Who really owns downloadable games?

A few months ago, I was asked to review Moon Diver. I don’t own an Xbox 360, so I had to borrow one to get the XBLA version of the game. After creating an XBLA account, I downloaded the game to my hard drive. I then took my hard drive, sans console, to my friend’s house to try out the multiplayer. But when I booted up his 360, it wouldn’t work properly. I could only play the demo version of the game.

After doing some dizzying research, I learned that I can only play a XBLA game when the Xbox LIVE account that downloaded the game is connected to the internet (i.e. my account). Since my friend wasn’t connected, Moon Diver was stuck in demo mode. And I learned one of the many hard realities about digital downloads.

Today, digital distribution in gaming is a growing trend and, in turn, a growing issue. As new formats like Steam gain popularity, so does the concern that digital downloads may not be the convenient, streamlined experience many people think it is.

Take, for example, a story mentioned in the July 2011 issue of Electronic Gaming Monthly. In an article written by David Thomas titled “The Perils of Digital Downloading”, Thomas discusses Steam user Greg Thode who lost his account after trying to sell it on Reddit. There were 149 games on the account, potentially worth $1,800.

So what happened? Valve, Steam’s owner, closed Thode’s account for breaching a part of his end user license agreement; a part that Thode didn’t even know existed. The agreement states the following:

“You may not sell or charge others for the rights to use your account, or otherwise transfer your account.”

Unfortunately for Thode and for anyone that pawns played games, this is the direction the videogame industry is headed. As we accept more convenience, we sacrifice ownership.

As Bill Boggess of Gamasutra illustrates, digital downloads “afford no such promise of permanent ownership and instead often come infused with parameters and conditions that suggest digital software may be little more than an extended and highly-conditional lease.”

Boggess points out several issues with the rise of digital downloads, chief among them the loss of selling and sharing of games with this new market model. Without purchasing a physical copy of a game, we will not have the ability to share with a friend or maintain a healthy secondhand market, like filling GameStop’s “pre-owned” racks. Now these issues may seem trivial when we have the ability to play online and GameStop has very diminished returns, but to that Boggess brings up another point.

“These games are legally purchased goods but my ability to play them fully and as intended is predicated upon the continued support of Microsoft, Sony and Nintendo. While it seems reasonable that all three companies will make the necessary applications and utilities to ensure my games are transferred to the next batch of consoles, the reality is that I am merely assuming this and if such a transference utility does not occur I would need to retain my older hardware merely to play these games, many of which are quite good and warrant a permanent place in my collection.”

To further his point, Boggess also mentions Steam’s end user license agreement, which also states that Valve “does not guarantee continuous, error-free, virus-free or secure operation and access to Steam, the software, your account and/or your subscriptions.”

In other words, if Valve goes down, so does your account. While this is hyperbolic, it’s not improbable. Our ownership of those digital copies will not continue if the companies that we receive them from fail. Unlike physical copies, which can be played years after purchase (possibly gaining value for rarity along the way), ownership of digital downloads is “something precarious and potentially finite”, Boggess said.

Right now, gamers are a bit too trusting. We trust that after purchasing the game, we will have access to it whenever and wherever, despite potential connectivity problems or failure of the distributing company. We trust that we will be compensated for our purchases if we decide to close our account, even though most gamers don’t read the end user license agreements before clicking “I agree”. In fact, according to Game Informer’s Matt Miller, a mere 2% of gamers actually read the agreements, while 67% said they hardly glance at it.

Going forward, there are several options to be taken. Boggess surmises that if gaming developers don’t address all the integral issues in the current design, but instead continue to push it, then they’ll be met with consumer backlash. For Miller, simply having more basic language and less “legalese” in the end user license agreements would solve throngs of issues.

Meanwhile, Thomas has a more harsh love conclusion to his EGM article, stating that any legal action taken by gamers would be moot:

“Whether gamers like it or not, digital-content providers have the law on their side and everyone should get used to playing by the publisher’s rules.”

I don’t think digital distributors are threatening us. For example, while Thode did lose his account initially, Valve was quick to restore it following the wave of media coverage of the story. This proves to me that though Miller may be right, there is room for change. In an ideal world, there would be complete transparency between gamers and the companies that sell games. We wouldn’t have to worry about convoluted legal terminology or the flexibility of ownership.

That may not be the world we live in currently but the ability is there to make it so. So before simply scrolling through another license agreement or downloading another title from PSN or XBLA, question the deal before submitting to it.


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Author: Greg Galiffa View all posts by
Greg Galiffa is an Associate Editor at GamerNode. He's also an apologist for the first TMNT film. You can follow him on Twitter @greggaliffa

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