How Intellectual Property Poisons Video Games

I’ve just watched the Jimquisiition video “Circle of Strife,” which I’ll provide a link to here—just… just click that to go and watch it and subscribe to Jim Sterling, if you haven’t already. He does great work for the average gamer and is well worth watching. In his video he discussed the adversarial, mutually parasitic, mutually antagonistic relationship between Gamestop and game publishers, and I have nothing to critique there, of course. I do, however, want to discuss how we got into this situation in the first place, because the root of the problem doesn’t lie with Gamestop; it lies with publishers.

Going all the way back to square one, this mess began because it is simply assumed that publishers are entitled to be paid twice for a single copy of a product. Because they make this assumption, they hate Gamestop, who doesn’t provide game publishers any revenue from the sell of used games. This is a matter on which the gaming public appears to be roughly evenly divided, with some people simply asserting that of course EA deserves a cut from Gamestop selling a used copy of Dragon Age: Inquisition on Xbox 360, and with others… who actually agree with that premise, but who assert that launch-day DLC and later DLC allow the publishers to effectively be paid twice for the product, because DLC isn’t transferable.

Jim Sterling, of course, addresses all of these issues regularly. Launch Day DLC is a particular pet peeve of mine, and I’m in wholesale agreement with Jim about how the abuse of DLC, existence of pre-orders, and incestuous, adversarial relationship between publishers and Gamestop are hurting gamers. Unlike Jim, however, it’s my contention that there is a single root cause to all of these problems.

Intellectual property.

Now, rather than railing against Intellectual property generally—I’ve done this in podcasts that are no longer available, but even so I’m not going to retread the same old ground—I’m going to draw a direct line between intellectual property and the publishers’ sense of entitlement that they are due for two payments for a single instance of a product, and how this mentality, this entitlement, has led directly to the issues that Jim Sterling fantastically addresses.

It’s immediately apparent that no one is entitled to being paid twice for something that they’ve sold. If, for example, I sell you a vehicle for $3,000, and you go on to sell that vehicle to someone else for $4,000, absolutely no one in their right mind would contend that I was due any additional money from you, or from the person who bought the car from you. Having sold that property to you, and been duly reimbursed with an amount that we agreed was fair, our business is concluded and my property claims on the car are null. It is, in effect, no longer my car.

Intellectual Property, as a duplicitous way of allowing people who have created a thing to maintain ownership after the point of selling it, would dictate that, if I had been the one who invented this car—thereby making it my intellectual property—then I would, in fact, be due compensation. It is every bit as asinine as thinking that, if I sold my Chevrolet Impala to you for $3,000, then I needed to give a cut of that to Chevrolet. It’s utter nonsense; Chevrolet has already been paid for that Impala. Whether I bought the car from someone who bought it from someone who bought it from someone who bought if from Chevrolet, or whether I bought it directly from Chevrolet, Chevrolet produced one car, and they were paid for one car. What happens after that isn’t their concern—unless a warranty is transferred, but that’s an unrelated matter—because they made one car, they were paid for one car, and they relinquished all ownership claims over that car.

In what lunacy-filled doublethink could they possibly be entitled to being paid again?

Yet when we take this analogy and transfer it directly to video games, suddenly this simple logic is thrown out the window. But it shouldn’t be, because EA has still produced one copy of the game. There is one disc, one box. The retail world isn’t my area of expertise, but whether you buy the game from Wal-Mart, Gamestop, or some EA storefront directly, the fact remains that they produced one copy of the game, and you purchased it. You became the owner of that game, and EA relinquished all property claims regarding it.

Whether you go on to sell the game to me for $15 isn’t EA’s business, because they have already been paid for that copy of the game. Selling it to me does not create a second copy of the game, because there is still only one copy—ownership of it is transferred from you to me, and in return you have received a payment that we both agreed was fair.

“But you now get to enjoy the game! Hur hur hur! And EA didn’t get paid for two people to enjoy it!”

This is, in essence, the argument of intellectual property, that EA didn’t sell an actual, physical copy of the game, and that they instead sold “an experience.” It’s immediately apparent that this is—how shall we say?—absolute bullshit. So if my wife and I purchased a video game, EA would be entitled to two payments if we both attempted to play it? By this argument, sharing is stealing, under any and all circumstances. It’s as asinine as it is fallacious. If EA sold an experience to me—the experience of playing the game—then what am I selling when I take the game to Gamestop? I’ve had the experience. By this logic, even replaying a game that you own constitutes theft of EA’s digital property, because they sold an experience—one. If you cannot transfer ownership of that experience to Gamestop, or to someone else, without somehow violating EA’s Intellectual Property, then playing through the second game constitutes exactly the same violation.

This is the mindset that EA and other publishers have, even if they wouldn’t be willing to call attention to this gigantic logic pit. They want you, the gamer, to be on-board with the idea that they deserve payment twice for a single copy of a product, because then they can shove all kinds of shit like pre-orders, launch day dlc, obtrusive DRM, and DLC cut directly from the game into your face and you won’t immediately reject it, because, like they want, you’ll begin from the assumption that these are justified practices undertaken to help them curb losses from when the “experience” they sold is unrightly transferred from one person to another. It’s not a conspiracy; it’s not like the big AAA publishers are sitting in board rooms together devising plans to rip you off. They don’t have to, because their interests are all aligned, and because so much of the gaming press is willing to do their work for them.

You see this everywhere, and it takes on forms obvious and subtle. Take, for example, how even discussing emulation can result in a ban from a game’s Steam forum. This has reached a point where otherwise ordinary community members will proudly initiate posts warning everyone that discussion of emulation is against the forum’s rules. Why? It is a perfectly legal solution to a long-time problem. But it doesn’t matter why; it’s just taken for granted, and from there it’s propagated: emulation is bad because it steals money from developers. That’s right, downloading an emulator and ripping your own copy of Final Fantasy from an NES cart steals money from the publishers who are trying to sell you a second copy of a game you already own. And you’re not allowed to discuss it openly, nor are you allowed to call attention to the fact that, with very few exceptions, emulation is vastly superior.

Just look at the Mega Man Legacy Collection. Of course, you’ll find there such a thread warning people that it’s against the rules to discuss emulation. Even though the Legacy Collection is buggy, borderline broken, with terrible controls and graphic filtering options, and even though FCEU and JNES both emulate the six NES Mega Man games faithfully, accurately, and without crashing, you’re not even allowed to talk about how you can rip the NES games directly from your NES cartridges and play them bug free and error free, for free. And obviously a publisher has the right to police their forums—when the people hosting that forum, Valve, have given them that right—but it’s hardly a unique circumstance on the Steam forums.

Watch any YouTuber who does video games, and if they ever mention that forbidden E-word, they will immediately follow it or precede it by saying, “I don’t encourage emulation.” Why the hell not? It’s a perfectly adequate solution to an obvious problem. The reason, of course, is that they don’t want to be crucified by publishers and their attorneys who have convinced themselves and the rest of the world that Intellectual Property is somehow a thing, and that it means that they get to maintain ownership over things that they have sold and ostensibly transferred ownership of.

From that one, seemingly innocuous assumption that is alleged to exist to ensure that developers, artists, and musicians are financially motivated to produce content, nearly everything that has gone wrong in the past twenty years in these industries has directly stemmed. It’s beyond the scope of this article or video or podcast or however I publish this to get into every single result of the intellectual property sickness that has infected entertainment, but people were producing art, music, and plays for centuries before Intellectual Property was a thing. And going all the way back, there were people selling what we would call bootleg copies, but the artists continued their crafts, because that’s what artists do and because there have always been ways for artists, musicians, playwrights, and authors to ensure that they are fairly paid for their work.

Intellectual property is preventing the evolution of the video game industry. For example, musicians throughout the world have repeatedly lost their freaking minds in history. First, it was over blank cassette tapes and the ability of people to record songs aired over the radio. They couldn’t sue there because television studios had already attempted to sue in the 80s against VHS and the ability of consumers to record programs and watch them later; since the Supreme Court ruled that consumers could record television, it was obvious that the legal precedent would result in a lost case for the music industry against blank cassette tapes. Moving forward, it happened again when people began ripping CDs and burning CDs. Then again when Napster arrived and widespread sharing took off. Rather than adjusting to these changes and shifting their focuses to live performances and rather than providing incentives for people to purchase the CDs over bootlegs, the music and movie industries instead went after piracy.

One has to look only to the recent Tool albums to see exactly how this sort of thing can be addressed without overstepping one’s bounds and claiming ridiculous ownership of things that have been sold. Tool’s latest album, Ten Thousand Days, included a weird bifocal thing and a collection of images that produced 3D effects and couldn’t simply be photocopied. It was encouragement to buy the actual album, in the same way that 1980s video games often included “feelers” that couldn’t be so easily bootlegged.

But instead of doing any of this—instead of doing anything to improve the gaming industry and actually entice consumers to buy their products by using feelers and other bonuses not cut from the core game, the video game industry has taken the same path that the music, television, and movie industries took before it. Rather than attempting to evolve and better themselves to present consumers justifiable reasons to purchase games new, rather than used, they find it easier to throw a bunch of bullshit at us.

The video game industry should look again at Hollywood and the music industry to see how well that worked out for them. And then they should come down from their drug-induced highs and accept that they aren’t entitled to be paid twice for one copy of a product and that, if they want people to buy their products new, then they have to offer a valid incentive that makes it worth it to the consumer to buy it new, instead of simply threatening and attacking people who buy used.


12 thoughts on “How Intellectual Property Poisons Video Games

  1. I think the only point I would argue against is the notion that replaying a game would count as having a second experience, while you’re only entitled to one. I think (Genuinely) that the idea here is that buying a game (“An experience”), in EA’s twisted little short-sighted min, is meant to represent buying a license to that experience. So, in essence, you’re entitled to play the game again, but you’re right – Even with the license-logic in place, letting your neighbor, your friend, your spouse or your child play it would actually be abuse of EA’s “Intellectual property”, because that person does not own a licensed ticket to that experience.

    Amazing piece though, and I completely agree. It’s anti-consumer through and through. At least in the case of physical copies, EA has no right to demand a cut of any second-hand purchases. I wouldn’t give IKEA a 20% cut if I sold my wardrobe, because it’s MY wardrobe.

    In terms of codes and keys, I’d go so far as to say that the lines are bit more blurry – The biggest issue I have there is the fact that we have to pay the same for a digital copy as you would for a physical one, and there is literally no reason for that. No packaging, no transport, no nothing.

    • Thanks. You’re correct that my analogy there went a bit far on that and starts to fall apart in regard to replaying the game.

      One of the things that irritates me most about Steam–as much as I love it as a distribution platform–is that it explicitly does not sell us video games. It sells us licenses to play those games, provided that we continue to abide the TOS and EULAs. It’s basically the same way that Apple handles iTunes and Amazon handles Kindle–not to mention countless others–and we’ve already seen how that power can be abused. Amazon has a long history of closing down people’s accounts for arbitrary reasons, with no appeal process. Though Valve has been much more pro-gamer thus far, I think it’s *inevitable* that they will fall to the same “money, money, money!” mentality that destroyed Google, Facebook, Amazon, and Apple, all of whom initially swore not to be evil.

      I think the first step will be that anyone foolish enough to add emulators or pirated games to their Steam Library for easy access will have their accounts closed. From there, we might actually see harddrive scans for “steam.dll” and similar Steam-only files that have to be cracked for pirated games. They won’t ever say “We’re looking for pirated games,” but they’ll be able to say–and will be able to justify–looking on people’s hard drives for illegally modified copies of Steam’s DLL and application files, which pirated Steam games like Final Fantasy X/X-2 HD need in order to work.

      And that bothers me, because at Valve’s sole discretion, with no appeal process, they could shut down my account and take away every single one of my games someone’s games but not mine because I don’t pirate or emulate games because emulation is piracy and piracy is illegal. Except… not really, because those same cracks are widely available online, and I would restore them all with pirated versions, merely losing my ability to play them via Steam. But I would only be able to get away with that as long as I wasn’t in Valve’s attorney’s crosshairs.

      If publishers *do* start abandoning PC because of piracy–which they’ve been threatening to for ages, but never have–then I think that will be the catalyst that causes Valve to begin cracking down on accounts with pirated copies of games in their Steam Library. And it’s a short step from there to HDD scans for illegally modified steam.dll files. 🙁

  2. Great, just what the world needs, another anti-IP fanatic. The fact is, anyone who takes the trouble to create a game, or anything else, has the right to dictate the terms of its sale (or, if you don’t think the word “sale” covers a contract that stipulates conditions for resale, then use some other word). If you don’t like the terms, don’t purchase the product. It’s that simple.

    But nooooo! People like you seem to think you can dictate terms of sale. It’s the attitude of someone who has never created anything others want. You’re like little squalling babies, endlessly whining. I have nothing but contempt for you and anyone else with this attitude.

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