Readers of this blog may be aware that I’ve been supporting the petition to ensure games remain playable after publishers end support. The UK petition reached the mark for a response and the UK government, specifically the Department for Culture, Media & Sport, has issued a response to the petition. This is my response to their response.
Summary
Those selling games must comply with UK consumer law. They must provide clear information and allow continued access to games if sold on the understanding that they will remain playable indefinitely.
This is a welcome response, but part of why we are making this action is because it is ambiguous whether there is an “understanding that they will remain playable indefinitely”, and that existing law is unclear on whether publishers have to build games that are playable even after support ends. We argue that there is an implicit understanding that when you purchase something digital, you will be able to operate it as long as you want, even after the end of the official support period.
Main Response
The Government recognises recent concerns raised by video games users regarding the long-term operability of purchased products.
Good.
Consumers should be aware that there is no requirement in UK law compelling software companies and providers to support older versions of their operating systems, software or connected products. There may be occasions where companies make commercial decisions based on the high running costs of maintaining older servers for video games that have declining user bases. However, video games sellers must comply with existing consumer law, including the Consumer Rights Act 2015 (CRA) and the Consumer Protection from Unfair Trading Regulations 2008 (CPRs).
We are not asking for “forever support”, we are asking that games be made playable when support ends. We do not mention operating systems or connected products. These remarks seem to be missing the point of the petition. Part of the issue is that many games could run without servers, and we are asking for legal recognition of this, not asking for servers to be maintained forever. We are also in part suggesting that going forward, publishers must design games with long term playability in mind, which means that even when serves are shut down (as they eventually must be), the games will still be playable.
The CPRs require information to consumers to be clear and correct, and prohibit commercial practices which through false information or misleading omissions cause the average consumer to make a different choice, for example, to purchase goods or services they would not otherwise have purchased. The regulations prohibit commercial practices which omit or hide information which the average consumer needs to make an informed choice, and prohibits traders from providing material information in an unclear, unintelligible, ambiguous or untimely manner. If consumers are led to believe that a game will remain playable indefinitely for certain systems, despite the end of physical support, the CPRs may require that the game remains technically feasible (for example, available offline) to play under those circumstances.
Part of the argument we are making with this action is that games often never disclose up front how long the game will be supported, so the issue becomes ambiguous. How are consumers to be able to make informed choices, if the information is never offered. If this is a legal requirement for measuring support, publishers must be obligated to state the support period up front.
Furthermore, we are arguing that there is a difference between a game being supported and a game being playable, and there is an implicit understanding (at least to myself, and others who have signed this) that a game would be playable for as long as the player wants, regardless of support. If a game could be made unplayable under any circumstances, publishers should need to clearly disclose this, separately to the support period, and should explain upfront what action players must take if this upsets them.
Ideally we would want action that precludes them from rendering games unplayable in the first place, so consumers do not have to jump through hoops to get their purchases fixed.
The CPRs are enforced by Trading Standards and the Competition and Markets Authority. If consumers believe that there has been a breach of these regulations, they should report the matter in the first instance to the Citizens Advice consumer helpline on 0808 223 1133 (www.citizensadvice.org.uk). People living in Scotland should contact Advice Direct Scotland on 0808 164 6000 (www.consumeradvice.scot). Both helplines offer a free service advising consumers on their rights and how best to take their case forward. The helplines will refer complaints to Trading Standards services where appropriate. Consumers can also pursue private redress through the courts where a trader has provided misleading information on a product.
This is good advice if there is specific legal guidance made available to these advice organisations regarding game ownership. Can the government comment on this? I have checked the Scotland Consumer Advice website and the FAQs do not make any mention of what to do when publishers kill off games, only remarks about software that is not running as sold. Similarly, the main Citizens Advice site only mentions software that is faulty, it does not make mention of software which has been made unusbale at some point after sale.
We argue that the mode of the fault in question, publishers making games unplayable some time after purchase, is not one that is readily anticipated by existing law or consumer guidance. There is also confusion over timing. Scotland’s advice page suggests that a complaint over digital goods must come in within 6 months of purchase, however publishers may render a game unplayable years after purchase.
The CRA gives consumers important rights when they make a contract with a trader for the supply of digital content. This includes requiring digital content to be of satisfactory quality, fit for a particular purpose and as described by the seller. It can be difficult and expensive for businesses to maintain dedicated support for old software, particularly if it needs to interact with modern hardware, apps and websites, but if software is being offered for sale that is not supported by the provider, then this should be made clear.
We are arguing that the industry as a whole has a different interpretation of “fit for a particular purpose” than players do. We also argue that often the content (including lifespan of the game) is never described, so this is not a helpful condition.
This response seems to be misunderstanding our request: We are not asking for “forever support” of software, nor are we asking that software be kept up to date with modern hardware. We are asking for conditions requiring game publishers to make games that won’t stop working when portions such as online support are removed.
If the digital content does not meet these quality rights, the consumer has the right to a repair or replacement of the digital content. If a repair or replacement is not possible, or does not fix the problem, then the consumer will be entitled to some money back or a price reduction which can be up to 100% of the cost of the digital content. These rights apply to intangible digital content like computer software or a PC game, as well as digital content in a tangible form like a physical copy of a video game. The CRA has a time limit of up to six years after a breach of contract during which a consumer can take legal action.
A refund is an unacceptable outcome here. If a bookseller decided to forcibly take a book back from you after it was sold, but offered you a refund, this would be considered an unacceptable compromise. Particularly because in the case of games rendered unplayable, you cannot use that refund to re-buy a working copy of the game, as you could with a broken physical product.
We are arguing that the only acceptable response when a game publisher deliberately makes a game unplayable should be a repair, in the form of updating the game to allow for offline play, removal of any DRM, or offering a server application to allow for unsupported online play.
The standards outlined above apply to digital content where there is a contractual right of the trader or a third party to modify or update the digital content. In practice, this means that a trader or third party can upgrade, fix, enhance and improve the features of digital content so long as it continues to match any description given by the trader and continues to conform with any pre-contract information including main characteristics, functionality and compatibility provided by the trader, unless varied by express agreement.
Yes, part of the problem is that games, when they lose online support, are effecitvely changed beyond the description given as purchased. We are asking for explicit recognition that this is illegal as right now game publishes do not seem to recognise this.
Consumers should also be aware that while there is a statutory right for goods (including intangible digital content) to be of a satisfactory quality, that will only be breached if they are not of the standard which a reasonable person would consider to be satisfactory, taking into account circumstances including the price and any description given. For example, a manufacturer’s support for a mobile phone is likely to be withdrawn as they launch new models. It will remain usable but without, for example, security updates, and over time some app developers may decide to withdraw support.
We are arguing that players are reasonable in their view that games should always be playable offline, but many publishers seem to miss this. We are not asking about phones or physical hardware, this comment is missing the point. We argue that just because a publisher might issue a sequel, it does not give them the right to render older versions of a game totally unplayable. If an author brings a new edition of a book out, they don’t get to destroy all the old copies.
Conclusion
I am glad that the government has issued a response that recognises the issue and doesn’t dismiss it out of hand. However a number of remarks made in the response suggest that perhaps DMCS has not fully understood the scope of the issue:
- Existing consumer bodies don’t have guidance for the specific failure mode of “trader has deliberately made the product sold inoperable some time after purchase”
- Often a game’s support period, and loss of playability beyond support, is not advertised in advance, which means actions consumers can take under the law is unclear
- Offering a refund, partial or otherwise, is not an acceptable remedy for this manner of failure
- The only acceptable remedy should be offline play, removal of any DRM, or offering a server application to allow for unsupported online play
- Publishers should have to design and sell games with this in mind going forward
But my desire goes a bit further. I agree with Ross Scott, who started this campaign, that what is really needed is explicit clarity. I want this petition to reach the 100K mark because I want politicians to stand in debate and make a statement. Either members of parliament can say with conviction that publishers have a right to unilaterally shut down and destroy a product someone has purchased, or they can’t. And if they can’t, then the only logical move is:
- To make that practice explicitly illegal,
- Thereby and discouraging publishers from doing it in the first place,
- Providing easier access for affected players to demand a playable copy of their games.
The petition is available here and is still accepting UK signatures, please consider adding yours if you are eligible and haven’t already: https://petition.parliament.uk/petitions/659071
The broader Stop Killing Games campaign site is here: https://www.stopkillinggames.com
I’m trying to start a proper documented report of how games get killed, what the alternatives are, and what action is needed. If you want to help, you can find more details on the GitHub site: https://github.com/LonMcGregor/StopKillingGamesReport
