Epic Claims Exclusives Strategy Success after Metro Exodus Outsells Last Light at Launch

[tetris42]

Absolutely not. Full stop.

You may have owned a media (floppies, CD/DVD) but unless you are a rightsholder, you have n ever owned any software in your life. You have owned a license that allows you to legally use it.

Again, you've never had ownership of any game you've bought. Just a license. That license has only ever conferred a right to use the software, no ownership rights what so ever. I don't care if the game came on a floppy or on a CD, this has always been the case.

Allow me to be more specific then:

Yes, I was not trying to imply buyers owned the intellectual property rights of the software. But they do OWN the perpetual software license. The seller isn't allowed to remove the ownership of that license after the point of sale. I own my single-instance COPY of the software license as a GOOD. I am legally entitled to resell it, modify it, etc. The seller does not retain ownership over my individual license after sale, that's the whole reason they're SELLING it.

Another way to look at it: If I buy a truck, I don't own the manufacturing or design rights to a Ford F150. I can't start manufacturing copies, selling copies, etc., I have none of those rights. But I DO own my individual truck, which I can modify, sell, drive, etc.

Now with old games, the comparison with goods is 1:1 and this was rarely, if ever, an unclear thing. Sure, DRM existed before Steam, but your ownership rights generally weren't infringed upon with the DRM. Steam largely ushered in the movement where your rights were effectively infringed upon. Sure, you may have "bought" your copy, but if they remove all access to it, you've effectively lost it. They established that standard. I suspect this could run afoul of the law, but it hasn't been tested in courts to the best of my knowledge.

Who is defending Steam?

Certainly not me.. I have time and time again (even in this thread I believe) been on the record stating that Steam has problems of its own.

It seems like you are just from logical conclusion:

If a title is not on either Steam or GoG it won't be getting my money.

So it sounds like you're against all storefronts except GOG or Steam. That's not a defense of it? Especially when you say the following:

honestly I am disappointed in all those who are so pathetically weak-willed that they don't even put up an assemblamce of a fight and allow the anti-consumer assholes to win.

Well under that logic, wouldn't the fact that you use Steam ALSO put you in the "pathetically weak-willed' camp that doesn't put up a fight? Either I'm missing something or your logic doesn't hold up:

1. You say you don't defend Steam because it also has anti-consumer practices.
2. You say people who don't put up a fight towards anti-consumer decisions are pathetic and weak-willed.
3. You use Steam, meaning you're not putting up a fight towards it.
4. Therefore, you are also pathetic and weak-willed, by your own definition (your words, not mine).

Which part of my logic steps am I getting wrong?

For what it's worth, I would also put MYSELF in that category the way you define it, since I use Steam as well. The difference is, I don't see much of a distinction between what Steam has done v. what Epic has done, on the contrary, I see the standard that Steam ushered in as far more consumer-hostile than what Epic has introduced.

 

[ChosenUno]

I assume it's talking about Epic's commission being only 12% compared to Steam and GOG's 30% all the cash they're handing the developer that would normally be going to them under the 70/30 split other retailers use.

In the dozens of articles about the Epic/Deep Silver deal, those are the only two I see that word it like that and none of them make mention of a payout on top of the low commission rate. I would think that would be pretty big news and not something they would fail to mention.

It doesn't make sense to fork over a ton of cash beforehand and STILL give them the ridiculously low commission rate. That deal would definitely be a money loser. That could also be a violation of anti trust laws kinda like how Intel was paying OEM's like Dell and HP to not use AMD chips and that could open up a whole can of worms for Epic. But I admit that the way those 2 articles are worded, it does sound like it.

If that is what Epic is doing then all the outage would definitely have merit but I'm not sure it is. I've tried to find specifics on the Epic/Deep Silver deal but all I find is the 12/88 revenue split and nothing about a payout on top of that. Maybe I suck at Google tho. But if you can find me that it definitely would change my opinion.

https://variety.com/2019/gaming/new...xclusivity-deals-with-steam-games-1203179705/

“We’ve had a lot of discussions about this since GDC,” Sweeney said in one tweet in reply to a question about exclusivity and games already being sold on Steam. “Epic is open to continuing to sign funding/exclusivity deals with willing developers and publishers regardless of their previous plans or announcements around Steam.”

I guess devs are just stupid huh. Why use a proven platform with an install base that's proven to purchase products? Let's all go to an unproven, shittier platform with a similar userbase size that so far operated on microtransactions, and hope and pray that maybe those fortnite kids want to buy AAA $60 games.

Of course there is funding involved. The split is in no way comparable to the potential loss in revenue from the smaller, less ready to pay userbase that Epic has.

Wow, why didn't developers move to Discord store in droves, huh? Discord gives them 90% revenue!!!!

 

[TurboGLH]

Some info that digs into the 88/12 vs 70/30 argument, and probably explain why the only place you can but epic games, besides epic, is humble. They don't want to cannibalize what little profit they have.

https://arstechnica.com/gaming/2019...ets-less-than-30-percent-of-steam-game-sales/

 

[Aix.]

https://variety.com/2019/gaming/new...xclusivity-deals-with-steam-games-1203179705/

I guess devs are just stupid huh. Why use a proven platform with an install base that's proven to purchase products? Let's all go to an unproven, shittier platform with a similar userbase size that so far operated on microtransactions, and hope and pray that maybe those fortnite kids want to buy AAA $60 games.

Of course there is funding involved. The split is in no way comparable to the potential loss in revenue from the smaller, less ready to pay userbase that Epic has.

Wow, why didn't developers move to Discord store in droves, huh? Discord gives them 90% revenue!!!!

Well EPIC is a gaming company with their own popular engine and has demonstrated an ability to serve a huge userbase on their platform already. Using Discord to purchase games was a giant ????? for me when I saw they were promoting their service - to me they were simply that thing that replaced TeamSpeak, so it doesn't surprise me that they wouldn't attract the same level of talent. I honestly don't know anything about the Discord platform, but that was the reaction I had.

But yeah, a lucrative signing bonus is not surprising if EPIC is getting devs to release on their platform with an exclusivity period...and obviously that's on top of a much lower cut AND they will waive the 5% licensing fee if the game is made on UE (like Borderlands 3) - there's certainly a lot to like from a developer perspective.

 

[MacLeod]

https://variety.com/2019/gaming/new...xclusivity-deals-with-steam-games-1203179705/



I guess devs are just stupid huh. Why use a proven platform with an install base that's proven to purchase products? Let's all go to an unproven, shittier platform with a similar userbase size that so far operated on microtransactions, and hope and pray that maybe those fortnite kids want to buy AAA $60 games.

Of course there is funding involved. The split is in no way comparable to the potential loss in revenue from the smaller, less ready to pay userbase that Epic has.

Wow, why didn't developers move to Discord store in droves, huh? Discord gives them 90% revenue!!!!

Still doesn't say anything about a payout in addition to the 12% commission.

And I lol'd at the "unproven shittier platform". Epic's store has 250,000,000 users and generates $300,000,000 a month and has been doing so for well over a year now. And apparently plenty of Fortnite kids wanted to buy a AAA game.

So they get 18% more revenue off each sale and if they sale 500K copies at $60 each that 18% difference would be several million dollars. Hell the difference on the 200K pre-orders alone is over $2,000,000.

So you go with a proven platform with a customer base larger than the population of most industrialized countries and you could make several million dollars more in revenue due to a commission rate that's nearly a third of Steam's. I don't see how that is so far fetched that they'd have to include shady backroom bribes that nobody's reporting on to convince them.

 

[Newbie_52]

Definitely paying big $$ for these games. - https://www.engadget.com/2019/04/03/epic-to-continue-game-store-exclusives/
It's uncertain if the strategy is paying off for Epic, although Sweeney noted that the cash outlay was "significant" and that his company might not turn a profit from exclusives in 2019.

 

[ChosenUno]

Still doesn't say anything about a payout in addition to the 12% commission.

And I lol'd at the "unproven shittier platform". Epic's store has 250,000,000 users and generates $300,000,000 a month and has been doing so for well over a year now. And apparently plenty of Fortnite kids wanted to buy a AAA game.

So they get 18% more revenue off each sale and if they sale 500K copies at $60 each that 18% difference would be several million dollars. Hell the difference on the 200K pre-orders alone is over $2,000,000.

So you go with a proven platform with a customer base larger than the population of most industrialized countries and you could make several million dollars more in revenue due to a commission rate that's nearly a third of Steam's. I don't see how that is so far fetched that they'd have to include shady backroom bribes that nobody's reporting on to convince them.

It's very unproven because they're serving a completely different, maybe even non-overlapping market. All that money came from microtransactions, where even though a player on average spends close to $60, it's not a lump sum, but rather spread out over the course of many months, even years.

https://www.forbes.com/sites/insert...on-the-game-85-spent-on-average/#51fbd8d22060

Take this data:

• 68.8% of Fortnite players surveyed said they spend money on the game
• Of those who spend money, they’ve spent an average of $84.67
• Overall, average spending among all players was $58.25
• 58.9% of purchases made were of skins (18% gliders, 13.5% harvesting tools, 9.5% emotes)
• 36.7% of Fortnite spenders said this is the first time they’ve bought anything in a game
• 79.5% of Fortnite spenders have purchased a $10 battle pass, 45.6% have bought the $25 version
• 35% of students surveyed said they have missed school to play Fortnite, 20.5% of workers surveyed said they missed work to play Fortnite
• The majority of players surveyed said they played Fortnite at least 10 hours a week.

This is the demographic you're trying to target. If you use a little bit of common sense you'd see how targeting this userbase is extremely difficult, simply because their purchase patterns are completely different. They're used to paying small sums over long periods of time, and getting HUGE ROI on their purchase. Even if they purchase once a month, that's $4 for 40 hours of "content". You don't get that kind of content from ANY AAA game that doesn't have a huge modding community behind it.

Dissect the numbers a little more, and you get around 55% of playersspending $10, and 31% spent $25. The rest of their $85 went into smaller purchases, like $8 skins and what not. Are these people likely to give up their spending to buy a single game, when with just as much spent, they get 4x-10x more playtime? The answer is no one knows, and therefore it's a risky publishing strategy.

Let's take these numbers: 500k copies on epic store. With steam now offering 25% on games netting between 10-50 million, 600k sales on steam overtakes the take home amount from epic games. As long as Steam sells 20% more copies than Epic Game Store (very low, conservative estimate), the developers made a loss selling ONLY on epic game store. This is not counting the loss sales from other platforms like GoG. And when you gross over 50 million, steam takes 20%, which skews even more in steam's favor as a distribution platform.

Devs aren't stupid, they know all this. The logical conclusion to signing an exclusivity deal to a new, unproven platform with shittier features is bags of bribe cash from Epic, or as Tim call it "funding".

Or maybe devs are really stupid, who knows. With how Anthem was developed, maybe they really are stupid and unable to do basic math.

 

[MacLeod]

It's very unproven because they're serving a completely different, maybe even non-overlapping market. All that money came from microtransactions, where even though a player on average spends close to $60, it's not a lump sum, but rather spread out over the course of many months, even years.

https://www.forbes.com/sites/insert...on-the-game-85-spent-on-average/#51fbd8d22060

Take this data:



This is the demographic you're trying to target. If you use a little bit of common sense you'd see how targeting this userbase is extremely difficult, simply because their purchase patterns are completely different. They're used to paying small sums over long periods of time, and getting HUGE ROI on their purchase. Even if they purchase once a month, that's $4 for 40 hours of "content". You don't get that kind of content from ANY AAA game that doesn't have a huge modding community behind it.

Dissect the numbers a little more, and you get around 55% of playersspending $10, and 31% spent $25. The rest of their $85 went into smaller purchases, like $8 skins and what not. Are these people likely to give up their spending to buy a single game, when with just as much spent, they get 4x-10x more playtime? The answer is no one knows, and therefore it's a risky publishing strategy.

Let's take these numbers: 500k copies on epic store. With steam now offering 25% on games netting between 10-50 million, 600k sales on steam overtakes the take home amount from epic games. As long as Steam sells 20% more copies than Epic Game Store (very low, conservative estimate), the developers made a loss selling ONLY on epic game store. This is not counting the loss sales from other platforms like GoG. And when you gross over 50 million, steam takes 20%, which skews even more in steam's favor as a distribution platform.

Devs aren't stupid, they know all this. The logical conclusion to signing an exclusivity deal to a new, unproven platform with shittier features is bags of bribe cash from Epic, or as Tim call it "funding".

I get what you're saying that Epic isn't proven in as far as being able to sell third party products. You are exactly right in that. What I mean by "proven" is that Epic has shown it has a stable platform that can handle the transactions and has a super massive customer base with their client already serving 250 million customers.

It definitely was a risk for Deep Silver no doubt but I don't think it was that big of one. Epic's store is already in use by literally hundreds of millions of customers and Epic games is virtually a household name these days and Epic/Fortnite as a brand is bigger and more recognizable than Steam right now so it's not that big of a stretch for Deep Silver to see that, that Epic is kind of dominating the gaming world right now and that they could hitch their wagon to this gaming juggernaut and make a shit load more money while they're at it potentially. Like I said, just off pre-orders alone, Deep Silver made an extra 2+ million by going with Epic.

Also don't forget that Metro isn't that big a name. I'd even bet most casual gamers have never heard of the series. So knowing that, I don't think it would be necessary to hit them up with a big bribe or something to get them to sign on.

I do get what you're saying and it is a reasonable assumption but I just don't think it's what happened in this case. If this had been GOG and say a new Battlefield game then I'd be more inclined to think you're right but Epic is kinda king of the world right now and Metro Exodus is kind of a small time player in the gaming scheme of things. When you look at how much extra money Metro devs could make, like $10 million extra, I think that's all the incentive they'd need.

Or maybe devs are really stupid, who knows. With how Anthem was developed, maybe they really are stupid and unable to do basic math.

HAHA! That made me LOL

 

[Delicieuxz]

Absolutely not. Full stop.

You may have owned a media (floppies, CD/DVD) but unless you are a rightsholder, you have n ever owned any software in your life. You have owned a license that allows you to legally use it. The digital distribution model changes only the media part of it. And it is a little bit of a leap of faith, indeed, because if the store goes belly up, you lose access to the media. It is unclear at this point what would happen in in that case. I'd imagine you would have to petition the original studio or publisher for access.

That's not so. It is established in law in pretty much the entire Western world (including the EU with UK, Australia, and Canada) outside of maybe the US (though there are pro-software-ownership rulings in the US) that when you purchase software you become the owner of it.

Understanding software licenses and EULAs: You own the software that you purchase

And the non-Western world has no position that people don't own their software, AFAIK.

The bottom line is, though, that when you purchase software, you become the owner of that software. That includes software that we buy on Steam, Origin, EGS, Uplay, or wherever else: You buy it, you own it.

It is no different than buying a book or a DVD or a pair of shoes - you don't own the IP, but you own the instance.

The license a person gains when they purchase software is to use the IP via their instance. The purchased non-reproduceable instance of an IP isn't licensed, but is fully owned.

 

[M76]

That's not so. It is established in law in pretty much the entire Western world (including the EU with UK, Australia, and Canada) outside of maybe the US (though there are pro-software-ownership rulings in the US) that when you purchase software you become the owner of it.

Understanding software licenses and EULAs: You own the software that you purchase

And the non-Western world has no position that people don't own their software, AFAIK.

The bottom line is, though, that when you purchase software, you become the owner of that software. That includes software that we buy on Steam, Origin, EGS, Uplay, or wherever else: You buy it, you own it.

It is no different than buying a book or a DVD or a pair of shoes - you don't own the IP, but you own the instance.

The license a person gains when they purchase software is to use the IP via their instance. The purchased non-reproduceable instance of an IP isn't licensed, but is fully owned.

So you own the license to use the software.

It is different to a pair of shoes because you don't need a "shoe server" to wear your shoes. They need to provide a service for the software to function.

 

[Delicieuxz]

So you own the license to use the software.

It is different to a pair of shoes because you don't need a "shoe server" to wear your shoes. They need to provide a service for the software to function.

That's like saying you own the license to use the shoes but not the shoes, themselves. The shoes are also an instance of a proprietary IP. But, we don't say "you don't own the shoes, you only own a license to use the shoes" because "the shoes" has double meaning and can refer to the instance, which is the immediately thought-of meaning when saying "shoes", or the IP. I think most people would commonly say "the IP for the shoes" if they meant that interpretation of "the shoes"

The same is with software: There is the software IP, and there are the software instances. People own their software instances and when most people say "software" they're immediately think of the item they have in their possession or want to get - and they own that software. If talking about a software IP, then the coherent way to express that in normal conversation would be "the software IP". EULAs don't use that phrasing because they aim to trick and manipulate the readers of the EULA. But, EULAs are not laws and don't over-write laws.


You don't need a server to use most software, either. And whether software requires access to a server to be used is a separate issue than the one of software ownership.

Just because a person isn't backing up their software but is depending on the download service to have initial download access to it doesn't change that they own an instance of that software. And if a person can't access the download service to get their owned software then they can acquire it by another means to exercise their right to their software.

 

[M76]

That's like saying you own the license to use the shoes but not the shoes, themselves. The shoes are also an instance of a proprietary IP. But, we don't say "you don't own the shoes, you only own a license to use the shoes" because "the shoes" has double meaning and can refer to the instance, which is the immediately thought-of meaning when saying "shoes", or the IP. I think most people would commonly say "the IP for the shoes" if they meant that interpretation of "the shoes"
.

That's because shoes are a phyisical property, you own those specific shoes. As for software you don't own a specific copy of the software, you have the right to use a copy, not a specific one.
This is completely meaningless anyway. You can call it owning the software that won't change the fact that you cannot use it without a service.

If you have a CNG car but they decide to shut down all CNG stations, then what? It's the same thing.

 

[Ebernanut]

I honestly don't know what to make of your post. You say it's the "principle of the thing", but I have to wonder. See, I would argue the biggest anti-consumer move in the PC space has already happened with Steam itself. Before Steam, you owned your game, full stop. Now, "it depends." If it's a game with online DRM with no crack, you're effectively renting the game. Now most of the time you do own the game, but it's been around long enough that companies will shut down and you're left with nothing. This generally started with Steam.

I dislike DRM that means I don't have ownership of the game as well. I tried to avoid Steam as long as I could, but one look at the PC gaming industry shows I would have missed out on an ENORMOUS number of titles if I had to stay off it. I still don't like it, but it is what it is. So yes, I caved in and started using Steam. I don't defend it, but there are hundreds if not thousands of games available nowhere else if I didn't. To me, Epic, Origin, Uplay, Battle.net, is all just more of the same. If you're principled, GOG is the only company that doesn't do this bullshit. Everybody else is a mixed bag. I find it so petty that people will zealously defend Steam, yet condemn Epic. It's almost always hypocritical.

Remember all the outrage towards Steam at the beginning that you had to sign in to an online service and it was never fully in your control? What happened to that? From how you're talking, it sounds like you're a huge Steam fan. It sounds like your principles have already been compromised. I mean by all means correct me, but here's how I'm reading your post:

Loss of ownership, invasive DRM, requiring an online connection, personal data harvesting = okay AS LONG AS IT'S ONLY STEAM
Exact same thing from other companies = UNACCEPTABLE

I'm not defending Epic here so much as I think it's complete hypocrisy to be against them at the same time you champion Steam on the basis of "consumer rights." Pray tell, what rights as the consumer does Steam grant you that no other game store does?

If you're ACTUALLY principled about consumer rights, I'd say GOG is your only option for PC gaming. Everything else means you're compromising them. Most people do that to more or lesser extents (myself included) because they want to play additional games besides what GOG offers. I don't like it, but I'm not deluded about what's happening either.

I dislike steam for many of the reasons you mention as well as a few more and have only begrudgingly accepted it, I still refuse to pay full price for any game tied to steam. That doesn't mean that all digital distribution services are equal though and in terms of function steam is the best and epic is the worst. More important though is the question of whether I'll still be able to access the games I've purchased in the future and steam is privately owned and appears to be more stable then epic, also if we're talking trust epic has already engaged in more ethically questionable behavior in a couple months than steam has in years.

In other words I don't like steam but I do prefer it over the competition(other than gog, I'd buy everything there if I could) and epic isn't even a consideration for me at this point.

 

[Delicieuxz]

That's because shoes are a phyisical property, you own those specific shoes. As for software you don't own a specific copy of the software, you have the right to use a copy, not a specific one.

In law, property rights apply to things material and immaterial. Whether your item is material or immaterial, it is identified by its concept. A item of software is conceptualized no less than an item of a physical product.

This is completely meaningless anyway. You can call it owning the software that won't change the fact that you cannot use it without a service.

If you have a CNG car but they decide to shut down all CNG stations, then what? It's the same thing.

Ability to use is a different thing that shouldn't be conflated with ownership. If all CNG stations are closed and you own a CNG car, you still own the CNG car even if you have no way to fuel it. You still have options to exercise with it, including finding another way to acquire the fuel you need or modifying it to use something else. Or, selling it to somebody who wants it.

Most games do not depend on a server to run. If you buy a game that requires a 3rd-party server to run, then there are two components to playing the game: The software, and an additional service. You still own the software, but not the 3rd-party service. In some cases, people are able to make their own server to run the game. In other cases, they aren't. That's just part of the territory of online-based software - but it isn't a statement towards ownership of the software.

 

[ChadD]

In law, property rights apply to things material and immaterial. Whether your item is material or immaterial, it is identified by its concept. A item of software is conceptualized no less than an item of a physical product.

Ability to use is a different thing that shouldn't be conflated with ownership. If all CNG stations are closed and you own a CNG car, you still own the CNG car even if you have no way to fuel it. You still have options to exercise with it, including finding another way to acquire the fuel you need or modifying it to use something else. Or, selling it to somebody who wants it.

Most games do not depend on a server to run. If you buy a game that requires a 3rd-party server to run, then there are two components to playing the game: The software, and an additional service. You still own the software, but not the 3rd-party service. In some cases, people are able to make their own server to run the game. In other cases, they aren't. That's just part of the territory of online-based software - but it isn't a statement towards ownership of the software.

https://en.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.

If you purchase a software licence... you are subject to contract law and the normal copyright protections no longer apply. (at least in the US and most other places... the EU has a few things in place to protect resale of software but most first world jurisdictions do not. The only time software is considered a physical product even under normal copyright law is when you actually own a physical medium. (and even in those cases if said software connects to a service... once connected most companies employee a EULA where by continuing to use the product means you have entered in a contract and the EULA is now king)

Yes its true that Title 17 gives you the right to resell physically purchased copyrighted materials. So you can resell a book or a cd or even a physical copy of a software title. (although if said software included a service it can be a hybrid sale... as was the case with autodesk which I linked) However games and almost all commercial software is not sold under standard copyright law, most developers sell licences and at that point contract law applies. By accepting their EULA you have entered a contract with the software company, and your purchase is a licence subject to their EULA. You in general can not resell them as very few EULAs say you can... and you are also subject to whatever the developer wants to put in the agreement. With games that run on servers they almost always includes wording to the effect that you do not have the right to connect their software to a third party or unapproved server. Plenty of fans of shuttered MMOs will attest that trying to build your own server even after a company has abandoned their servers is a no go. Users purchased a licence not the software, and their EULA almost always protects the software companies in pretty much anything they want to do. Turning off servers, changing or deleting features form future versions ect ect.

Bottom line is almost no one owns software they buy... cause no one really sells software. They licence its use.

 

[Delicieuxz]

https://en.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.

If you purchase a software licence... you are subject to contract law and the normal copyright protections no longer apply. (at least in the US and most other places... the EU has a few things in place to protect resale of software but most first world jurisdictions do not. The only time software is considered a physical product even under normal copyright law is when you actually own a physical medium.

Again, not so. Europe, Australia, and Canada all explicitly define all software regardless of the medium (digital or analog media) as being a good and product which is sold and bought and which is the property of the purchaser.

The 2010 Vernor v. Autodesk judgment, which never applied to all of the US anyway (only West coast US, so around 19% of the US' population), is outdated and superceded. It is addressed in this post:

Understanding software licenses and EULAs: You own the software that you purchase

The Vernor v. Autodesk judgment wasn't a sound ruling in the first place. It also didn't specifically state that people don't own their software but suggested a very ambiguous litmus test to evaluate whether a particular item of software was sold or not.

Yes its true that Title 17 gives you the right to resell physically purchased copyrighted materials. So you can resell a book or a cd or even a physical copy of a software title. (although if said software included a service it can be a hybrid sale... as was the case with autodesk which I linked) However games and almost all commercial software is not sold under standard copyright law, most developers sell licences and at that point contract law applies.

Not so. The first-sale doctrine fully applies to software, everywhere. That includes the US:

https://www.wired.com/2013/03/scotus-first-sale-decision/

"The Supreme Court ruled that buyers of foreign copyrighted works may resell them in the United States without the copyright holder's permission, a 6-3 decision Tuesday affirming the "first sale" doctrine of federal copyright law.

...

The Software & Information Industry Association, a software-maker and digital-content trade group, blasted the decision.

"The ruling for Kirtsaeng will send a tremor through the publishing industries, harming both U.S. businesses and students around the world," the group's general counsel, Keith Kuperschmid said in a statement. "Today's decision will create a strong disincentive for publishers to market different versions and sell copies at different prices in different regions. The practical result may very well be that consumers and students abroad will see dramatic price increases or entirely lose their access to valuable U.S. educational resources created specifically for them.""


To need permission in an EULA to resell software would be to require the copyright-holder's permission. The US Supreme Court has decidedly ruled that nobody needs a permission from the copyright-holder to resell their copyrighted goods. As far as I'm aware, this is the most recent statement on software ownership rights in the US.

By accepting their EULA you have entered a contract with the software company, and your purchase is a licence subject to their EULA. You in general can not resell them as very few EULAs say you can... and you are also subject to whatever the developer wants to put in the agreement. With games that run on servers they almost always includes wording to the effect that you do not have the right to connect their software to a third party or unapproved server. Plenty of fans of shuttered MMOs will attest that trying to build your own server even after a company has abandoned their servers is a no go. Users purchased a licence not the software, and their EULA almost always protects the software companies in pretty much anything they want to do. Turning off servers, changing or deleting features form future versions ect ect.

Bottom line is almost no one owns software they buy... cause no one really sells software. They licence its use.

Anytime a store offers something for purchase, they are selling something. When Steam or EGS present a game on their storefront with a price-tag, they are selling what they depict the price-tag is for.

A perpetual licensed software (which describes all game software) is a product that is sold and bought and owned by whoever purchases it. So, except where the agreement is based on a time-limit (a subscription license), everybody sells software. The EU and Australia's top courts have ruled explicitly this, and Canada explicitly defines all software regardless of the medium it was acquired through (digital, optical, or otherwise) as a good, and not a service.

It is law and simply common sense that people own their software everywhere in the Western world, with the US being a bit behind in establishing this but well on its way to the same conclusion. What is licensed is the software IP. What is sold is the software instance.

When an EULA says "This software is licensed, not sold", that refers exclusively to the software IP, and not the instance which is definitively sold.

 

[tetris42]

Ability to use is a different thing that shouldn't be conflated with ownership. If all CNG stations are closed and you own a CNG car, you still own the CNG car even if you have no way to fuel it. You still have options to exercise with it, including finding another way to acquire the fuel you need or modifying it to use something else. Or, selling it to somebody who wants it.

Most games do not depend on a server to run. If you buy a game that requires a 3rd-party server to run, then there are two components to playing the game: The software, and an additional service. You still own the software, but not the 3rd-party service. In some cases, people are able to make their own server to run the game. In other cases, they aren't. That's just part of the territory of online-based software - but it isn't a statement towards ownership of the software.

It is important distinction, however, in real-world terms. Yes, you still own the game, a worthless and unusable copy of the game. The point is, prior to Steam, almost any game you owned couldn't be disabled by the seller after the point of sale. After Steam, that no longer became true.

As for most games not requiring servers, true, but the landscape is shifting. Look at any major multiplayer game coming out in the past few years. How many of them continue to function without connecting to the main server?

The "people can make their own server to run the game" argument is a very weak analogy. Some maintenance is expected for unsupported games, that's not the same thing at all.

Running an old game = running DOSbox / virtual machine / use old equipment, totally viable options
Running a new game with a shut down server = spend years reverse engineering a server and breaking encryption protocols, no normal person can be expected to do this, and it often leads to the game never being playable again.

So even if the law SAYS you still own your game (I'm not disputing that), in real world terms, you often don't anymore and this shift largely started with Steam.

 

[Delicieuxz]

It is important distinction, however, in real-world terms. Yes, you still own the game, a worthless and unusable copy of the game. The point is, prior to Steam, almost any game you owned couldn't be disabled by the seller after the point of sale. After Steam, that no longer became true.

Owning software that isn't operational due to lack of online server functionality leaves you one step ahead of not owning software. When you own it, you have rights that entitle you to look for certain resolutions that you don't have avenue to pursue if you don't own it.

And how has Steam changed anything about this topic? Before Steam, you'd lose your CD and disks and have no means to install whatever old games you lost the physical media for. With Steam, you always have the product available to be downloaded at any time. With Steam, you also don't have to keep backups of all the patches for your games. You also don't have to keep track of tons of work-arounds, tweaks, etc, because they're all on the Steam forums, and also on other forums. I think Steam has done a lot more to ensure posterity of access to games than it has harmed it.

As for most games not requiring servers, true, but the landscape is shifting. Look at any major multiplayer game coming out in the past few years. How many of them continue to function without connecting to the main server?

Key word there is "multiplayer". They required connectivity to a master server before Steam and digital games delivery, too. MP games can still just as much do direct-to-IP play if the developer puts that functionality in there. That's more to do with the nature of an online MP game than it is to do with software ownership, Steam, or something else. That's the nature of an online and multiplayer-based game experience.

The "people can make their own server to run the game" argument is a very weak analogy.

Owning software but having to work out a way to make or emulate a back-end server for it leaves you one step ahead from having no rights to do anything with old software due to not owning it. You shouldn't give up your springboard to a possible solution out of frustration with the limited number of options you have. That would be just spiting and attacking your own position.

Some maintenance is expected for unsupported games, that's not the same thing at all.

Running an old game = running DOSbox / virtual machine / use old equipment, totally viable options
Running a new game with a shut down server = spend years reverse engineering a server and breaking encryption protocols, no normal person can be expected to do this, and it often leads to the game never being playable again.

What maintenance is expected for unsupported games, and who is the maintenance expected from? If a game experience was online server-based, then it's logical that it can't be played when the online servers are gone. That seems to just be the physics of the matter. The way to make the experience available again is dependent upon getting the online servers back. But, buying software doesn't grant entitlements from the publisher that they will host their own servers forever. So, fans of those games then have to emulate the servers or host their own. Is there a right for owners of the game to be handed the back-end server software after official server support is ended? I don't necessarily see that, and that's not something I'm discussing here (but it seems to me to be what you're wanting, based on discussions elsewhere). But, to argue anything in that direction it would first have to be granted that people own their software even after online support for it is ended - because that would be the starting point from where an owner of the software finds an entitlement to still use their software.

So even if the law SAYS you still own your game (I'm not disputing that), in real world terms, you often don't anymore and this shift largely started with Steam.

That reads to me like a hyperbolic expression of futility and self-defeatism of 'I can't use it anyway so might as well say I don't own it'. And I see that as an error of judgment because it undermines your entitlement and capability to work towards accomplishing the goal you've expressed elsewhere of wanting to secure post-service accessibility for continued usage of online service-based software.

Ownership isn't firstly accessibility, and vice-versa. If you ever want to secure post-service accessibility, then you'll have to start from a foundation and springboard of you own your software and hold the rights that come with that, regardless of whether online services are still around to use it with or not.

The real-world legal status is still that you own your software even after its online service components aren't being supported anymore by the former service host.

 

[MyNameIsAlex]

Epic declares Apples 'Tasty' after noticing they are lighter than oranges.

 

[tetris42]

Owning software that isn't operational due to lack of online server functionality leaves you one step ahead of not owning software. When you own it, you have rights that entitle you to look for certain resolutions that you don't have avenue to pursue if you don't own it.

In theory, sure. In practice, not really. If I have a copy of a game where the server is shut down, what "resolutions" do I have if I wish to continue playing the game? Assume I'm not a programming genius who can reverse engineer encrypted server software. Or better yet, what rights will somebody have if they buy a streaming-only game in the future and that gets shut down? This is why I'm saying reality matters. How does ownership matter if there's no way to ever run my game again?

And how has Steam changed anything about this topic? Before Steam, you'd lose your CD and disks and have no means to install whatever old games you lost the physical media for.

The difference is easy:
On an old disc copy, if you took care of the media, you could ensure your game remains playable. Under Steam and other online services (except GOG), that isn't guaranteed. If the game gets an update and becomes bugged, if your account becomes hacked, hell, if Steam or other services shut down, your game becomes unplayable. On pre-steam games, you can guarantee your games are playable in 20 years. On Steam games, you have no such guarantee.

Imagine if Steam had launched with GOG-style consumer rights. It would have changed the entire industry as we know it. Instead, we've seen a gradual erosion of them.

Key word there is "multiplayer". They required connectivity to a master server before Steam and digital games delivery, too. MP games can still just as much do direct-to-IP play if the developer puts that functionality in there. That's more to do with the nature of an online MP game than it is to do with software ownership, Steam, or something else. That's the nature of an online and multiplayer-based game experience.

Multiple things wrong with what you said:

1. Outside of MMOs using a subscription service (which weren't a perpetual license to begin with), how many multiplayer games REQUIRED connectivity to a master server prior to Steam? I can't think of any. I think that statement is revisionist history. They were all set up so you could host private servers and connect that way. So no, master servers are not "the nature" of multiplayer games at all, that's simply the standard the industry has been pushing in recent years.
2. It's not JUST multiplayer games. Half-Life 2 is a perfect example of a single player game that required an online authentication to work. THIS is what Steam normalized. Later you had titles like Assassin's Creed 2, 2014 Simcity that were single player games, yet required always-online connectivity.
3. Even if you want to argue those games got cracked, this built the standard for creating online-only games that are both multiplayer AND singleplayer games. Diablo 3, The Division, Destiny, Darkspore, Battleforge etc. all have single player campaigns and all are uncracked server side games. When these go down, they rarely become playable again.

Owning software but having to work out a way to make or emulate a back-end server for it leaves you one step ahead from having no rights to do anything with old software due to not owning it. You shouldn't give up your springboard to a possible solution out of frustration with the limited number of options you have. That would be just spiting and attacking your own position.

Again, WHAT options? Say I want to run Darkspore again (a game with no crack and no server emulation). What options do I have? What options do I have for streaming-only games in the future?

What maintenance is expected for unsupported games, and who is the maintenance expected from? If a game experience was online server-based, then it's logical that it can't be played when the online servers are gone. That seems to just be the physics of the matter. The way to make the experience available again is dependent upon getting the online servers back. But, buying software doesn't grant entitlements from the publisher that they will host their own servers forever. So, fans of those games then have to emulate the servers or host their own. Is there a right for owners of the game to be handed the back-end server software after official server support is ended? I don't necessarily see that, and that's not something I'm discussing here (but it seems to me to be what you're wanting, based on discussions elsewhere). But, to argue anything in that direction it would first have to be granted that people own their software even after online support for it is ended - because that would be the starting point from where an owner of the software finds an entitlement to still use their software.

My argument would be that from these cases you've listed, you've created the precedent that customers are entitled to a working product. Is that wrong? If so, you're right, I have nothing to go on. If not, then customers would be entitled to SOME measure from the developer to run their game after support ends. That doesn't have to mean server software, but right now, they get absolutely nothing.

 

[Delicieuxz]

In theory, sure. In practice, not really. If I have a copy of a game where the server is shut down, what "resolutions" do I have if I wish to continue playing the game? Assume I'm not a programming genius who can reverse engineer encrypted server software. Or better yet, what rights will somebody have if they buy a streaming-only game in the future and that gets shut down?

Steaming services are just that. They don't involve buying a perpetual license for a game, but of paying a subscription license to the streaming service.

This is why I'm saying reality matters. How does ownership matter if there's no way to ever run my game again?

That's besides the point of ownership. How does ownership over a rusted-out car you have in your backyard matter if there's no way to ever run it again? Well, how it matters is neither here or there, that's still your rusted-out car. If you falsely conflate the matter of ownership with how much it benefits or satisfies you, you'll just harm other ownership-based arguments without gaining anything. It would be spiting everything just because you're not getting what you want concerning a particular game.

The difference is easy:
On an old disc copy, if you took care of the media, you could ensure your game remains playable. Under Steam and other online services (except GOG), that isn't guaranteed. If the game gets an update and becomes bugged, if your account becomes hacked, hell, if Steam or other services shut down, your game becomes unplayable. On pre-steam games, you can guarantee your games are playable in 20 years. On Steam games, you have no such guarantee.

Imagine if Steam had launched with GOG-style consumer rights. It would have changed the entire industry as we know it. Instead, we've seen a gradual erosion of them.

You mean EA wouldn't be EA and Ubisoft wouldn't be Ubisoft, and ActiVision would be ActiVision? If it weren't for Valve pioneering digital games distribution, then I think things would have turned out far worse than they have. It's because Valve created the industry that the platform fee was a unbelievably-low (for then) 30% rather than 50, 60, or 70% - and if Valve had set a 70% fee it would still have represented profit gains for publishers and developers. If EA or Ubisoft had started things off, they wouldn't have chosen a 30% platform fee.

Multiple things wrong with what you said:

1. Outside of MMOs using a subscription service (which weren't a perpetual license to begin with), how many multiplayer games REQUIRED connectivity to a master server prior to Steam? I can't think of any. I think that statement is revisionist history. They were all set up so you could host private servers and connect that way. So no, master servers are not "the nature" of multiplayer games at all, that's simply the standard the industry has been pushing in recent years.

Battlefield 1942 did. I'm sure others did, too (maybe Half-Life). What does Steam have to do with that, though? Having a master server is just a method to connect games while mitigating connection-quality issues. Developers can choose to provide direct IP play alongside a master server portal, and it's entirely up to them whether they do. This has nothing to do with Steam or any digital service, just as there's nothing about Steam that requires a master server for online playing and which prevents developers from providing direct to IP connectivity for MP games.

2. It's not JUST multiplayer games. Half-Life 2 is a perfect example of a single player game that required an online authentication to work. THIS is what Steam normalized. Later you had titles like Assassin's Creed 2, 2014 Simcity that were single player games, yet required always-online connectivity.

So, this is actually history revision.

First, Steam had offline mode available from the very start in 2003. So, Steam didn't make always-online DRM, and Half-Life 2 required a connection to install and authenticate the first time but it wasn't forced to always be played while online.

Second, the first company to force always-online DRM was possibly EA with their 2008 game Spore - I'm not sure on this, but that's one of the earliest games I can think of that had it.

Ubisoft then followed with Assassin's Creed 2, and EA did it again with Sim City (which was never released on Steam but only sold through Origin).

So, always-online DRM wasn't a product of Steam / Valve, but of EA and Ubisoft.

Also, none of those games have always-online DRM anymore, and almost no SP game has had it since many years ago (one that did is Sonic Mania, but the always-online DRM has also since been removed).

https://www.rockpapershotgun.com/2012/09/05/ubisoft-scrapping-always-on-drm-for-pc-games/
https://www.theregister.co.uk/2014/01/13/simcity_offline_turnaround/
https://www.pcgamer.com/assassins-creed-brotherhood-drops-always-online-drm/

3. Even if you want to argue those games got cracked, this built the standard for creating online-only games that are both multiplayer AND singleplayer games. Diablo 3, The Division, Destiny, Darkspore, Battleforge etc. all have single player campaigns and all are uncracked server side games. When these go down, they rarely become playable again.

Blizzard has never been on Steam, they chose their own methods. And they made always-online DRM in Diablo 3 at a time when there wasn't any in any Steam SP game.

Again, WHAT options? Say I want to run Darkspore again (a game with no crack and no server emulation). What options do I have? What options do I have for streaming-only games in the future?

My comments are not trying to provide you with a solution for the game you want to play because that is something different from the topic of ownership.

You might be able to find an argument for what you want to accomplish from the standpoint that people own their software. But, whatever that solution or argument is, it's something that someone, maybe you, has to figure out.

My argument would be that from these cases you've listed, you've created the precedent that customers are entitled to a working product. Is that wrong? If so, you're right, I have nothing to go on. If not, then customers would be entitled to SOME measure from the developer to run their game after support ends. That doesn't have to mean server software, but right now, they get absolutely nothing.

You're conflating ownership with a product that is always working. I am not. When you own a car, you aren't entitled to always have it in working order. It could break down, and as years go by it could rust away. When you have a rusted, non-working car in your backyard, it's still your car, and yours to choose to toss away or yours to choose to salvage, or yours to choose to completely rebuild using parts you make yourself. Whatever happens to it and whatever you do with it, it's yours to use to the extent you are able.

 

[tetris42]

Steaming services are just that. They don't involve buying a perpetual license for a game, but of paying a subscription license to the streaming service.

We don't know if that's going to be the business model. Say you have a service where streaming access is free, but you pay per game you access. Hell, this is exactly how Steam, Epic, etc. work now. The access is free, but you pay per game as a good. Streaming could have the exact same business model, the only difference is all of your games would be stored remotely.

That's besides the point of ownership.

If the product you own has had all value removed from it by the seller, and you cannot use it for its intended purpose and cannot repair it, what exactly IS the point of ownership?

I see this like "owning" land on the moon. I may have a deed that says that I indeed own a patch of it, but since I and no one else can ever access it or ever exercise any usage over it, do I really own it?

You mean EA wouldn't be EA and Ubisoft wouldn't be Ubisoft, and ActiVision would be ActiVision? If it weren't for Valve pioneering digital games distribution, then I think things would have turned out far worse than they have

If Steam had launched with GOG-like standards, then by the time other AAA moved to digital distribution, there would have been much more consumer pushback. Look at what's happening with Epic now, people are complaining BECAUSE there's a precedent of not having 3rd party storefront exclusives. Since Valve established the scene early, they set the baseline. They pushed online-DRM being a standard. I admit this is speculative, but it certainly would have changed the landscape of PC gaming. Rights were infringed upon, whether you concede that or not.

Battlefield 1942 did.

Okay, I stand corrected.

So, this is actually history revision.

First, Steam had offline mode available from the very start in 2003. So, Steam didn't make always-online DRM, and Half-Life 2 required a connection to install and authenticate the first time but it wasn't forced to always be played while online.

Where did I say Half-Life 2 was an online-only game? I specifically said it required online authentication. I thought it was the first major game that did this, but apparently I was wrong. Regardless, it ushered in that standard.

So, always-online DRM wasn't a product of Steam / Valve, but of EA and Ubisoft.

Those games came years after Steam was gaining traction. What you seem to be missing from my examples was with Half-Life 2, Valve helped established the precedent for online DRM. This led to online-only DRM, which has led to server-side DRM for games that we're seeing an increase of, which is leading to streaming-exclusive games coming from Google. It's a process and Steam was a major playing in helping to usher it along.

My comments are not trying to provide you with a solution for the game you want to play because that is something different from the topic of ownership.

You're dodging the question. You said:

"You shouldn't give up your springboard to a possible solution out of frustration with the limited number of options you have."

YOU'RE the one who said people have options, so what are they? What options does the average buyer have to use their game once the server shuts down? I know why you're not answering, it's because often THERE ARE NONE.

You're conflating ownership with a product that is always working. I am not. When you own a car, you aren't entitled to always have it in working order. It could break down, and as years go by it could rust away. When you have a rusted, non-working car in your backyard, it's still your car, and yours to choose to toss away or yours to choose to salvage, or yours to choose to completely rebuild using parts you make yourself. Whatever happens to it and whatever you do with it, it's yours to use to the extent you are able.

You're making a complete strawman of what I said. Where did I say ownership is the same as a product that always works? Analogies to this practice don't really exist in the real world, since it's so incredible anti-consumer. Fine, you want to go with a car analogy? Here's the car analogy:

90s game:
I buy a car. After a few years, the manufacturer goes out of business and spare parts can be hard to find for my car. My car still runs. If I keep it covered in a garage, it remains pristine. If I drive it, it takes wear and tear over the years, but I can still fix it up. If I completely neglect it and leave it in a swamp for decades, it becomes a rusted husk. The condition of the car was entirely within my control.

online-only game:
I buy a car. It requires a signal from the dealership in order for the engine to start. For 3 years, my car runs fine. At the end of 3 years, the dealership decides to end support for my car, which triggers a built-in reaction that incinerates the entire vehicle and turns into a molten lump of metal. I had no control to prevent the dealership from incinerating my car, nor is it possible to turn my lump of metal back into a working car.

Yes, I would still "own" my car in the second scenario, but it would be lump of metal. What I "owned" would not be the same thing I purchased. You're right in that ownership hasn't been lost, however, it HAS been circumvented. I no longer own a car, I own a lump of metal. How does saying I still own my lump of metal help anyone? I see that as defending the actions of the seller who effectively destroyed the product.

 

[Ebernanut]

https://en.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.

If you purchase a software licence... you are subject to contract law and the normal copyright protections no longer apply. (at least in the US and most other places... the EU has a few things in place to protect resale of software but most first world jurisdictions do not. The only time software is considered a physical product even under normal copyright law is when you actually own a physical medium. (and even in those cases if said software connects to a service... once connected most companies employee a EULA where by continuing to use the product means you have entered in a contract and the EULA is now king)

Yes its true that Title 17 gives you the right to resell physically purchased copyrighted materials. So you can resell a book or a cd or even a physical copy of a software title. (although if said software included a service it can be a hybrid sale... as was the case with autodesk which I linked) However games and almost all commercial software is not sold under standard copyright law, most developers sell licences and at that point contract law applies. By accepting their EULA you have entered a contract with the software company, and your purchase is a licence subject to their EULA. You in general can not resell them as very few EULAs say you can... and you are also subject to whatever the developer wants to put in the agreement. With games that run on servers they almost always includes wording to the effect that you do not have the right to connect their software to a third party or unapproved server. Plenty of fans of shuttered MMOs will attest that trying to build your own server even after a company has abandoned their servers is a no go. Users purchased a licence not the software, and their EULA almost always protects the software companies in pretty much anything they want to do. Turning off servers, changing or deleting features form future versions ect ect.

Bottom line is almost no one owns software they buy... cause no one really sells software. They licence its use.

I wish people would stop bringing up Vernor vs Autodesk in these discussions because it does not apply to games whatsoever.

The two biggest factors in the case were that it was expensive professional software with a limited audience and even more important was that they had already used the key to get a discount on the newer version. Essentially the judge ruled that they had surrendered any rights to the license when they upgraded at a discount not that they never had them in the first place.

 

[ChadD]

I wish people would stop bringing up Vernor vs Autodesk in these discussions because it does not apply to games whatsoever.

The two biggest factors in the case were that it was expensive professional software with a limited audience and even more important was that they had already used the key to get a discount on the newer version. Essentially the judge ruled that they had surrendered any rights to the license when they upgraded at a discount not that they never had them in the first place.

https://www.take2games.com/eula/

"THE SOFTWARE IS LICENSED, NOT SOLD. BY OPENING, DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, AND ANY OTHER MATERIALS INCLUDED WITH THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT WITH THE UNITED STATES COMPANY TAKE-TWO INTERACTIVE SOFTWARE, INC., SUBSIDIARIES, AND AFFILIATES "

https://www.ea.com/legal-pc-game-eula

I really don't understand what is so complicated for most people. When you "buy" a game what you are buying is a licence to use that bit of software EXACTLY as the publisher demands.

https://en.wikipedia.org/wiki/MDY_Industries,_LLC_v._Blizzard_Entertainment,_Inc.

Here if you want something somewhat related and a bit more recent. This one boils down to a company making bots which breaks the EULA... which falls under contract law. Vernor VS Autodesk does apply the cost and rarity of the software is hardly the issue. That users used keys to get discounts hardly applies either as AutoDesk didn't care if the owners used both old and new copies. They just didn't want them to be able to resell them. As far as it relating to games. Have you never got a discount on a steam bundle because you owned a game or two from that bundle already ? I just paid 10 bucks for a borderlands pack from valve to get the Pre-sequel I had never bought. Which was 3 or 4 bucks cheaper then the pre-sequel was on its own. Because I owned Borderlands 2... so you could say I used a previous purchase to get a discount. Where is the difference other then the cost of the licence ?

When you buy a game your are licencing a copy which you get to keep as long as you don't break the contract you enter with the publisher by continuing to use the product. If you open the package, if you click on the ACCEPT this to continue stuff. You have accepted the terms of the contract and they apply to you no matter if you spent 100 bucks or are playing for free.

Of course most current EULAs (as the take 2 one I linked) allow you to transfer ownership if you do so completely... but that doesn't translate to some games that have special one time codes ect. That stuff is first owner and gone. Bottom line the Game companies these days do a pretty good job making sure they retain just enough title 17 type wording in their EULA to protect themselves from suit. Pretty much all the big AAAs these days have air tight EULAs.... they can cancel your licence to their software for plenty of reasons, while dancing around issues like resale.

 

[Ebernanut]

https://www.take2games.com/eula/

"THE SOFTWARE IS LICENSED, NOT SOLD. BY OPENING, DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, AND ANY OTHER MATERIALS INCLUDED WITH THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT WITH THE UNITED STATES COMPANY TAKE-TWO INTERACTIVE SOFTWARE, INC., SUBSIDIARIES, AND AFFILIATES "

https://www.ea.com/legal-pc-game-eula

I really don't understand what is so complicated for most people. When you "buy" a game what you are buying is a licence to use that bit of software EXACTLY as the publisher demands.

https://en.wikipedia.org/wiki/MDY_Industries,_LLC_v._Blizzard_Entertainment,_Inc.

Here if you want something somewhat related and a bit more recent. This one boils down to a company making bots which breaks the EULA... which falls under contract law. Vernor VS Autodesk does apply the cost and rarity of the software is hardly the issue. That users used keys to get discounts hardly applies either as AutoDesk didn't care if the owners used both old and new copies. They just didn't want them to be able to resell them. As far as it relating to games. Have you never got a discount on a steam bundle because you owned a game or two from that bundle already ? I just paid 10 bucks for a borderlands pack from valve to get the Pre-sequel I had never bought. Which was 3 or 4 bucks cheaper then the pre-sequel was on its own. Because I owned Borderlands 2... so you could say I used a previous purchase to get a discount. Where is the difference other then the cost of the licence ?

When you buy a game your are licencing a copy which you get to keep as long as you don't break the contract you enter with the publisher by continuing to use the product. If you open the package, if you click on the ACCEPT this to continue stuff. You have accepted the terms of the contract and they apply to you no matter if you spent 100 bucks or are playing for free.

Of course most current EULAs (as the take 2 one I linked) allow you to transfer ownership if you do so completely... but that doesn't translate to some games that have special one time codes ect. That stuff is first owner and gone. Bottom line the Game companies these days do a pretty good job making sure they retain just enough title 17 type wording in their EULA to protect themselves from suit. Pretty much all the big AAAs these days have air tight EULAs.... they can cancel your licence to their software for plenty of reasons, while dancing around issues like resale.

The ruling by the judge in the autodesk case specifically mentioned those issues as being reasons for the verdict so no it doesn't apply to games which are a different situation, any precedent set in a case like that is very narrow. Unfortunately this will likely never be settled in court because the stakes aren't high enough to justify the cost of litigation for anyone other than the publishers.

In the few cases so far judges seem inclined to teat EULAs as binding contracts but that still doesn't mean that any illegal terms are enforceable and has nothing to do with my comment anyway.

 

[Delicieuxz]

https://www.take2games.com/eula/

"THE SOFTWARE IS LICENSED, NOT SOLD. BY OPENING, DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, AND ANY OTHER MATERIALS INCLUDED WITH THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT WITH THE UNITED STATES COMPANY TAKE-TWO INTERACTIVE SOFTWARE, INC., SUBSIDIARIES, AND AFFILIATES "

The "the software is licensed, not sold" phrase refers to, and can legally only refer to, the software IP, and not the individual instances.

As with "book", "movie", "shoes", "car", "clothing", etc, there is dual meaning to "software": The IP, and the individual instances.

Anything that is marketed as for sale is automatically sold, even if the seller has second-thoughts about it afterwards. As soon as conceptualized thing is offered for a one-off purchase, and the offer is accepted, there is a transfer of ownership involved. Also, EULAs are not legally capable of changing the nature of a transaction after the fact.

https://www.ea.com/legal-pc-game-eula

I really don't understand what is so complicated for most people. When you "buy" a game what you are buying is a licence to use that bit of software EXACTLY as the publisher demands.

I also don't understand why people struggle with this. A license is merely a right. The right a person gains when they purchase (note the word purchase) software is the right to use the software IP via their instance of the software, which they own in exactly the same manner that they own their car, their shoes, their TV, their computer hardware, their clothing, their books, their movies, and their music.

This is established throughout all the Western world apart from the US, though it is also pretty much acknowledged in US law following the 2013 US Supreme Court verdict.

Equally, people license their clothing, their vehicles, their all physical mass-produced items, their movies, books, and music... that is, they hold a perpetual (eternal) license to use the IPs of those things via the instances of them that they own.


I'm also amazed that anyone who isn't a less-considerate software IP holder (or in the employ of one) who is looking to abuse and exploit purchasers of their software would advocate against software ownership, as that's like a slave advocating for their own slavery, that they don't own their things and that they can't exercise authority over their own possessions. It's of the utmost foolishness. It's worse than patent-trolling, worse than the music and film industry doing things like making an ISP tax on everyone to give to themselves.

Should car manufacturers start advocating that people don't own the cars they bought, that they merely license them (despite the transaction being offered as a purchase for the car) and that "license" can be withdrawn per the car-manufacturer's whim? I hope you don't think so. Yet, that's exactly what you're advocating for.

There is no difference between a software product and a physical product, and so whatever applies to one applies to the other. Though, software isn't fully immaterial, either: It has a defined state of 1s and 0s and quantified physical existence on storage mediums.

https://en.wikipedia.org/wiki/MDY_Industries,_LLC_v._Blizzard_Entertainment,_Inc.

Here if you want something somewhat related and a bit more recent. This one boils down to a company making bots which breaks the EULA... which falls under contract law.

That ruling was made by the same court one year after the 2009 Vernor vs. Autodesk ruling. So, it's not particularly newer.

That 2010 case alleged a violation of Blizzard's EULA and TOU by selling bot software to be used on Blizzard's servers, and World of Warcraft uses a subscription license and agreement to terms to use Blizzard's 3rd-party servers that are not sold to WoW players along with their purchase of the WoW software, and the violated terms are for using their online service. And so, that case does not relate to a discussion on software ownership.

Also, just as with the Vernor vs. Autodesk case, that case was once again a 9th Circuit case, which means it applied only to Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, all of which make up around just 19% of the US' population.

Finally, if that 2010 lower court ruling had any aspect which argued against right to resell purchased software (rather than 3rd-party software designed to violate Blizzard's ToS for their servers) then it would be overruled and invalidated, just as with the 2009 Vernor vs. Autodesk case, by the 2013 US Supreme Court judgment that people require no permission from copyright-holders to resell their copyrighted goods, full-stop.


Contracts also come secondary to rights and laws, and cannot override mandatory laws, and so cannot do things like changing the nature of a transaction and product after the fact that it was offered for purchase and that offer was accepted, by claiming new terms over the transaction once someone has the software opened and / or installed on their PCs. This is the basis for why EULAs for perpetual license software are not accepted as legal documents in many countries (and by many I mean the only country that has ever shown a sign of accepting them to a limited degree is the US).




Also, it is entirely implausible, if not impossible, for people to read all the agreements they're presented, and therefore it is not reasonable to expect people to read EULAs before using software: To Read All Of The Privacy Policies You Encounter, You'd Need To Take A Month Off From Work Each Year

This means that an argument of 'you agreed to it by accepting the EULA' doesn't pass the Reasonable Person legal test.

Vernor VS Autodesk does apply the cost and rarity of the software is hardly the issue. That users used keys to get discounts hardly applies either as AutoDesk didn't care if the owners used both old and new copies. They just didn't want them to be able to resell them. As far as it relating to games. Have you never got a discount on a steam bundle because you owned a game or two from that bundle already ? I just paid 10 bucks for a borderlands pack from valve to get the Pre-sequel I had never bought. Which was 3 or 4 bucks cheaper then the pre-sequel was on its own. Because I owned Borderlands 2... so you could say I used a previous purchase to get a discount. Where is the difference other then the cost of the licence ?

The Vernor vs. Autodesk ruling went beyond looking at cost and rarity. It made up an undecipherable litmus test of whether considerable restrictions are built into a software item or not to guess at whether the software was sold or not... it was a clown-act by a court that was obviously technically-illiterate and being taken for a ride and having their confusion exploited by the Autodesk lawyers.

Also, you don't need to keep going back to the Vernor vs. Autodesk ruling because that ruling came in 2009 and was issued by a lower court that applied to around 19% of the population of the US. That 9th Circuit ruling is now defunct as it has been super-ceded by the US Supreme Court's own judgment in 2013 which says that nobody requires a permission from a copyright-holder to resell their copyrighted goods. The US Supreme Court is the highest court in the United States, and the judgments of the US Supreme Court apply to the US in its entirety and override all contradictory rulings that have occurred anywhere in the US. And if any new US lower court passes a ruling that is in conflict with the US Supreme Court's judgment, then that contradictory lower court ruling is automatically null and void and of no force or effect.

When you buy a game your are licencing a copy which you get to keep as long as you don't break the contract you enter with the publisher by continuing to use the product. If you open the package, if you click on the ACCEPT this to continue stuff. You have accepted the terms of the contract and they apply to you no matter if you spent 100 bucks or are playing for free.

Of course most current EULAs (as the take 2 one I linked) allow you to transfer ownership if you do so completely... but that doesn't translate to some games that have special one time codes ect. That stuff is first owner and gone. Bottom line the Game companies these days do a pretty good job making sure they retain just enough title 17 type wording in their EULA to protect themselves from suit. Pretty much all the big AAAs these days have air tight EULAs.... they can cancel your licence to their software for plenty of reasons, while dancing around issues like resale.

False. When you buy a perpetual-license game, you buy the game. You own it, full-stop. You hold all property rights over that non-reproduceable instance of the game IP, and that license can level lawfully end because "perpetual license" means eternal and not subject to any changes.

There is no EULA for a perpetual license software in existence which can obstruct a person's inalienable right to resell their software. It doesn't matter whether the EULA for a perpetual license software product says that the license is transferable or not - it always is transferable, everywhere in the world, 100% of the time, with no exclusions.

EULAs for perpetual license software laughably asserting one way or the other whether the license is transferable is really just testament to how non-official, non expert-written, and intentionally-conniving EULAs can be. They're not accepted as legal documents pretty much anywhere in the world, and the more bogus contrary-to-law things they include in them (such as 'this license is non-transferable'), the more they undermine any supposition that they hold authority.


You're trying to cherry-pick information to make up a publisher wet-dream narrative about software licenses, but you're ignoring all the actual in-effect laws on the matter and basing your claims on select defunct and non-related rulings that didn't even ever apply to the US as a whole and which didn't even offer the expansive assertions and reasoning that you're claiming. Why don't you just say that you're king of Atlantis at the same time? I mean, if playing fairy-tale is what your interest is.


Do you have personal skin in this topic, and if so, what is the nature of it? A person doesn't argue (using straw-grasping, debunked information, no less) in favour of screwing over hundreds of millions of people, if not billions, by robbing them of their authority and security over their own possessions unless they 1) don't care about people and society, and 2) see squarely themselves as benefitting by screwing everybody else over.

The ruling by the judge in the autodesk case specifically mentioned those issues as being reasons for the verdict so no it doesn't apply to games which are a different situation, any precedent set in a case like that is very narrow. Unfortunately this will likely never be settled in court because the stakes aren't high enough to justify the cost of litigation for anyone other than the publishers.

In the few cases so far judges seem inclined to teat EULAs as binding contracts but that still doesn't mean that any illegal terms are enforceable and has nothing to do with my comment anyway.

The 2009 lower court Vernor vs. Autodesk ruling is defunct. It was superceded by the 2013 US Supreme Court judgment that established that all people may resell their copyrighted goods without requiring a permission from the copyright-holder, full-stop.

 

[Flogger23m]

Still doesn't say anything about a payout in addition to the 12% commission.

Yup. The narrative is that Epic is handing out cash. The reality is they're offering marketing campaigns and guaranteed sales. They're acting a lot more like a traditional publisher which is actually a good thing opposed to a studio being bought up by a big company that runs development top down. Add in the fact that they waive UE4 fees and it is a no brainier that many independent games will start going this route.

It's very unproven because they're serving a completely different, maybe even non-overlapping market. All that money came from microtransactions, where even though a player on average spends close to $60, it's not a lump sum, but rather spread out over the course of many months, even years.

There is a lapse in your logic here. You're confusing and merging the Epic store with Fortnite. Fortnite revenue comes from microtransactions. You assume that because of this, buyers of traditional games won't go to that platform. That simply isn't the case. The user base of Epic may have been free to play gamers but the moment you offer a game like Metro Exodus that changes. If the game is good enough, it will sell. Steam itself used to be a store for high quality games but that too has shifted. Valve itself makes more money off of microtransactions and cosmetics which has been their personal business model for years (DOTA 2, TF2, Counter Strike ect.). By your logic DOTA 2 being on Steam wouldn't been a failure because the original Steam install base was for a high quality, AAA single player game. We all know that wasn't the case.

People just want to play games and they will use the client that has the games they want. If developers see better incentives such as no engine fees, marketing support and less selling fees they will take it. And the gamers will follow.

 

[Ebernanut]

Yup. The narrative is that Epic is handing out cash. The reality is they're offering marketing campaigns and guaranteed sales. They're acting a lot more like a traditional publisher which is actually a good thing opposed to a studio being bought up by a big company that runs development top down. Add in the fact that they waive UE4 fees and it is a no brainier that many independent games will start going this route.

It has been pointed out several times that the CEO has stated that they ARE paying developers for exclusive rights to sell. The only false narrative is the one that you're pushing.

 

[MacLeod]

It has been pointed out several times that the CEO has stated that they ARE paying developers for exclusive rights to sell.

No it hasn't. He's talking about the money they're paying out to them because of the millions of extra dollars Deep Silver is making by Epic taking only a 12% commission as opposed to Steam's 30%.

There is no mention anywhere in the press about a payout on top of the commission that is a third of what the competition takes.

 

[Flogger23m]

It has been pointed out several times that the CEO has stated that they ARE paying developers for exclusive rights to sell. The only false narrative is the one that you're pushing.

Where? Each and every time I ask this no one can produce evidence of it. Marketing campaigns and guaranteed sales isn't the same as handing out cash. I know one quote was talking about guaranteed sales which an article peddled as up front cash which is flat out wrong, but many of the gaming sites (and gamers) have a severe case of confirmation bias.

Example from an article a few posts up:

We've had a lot of discussions about this since GDC. Epic is open to continuing to sign funding / exclusivity deals with willing developers and publishers regardless of their previous plans or announcements around Steam.

Funding. Like a publisher. For exclusivity. Like EA did with Respawn before buying them out. We fund and advertise your game, you sell on our platform. Regardless if you listed your game on Steam prior. Epic is doing more than acting as a digital download client.

Obviously they're also waiving engine fees as well if you use UE4. Long story short, they're bringing a lot of incentives over. Valve is still just acting as a downloader. Good or bad I leave that up to you, but clearly it is loosing favor with developers.

 

[Ebernanut]

Try to twist it around all you want but there are several quotes floating around where he has has said that they've given money to devs for exclusivity. In the quote above he mentions the funding and exclusivity deals as connected not to mention that there's zero reason for a deal if they're not getting direct compensation for exclusivity.

 

[Newbie_52]

https://www.engadget.com/2019/04/03/epic-to-continue-game-store-exclusives/
Not only are they paying for the exclusives, they probably won't make any profit because they are paying so much

 

[Staples]

We hear tons of complaints when something is exclusive to Epic but how about when something is exclusive to Steam (like most games past and future).

Crickets

 

[sharknice]

https://www.engadget.com/2019/04/03/epic-to-continue-game-store-exclusives/
Not only are they paying for the exclusives, they probably won't make any profit because they are paying so much

They are definitely giving money to developers for exclusivity. I'm not sure if any other developers have outright said it, but the Satisfactory developers said they were given money for exclusivity in a youtube video


But they aren't doing it for short term profits. It's an investment to establish the platform for long term profits. They don't plan on paying for exclusives once it has an established base because they won't have to.

If EGS is just as popular as Steam and Steam doesn't match Epic's cut developers will only put their game on EGS. Or first launch on EGS then sell on Steam a few months later. Similar to how almost every mid sized developer sells games directly at launch then a few months later sells it on Steam to maximize their profits.

 

[ChosenUno]

There is a lapse in your logic here. You're confusing and merging the Epic store with Fortnite. Fortnite revenue comes from microtransactions. You assume that because of this, buyers of traditional games won't go to that platform. That simply isn't the case. The user base of Epic may have been free to play gamers but the moment you offer a game like Metro Exodus that changes. If the game is good enough, it will sell. Steam itself used to be a store for high quality games but that too has shifted. Valve itself makes more money off of microtransactions and cosmetics which has been their personal business model for years (DOTA 2, TF2, Counter Strike ect.). By your logic DOTA 2 being on Steam wouldn't been a failure because the original Steam install base was for a high quality, AAA single player game. We all know that wasn't the case.

People just want to play games and they will use the client that has the games they want. If developers see better incentives such as no engine fees, marketing support and less selling fees they will take it. And the gamers will follow.

If that's the case, then there wouldn't be so much backlash, yeah?

Also, if you consider how the first Metro had basically no marketing, and the second Metro wasn't also heavily marketed, while Exodus has been on the forefront of every single tech/game publications since RTX was announced until today. The fact that it only sold 3x its predecessor is a flop.

DOTA2 on Steam isn't a failure, what are you on about? They basically paved the way for legitimizing eSports in the public's eye. Prior to DOTA2 and The International, eSports was relegated as a minor thing that's only big in Asia. How is that a failure?

Look, what I'm saying that you seem to ignore is that Steam PROVED themselves with selling games, THEN they expanded into microtransactions, where they're still unsuccessful (look at their card game). This is why it's safe for game publishers and devs to sell through their platform, because it's PROVEN for what they need, aka a distribution and buying platform that people have used and are familiar with.

What does Epic Game Store offers to the consumer over Steam? Nothing. That's why it's an unproven platform, using expensive tricks to lure consumers in.

 

[Flogger23m]

Try to twist it around all you want but there are several quotes floating around where he has has said that they've given money to devs for exclusivity. In the quote above he mentions the funding and exclusivity deals as connected not to mention that there's zero reason for a deal if they're not getting direct compensation for exclusivity.

I'm asking you to provide some evidence but you can't produce anything. Again, confirmation bias.

If that's the case, then there wouldn't be so much backlash, yeah?

These are gamers we're talking about. 70% of them are outright idiots, just like the average person anywhere. Herd mentality is strong with gamers and they don't understand or care to learn what is actually happening. Take any topic and you'll see the same thing. This isn't an anomaly with this topic.

Also, if you consider how the first Metro had basically no marketing, and the second Metro wasn't also heavily marketed, while Exodus has been on the forefront of every single tech/game publications since RTX was announced until today.

Newsflash - RTX meant nothing to 99% of gamers. Few gamers check hardware websites or buy a game because of a small graphical feature they can't even use. The marketing for LL was smaller, as expected, but you're vastly overstating the difference.

The fact that it only sold 3x its predecessor is a flop.

You have some very unrealistic expectations about sales projection. Refer to the part of my post about not understanding and not being willing to understand something. Sequels don't automatically sell 300% more each time, they can plateau for a number of reasons. Exodus was going to sell more due to the brand being stronger and it did just that. ~250% sales increase is what was expected and it did just that. It sold absolutely amazingly given their recognition, genre and small marketing budget. If not being on Steam up front was a huge deal breaker it would've sold well below expectations. Again, this didn't happen. The number of people who didn't buy it are in the minority. A tiny minority. You can view Battlefield & Origin as another example of this same scenario playing out in a time were not selling on steam was more controversial to actual gamers (and not the minority that post on forums).

Remember, Metro and 4A Games are still small developers/publishers. Deep Silver is also a fairly unknown publisher. They're not even close to the size of Capcom, Namco, EA, Ubisoft of Acitvision/Blizzard and SP shooters are not the most popular genre in 2019. If you were expecting 10 million sales from this developer/publisher across all platforms within a month you're outright delusional.

Sure, a few thousand people didn't buy the game. But a few thousand bought it due to the lower price. Of the people that didn't buy it, most will buy it next year when it comes to Steam.

The other bit of your post isn't worth responding to because you didn't catch the typo of would vs wouldn't and if you were thinking you'd probably realize it was supposed to be would. Hence, pretty much irrelevant.

 

[WorldExclusive]

Wait...does everyone hear that...really do you hear that?

It's Nvidia and Epic sucking the life out of PC gaming.

Just like Kyle got a new gig, I picked up better hobbies.

 

[odditory]

Zoom out and think of all the squandered goodwill and positive mindshare Epic could otherwise have had for their store, if they were going about things the slightest bit differently. If they weren't so hell-bent on trying to bruteforce a monopoly, stealing games from other stores to hold them hostage.

All this energy they've spent that has converted into polarizing people instead of forward motion. All that lost momentum they'll never be able to make up. All the gamers that would've tolerated one more launcher, but will not tolerate all choice being removed and will never touch EGS.

 

[Delicieuxz]

The creative director of Phoenix Point and CEO of Snapshot Games on their exclusivity deal with EGS:

Link

"Keep in mind that we knew there would be backlash. We knew there would be refunds. If we had to refund 100% of currently pre-orders, we'd still be in the black. We didn't make the decision lightly"

"Obviously I can't go into details about the deal - but it's for a minimum guarantee - which means Epic will guarantee that we will sell X number of copies. Even if we don't hit that number, they still pay us."

"Again, let me just be clear. Yes, we're being "paid" by Epic (it's actually a minimum sales guarantee). This wasn't a decision we made over night"

"We knew there would be upset, anger and outrage. We knew there would be refunds. This was all factored into our decision."

"Still a lot with a minimum guarantee. Enough to keep the studio running for years to come - and that was the point of this. It significantly reduces our risk on launch and means we can continue to provide content and updates"


So, how much did Phoenix Point receive from EGS? Well, they raised over $2 million in funding before the exclusivity deal, and they say even if they had to return all the funding they'd still be in the black. Therefore, it makes sense that EGS gave Phoenix Point more than $2 million for the exclusivity deal.



Tim Sweeney on hypocrisy:

Link 1, link 2.

Microsoft wants to monopolise games development on PC. We must fight it
Microsoft's Windows app strategy comes under fire: 'The most aggressive move Microsoft has ever made'
Tim Sweeney blasts Microsoft's "aggressive UWP initiative"
Epic Games: Microsoft can't be allowed to control PC gaming

Tim Sweeney flip-flops on Microsoft



Fig backers and gamers on Phoenix Point making their game EGS exclusive:



"As a company you shouldn't take people's money by making certain alluring promises, spend that money, and then when things are going well for you back-track on promises before giving the money back when customers' money and satisfaction is no longer as pivotal for your long-term success and survival. Customers aren't there to act as temporary interest-free loan services, they are there to back projects so they can support the fulfillment of certain promises.

And as far as games go, ensuring they release on stipulated platforms is an important part of that. Add on as many platforms as you want, but do not take away any of them, especially if it means breaking your word after you have people's money and done what you need with it. It will only make backers feel like they have been used and exploited, rather than valued as huge contributors to getting the crowd-funded game off the ground."


"I think what makes this particularly galling is how they basically used us backers as an interest-free loan. They took our money, developed to the point where it was mature enough to attract external investors, then totally changed the game plan and fully expect us to withdraw our cash, since they're now out of the high-risk phase of the project.

The conned us into lending them the money, and manoeuvered it so we'd be sitting on the bill if the development project failed. For a game that sold itself based on community involvement, with backer builds and all, this is just awful."

 

[sharknice]

You're equating having to click a different icon with literally not being able to use something.

Reading these posts is like listening to a crazy person try to justify their behavior on one of those conspiracy theory talk shows.