Broken promises and broken code means refund or repair now in the UK – or does it?
Thu 1 Oct 2015
The launch of ‘digital-only’ amendments to the Consumer Rights Act in the UK today is quite revolutionary, as it brings the same level of consumer protection against shoddy or faulty goods to digital purchases as have been granted to real-world purchases (such as the same product on disk) for decades.
It will be interesting to see how elastic the definition of ‘broken’ is allowed to be under the act. Completely non-functional digital product, items which cannot be installed or cannot be run once they are installed, are the digital equivalent of scratched or shattered disks which were either damaged in transit or at the factory, and one would expect little contest in asking for a refund, or for a repair to be provided within 30 days of purchase, as the CRA now makes obligatory under UK law.
But the videogames industry faces a wider challenge in meeting the new digital terms of the CRA, since it has long been the source of the two great twin woes of the gaming fan: promises which do not materialise and code which does not work as it’s supposed to.
Lying about ‘quantum leaps’ in videogame releases
The first of these, broken promises, is viewed by many gamers as a cynical ploy by software houses trying to deliver the quantum leaps of quality which were – according to your viewpoint – either a by-product or a driving force behind the increasing computing and graphics capabilities of both standalone desktop machines and games consoles, in the period from the mid-nineties to the mid-noughties.
When CPU architecture reached the limits of Moore’s law and graphene proved to not be ready to pick up the slack, throwing additional cores at the problem proved an inadequate replacement for ten years of speed-boosts from the major die manufacturers. The ‘latest and greatest’ videogame releases were often late, but less often great, at least in terms of being an evolutionary step beyond their predecessors.
But since hope springs eternal in the gamer’s heart, the practice of videogames companies releasing eye-boggling trailers and betas which are not fully or even partially realised in the RTM process continues unabated. Sample cases are endless; by way of a recent one, try The Witcher 3: Wild Hunt, the RTM release of which caused a tectonic complaint from the gaming community because of the disparity between the game’s early releases of footage and beta trials vs. what it actually delivered to paying customers.
(If you haven’t got time for the video, try this image-based summation of W3WH complaints)
In terms of consumers having redress against non-delivery of a promised quality of product, the videogames realm is not quite analogous to those movie trailers that turn out to be far better than the full-length version, since the videogames industry has become almost predicated on pre-sales, with a great deal of development funding supplied on the presupposition of advance orders.
Since the evidence of what videogames companies promise (trailers, betas, press releases) is so indelible and the actual result so easy to compare, it doesn’t currently seem clear what the Consumer Rights Act would have to say about elvin environments that don’t have effective HDRI mapping, as a videogame’s betas seemed to have, or where entire promised levels, characters or character functionality has been omitted because of deadline constraints and technical issues which the developers were not able to address in time for release. Technically anything you were promised at the time you pre-ordered and committed your money to the product, you should have a right to expect, but I do wonder how practical an enforcement of the CRA will be in such cases.
Bad breaks for new videogame releases
The second issue, broken code, is similar but not identical, in that tearing and viral digital plagues are annoyances which don’t necessarily stop gameplay, though they lower the quality of the experience. Certainly they don’t feature in pre-launch trailers. Do they therefore constitute ‘defective product’ under the CRA? The stipulations of the CRA, under the ‘Digital content to be fit for particular purpose’ section, only frame the problem in the broadest context.
The Guardian discusses the matter with Alex Tutty from entertainment law company Sheridans, who says “If the company says, this is how the game is going to work, and later they pivot and say, actually it will be slightly different, players could complain that, well I bought it under the belief it was going to be something else, so I want a refund.”
This breaks the current understanding between games publishers and their consumers so profoundly as to promise significant compromises ahead for software houses relying on the UK market, which for videogames alone stands at nearly £4bn – too much to just abandon the market because the problem is vexing.
Non-European – let’s face it, North American – publishing houses may like to consider additions or amendments to ‘pre-nup’ clauses with pre-ordering gamers, in much the same way that Europe’s protection of employment rights is commonly side-lined in employment contracts (with the PM aiming to abolish those pesky rights completely), but the European Union can be a formidable opponent in this regard, as Google, Facebook Microsoft and numerous others have discovered in the last 10-15 years. Additionally the new Consumer Rights Act is prepared for this tactic by giving ‘consumers [the right] to challenge terms and conditions which are not fair or are hidden in the small print’.
No mere game
Issues raised for videogame houses apply, of course, to any other purchased content that only exists in your device buffers. Items such as software packages – and the newly-revised CRA is most likely to affect software producers who have adopted a cloud model, as Microsoft is intent on moving towards from Windows 10 onwards, and as Adobe has already done with the Creative Cloud suite. What redress, therefore, do consumers have when they receive broken or defective code under a cloud licensing model wherein a constantly updating stream of code has been committed to for a certain period of time? How can the CRA’s ‘partial rejection of goods’ clause apply to software with one integral but broken feature?
Though it was beyond time that digital-only consumers had some kind of concrete legislation to gain redress for virtual purchases, the fact that the UK Consumer Rights Act is not synchronised with similar acts in analogous regions – most particularly in North America and China – might lead one to believe that it has been designed to foster new trade for the contract and litigation lawyers.