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

[quote user="Randver"]You're incorporating your personal views and labels into this debate.[/quote]I'm entitled to have an opinion about DRM.

9th Circuit is not
about games. Until you have a games ruling, you have nothing to stand on. EU went through the exact same thing - software vs content. EU has decided content != software. The USA has not had a court case to make that distinction yet. You can't say that games
are software in the USA until there has been a court case and a verdict.

Console games on physical media
do not come with EULAs. I 'm sitting here with a 360 title in my hands. There is no EULA listed on the package. There's no EULA listed on the manual. There's nothing for me to accept/deny, either on paper or when I start the game.

EULAs are not implicit, they're explicit. There has to be something to accept/deny. If there isn't, there is no EULA. The game is covered under first-sale doctrine.

As
there is no EULA on physical discs, I know that your argument "software is software" does not apply to console discs.

As GOG uses emulation for many titles
(DOSBox) there's no reason to believe that to be true.

Steam is less diligent keeping DOSBox settings updated, but that doesn't mean you can't do so yourself.[quote user="ShadowRiver77"]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?[/quote]Valve is a privately held company employing the brightest minds in the industry. They're not answerable to shareholders. They're
not in it just for the money, they're in it because they want to be. There is more reason to trust Valve than there is to trust EA or MS or Sony, which are in it for the money and are answerable to shareholders.

 

@IceStorm

I agree with what your saying, we lose each other when we are discussing why this is occurring and what prevents all of your statements from becoming invalid.

You're absolutely correct about how things currently work but that console game does have a EULA, it does have a license and again your correct we don't see them. My point all along has been that there is nothing legally stopping all that from changing tomorrow.
Your "console game" can become a license with the addition of "accept" button for a EULA and some form of activation. The minute that happens the 9th circuit ruling applies.

I'd prefer gamers not sit back and believe we've won and that the law is somehow on our side, sitting back a believing they "can't" because they currently don't is in my opinion a mistake.

With GoG my concern isn't the DOSBox games, it's the early Windows games and it's more of an issue on Steam. Win 8, 8.1 aren't playing nice with some Win XP era games and the normal tricks to get them working aren't.

 

@Randver & Ice - As far as I understand the issues involved, this is my take (pertaining to USA only) on your discussion:

Ice is correct that physical copies of console games do not come with EULAs, because he is correct in that 1st sale doctrine applies (protecting the consumer) & also that the contents of said disc are protected under existing copyright & Intellectual property
rights laws thus negating the need for any further protection for the producer.

As far as EULAs in general go I think you may both be partially right & partially wrong, but I doubt any of us here fully understand all the nuances. At its most basic, an EULA
is binding (Randver is correct), providing it does not violate or trump existing law or violate the rights of the person agreeing to it (ice is correct that they are all open to court scrutiny and can be overturned). They are binding, but the person
who agrees cannot be compelled to forfeit any rights under law he/she previously held.

I dont know if this adds anything, but its an interesting discussion nonetheless.

 

@Sin

I think Ice and I have found common ground on the EULA issue, we just see things differently. I'm the kind of guy that if I get caught driving 60 in a 45 I pay the ticket, Ice goes to court to fight it hoping the paperwork for the radar guns calibration
is out of date.

Ice is very "wordy" (beginning to think he is an attorney). The only question he still dances around is why is a console game disc different from it's PC counterpart? I believe it's because the publishers are allowing it to be different, could change it
tomorrow and have the law on their side.

Ice believes? Sometimes I think we agree but other times I think we are miles apart. Who knows?

 

[quote user="Randver"]You're absolutely correct about how things currently work but that console game does have a EULA, it does have a license and again your correct we don't see them.[/quote]No, they don't have licenses. EULA define a license - End User
License Agreement. It's in the name.

Currently available disc-based console titles are individual copies of copyrighted content, just like DVDs, Blu-rays, and books. That means they cannot be reproduced and sold, but they can be sold or destroyed by the owner of that individual copy. There
is no agreement whatsoever between the buyer and the creators of the content.

The ease with which content can be changed from
owned (DVD, Blu-ray, book) to licensed (iTunes, UltraViolet, Kindle eBook) isn't what determines the state of the content. An existing owned game cannot be converted to a license without one's consent. As it stands, console games on discs are not licenses.
They are owned copies of a copyrighted work.

For physical media, the law is on our side. It's the basis for the entire secondary market that GameStop,
Best Buy, Walmart, and other for-profit companies have created.[quote user="Sin Continuum"]At its most basic, an EULA is binding (Randver is correct), providing it does not violate or trump existing law or violate the rights of the person agreeing to it (ice
is correct that they are all open to court scrutiny and can be overturned).[/quote]The "providing" part isn't optional, it's integral to the discussion. EULAs are not binding until it challenged in court on an EULA by EULA basis. While individual EULAs may
be well-written enough to pass the test of a court case, by default an EULA is just a contract. The whole legality of a contract can be challenged in court if one so chooses. That's why these things have been ending up in court - entities are questioning their
legitimacy as they relate to existing copyright laws.

The concept of a License is something developers/publishers thought up to both absolve themselves of responsibility for a product as well as control access to that product. That's been a sore point over the years for a society used to buying something and
then doing what they want with it.

At its core, an EULA typically states that the buyer absolves the seller from any responsibility for the product while also stating that the seller can revoke/limit the buyer's access to the product at any time. Many people have problems with this concept.

 

^^^I think it goes deeper than seeing things differently which i was trying to summarize, but I'll let it go at that if you want. I tried to write this response 3 times and they were long and I wasnt happy with them so I'll step out of the way for now because
I doubt I can add anything at the moment that wouldnt cause more problems than it was worth

 

@Icestorm - they are binding UNLESS challenged, not non-binding UNTIL challenged. EULA are contracts, not law as you stated.

 

@IceStorm

I'm not sure if I'm not making myself clear or you're simply avoiding the question.

What is preventing a publisher of a disc console game from requiring us to scroll through and accept a EULA once the disc is inserted in the console and requiring us to activate a key binding the game to a console, gamertag or third party account?

 

[quote user="Sin Continuum"]they are binding UNLESS challenged, not non-binding UNTIL challenged[/quote]If I click accept on a document that by no reasonable definition I could have read, I don't consider that document to be binding. If MS takes their GfWL
live ball and goes home and I still have the game and use a crack on it, it's me not being bound to a contract by my own actions. For MS to do anything about that, they'd have to come after me in court. Courts won't automagically side with MS's interpretation
of the EULA.[quote user="Randver"]What is preventing a publisher of a disc console game from requiring us to scroll through and accept a EULA once the disc is inserted in the console and requiring us to activate a key binding the game to a console, gamertag
or third party account?[/quote]Infrastructure. There's no facility to do what you're suggesting on the console side of the fence. There would have been in MS's original plan, but that was cancelled. The closest anyone got before that was EA's online pass,
though that only affected online play not local play. EA terminated the program. If it was making them money, they wouldn't have terminated the program. Either people didn't like it or the infrastructure cost more than the benefit.

 

@IceStorm

We are so close to finding common ground and agreeing.....

The infrastructure actually is there for many publishers. EA, Ubisoft and Rockstar could do it tomorrow. We all have EA accounts, Uplay accounts and Rockstar accounts just by nature of playing their games and connecting to their servers.

The "'online pass" could just as easily be the "you need this to play our game pass".

 

[quote user="Randver"]We are so close to finding common ground and agreeing.....[/quote]Agree? You were under the mistaken impression that console games on discs were licenses. If you now understand that they're not, that they're owned and subject to the
doctrine of first sale like other content, then all is fine.

The "what if" argument is moot. It was made moot by the backlash against Microsoft for attempting it. No publisher, no platform maker, is going to "go first" in the near future.

For EA, it isn't particularly relevant. They shut down their servers after a couple years anyway.

 

@IceStorm

It's not a moot point. The EULA for every publisher doesn't specify if it's for a disc or digital just the software. The EULA says the software is licensed. Add that EULA to a disc and welcome to my "what if" world.

As I have said from the beginning and your admitting at least in part...the reason my scenario hasn't taken place yet is for fear of the backlash. You're not telling me my "what if' scenario can't happen and why it can't you just dismiss it.

The fact that PC games and other PC software uses that model it's very unwise for us to dismiss it as something that can't happen to console games in the near future.