PC Gamer

To better understand the potential consequences of the UK's Advertising Standards Authority's investigation into No Man's Sky, we reached out to a number of legal experts proficient in the realm of video game law for their take on the situation. Stephen McArthur, a "Video Game Lawyer" of McArthur Law Firm, Ryan Morrison of Morrison Lee, Jas Purewal of Purewal and Partners LLP, and Tom Buscaglia, The Game Attorney, agreed to lend us their knowledge and explain what this investigation could mean for Hello Games, Valve, and the industry as a whole.

What's the ASA, and what power does it have?

The ASA is an independent authority with the power to issue, but not enforce, sanctions on advertising that breaches the UK Advertising Codes. As such, its judgments are not legally binding, and it is up to the offending company as to whether it follows the ASA's recommendations.

It's highly unlikely the ASA will advise any sort of blanket refund or remuneration.

That said, the ASA has proven quite successful in the past, requiring French Connection, the fashion brand behind the FCUK slogan, to submit all its marketing material to the ASA for vetting before it can be displayed, as well as banning an Apple iPhone ad for false claims about the device's internet capabilities.

The key precedents

The law on false advertising in video games is developing fast, particularly over the last few years, Purewal tells us. He points out that many recent cases in the US have been unsuccessful, citing the class action lawsuit against GTA V over the omission of its online mode at launch. In the UK specifically, Purewal notes the ASA has previously ruled on Wolfenstein: The New Order and the Dungeon Keeper mobile game, with the Dungeon Keeper example of most relevance. The ASA determined that the content and features shown in an email ad for the game were misleading due to their being locked behind paid currency, despite the ad emphasising that the game was free. Because it was not clearly stated that the gameplay depicted would require in-app purchases, the ASA deemed EA in breach of the UK Advertising Code, requesting the ad be taken down and for future ads to make clear the differences between free and paid gameplay features.

McArthur mentions a few more examples worth examining in greater detail. Though these are US cases and as such hold no legal sway over the ASA's decision, the similarities between them give us a solid idea of what does and doesn't constitute false advertising.

Aliens: Colonial Marines didn't quite look like this.

Aliens: Colonial Marines

The 2013 lawsuit was initially filed against Sega and Gearbox on behalf of all owners of the game, but in 2015 Gearbox was dropped from the suit and the scope of the case was reduced from its class-action status to only representing the two plaintiffs. Sega, meanwhile, was called out by the ASA and admitted that trailers for the game "did not accurately reflect the final content of the game." Consequently, Sega settled for a reported $1.25 million and added disclaimers to its videos advising that the footage pertained to demo versions of the game, rather than the final release.

Killzone: Shadow Fall

A class-action lawsuit against Sony was dismissed in 2015 after a US federal court found that evidence of false advertising was insufficient. The suit alleged that claims of 1080p fidelity in marketing material did not reflect the actual resolution of the running game. Due to Guerrilla Games' technical implementation, however, the difference between what they promised and what they delivered proved too minor to constitute false advertising.

Nvidia GTX 970

The GTX 970 debacle was recently resolved out of court, with Nvidia agreeing to pay out $30 to all purchasers of the graphics card within the U.S. Nvidia has maintained that the nuances of the 970's not-exactly-4GB of VRAM were lost in translation between engineers and marketers, agreeing that promotional material was misleading but insisting that any confusion was unintentional.

The consequences

Of these precedents, both the Killzone and Nvidia cases deal with technical absolutes, claims that are fairly straightforward to prove one way or another. 1080p is a defined standard, and 4GB of GDDR5 is 4GB of GDDR5, not 3.5GB of GDDR5 and 500MB of something slower. False advertising in these cases comes down to hard numbers and clear expectations.

The No Man's Sky claims, though, aren't so easily defined, and that's where Aliens: Colonial Marines serves as the most instructive example. Morrison highlights the fact that the Colonial Marines case was reduced from a class-action suit to one representing only the two plaintiffs, a ruling made due to the difficulty of proving which players had purchased the game based solely on its false advertising, and which had picked it up for other reasons.

It's a similar case for No Man's Sky. Of the claims the ASA is investigating, how many people bought NMS purely on the basis of it having flowing rivers? How many copies were sold on the ability to fly close to the ground? Was the promise of bathing wildlife a deciding factor for a significant chunk of the audience?

Given how impractical it would be to prove any of these claims, it's highly unlikely the ASA will advise any sort of blanket refund or remuneration. Morrison suspects something more along the lines of a strongly-worded warning advising Hello Games to be more mindful with its marketing in the future. Purewal expects much the same, pointing to the settlement between the FTC, Microsoft, and Machinima over paid endorsements on YouTube. "The impact on the consumer is indirect," he says. "They may not see ads in a particular way done again."

In legal terms, any comments made by Sean Murray in interviews or in Reddit AMAs are not considered advertising.

As for what the ASA's decision could mean for the US, Purewal notes that "the US federal regulator for advertising (the FTC) or potentially state bodies, are under no obligation one way or the other."

Morrison doubts that it will have much impact, even if the ASA concludes that players have been misled. "Under American law, I don't think they've broken the law," he tells us. Rather, he attributes the frustration and disappointment surrounding No Man's Sky to a misinterpretation of the marketing material. Videos and screenshots depict the ideal planets, the ideal wildlife, the ideal experience and that's not necessarily what everyone's going to get. Procedural generation is inherently unpredictable; no trailer could equally represent 18 quintillion planets' worth of content in just two minutes.

Both Buscaglia and Morrison emphasise the challenge Hello Games faced in capturing the vast possibilities of a procedurally-generated universe in a handful of gameplay clips and screenshots. Because players have effectively no control over what chunk of the universe they will be thrown into, their experiences will all be different; some may enjoy nothing but lush planets full of diverse wildlife, while others may jump from dead world to dead world, never encountering the vibrancy depicted in the promotional trailers. That doesn't make this false advertising, though. Like all marketing material, trailers are designed to show off a game in its best light.

Critics have pointed out that No Man's Sky's planets aren't packed with life, as they were in early trailers.

The key distinction here is separating possibility from certainty; it may be unlikely that a player will stumble upon the idyllic worlds teased on the game's Steam page, but provided they do actually exist somewhere in the game, the accusations of false advertising will not float. As Morrison puts it, "Is it a legitimate complaint? Yes. Is it a legitimate legal complaint? No."

Morrison also points out that, in legal terms, any comments made by Sean Murray in interviews or in Reddit AMAs are not considered advertising. Claims made in these forums do not fall under the official marketing umbrella, and as such do not hold up in a legal context. Any hypothetical lawsuit would be limited to the media distributed by Hello Games as a whole.

Is it a legitimate complaint? Yes. Is it a legitimate legal complaint? No.

Lawyer Ryan Morrison

Buscaglia is less concerned about the possible legal ramifications than he is the message all the outrage sends to other independent developers with ambitions of exploring procedural generation and non-deterministic experiences. "The thing that bothers me most about this sort of thing is the fact it can have a real chilling effect on people pushing the boundaries on procedurally-generated content," he says. "I hate to see people who are willing to push the envelope and try to make something really revolutionary like this get smashed by the people they're doing it for."

McArthur foresees a similar outcome, stating that "the biggest impact here will be that it sends a message to other game companies to be careful about what they put in their trailers and not to oversell their games with unrealistic 'gameplay footage.'"

After restating his belief that Hello Games has neither broken the law nor purposely deceived any of its players, Morrison closes with a piece of advice it's always worth reiterating: "People need to stop pre-ordering games." If you aren't 100-percent confident you know what you're getting, give it a week before handing over your hard-earned cash. Watch Let's Plays. Read the reviews. A little research goes a long way.

Rock, Paper, Shotgun - contact@rockpapershotgun.com (Alec Meer)

I mentioned Gearbox’s woebegotten Aliens: Colonial Marines in snarky passing earlier, and so was surprised to see the disappointing Xeno-shooter crop up in the news for Actual Reals. Turns out there’s a mod intended the make the lousy not quite so lousy. My main question at this point is why?> … [visit site to read more]

PC Gamer

Intrepid modder TemplarGFX has overhauled Aliens: Colonial Marines, taking it from middling shooter and legendary disappointment to competent FPS that does some justice to its source material (I fear the disappointment might be permanent).

TemplarGFX's ACM Overhaul, on ModDB, focuses on rejigging the xenomorph AI to make them a credible threat. Headshots are essential, acid blood is a constant worry, and aliens have had their decision timing increased by at least 500%. They move and accelerate faster, and every animation has been re-timed to make them look more organic.

Human animations have received the same treatment, and even the voice work is better timed to provide better situational information. AI vision has been reworked too, offering the potential for rudimentary stealth.

Accompanying the rebalance is a suite of graphical enhancements: brand new particle effects, higher shadow resolution, more dynamic shadows and permanent gore and clutter.

The full list of changes is as long as it is impressive, so if you have it in your heart to give Colonial Marines another go, ACM Overhaul is as close as it's likely to get to the sales pitch.

Rock, Paper, Shotgun - contact@rockpapershotgun.com (Angus Morrison)

Rumour has it that the decrepit Arkham Knight port beat a retreat on account of Steam refunds. After all, what better way to get a dastardly developer to blush and shuffle its hooves than to reverse its cash flow? Until June, when no-questions-asked refunds came into force, such a feat was impossible. Perhaps, after years of pro-consumer jabs at Microsoft and other corporates, Valve sought to make a material gesture that player interests are truly the heart of the Steam empire. Or perhaps they dislike being sued. Hint: they are currently being sued.

By now, you ve likely encountered a shop and have a reasonable feeling about how refunds should work: if it doesn t do what it s meant to, you take it back. Nothing could be simpler. Refunds for digital products or, as is often the case, licenses for digital products are a legal hellscape of false assertions and misinformation, in large part a product of outdated legislation that no one is keen to test in court. To sift through the muck, I got in touch with Ryan Morrison, founder of the New York law firm by the same name (and no relation of mine this side of the 17th century). Whether you re European, Stateside or in the wrong hemisphere altogether, here s the plain English version of where and through which service your purchases are best protected and why some retailers still risk refusing refunds.

… [visit site to read more]

PC Gamer

The likelihood is that, if you played Aliens: Colonial Marines or Duke Nukem Forever, you didn't much care for them. Maybe they were buggy, or maybe they didn't look as good as you expected, or maybe they were just offensive. For a variety of reasons, lots of gamers just did not like them. But Gearbox boss Randy Pitchford insists that he did—and he knows how much that bugs people.

"I liked [Colonial Marines]. And it frustrates the people who didn't to hear me say that," Pitchford said in a long and wide-ranging interview with Eurogamer. "It's almost like they want to hear me say, yeah, it was rubbish. But it would be a lie for me to say it. I actually like, fuck, I like Duke Nukem Forever. I thought it was brilliant. I did! I know I'm not objective. But when I say that you should go, that guy's clearly not objective. Why would you expect me to be objective? Have you ever seen weird, bizarre art you don't even understand? The artist who created it clearly did it for a reason and loved it, you know."

Most of the interview is about the critical and commercial failures of the games, and some of it we've heard before: Pitchford defends against claims that the release version of Colonial Marines didn't look as good a promotional videos by talking about the removal of shattered glass and blood in a sequence that appeared in a pre-release demo, something he'd spoken about previously (and in a very similar fashion) in an interview with IGN. But he makes an interesting point about how the suggestion that those pre-release demos were intentionally misleading is an "absurd premise," because of the relatively small impact they have on the game's overall sales.

"Pre-orders for [Colonial Marines] were sub-150,000 units global. About 130,000 units. The game ended up selling 1.5m. The pre-orders are less than 10 per cent," he said. "And if you build bad will, you have no hope of a tail. So any strategy that's predicated on that is a failed strategy before it begins. That is not a strategy that can ever win. And it's not a strategy that any rational marketer should ever even consider."

I don't agree with Pitchford's assessment that it's all just, like, your opinion, man—which is to say that all opinions on Aliens: Colonial Marines and Duke Nukem Forever are entirely subjective, there was clearly a consensus that they'd fallen short of expectation—but he makes some interesting points. Whether they're enough to change your mind is, well, your opinion.

PC Gamer

My favorite thing about the legal action filed over Aliens: Colonial Marines is the way Sega tried to portray Gearbox boss Randy Pitchford as a loose cannon. He was initially seen as a "respected development celebrity" who would help garner coverage but, like a cane toad in Australia, once he got going, there was apparently no stopping him.

Now that the matter is effectively over, Pitchford is speaking his mind again. "That whole thing was a huge waste of time," he said in an interview with GamesIndustry. "The market proved it was doing its job perfectly. The market is dispassionate—rewarding what it likes and punishing what it doesn't. There is an objectivity and fairness in the open market's harsh, firm justice."

But while the market worked as it should—and by that, I assume he means that people found out that Colonial Marines was a train wreck and opted to spend their money on more worthwhile things, like temporary tattoos—Pitchford believes the the legal system failed. The courts were manipulated by "what appeared to me to be essentially Mafia-style extortion tactics," he said, and it would've worked, too, if it weren't for those pesky kids at Gearbox.

"Those guys made a mistake in naming us as defendants because we stood up to them. That's all it took—someone to stand up to them," he said. "And so they lost since they didn't have a legitimate case."

The Aliens: Colonial Marines lawsuit was filed against Sega and Gearbox in 2013, but while Sega eventually offered to settle for $1.25 million, Gearbox refused. Back in May, that turned out to be a wise move: The studio was dropped from the suit and the judge in the case declined to certify it as a class action.

Rock, Paper, Shotgun - contact@rockpapershotgun.com (Emily Gera)

Gearbox Software, the studio that developed dreadful nonsense in the misshapen form of Aliens: Colonial Marines [official site], have been dropped from a lawsuit that claimed the developers – with publishers Sega – falsely advertised the Aliens game with unrepresentative demos.

… [visit site to read more]

PC Gamer

It appears as though Gearbox made the correct move last year when it refused to settle the Aliens: Colonial Marines lawsuit filed against it and publisher Sega in 2013. Polygon reported today that the plaintiffs in the suit have agreed to drop the complaint against Gearbox, in exchange for Gearbox agreeing not to seek legal fees.

The suit was originally filed over claims that the game did not match what was promised in pre-release promotional trailers. Gearbox asked to be removed from the action last year, saying it just made the thing and had nothing to do with publishing or selling it. Sega, meanwhile, blamed Gearbox, and particularly studio boss Randy Pitchford, for loose-cannon marketing and making promises it couldn't keep. In August of last year, Sega agreed to settle the matter for $1.25 million, but the plaintiffs couldn't agree to terms with Gearbox.

Now, however, Gearbox is out, and further, the judge in the case has declined to certify it as a class action, meaning that only the original two plaintiffs are now being represented. The judge ruled that the proposed class, which would have included everyone in the US who bought the game, was too broad because it included people who may not have seen the misleading trailer; a proposal to have class applicants swear that they had seen it before preordering the game wasn't sufficient.

The documents also indicate that the remaining plaintiffs have until June 3 to decide how they want to proceed with Sega.

PC Gamer

If you've lost sleep over the absence of Aliens: Colonial Marines and the 2010 version of Alien vs Predator on Steam, then it's time to relax: they're back. Both Sega-published games disappeared from Steam and several other services late last year, and while no explanation was provided it was likely due to some dizzyingly complicated licensing conditions. 

You're probably not overly concerned by the disappearance of one of the most notoriously poor video games of the last decade, but sometimes when licenses expire, games disappear from digital storefronts for good: a deal between Activision and Marvel expired at the start of 2014, leading to the removal of, um, Deadpool. It's still not back. 

Here's hoping this doesn't happen, even temporarily, to Alien: Isolation, which took our Game of the Year gong for 2014. 

PC Gamer

Two Sega-published xenomorph-based games - Aliens: Colonial Marines and Rebellion's 2010 version of Aliens vs Predator - are no longer available to purchase directly through steam.

Some might think it's because they're pap, but it's likely because of licenses expiring and all of that silly gubbins that's hard for us normies to understand.

Basically it's a regular thing for licensing issues to stop games from being on sale via certain outlets - we've seen it with a bunch of Activision's licensed titles in recent years, as well as a similar situation with Crysis 2 the other year.

It's alright though, you can still buy both titles in physical form, and digital stores like Green Man Gaming offer both that can still be activated on Steam. (Here and here, in case you want to punish yourself).

And it's even more alright because you can continue to ignore a terrible game (Colonial Marines) and a devastatingly average one (AvP), instead picking up our game of the year, Alien: Isolation, or the infinitely better non-2010 version of Aliens vs Predator.

[via Reddit]


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