If you are a video game enthusiast, a fan of DC’s favourite parentless posterboy, or simply a person who has paid attention to Twitter, Facebook or one of the various platforms through which we crowd-source our real-time news, you may have heard that a little, hotly-anticipated game, entitled Batman: Arkham Knight was released this week… You may also have heard that a number of people were rather less than delighted with the quality of said game at release – particularly the PC gaming community, a difficult community to placate at the best of times. What seems to have happened is that Warner Bros, the publishers behind this game, have released a PC-port (meaning the game was primarily designed for console and then adapted for PC) which is laughably unfinished, riddled with graphical issues, and plagued by problems with stuttering and freezing (OK, I’m not quite out of Batman villain references, but this could go on for days). In the wake of this debacle, they have been quick to suspend sales of the PC version, pending further invesitgation.
It essentially looks like another case of (a) a publisher not giving a developer enough time to finish the game, and insisting that it meet the deadline set months in advance by a marketing team, and (b) the responsibility of porting the game to PC being pawned off on a team who do not have the experience, time or resources to complete the job to a satisfactory degree. Whilst some people have been able to play the game without too many issues (I have it on relatively good authority that a 2 year old laptop can run it is well as could be expected), many consumers who have expensive, high-end systems cannot get the game to play smoothly and are chugging along a frame-rates at less than 30 FPS (“frames per second”…. incidentally, 30 FPS is not generally considered good, something between 40 and 60 is often the goal). What’s worse is that the PC port seemed to lack some of the visual features which the console versions actually had… By the way, for any non-gamers reading this, that is extremely odd, as the PC version of any game tends to have more visual features due to the less limitations on standardised hardware on a PC compared to a console. Also, keep in mind that this is not some small indie game from an under-funded and inexperienced team – previous Batman: Arkham *Something* titles have been released on PC with relatively little fuss, and even survived the change of developers from Rocksteady Studios to Warner Bros. Games Montréal. Furthermore, consumers have paid up to €60 for a pre-ordered copy of the game, and an additional €40 for the “season pass” for future DLCs. No trifling sum of money for a game which was rendered (pun intended) unplayable for many consumers on release.
Been working with a tech from Rocksteady to get Arkham Knight running on my PC but he says it’s not looking good pic.twitter.com/MoWoXXrofv
— Humanity (@ItsHumanity) June 25, 2015
This entire debacle is made all the more interesting for the market-driven (sadly there is still little legislative reform in gamer-consumer protection) developments in refunds for video games bought online. A number of companies have been dabbling with their own, non-legislatively-mandated, offers for refunds of video games. Good Old Games (GOG) offer a limited refund possibility if you really cannot get the game to work on your system, though they offer help first with getting the game to run and the system is not a no-fault refund policy. This makes their refund policy far from revolutionary, but coupled with their staunchly anti-DRM stance, GOG remain an interesting driving force in consumer policy in the video game industry. Origin have their own “Great game Guarantee“, allowing for refunds up to 24 hours after first launching the game, within 7 days of purchase – though that’s 24 hours from launch, not 24 hours game time. Green Man Gaming had gone further and set up their own proprietary system, coupled with their own “Capsule” client, for buying games and then reselling them back to Green Man Gaming for store credit or cash. Whilst certainly one of the more interesting attempts to allow for a form of digital resale market for games, their success was limited by the relatively low uptake on this feature an the fact that many games sold through Green Man Gaming could not be returned as they are tied to a Steam key, which in turn is activated and locked to your Steam account. The feature has been retired and its functionality taken over by their Playfire client.
This leads me to the most recent, and perhaps because of it’s sheer size the most significant, development in this arena: Steam (the proprietary online digital video game distribution platform owned by Valve) recently introduced their own limited try-before-you-buy style refund policy, allowing consumers to buy a game, install it, and play it for up to 2 hours before returning it. This return policy is not contingent on fault in the game, or on it running on your system, but the game cannot be returned after 2 hours of gameplay, and certain titles, such as games involving subscription models may be excepted from the system. Further, this must be done within 14 days from the purchase of the game. Large scale refund requests in the wake of such a crippled launch is one of the reasons why this has been particularly problematic for Warner Bros, and could be particularly interesting for the future of game design. To quote Francis, of screaming-based-but-surprisingly-eloquent-at-times video game commentary Youtube fame;
“Right here’s the part of the video where I’d normally tell you not to pre-order the next game, Mad Max, on PC, because they might screw it up the same way they did this one – but, you wanna know something? Now that we can refund games, it costs them more for us to pre-order it and refund it than it does for us to never buy it. So pre-order on.”
Keep in mind, this could also have a negative chilling effect of sorts on the game development models, with more and more subscription models and in game purchases for game genres which really do not benefit from such a model. Some people see possible serious problems with Steam’s system in particular, from exploits to negatively effecting smaller developers. We’ve seen a similar problematic development in the realm of DRM and the always-online requirement for the ostensibly single-player SimCity reboot, a launch disaster which for a long while was the industry standard for how to piss of consumers and subsequently need to fix everything post-launch.
Interestingly, in this particular case, Green Man Gaming has clarified that they will also offer refunds;
Following the rocky launch of Batman: Arkham Knight on PC, Warner Bros. have taken the decision to remove the game from sale until further notice in order to continue work on the game and bring it up to scratch. Do note, though, that if you bought the game already you’ll still be able to play it during this period
At WBIE’s request, we’ve removed Batman: Arkham Knight, the Premium Edition, and Season Pass from sale on Green Man Gaming and we’ll be issuing refunds to any who are dissatisfied with their purchase…
Of course in addition to these market developments and tales of publishers ignoring or embracing consumer feedback, there remains still the actual legal status of video game “purchases” – if one can even define them as such. Legislators and courts have so far shied away from introducing any legal equivalence to what are, to the consumers’ understanding at least, the functional equivalent of consumer “sales'” contracts. This is a problem for most fields where digital content is becoming more prevalent; from e-books to music, to video, and of course software and video games. With regards to video games, the legal position has been particularly unclear, not least because a video game can consist of software in addition to video, audio, text and other assets, each with their own “it’s complicated” relationship to intellectual property law.
This reluctance to deal with the Peña Duro of consumer protection is in part due to worries about the ease of copying digital intellectual property, as well as the simple fact that legislating is hard, as are reaching judicial decisions, and the sad truth that so far gamers have not managed to develop into a politically relevant voter-category, nor have they infiltrated the highest echelons of the judiciary. As such, improvements in the rights of gamers, this particularly vulnerable category of digital consumers (believe it or not), are currently, and may remain for some time, primarily market-driven.
Nevertheless, the argument can be made, and continues to be made by certain parties, both in the academic and ‘real’ worlds, that many of the rights afforded to consumers of ‘tangible’ goods should or even must be applied, at least to some degree, to consumers of digital content. Rights such as the no-defect right to withdrawal for goods purchased online in the EU, rights to refunds, repairs or replacements for defective goods, and the particularly contentious right to resale, might also be appropriate to extend to digital content. On the one hand, consumers still pay much the same amount for video games, music and e-books as they did before online distribution and direct downloads, and both this fact and the lack fo a time limit on the use of such content would indicate that we do in fact have a contract for the “perpetual” and “exclusive” use of this copy of that product… Which sounds awfully like the definition of a sales contract, regardless of what and end-user license agreement might say.
On the other hand, it is important to keep in mind that this model only describes certain video games, primarily single player and games which do not involve any paid subscription. The real issue here is that some form of compromise will most likely be needed, as current development and discussion is held back by the dichotomy that the status quo is much too unfair towards consumers, but that the option of adopting the current rules for tangible goods lock, stock and barrel for digital content would be overkill. No one needs a 14 day right to withdrawal (thanks EU) for a video game or a downloaded film – it would simply be too open to abuse. Such a move could actually cripple the video game, film or music industries – though this is a threat which is often difficult to take seriously and easy to forget about, as these industries seem to cry wolf every time courts or legislatures attempt a healthy bit of pro-consumer reform.
Nevertheless, a change does seem to be coming, albeit slowly, so it is more than likely in the publishers’, developers’ and distributors’ interersts if they continue to introduce more consumer friendly features regarding refunds (particularly in cases where the ‘product’ could be regarded as ‘defective’), partial refunds, and resale, before they are compelled to do so by a court of parliament. Digital resale is a good example; if distributors get out ahead of this, they can have it that they and/or developers retain a cut of resale profits, however, if they tarry too long they run the risk of some secret Elder Scrolls fan of a judge applying unrestricted resale rights to digital content. Similarly, the industry should take disastrous launches, that those of SimCity, Assassins Creed Unity, and now Arkham Knight, seriously and do their best to compensate and/or refund their customers – as more and more consumer bodies, academics and even politicians are challenging the lack of a traditional right to refund for defective digital goods.
Nathan Grayson, “Steam Refunds Could Cause Some Big Problems“, Kotaku – Steamed
Thomas Morgan, “It gets worse – Batman: Arkham Knight on PC lacks console visual features“, Eurogamer
Chris Thursten, “Broken Bat: finding the good and bad in the Arkham Knight debacle“, PC Gamer
John Walker, “Warner Suspends Sales Of Batman: Arkham Knight PC“, Rock, Paper, Shotgun
John Walker, “New Steam Refunds Policy Makes Getting Your Money Back Far Simpler, But Some Devs Are Concerned“, Rock, Paper, Shotgun