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.

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.

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.

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]

PC Gamer

Fallout 3 begins in Vault 101, an underground nuclear shelter that s been sealed away from the outside world for well over a century. When the player character reaches the age of sixteen, they tussle with a group of obnoxious delinquents calling themselves the Tunnel Snakes. They re greasers in the classic mould, with leather jackets, slicked quiffs, and bad attitudes.

This is Fallout s thing, of course. Its world is a kitschy retro-future, as predicted on the pages of pulpy 1950s science fiction. But replaying the game recently, it struck me just how little sense the Tunnel Snakes make, even in this fantastical, stylised universe.

Think about it. They re greasers—a subculture that emerged around a passion for motorcycles, hot rods, and kustoms—in a closed-off bunker of narrow tunnels, where where there are no roads or vehicles to speak of. Then there s those matching leather jackets they all wear with the intricate snake emblems on the back. Where did they get them? How did they make them?

The Tunnel Snakes being jerks.

According to Fallout lore, Vault dwellers wear matching blue-and-yellow jumpsuits with the number of whichever one they happen to live in printed on them. So why are the Tunnel Snakes wearing these jackets, and where do you get a biker-style leather jacket in a place that, presumably, has limited raw materials and no means to produce them? Where did they get the leather?

Jesus, who cares? you re probably thinking to yourself. They put greasers in because it s a 50s thing, and Fallout is a riff on 50s American culture, and they needed some kind of antagonist for the player during the Vault sequence. Yeah, sure, I could suspend my disbelief—and they are pretty funny, I suppose—but, to me, they re indicative of a larger problem in game design: style over function.

Stanley Kubrick was a filmmaker known for his obsessive attention to detail. In the documentary Stanley Kubrick s Boxes , journalist Jon Ronson digs through crates of archive material from the production of the late director s films, revealing the meticulous, fastidious research that went into their creation.

Dave Bowman travels beyond the infinite in 2001: A Space Odyssey.

Mind-bending sci-fi epic 2001: A Space Odyssey demonstrates this perfectly. Everything in the film—from those great, spinning space stations to the infamous zero-gravity toilet on Heywood Floyd s shuttle—was designed with its function in mind. Kubrick and his team thought about how these things would actually work, and their designs were informed by science and astronautics, not by what looked cool.

It looks cool" is, unfortunately, the only thought that goes into a lot of video game designs—the costumes in Assassin s Creed being a prime example. The hood is an elegant, recognisable visual link between the games, but can you imagine sprinting and climbing around the Caribbean in Kenway s elaborate pirate get-up? Or hopping across the sun-battered rooftops of Constantinople in Ezio s frilly layers?

Alta r s white robes made more sense in the first game. There were fewer layers, increasing his mobility and keeping the Middle-Eastern heat at bay, and he could blend in with those groups of robe-wearing scholars. But with every game, more bits have been added to the costumes, and now they just look over-designed. They re supposedly a secretive, underground order of hired killers, yet they all wear matching hooded uniforms and elaborate belt buckles in the shape of their logo.

Imagine how much he's sweating under all that.

There s a bit in Aliens: Colonial Marines where you discover that Weyland-Yutani have—surprise, surprise—been conducting sinister, top secret experiments in the famous derelict ship. Except all the equipment and storage crates littered around the place bear their logo. Not to mention the fact that the crashed ship would have been destroyed by the explosion at the end of Aliens along with Hadley s Hope. Gearbox tried to retcon this in some follow-up DLC, but I m not buying it. They just thought, hey, wouldn't it be cool if you got to visit the derelict? And that s where their thought process ended.

To a lot of you, this will sound like nitpicking insanity. Just play the game, idiot! Who cares about all these dumb little details? you re screaming at your monitor, red in the face. Well, I do, obviously. But beyond my own tedious appreciation for practical, considered design, it ultimately makes games better.

Ridley Scott s Alien is one of the most remarkable feats of production design in film, and still stands up to this day. Have you seen the Blu-ray? It looks beautiful, and hasn t aged a bit, despite the chunky late 70s tech and flickering CRT monitors. This is thanks not only to the directing eye of Scott and the horrifying psychosexual art of H.R. Giger, but also concept artists Chris Foss and Ron Cobb s contributions.

Early Ron Cobb concept art for Alien's Nostromo.

I resent films that are so shallow they rely entirely on their visual effects, and of course science fiction films are notorious for this, said Cobb in 1979 s The Book of Alien.    I've always felt that there's another way to do it: a lot of effort should be expended toward rendering the environment of the spaceship—or whatever the fantastic setting of your story should be—as convincingly as possible, but always in the background. That way the story and the characters emerge and they become more real.

This is why 2001 and Alien still look amazing, despite being, respectively, 45 and 35 years old. The interior of the Nostromo was so believable, Giger said in Famous Monsters magazine. I hate these new-looking spacecraft. You feel like they re just built for the movie you re seeing. They don t look real. Cobb, Foss, and Scott, like Kubrick before them, thought about the practicalities of the things they were creating, and they ve become timeless as a result—something I hope to see more of in games as they slowly leave their adolescence and become a more confident, refined artform.

So maybe it doesn t matter where the Tunnel Snakes got those leather biker jackets, or if they do indeed rule. But if video games are ever going to create worlds as enduring and convincing as the films mentioned here, and countless other examples I could list, they re going to have to start thinking about their designs beyond just aesthetics and the shallow concept of cool.

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Aliens: Colonial Marines


The Aliens: Colonial Marines legal battle between Gearbox Software and Sega of America has become a little bit uglier, as Sega has filed documents claiming that not only was Gearbox an equal partner in the game's marketing, it sometimes took matters into its own hands and made promotional promises without the publisher's approval. The allegations directly contradict statements made by Gearbox in July, when it said that it was just a contractor on the game and had absolutely nothing to do with the game's marketing.

Gearbox made the claims as part of an effort to extricate itself from the class action suit over Aliens: Colonial Marines, brought over the vast differences between what was promised in "actual gameplay" demos at E3, and what was ultimately delivered. Its position is that it had no influence over the game's marketing and thus shouldn't be targeted by the suit at all; Sega, however, presented an entirely different perspective in a response filed on September 2.

Sega claims that Gearbox was an equal participant in the marketing campaign, and that while Sega had "absolute discretion" over marketing decisions, the contract between the two companies required that it consult with Gearbox on "all marketing activities along with sales pricing and forecasts," and "all other aspects of marketing, distribution and/or other such exploitation" of the property. Furthermore, the developer agreement stated that Sega and Gearbox would "jointly develop both a marketing strategy and a list of marketing assets," and listed Gearbox as the "sole creative directors" responsible for the majority of the Aliens: Colonial Marines marketing assets.

It seems that Sega at first intended to take advantage of Pitchford's high profile as a marketing tool, as a proposition document described him as a "respected development celebrity... guaranteed to be headline material in worldwide press coverage" and noted that Gearbox "must be given a certain amount of free reign to generate PR hits." But he had a habit of going off script, according to the filing, which culminated in an October 2012 conversation between Matt Eyre of Sega and Gearbox Marketing Vice President Steve Gibson, and ultimately a recommendation against using him for future promotions.

"I spoke face to face to Gibson about their persistent panel leaking," Eyre wrote in an internal email. "Effectively it's Randy doing whatever the fuck he likes. Apparently he did it twice on also, again, against all plans and despite the fact they asked him not to. I think our best result here is that we have no more panel sessions..."

The filing also specifically addresses the infamous demo that spurred the lawsuit in the first place. "The 2011 E3 demo plaintiffs complain about was created entirely by Gearbox, who then represented to Sega that 'the E3 demo is indeed the bar that we should use to determine where the game engine will be. That is Gearbox's plan and what they believe in'," the filing states. "Gearbox cannot simply disassociate itself from these statements and actions."

Sega agreed in August to settle the Colonial Marines lawsuit for $1.25 million but Gearbox refused to take part, leaving it exposed to future litigation. The studio is thus trying to have the settlement thrown out, but the Sega filing asks the court to reject Gearbox's opposition, noting that the studio was not "excluded from the settlement negotiations" but was in fact invited to participate and refused to do so.

The next hearing is scheduled for October 29.
...

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