Holding on to the past… and ownership rights

Posted by D Wilikers Articles - Editorials - Featured - Industry

I find it strangely coincidental that after an insightful video on the possible disadvantages to DLC that some anonymous Internet user on YouTube talks about the rumor of the “Xbox 720″ having anti-used game technology. And it is still a rumor at this point, by the way, supposed squashed with the typical PR response of “our company does not comment on rumor or speculation,” so no confirmation (as though any organization would make that information easily accessible anyway) on Microsoft’s part. I’m not here to further that speculation, but I thought now is a good time to talk a little bit about some dangers of DLC and why retro gaming, despite the flawed thinking from publishers and manufacturers in those days, is far less problematic than digital distribution.

In 2011, I set a record high, buying a total of 6 new releases (of which one was a compilation and remake) that year. On the other hand, I think I got at least 10 older games. The similarity in all 16 titles is that they were physical media, and that’s no accident. Now, I very much applauded the advent of DLC as an “it’s about time” measure for legally redistributing old software. 15 years ago piracy via emulation was the root of all evil, and despite those who relied on emulation to experience or re-experience old games pleaded with IP owners to release their software through some legal means, that all fell on deaf ears until the geniuses realized that Steam was making some money without having to sell through physical media. Now, digital distribution is the greatest concept yet, for IP owners and consumers.

…Well, until you are in some situation where you can’t use the software you paid for. And through online digital distribution, you can effectively surrender what little rights you had to own a physical copy of software to now becoming a licensee at the mercy of the licensor. Online digital distribution proves it’s convenient for all parties. With it, you can:

• Avoid loss through damage (e.g. no scratched disks or dead save batteries)
• Pay non-padded prices (every game you sell on eBay is not “rare”)
• Play as many games as possible on a single console, so no need to hook up your Genesis and wishing you had RCA jacks because the RF modulator makes the games look like crap
• Avoid clutter because you don’t need to find somewhere to store your software

While publishers can:

• Avoid unauthorized sharing of software
• Avoid unauthorized disassembly/pirating
• Earn more in revenue
• Change policies/terms of use/license agreements as they see fit

And with online distribution, games are non-refundable, and new releases that have physical counterparts are still sold at MSRP. This is certainly better than trying to see how sellers can justify selling “mint” copies of Kirby’s Dreamland 2—where apparently “mint” is defined as “cartridge only with a sharp-looking label on it”—on eBay and Amazon. Of course, that’s just an example, since that particular game is not on the VC that I know of, as are a few other Game Boy games, including one I reviewed this month, but it shows how convenient this has gotten. So the natural question is why are the people still buying physical copies of things they can easily download and play on a single machine?

You see, these online services are perhaps too convenient, and more to the point, they’re unavoidable. Even with some physical media today, what you have in hand may be worthless without an Internet connection. If it’s not, that won’t stop publishers and manufacturers from compelling you to use their proprietary online service, where not only can they download things at will (preventing you from doing anything until an update is ran), they can change legal agreements. As successful as digital distribution has become, the scarcely-publicized fact that companies use updates to change policies (remember the PS3?) means that as manufacturers, publishers, and developers move forward in trying to prevent secondhand game sales, piracy, and reduce cost, so go your rights as a consumer.

But in retro days, the industry as a whole couldn’t and didn’t plan well for used game sales (unless you count the Sonic “Not for Resale” label as planning). In fact, the 10NES and the lock-out routine on the NES and SNES, respectively, shows that the interest was to prevent copying and, bizarrely enough, importing. And you know what? That’s fine. Sure, the 10NES caused that annoying blinking on our NES, and the nostalgic memory of blowing on cartridges fills the heads of anyone who played games during that time, but if the most likely threat to game companies was somebody buying Final Fantasy V because Squaresoft had too many issues that stopped them from releasing it, then that’s a victory for the consumer.

The thing is that physical copies worked. Only a few instances occurred where physical copies of a game seemed doomed to failure. And those copies, better known as every bloody copy of Final Fantasy VII and VIII, always presented a problem. And when manufacturers got greedy (see Sega Saturn’s copy protection scheme), the consumers didn’t just give in–they spoke with their wallets and stopped buying software. A physical copy, in most cases, has shielded me from Draconian usage policies for hardware and software I paid for.

Old games may not be full of superb Havoc engine mechanics, but at least when we inserted a cartridge or disc into our consoles, we could play a game without being strong-armed into surrendering our right.

Disclaimer: This isn’t an attempt to provide legal advice. I’m not a lawyer, I haven’t formally studied IP law, so don’t try using this opinion piece as a legal defense.