indies now, the same people will buy them in future. The market for those games may be small but it is there.

And just to clarify, I am not saying GAAS is not an issue. I just argue it is not the only issue and not even the biggest issue. Though I do see merit in tackling it early before it gets going. Could get people on board with solving other problems plaguing games as well.

Edited May 6, 2019 by Enguzrad
Fixed a typing error. (see edit history)

ScumCoder · May 6, 2019

21 hours ago, RandomGuy said:

Witcher is viable because costs in Poland are very low and CDPR treats its workers like absolute dog shit.

Oh come on, are you actually trying to pull this card? Horrible work conditions are a standard in gamedev. There is nothing special about CDPR (actually they look pretty good compared to American companies in this regard).

As for development costs - Witcher 3 was an absolute financial success, meaning that its sale figures were good enough even from the perspective of USA companies. Lower development costs just mean that it was even more profitable for CDPR, but it's in no way the reason why it was successful.

21 hours ago, RandomGuy said:

It really hasn't. Making a game still takes enormous amounts of resources

Nice argument you have there. I guess I'll just answer in the same way as you did: "No it doesn't".

Just off the top of my head, here's a game trailer that I accidentally stumbled upon an hour ago while browsing VK: https://www.youtube.com/watch?v=iBBWudCldxM

Obviously it's not a masterpiece, but it is being done by one guy in his spare time.

O N E.

And there are hundreds of projects like this being done.

You have freely available engines, assets, terrain generators, character generators, tree generators (!), and dozens upon dozens of other tools that allow you to create a solid game for a budget of a sandwich and a cup of coffee. The only things you really need are talent and passion; and those not only aren't the prerogative of big companies, but lately they are rather an antithesis of big companies.

Since I wrote my previous post I found this video that explains what I'm talking about pretty well. I highly recommend to watch it, but keep in mind that it was done seven years ago - there was gargantuan progress in gaming development tools since then.

1 hour ago, RandomGuy said:

hire hundreds of people (from programmers to to managers to artists to voice actors to writers) and spend tens of millions of dollars and 2-4 years making an actual high-quality modern game (or anything close to one) "just because."

Once again, you operate on the basis of information that's been outdated for almost a decade. There is absolutely no need whatsoever to spend "tens of millions of dollars" to make a game that looks good enough. ATOM RPG (again, just one of dozens of examples off the top of my head) was created for a budget of $33K (that's thirty three thousand dollars).

1 hour ago, RandomGuy said:

Good for you, but I'm not, and neither are the vast majority of people who play video games.

I don't give a flying frak about "the vast majority of people". I care about great games being made. For "the vast majority of people" the Fallout series starts from the third part, freaking Skyrim is "the best RPG ever made", autistic Telltale formula is a good storytelling device, etc.

Edited May 6, 2019 by ScumCoder (see edit history)

Im_CIA · May 6, 2019

GAAS IS ASS GAAS IS ASS

RandomGuy · May 6, 2019

2 hours ago, ScumCoder said:

Oh come on, are you actually trying to pull this card? Horrible work conditions are a standard in gamedev.
As for development costs - Witcher 3 was an absolute financial success, meaning that its sale figures were good enough even from the perspective of USA companies. Lower development costs just mean that it was even more profitable for CDPR, but it's in no way the reason why it was successful.

Horrible work conditions are not "standard" on the level CDPR has them; they'd literally be illegal in the first world. And they can't make their games without those conditions; consider that, even with these bottom of the barrel labor costs, Witcher 3 still costed nearly $90 million to make. Thus, it is not a remotely sustainable model and doesn't solve the underlying issue of single-player games dying.

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There is nothing special about CDPR (actually they look pretty good compared to American companies in this regard).

You're just blatantly lying at this point. CDPR would have absolutely no one working for them if they were based in any developed country, and Poland is rapidly approaching that level.

EA, the devil of the industry, pays its developers $90-100k on average with great benefits.

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Nice argument you have there. I guess I'll just answer in the same way as you did: "No it doesn't".

Just off the top of my head, here's a game trailer that I accidentally stumbled upon an hour ago while browsing VK: https://www.youtube.com/watch?v=iBBWudCldxM

Obviously it's not a masterpiece, but it is being done by one guy in his spare time.

O N E.

And there are hundreds of projects like this being done.

And the vast majority of them are either total crap or never get made. They're no replacement for dedicated studios with hundreds of millions in resources.

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Once again, you operate on the basis of information that's been outdated for almost a decade. There is absolutely no need whatsoever to spend "tens of millions of dollars" to make a game that looks good enough. ATOM RPG (again, just one of dozens of examples off the top of my head) was created for a budget of $33K (that's thirty three thousand dollars).

And it looks like crap. I don't want games to be either online-only MMOs or perpetually locked in the level of the 90s (even though I still play games from that time).

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I don't give a flying frak about "the vast majority of people". I care about great games being made.

The vast majority of people disagree with you about what constitutes a "good game." One of them is me. Thus, why I consider this an issue, and you may not. Which is fine for, you I guess, but other people actually like modern AAA single player games.

3 hours ago, Enguzrad said:

Yes, I said the same ("Sure, there probably wouldn't be any AAA ultra realistic graphics games anymore,...").
Point is the only high-quality thing here are the graphics and voice acting. The actual gameplay is on par with what we had 10 years ago (sometimes worse, depends on microtransactions). There is nothing wrong with liking high fidelity graphics, but you can make serviceable looking yet fun small game in your free time. Thats why I am not worried about games being profitable (don't take it as a support for piracy though, I do buy my games).

It's not just graphics and voice acting, though both of those are a big issue (particularly the latter). It's also just presentation/polish in general as well as depth of mechanics. When all of this is considered I don't see how an indie dev could ever make something like, say, Fallout New Vegas.

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Yes, thats why I said "some". I agree there is too much scamming there. Though too many people will throw money on promises. You could say publishers were scamming people for a long time already with unfinished products, preorders and now GAAS.

I don't consider any of the above scams. You get what you pay for and there's tons of information available on what you're buying. Crowd funding, on the other hand, is a complete crapshoot. They can take your money, give you nothing in return, and there's nothing you can do about it. Additionally, there's no real oversight and no real incentive for them to do what they say. Even actually good indie games like Minecraft fell into this trap (prior to becoming, well, not indie, thanks to Microsoft). That game was alpha funded; this is better than crowdfunding because you actually have to show the customer something first, then they pay you, and you promise to give them more later. But when the developer got his millions he stopped bothering to develop the game, there is a chart someone compiled that showed he spent over 50% of 2011 on vacation. The final product was also nothing like what was promised, showing how easy it is to scam people with such a funding scheme in even the most high-profile scenario.

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Could you elaborate on that? How would a bunch of friends be unable to work on game in their free time? Heck, what would push small developers out of the market? People buy indies now, the same people will buy them in future. The market for those games may be small but it is there.

"Hobbyists" will not crank out games to the same extent that full studios will: these are, after all, thousands of man hours worth of work, even if the tools themselves advance to the point where they cost nothing. A consistent stream of good games, even indie ones, are only viable if the devs can do it full time and are compensated for their work.

The problem with that? Well, there are two. One, indie developers are in the same boat as AAA developers: if they're not making a multiplayer game riddled with microtransactions (cf. Star Citizen), then they're effectively losing money when opportunity cost is considered.

Two, the elephant in the room, digital piracy. Entire companies have folded because of it. While the exact figure varies, PC indie games without significant DRM tend to have around a 90% piracy rate. World of Goo had that. Some games, such as Heavy Hogur, can get a 98% piracy rate.

http://arstechnica.com/gaming/2008/11/acrying-shame-world-of-goo-piracy-rate-near-90/

http://m.slashdot.org/story/139522

http://www.gamasutra.com/blogs/JakubKasztalski/20171027/308436/So_5245_of_People_Playing_my_Indie_Game_Have_Pirated_it.php

http://forums.indiegamer.com/threads/confirmed-98-piracy-ratio.23669/

https://thenextweb.com/insider/2016/03/22/indie-developer-sells-300000-copies-game-finds-1-million-pirated-copies/

Even 'casual' games get 92%+ rates:
https://www.gamasutra.com/view/news/108301/Casual_Games_and_Piracy_The_Truth.php

...and games that cost literally 1 cent to purchase get 25% rates.

http://www.escapistmagazine.com/news/view/100576-Who-Would-Pirate-the-One-Cent-Humble-Indie-Bundle

This means only the most insanely successful games can survive in spite of said piracy, essentially off of donations. How do you get around piracy (beyond actually enforcing penalties on everyone which no one is going to bother to do)? Make the game always-online. This has consistently been found to be the absolute best way of proofing it. Online games like League of Legends and World of Warcraft are a far larger percentage of the gaming market these days than ever before, and there is no significant piracy of MMOs and similar games because the server data is kept secret. You literally have to physically steal the hard drive from a company server and even then your pirate server is going to be out of date and really crappy.

A good example of this trend in action is China. People in China are primarily PC gamers, and play all types of games. In fact, China is the biggest gaming market in the entire world, having surpassed the U.S. two years ago. But the only games that Chinese studios make are multiplayer always-online ones (F2P FPSes, MMOs, freemium mobile games, etc.). I'm serious, check; it's every single one. Why? Because it's essentially impossible for any other types of games to make money. There is no mass output of single player passion projects in China, even though Chinese gamers DO like to play single player games (we know, because Western and Japanese games are pirated or bootlegged en masse on there), and even though China itself is the world's largest producer of programmers (and second largest producer of software developers). Instead, the whole sub-market is just dead.

This shift is happening right now, and it worries me. We can't close this box. In 20 years, single player AAA games may very well be extinct, and single player game output in general declined significantly outside of mods for decades-old games and engines. I don't see any way to reverse this.

Edited May 6, 2019 by RandomGuy (see edit history)

BTGBullseye · May 7, 2019

6 hours ago, RaTcHeT302 said:

Hawken

It was a somewhat faster paced version of Mechwarrior Online, with smaller maps, almost no customization, and everything was effectively locked behind microtransactions. Oh, and most of the purchased stuff was still time limited. (would go away in a day/week/month) It also liked to put all the free players on one team, and all the paying players on the other, so the paying people always won. (it was completely pay2win)

NightNord · May 7, 2019

Yeah, YouTuber Law guy is pretty good one, a lot better than Lennard who sufferes from lack of attention to detail and coherent production. Though it's funny how he calls you "Ms. Scott"

P.S. And yes, his solution is actually quite good. Provide incentive, so big companies will start doing it for profit and small companies will do that because it's cool. And if will create a clear single repository you may commit stuff to, which is a lot easier than inventing your own solutions - just put it into library of sorts and then it's library problem. It works for books.

Edited May 7, 2019 by NightNord (see edit history)

Enguzrad · May 7, 2019

18 hours ago, RandomGuy said:

And the vast majority of them are either total crap or never get made.
"Hobbyists" will not crank out games to the same extent that full studios will

Don't forget there is much more hobby developers than studios. High waste rate is not an issue. Also with less good games each year, people should be more willing to pay for them since market will be starved. Unless they would be content with what already exists but if that was the case games already wouldn't make any money.

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And it looks like crap.

Matter of opinion. Looks good to me. Only the animations look bad.

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The vast majority of people disagree with you about what constitutes a "good game."

Vast majority of people seems to be fine with always online games and heavy microtransactions. If majority is right then GAAS is the way to go. People wouldn't buy those games otherwise, right?

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It's also just presentation/polish in general as well as depth of mechanics. When all of this is considered I don't see how an indie dev could ever make something like, say, Fallout New Vegas.

Big budget and lot of people doesn't necessarily lead to polish and gameplay depth. If it does then why so many AAA games still have shitty AI, meaningless choices, bullet sponge enemies, primitive modifiers such as +5 damage or 5% to drop loot box on hit, a hundred variations on 5 basic guns, bluntly presented kill x of y quests or tons of bugs on release?
Any seasoned gamer should be able to name some indies with high level of polish and/or deep gameplay (just from top of my head - factorio, brigador, dust elysian tail).

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I don't consider any of the above scams. You get what you pay for and there's tons of information available on what you're buying.

I don't think that there were many people for which games such as EA's SW Battlefront met their expectations. You pay in advance for something they promote as excellent game, true successor etc. and you get shallow experience with barely any content. Sure, they won't just run away with your money but either way I wouldn't say you got what you paid for.
Once the game is out however, then you are right it's on the buyer to be informed. Preorders are not literally scam, people would sue otherwise, just like killing games is not illegal (for now).

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Two, the elephant in the room, digital piracy.

If those high percentages are true and piracy has been running rampant for more than 20 years, how the hell are any indie games being made anymore? They should be bankrupt, yet I still see plenty of new releases.

Also how about:
"GAAS the gamers!" Said the EA officer.

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