October 29, 2010 -
I am not a fan of headlines with question marks at the end, but the IndustryGamer story, "Could California Game Law Lead To An Exodus From The Industry?," poses an interesting question. What are the repercussions of an entire industry under the thumb of a state government, and if the California law succeeds, what states will line up to pass their own laws? Will there be job losses and less mature-rated titles on the market?
Patrick Sweeney, lawyer at Reed Smith LLP and represents video game publishers (EA, THQ, Sony Online Entertainment, and Nintendo), makes a prediction:
"Certainly less games would be produced and there would be a corresponding job loss," Sweeney said. "But I expect the impact will likely be significantly deeper. I believe the independent development community would be severely impacted. Innovation, both from a creative and technological aspect, would also be stifled. The companies, brands and individuals that we should be embracing as the visionaries of this creative and collaborative industry will migrate their talents to a more expressive medium."
Let's hope that 9th Circuit Court ruling is upheld.
Comments
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
Sorry, this should have been a reply to greevar's commment above.
I was not very clear. I apologize. I said, "more importantly publishers" because it is the publishers who pay the developers. In general at least. The publishers are paid by sales of the games. That's why I'm asking you how the publishers are supposed to get paid.
Also, publishers are not these horrible evil corporations you seem to think they are. They're not leeches. They do a lot of work so that the devloper doesn't have to. Localization, external QA, marketing, legal support/protection, funding, production (of the disc in box variety), and distribution are but a few of the things they do.
If contractor doesn't finish their work, or doesn't do a good job they tend to cut and run. People lose a lot of money that way. They can sue to get it back. If they're lucky they'll actually be awarded the money by the court and possibly get more back than they paid to do the suing. Money paid for a sale would be owed back to the customer. If the customer is investing in a company which will produce a product they have no legal recourse if the company doesn't produce. Same as if you buy shares in a company and lose money.
People pre-order games based on videos, screenshots, and previews of games. Not because someone said, "Hey, I have this great game idea."
Regardless of sales model publishers add a lot of value to the industry in a lot of ways. See the small list above.
What other scarce goods are you referring to? If there are indeed many please list a few.
Allowing the general public (or even just your investors or early-adopters or whatever you want to call them) say in how you make your game sounds good on paper. But I bet you wont get a good game at the end. Everyone thinks they know what they want, and everyone will tell you they want something different than anyone else. The reality is that most people don't know what they really want. And trying to give them all what they think they want will not produce a good game.
The video from the linked website looks pretty decent. They have static geometry from at least 1 level, 2 weapons, 2 character models, and a handful of particle effects. It's from 2 years ago. They now have a couple of demo levels and, presumably, more weapons, etc. They've released 3 levels in the span of a year. Based on their timeline that puts them more than a year from final release.
So they clearly had already spent significant time on this before the video, it's been two years since then, and it's an (estimated) year from launch. Sure you can go through the demo levels now, but to really play the game you need to wait a long time still.
One other problem. You've mentioned that developers should be paid to produce the game and then release it for free. If it's free for everyone when you release it, who's going to pay you to make it? Even with this model you still need something which makes it worth the price tag.
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Chris Kimberley
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Chris Kimberley
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
There's a simple solution to all of this: Don't sell games, sell skills. It's pretty simple in the grande scheme of things. Instead of making a game and selling copies (which requires making nice with retailers, government, and distributers etc.), just get paid to simply make a game and give it away copies for free. The government can ban the sale of the games to minors all they want, but the developers won't be selling the games at all. The games will merely serve as a promotional material to advertise their game development services to the public. This puts the weight of responsibility entirely on the parents because they will have sole discretion over what games their kids play and forces them to actively participate in their childrens' media consumption in order to keep them from material they object to.
-Greevar
-Greevar
"Paste superficially profound, but utterly meaningless quotation here."
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
How exactly do you propse to get developers (and more importantly publishers) paid for making a game if they don't sell it? Where does this money come from?
Would you propose getting $60 "investments" from would-be players? Who is going to pay money for a game that may not get finished? Or may be vastly different than what you thought before they started making it? Or may just be absolute crap and you have no way to tell before you pay your money, wait 3 years, and try it out for yourself?
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Chris Kimberley
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Chris Kimberley
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
And the current model is better because...? It's not. More and more people have come to realize that if something is released, it can and will be copied. Trying to stop copying is akin to keeping a feather pillow torn open in a storm from scattering.
"and more importantly publishers"
Excuse me? What exactly have publishers done that makes them more entitled to getting paid for what the developers create? Publishers are nothing but leaching middlemen that make profit from the work of others. They are directly dependent on the protections of copyright because their ability to profit hinges on their ability to get people to pay for as many copies as possible. Publisher do exactly what you're asking what players would be asked to do: invest in the creation of a game.
"Would you propose getting $60 "investments" from would-be players? Who is going to pay money for a game that may not get finished? Or may be vastly different than what you thought before they started making it? Or may just be absolute crap and you have no way to tell before you pay your money, wait 3 years, and try it out for yourself?"
What do contractors do when they don't finish a job or they do it out of the customer's spec? They get fired and someone else finishes the job. If they didn't produce anything for the customer, they don't get squat for payment and any money paid is owed back to the customer. The game doesn't have to take 3 years to complete. It can be broken into smaller pieces that can be released on a shorter deadline. It's building a reputation with the fans that will determine whether or not they will risk some of their money to fund a particular game. It wouldn't be that different from those that preorder games. They might even get more for their early support. In fact, there could be incentives for being an early adopter with a type of "producer" title. This would entitle them to special status, privileges, and possibly bonus merchandise that would set them apart from other fans.
If developers followed a fund and release model they wouldn't need the publishers, they'd be irrelevant. Would the developers need an initial investment to get started? Most likely, they will. Does the game creation have to be the only thing they offer? No, there are many scarce goods they can offer related to the game that they can sell to the consumers. Through these scarce goods and/or services, the developers can collect revenue that will fund future projects. The games they produce will serve as promotional material to attract more people to fund the games.
In addition to that, the developers need to create a strong connection with their fans in order to garner their loyalty and support. This can be accomplished in a multitude of ways and it's more than just running a forum. It could be in the form of giving fans that fund the game a vote on what direction the game development takes or what sort of game the community wants them to make.
If you want to see an example of a developer working without a publisher and backed entirely by community funding, check out www.interstellarmarines.com.
-Greevar
-Greevar
"Paste superficially profound, but utterly meaningless quotation here."
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
The industry should never have to resort to such things.
Besides, there are other methods to get parents informe,d but Yee and such don't want to do that mthey just want ot legislate their brand of morality all over everyone else.
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
"The industry should never have to resort to such things."
What? Why should anyone get paid for a single project for the rest of their lives? Contractors don't get paid perpetually for the houses they build. Landscapers don't get paid every time someone looks at a yard they did. Why shouldn't they have to resort to abandoning a business model that was flawed to begin with and required legal protections to make it profitable? People who make games are providing a service. That service is their ability to make a game for, you, the consumer. If they were paid for making the game rather than selling copies of the game, these sorts of issues wouldn't come up in the first place. If the games/music/movies were available from online sources and the makers were already paid for creating it, the power of censoring objectionable content would be solely up to the parents responsible for the internet connection.
-Greevar
-Greevar
"Paste superficially profound, but utterly meaningless quotation here."
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
Not too sure about how much of an impact a Yee win would be on the film industry- they have enough $$ and clout (look at how many Hollywood types hang with politicians) to keep lawmakers off their back.
In fact, the destruction of the games industry would actually HELP the film industry. If most games are made to be "child safe" and mature-themed games are few and also require visiting the equivalent of a porno shop, then adults will not bother with games for their entertainment. We already know that games have been cutting into movie and tv consumption time amongst the "nintendo generation" and younger for some time.
Also, as the games industry sees job losses and a serious contraction, so too will the audience. I personally have no interest in a medium that has had it's creative wings clipped. Should games become strictly the domain of children, I'm out.
Plus, should the only way to get mature games is to go to a porno-like store or section, then the primary games that will be made for these limited audiences will be lowest-denominator tipe. It will actually cause mature games to simply become the low-budget pornography that the law would religate it to in the first place.
The sky may well indeed be falling.
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
Yee is on the California senate, Hollywood, more or less the hub of the US film Industry is in California.
Coincidence? Maybe.
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
That connection is compelling, especially considering who the Cali governor is. I'm not too sure I would consider this some kind of Hollywood conspiracy yet, considering that Yee has been against games for quite some time now. However, should someone decide that this bill exists because of film industry pressure, I would not mock their position.
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
If this law is upheld then depictions of violence in all media could be consided obscene much like they are with sex.
Violent movies, books, newspaper articles, theatrical plays, music, and photographs whether real or fake would be treated in the same way as pornography. It would be by far the greatest damage ever dealt to freedom of speech in the U.S.A.
And it wouldn't just end with violence, soon any speech no matter what the topic is could be barred or subject to regulations if it's consided offensive enough. Might as well kiss the First Amendment goodbye as it now means absolutly nothing.
"No law means no law" - Supreme Court Justice Hugo Black on the First Amendment
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
If this law is upheld, I expect results on the video game industry not unlike what the Hays Code did to movies and the Comics Code did to comics.
But this has already failed twice, so I don't expect it to survive.
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
It has potential to be worse -- keep in mind that the Hays Code and the Comics Code were not enforced by the government.
That said, if anyone had ever attempted to enforce them as law, I doubt they would have survived the Supreme Court.
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
*nod* that is a point that people tend to forget. Just look at how many people believe that movie ratings are legally enforced today....
Though keep in mind, both of those codes were put in place because the respective industries felt that if they did not, they were going to be regulated. At least for comic books there were already towns outright banning the medium and courts had been upholding these bans, so actual SCOTUS censorship looked very likely at the time.
And given what first amendment exceptions left over from that erra that we still have (obscenity for instance), these risks are far from theoretical. Even today we have new laws like that anti-lolicon one that passed a few years back that have not been struck down.
Re: Game Lawyer Predicts Bleak Future if SCOTUS Case Fails
"Just look at how many people believe that movie ratings are legally enforced today...."
Indeed. I frequently see posts (not at GP, of course) where people say "What's the big deal? It's already illegal for kids to see R-rated movies."
"Though keep in mind, both of those codes were put in place because the respective industries felt that if they did not, they were going to be regulated."
True.
"At least for comic books there were already towns outright banning the medium and courts had been upholding these bans, so actual SCOTUS censorship looked very likely at the time."
My recollection is that the courts actually threw out the bans, but it didn't matter because vendors started refusing to carry them.
It also bears noting that, while the idea for self-regulation was an attempt to defuse the public outcry and congressional investigations, a lot of the particulars were aimed specifically at putting EC out of business. Bill Gaines was the guy who proposed a Comics Code in the first place, and for his trouble they added a bunch of rules like "you can't use 'horror' in your title" that were clearly aimed specifically at his line, and demanded inconsistent and arbitrary changes on all his books.
"Even today we have new laws like that anti-lolicon one that passed a few years back that have not been struck down."
Indeed. I expect it would if it faced a SCOTUS fight, but up to this point nobody's been willing to appeal that far; in all the recent cases I can think of the defendant's copped a plea.