Xbox One's online DRM "could have been fine", says Xbox co-creator

@IceStorm

You're correct in how things currently work it's your reasoning of why it occurs that's flawed. Software is software and your making a distinction between one platforms software and another's that doesn't exist in the eyes of the law.

We can buy/sell/trade console games because the developers and publishers have chosen not to limit our usage rights by their own free will. "Ownership" is simply an illusion.

An example....Ubisoft releases Watch Dogs next month for the console. They provide a 25 digit code in the case that is entered into our Uplay accounts. Every time you play the game it connects to Uplay and checks to see if your account has access to Watch
Dogs. If a key wasn't entered you don't play.

The only way to sell that game now and it be functional is to provide the buyer with your Uplay account information. Uplay servers are offline or Ubisoft goes out of business...you don't play.

Where's your ownership now? The above example isn't science fiction it happens all the time on the PC. You're telling me that console games are somehow different but what's preventing a publisher/developer from doing what I stated other than fear of the
gaming communities backlash?

The courts have found that this type of limitation is fine for other forms of software. Why would they treat console games any different?

In your world a EULA isn't enforceable without legal action. That 25 digit key just enforced their EULA and they didn't have to go to court.

If we want to keep things the way they are people need to understand why it is the way it is. It's not because console games are different or they "can't" license lock, it's because they chose not to.

 

[quote user="Randver"]your reasoning of why it occurs that's flawed.[/quote]The courts agree with my assessment.

Absolutely not. Application software is software. Games are considered content, the same as movies, books,
and music. The courts have repeatedly denied the creation of a secondary market for digital content. Physical content falls under doctrine of first sale.

Console games can be resold because they are physical copies of content. The attempt to merge the two resulted in a backlash against MS. Free will? It's business. They want to sell games. It's not economical
for them to terminate physical content and switch to digital content at this time.

Don't bother providing examples that don't exist.

You want an example? Diablo III on PC vs Diablo III on console. Diablo III on PC is digital content. It doesn't work without a connection to Blizzard (despite the removal of the auction house). Diablo III on console? No Internet at all required.

What part of Germany throwing out that case did you not understand? What part of the EU striking down the attempt at
a secondary market for ebooks do you not understand?

I didn't say that. I said an EULA is not legally binding until there is a court case and a verdict. Legality doesn't enter into it
until there is a court case and a verdict.

Microsoft terminated access to original Xbox content that was bought over Live. They enforced their right to end access as per their EULA. That isn't a "legal" action, it's a contractual one that consumers didn't bother to fight - 24 million consoles, a
handful of digital content sold? No one really cared. I suspect when they do the same for the 360 they'll most likely face a legal fight where the no-class-action status of the current Live agreement gets tossed and they'll end up settling to avoid a verdict.
A verdict is a dangerous thing if it comes down against MS and they'd rather pay people off than risk that.

Gamers understand the difference. The minute
they heard "check-in every 24hrs" they understood that games for Xbox One were all about to become licenses, not owned copies.

If it doesn't work without a connection to a mothership - from purchase to running the game - it's a license (digital content). If it works stand-alone - buy it in a store and play it without any Internet - it's owned (physical content).

 

@IceStorm

You're contradicting yourself...If games on disc are content why does it not apply to the PC? Your Diablo 3 example even proves my point. I can buy D3 on disc, enter the key and it's now bound to my Battlenet account. I still have the physical content on
that disc but it's useless with the activation key.

If I'm understanding you correctly you're telling me that the always online feature of the PC version makes that version digital whether it's on disc or downloaded. I can actually agree with that, the software is the same no matter the source.

If you're telling me that console games on disc would also become "digital" if publishers required a key activation or always online then I guess we are also in agreement you're just choosing a strange way of explaining it. Or are you saying that they can't
require online or key activations and if so what are you basing that on?

My point all along is that console games are "different" not because the law is on our side but because the publishers and developers have chosen not to limit the usage whether it be for lost sales or just PR.

EU? Germany? They can chose to do whatever they want and it has no impact on our laws or courts.

The EULA, contracts....we just have a different perspective. If I accept a EULA, sign a contract...I'm well aware that they can't force me to abide by it until a court finds against me. I live in the real world...I don't need a court to tell me in my specific
case that if I don't make my car payment that the lender can't recoup their loses from me. This applies to any civil matter if there is court precedent that I will lose (EULA's included). Most people won't hire an attorney and incur legal fees to fight a losing
case but we all have that right.

 

[quote user="Randver"]You're contradicting yourself...[/quote]I'm not if you read closely.

I said games on disc that run without any connection to The Internet.

Because
PC games are sold as licenses that do not require the included disc. The disc is an extra which is intended to provide a faster way to install the bits than via download.

You're not.

Console discs are "different" because they have no Internet requirement. They're completely self-contained
copies of the content. Licenses are not "complete" because a part of the license mechanism resides outside the buyer's control.

Publishers follow the ownership model on discs because there's both end-user and corporate pressure to maintain that model. While you're correct they don't have to, there is a entrenched infrastructure that keeps them bound to the ownership model - an infrastructure
that home computer games never had. Console games on disc are owned, they're not licensed.

That's not true. If a distributor has to follow different
rules in one region, they may simply decide to follow those rules everywhere. There's also the matter of trade agreements. If one region decides software can be freely copied and resold, other regions won't do trade with them. If one region decides a secondary
market for licenses must exist, the other regions may impose restrictions or tarrifs to deal with it.

The same "real world" that has seen multiple cases over EULA over the years, both for application software and for content. Content so far is separate from application software.

EULAs are so full of holes that most don't fight a "losing case".

 

Great discussion from both of you, and I don't think that there's really a right or wrong to be had here. Yes, technically we don't really "own" the data on the discs and if the "real owners" wanted to go through the trouble of reclaiming their property,
legally they can but don't. There's parallels to the argument against piracy, the pirates like to use the "format" that the "property" is distributed in (for example, "torrents" instead of "discs") as a defence for why they have the right to distribute data
to persons other than who the property was initially licensed to, and yes they get away with it too, does that make it right? You're talking about Copyrighted material being redistributed without the consent of the owners of that Copyright and they have every
right to protect what's rightfully theirs.



The problem is that the technology evolved much faster than the legal loopholes were sealed, which is why DRM is the only way to go. When Music Downloads bumped Record & CD retailers off the map, I don't recall such a big fuss. On more than one occasion
I've gone to an unnamed retailer to purchase a brand new AAA title on launch day to have the clerk offer me a used copy for $10 less, this should NEVER happen, someone willing to pay the full price for a brand new copy while a retailer attempts to steal from
those who worked and spent considerably on producing the copyrighted material. I personally don't give a crap about the retailers, they know exactly what they are doing and have grown quite smug about what they're doing because they've been able to get away
with it for so long, just as a certain pirate site keeps going eventhough they've been "ordered" by the courts to stop. Once DRM is in place and you start seeing 'Steam' prices on your dashboard, you won't be so disappointed, especially when the developers
are given higher budgets due to widening profit margins which make for much better games for the gamer, DRM is a "no-brainer" and inevitable for the "Next Generation", in my opinion...

 

@Arkham99

I agree.

I can see IceStorm's point and how he is coming to the conclusions that he has, I can't honestly say that he's wrong and I'm right. We are discussing a gray area even for the courts so two guys in an internet forum don't have all the answers.

You're right, this is all new and at some point we'll see someone flex their muscles and we'll see changes. Currently we have case that law that conflicts with each other. We are just gamers and at some point the powers that be will sort it all out.....hopefully
we won't be on the losing end.

 

[quote user="Akham99"]Yes, technically we don't really "own" the data on the discs and if the "real owners" wanted to go through the trouble of reclaiming their property, legally they can but don't.[/quote]No, they do not own the data on the discs.

Keep separate the copyright and the product. The disc is a product. Once you buy it, you own it. Except for certain cases (like an MMO), that disc is a product you can use without any interference from the producer or developer or even the system manufacturer.
It's yours. You can use it or sell it.

Just like a paper book, you do not buy the right to make a copy of the product. Just as you can't photocopy a book and sell the copy, you are not allowed to make a copy of the disc and then sell it. This is all part of doctrine of first sale.

If you are terming "redistributed" as selling one's physical copy and divesting oneself of that copy, no, the copyright owner has zero say in
what you do with the product. The other name for doctrine of first sale is the exhaustion doctrine. When a product is sold, the creator relinquishes all control over the product after the sale. They "exhaust" their right to have any control over that individual
product.

That's because the music industry dropped DRM. Music can be freely copied between people. The reason it isn't is because the convenience of
having a digital library backed up by a legitimate source (Amazon, iTunes, Xbox Music) outweighs the money saved by obtaining music in an illegitimate fashion.

That's GameStop's business model.

The two are
not comparable. One is reselling a product. The other is making copies of a product.

It's already in place.

You won't see Steam pricing, you'll see Origin
pricing. Steam works because Valve took a risk and now has years of data to back up that risk. There are still plenty of companies that do not believe that risk is worth taking, like EA with Origin.

Developers and publishers want to end ownership and switch to licensing because digital content licenses cannot be resold. This puts a stop to the secondary market (GameStop's business model). The secondary market for games, they say, hurts them more than
movies and books and music because their only revenue stream is the original sale of the game. Movies and music have multiple revenue streams (box office, concerts, performance fees). Books wear out. Games? Games don't wear out, and there is no other large
revenue stream available other than selling the game.

 

IceStorm admitting that his viewpoints and his perspective may not always be correct......that's another story. ;p

 

He's obviously very well versed in the loopholes that retailers like to hop through, "redistribution" is "redistribution" and he can argue until he's blue in the face on the differences between how this is achieved to skirt the boundaries of law which may
not have been so clearly defined to date, but it can't and won't continue. Keep on defending the "Middle Man" for the Middle Man needs people like you more than ever...

 

False...i'm 35 and know many many ppl my age that play on PC and none of us care about physical copies of games.

That said....it's probably b/c during Steam Xmas Sales you can get 15 games for around $100, but still.

I've grown used to it. It's nice having all your games in one place available to you at all times.

It's especially nice not having to switch discs in and out. Yeah yeah...all the kids will say I'm lazy...you and I both know getting comfy and then wanting to switch out a game.....every....single....time...gets old.

It's just nice to be able to do. I've got enough trying things going on in my life....it's a welcome ease of use.

 

[quote user="Arkham99"]He's obviously very well versed in the loopholes that retailers like to hop through[/quote]First-sale doctrine is not a "loophole". It's written into copyright law.
Wikipedia links to the relevant piece of legislature.

It's not a defense. There are right ways to do DRM, and there are wrong ways
to do DRM.

Music finally does it right - there's no DRM but there's incentive to buy legally that pirated content doesn't have. Of course, this didn't stop DRM'ed music services from shutting down and leaving their users out in the cold. GOG does it right - no DRM
on your purchase. GOG can go out of business and as long as you have the installers downloaded they'll still work. Steam tacitly does it right. GabeN has said off the record that if Steam were to ever shut down they'd find a way to unlock all of one's content.

Microsoft and Nintendo have a track record of doing it wrong. When you buy digital from both you have no guarantee that your content will be usable/transferrable once their servers are shut down. That creates ephemeral content instead of something that will
stand the test of time.

Microsoft has shown they have no desire for content to last when they shut down original Xbox Live. They've also rendered unusable music videos bought on Zune. They limit the number of times you can download a Zune/Xbox video and once you exceed that limit
you can only stream. Both Zune and original Xbox were small scale, so maybe they just think they can get away with it. 360 is huge. The real test for MS is what they do when the 360 finally stops production.

Nintendo binds your purchases to hardware and makes it difficult/impossible to move to a new piece of hardware. You also can't install your content to multiple Nintendo consoles.

Sony is an unknown because they were so late to the game. They had no digital content on the PS2 that I'm aware of. The PS3 has a ton of digital content, but there's been no guidance as to what happens when the PS3 ends production.

This has nothing to do with loopholes, this has to do with making things work for both the consumer and the publisher/developer. If console publishers/developers want to end ownership and switch everyone to licenses, they have to provide value in that switch.
While there is some, like the use of one's library anywhere, there's too much ceded in addition to the loss of a secondary market, namely a very limited lifespan DRM system.

 

@IceStorm

You're incorporating your personal views and labels into this debate. Much of it is opinion rather than cold, hard facts. You're picking and choosing the parts you wish to address.

You'll bring the EU and Germany into the debate and ignore the 9th Circuit ruling. You completely threw out my Ubisoft/ Watch Dogs hypothetical yet there is nothing stopping it from happening a month from now. I can understand why you chose not to address
it because if it were to happen your entire argument goes out the window.

Every piece of software has a license. It's referred to in every EULA and in the case of console games it's not something we can see or touch but we can't pretend it doesn't exist.

Although you still won't admit it, you don't have the correct answers, none of us do. As with anything new the laws and courts are way behind and we have a huge gray area. The courts are going to need to redefine what a "license" is. Can we own a license?
is the fact that it contains usages rights and restrictions going to make it more like a lease or rental? The EU's decision even admits that there are huge technical difficulties in making their ruling work in the real world.

I own 300 games on GoG and agree from a consumer stand point they do it best. Technically I guess I own those games but one day I won't be able to play them anymore. Modern OS's are making many older PC games unplayable, GoG currently solves that issue but
when their gone what happens? It already occurs on Steam.

It's a whole new world and we can only wait till it gets sorted out.

 

[quote user="IceStorm III"]

Music finally does it right - there's no DRM but there's incentive to buy legally that pirated content doesn't have. Of course, this didn't stop DRM'ed music services from shutting down and leaving their users out in the cold. GOG does it right - no DRM
on your purchase. GOG can go out of business and as long as you have the installers downloaded they'll still work. Steam tacitly does it right. GabeN has said off the record that if Steam were to ever shut down they'd find a way to unlock all of one's content.

[/quote]

The problem with Steam's method is you have to trust they'll do it. For example, how do we know if/when Steam shuts down they'll be run by the same people? The new people may not care about that promise and not bother with unlocking the content. Hell, could
be the same people and they find out it's not feasible or even could be they don't care either and it was just words to make people happy when they said them.

That's why I prefer GoG's method a lot more, you're not beholden to some one who doesn't know you and doesn't have a contract with you to keep their words.

I'm not really a fan of Steam. I'm sure they are a good company but I still don't like the idea that you truly don't own your game. It doesn't help that I have encountered the odd occasion where you find out you truly don't own the game (luckily for me it was
a freebie they gave out but it could very well have not been). And I admit it was an odd occasion and most people wouldn't have encountered it. They some how lost my account. I know it wasn't just me forgetting password cause when I tried to use the remember
your password it didn't recognize any of my email addresses and I absolutely know it would have been one of them. In fact I'm 99% sure it would have been the first one I tried cause I sign up for everything using that email. Granted I hadn't used it in a long
time (I have a Mac and until recently one that doesn't play new games that well so no real games I can get off of Steam) but it still kinda left a bad taste in my mouth about trusting them to actually pay for a game. But, because I can't log in, I can't play
the one game I have with them (and also, I will point out that does mean you are beholden to have an internet access. Just not so often you'd normally notice ).

[quote user="Randver"]

I own 300 games on GoG and agree from a consumer stand point they do it best. Technically I guess I own those games but one day I won't be able to play them anymore. Modern OS's are making many older PC games unplayable, GoG currently solves that issue but
when their gone what happens? It already occurs on Steam.

[/quote]

When they are gone you'll have to keep your old computer to play those games (and I really appreciate they update games to be playable on new computers. It's why I can still play Fallout 1 and 2 on my Mac cause the original Fallouts won't play on newer Mac
OS's). I'm ok with that honestly. It still means I have an option and way to play those games if I really want to. I have at least some control over deciding if I want to lose access, the control is not totally in the company's hands on if I have access or
not.

 

And I will add about the trusting Steam, if you think about, if they are going out of business, what motivation do they have to keep their word and make their customers happy? They're going out of business so they aren't going to be doing business with those
customers. Even if they have good intentions they may just find it's not worth the effort when the company isn't going to exist anyways to worry about its reputation. You're basically trusting that they will be people of true honor who will work their hardest,
even when their business is going under (which probably means they don't have many resources) to honor their word. And that is *if* they are the ones even in control at that point and it's not new people who may resent that promise as they may feel it's an
unreasonable/stupid one and they aren't the ones who made the claim anyways.

 

vALVE have traditionally always been very open about which direction the Corporation takes on next, and it's safe to say that they're not "going out of business" anytime soon (their number of active accounts outnumber LIVE by a significant margin), and should
this unimaginable scenario that you propose actually take place? I "trust" that they'll handle it with much more professionalism than Microsoft has with the current 'Games for Windows LIVE' debacle. M$ gave us about 6 days notice of the GFWL Marketplace
shutting down last August (I myself didn't learn of this until after the closure) and they've STILL yet to officially comment on the future of the platform which most industry professionals believe will permanently end on July 1st, and that has prompted many
developers to migrate their GFWL titles over to Steam.



Ironically, I would've been far better off purchasing a game like 'Arkham City' as a Digital Download for GFWL instead of buying the hard copy that I did. The developer, RockSteady, removed the GFWL Sign-In requirement from the Digital Download version
so that players can play the game on Steam now and beyond July 1st, but for those like myself who bought the disc are out of luck (obviously they can't remove what's all ready on disc), for as it is now, after July 1st if you don't sign-in to LIVE you won't
get past the Main Menu to play your game, and there's no 'Off-Line' mode like you have for your Steam library, a AAA game that's barely 2 and a half years old that'll soon be useless, thanks to M$. Going by vALVE's track record I'm fairly confident that should
Steam no longer exist, it won't be handled with such inconsideration as Microsoft have handled things for those who've helped build it into the empire that it is today, sure, I may not be able to download my Steam Library to a new computer, but atleast the
games that I've all ready purchased will still work...