No Man’s Sky, or Why Consumers Can Anticipate Without Pre-ordering
Well, this is a mess.
The video game market is one in which developers are often damned if they do, damned if they don’t when it comes to communicating with consumers. When studios fail to effectively communicate either before or after a game’s launch, it portrays them as disinterested in their user base. Providing active updates during development through both official channels and social media serves to build up a fan-base and drive coverage of the game, which is especially important if the game isn’t coming out of a traditional development powerhouse.
So it makes sense that the release of No Man’s Sky, the 2016 release from British independent developer Hello Games, would be preceded by years of regular updates from the developer, and from distributor Sony, who has console exclusivity of the title at the time of writing, and who featured the game heavily at trade events in the years prior to release. These updates, in the form of interviews, blog entries, main-stage convention presentations, and seemingly hours of video previews, served as a large chunk of the effective marketing for the game. Consumers were told of a game that would feature a procedurally generated universe with quintillions of discoverable planets, unique flora and fauna throughout the universe, and deep systems of customization, resources, and crafting. On a number of these macro promises, Hello Games undeniably delivered. However, based on reaction to the game in the first week of release, those most anticipating the game (and more to the point, those that had paid for the game months in advance) have been left disappointed.
This post is not intended to catalog the issues with No Man’s Sky; that subject has been exhaustively covered elsewhere, such as this Reddit post which not only details the promises that have seemingly not been delivered, but also provides links to the source of the promise, serving as fairly damning evidence of why consumers are disappointed. What this post intends to do is to discuss the reality of marketing in video games, and why gaming consumers are unlikely to find post-purchase recourse when a game fails to deliver on its promises.
What is false advertising?
On the federal level
The cries of false advertising were quickly heard from consumers who felt like they hadn’t received the game they had been promised. But “false advertising” is at the same time a very general term, and a very specific cause of action, if such complaints were to rise to the level of legal action.
Essentially, false advertising as a legal concept is a mechanism used to protect consumers. In the United States, false advertising is the domain of the Federal Trade Commission (FTC). In the United Kingdom, the law of the land is the Consumer Protection from Unfair Trading Regulations 2008, which is enforced by a few different authorities based on locality. Similar protections exist throughout the rest of the world; for the purpose of this post, I will be focusing on US laws for US consumers, which may be slightly different from similar cases for consumers outside of the US.
The key terminology in false advertising is “deceptive and unfair”. That is the threshold which must be met for the FTC to take action against an offender. So we then need to define those terms. Those definitions stem from an FTC policy statement sent to the House of Representatives in 1983. In short, an advertisement is deceptive if it misleads a consumer who is otherwise acting reasonably, AND the advertisement must have been an important factor in the consumer’s decision. For an advertisement to be unfair, it must cause a substantial injury to the consumer, AND that injury isn’t, on the whole, outweighed by a benefit to the consumers.
On the local level
While the FTC is the federal body that can protect consumers against false advertising, parties who believe they have been injured can also bring suit directly, if there is a court with an enforceable statute and the jurisdiction to enforce said statute. Only three years ago, a very similar situation arose surrounding the release of Aliens: Colonial Marines, developed in large part by Gearbox Software, and distributed by Sega. Individual plaintiffs filed suit against Gearbox and Sega in California, citing California business and civil codes that they felt Gearbox and Sega had violated by showing demos of the game that were drastically different than the game at launch. If that sounds incredibly similar to the situation surrounding No Man’s Sky… well, it should. If anything, the development around Colonial Marines was even messier, as it involved development work by four different studios, and was published by an major publisher on both flagship consoles of 2013, as well as PC. If any action comes from No Man’s Sky, it is likely to mirror the path that the Colonial Marines litigation took. Sega agreed to settle the claim against them for the sum of $1.25m; as the game sold 1.31m units in the first few months of release, Sega ended up paying less than a dollar per unit shifted. As for the developers? Gearbox successfully had the suit dismissed against them, and none of the smaller developers were named as parties. Further, the judge denied class certification, which essentially means that the suit ended up only benefiting the plaintiffs who brought it, rather than potentially benefiting all consumers who purchased the game. So in the end, two people, and the law firm they hired, made a little over a million dollars because Sega decided the $1.25m was less of a pain than defending the cause would have been. Everyone else who also bought the game with the same false advertising? Nothing.
Wait… what constitutes advertising?
This is really the crux of the issue. Those FTC definitions above, in that memo from 1983? Those Reagan-era definitions are still the law of the land in the US. Those rules and definitions were not crafted for a world where a single developer (here, Hello Games’ Sean Murray) can instantaneously make statements or disseminate information to 200,000+ consumers via his Twitter account about the game, as it is being developed. The concept of a no-cost action having the market effect of traditional advertising was simply not in the minds of the FTC at the time. So it is difficult to say whether or not the constant updates via tweets and retweets, from Murray, Sony, and other parties directly involved in the development and distribution of the game (which there are few) constitutes advertising, as far as the FTC and local jurisdictions enforcing their civil codes are concerned. There has yet to be a clear line drawn by a court or federal body explicitly saying “yes, social media activity which promises certain aspects of a product are an advertisement for said product”. Without that certainty, it is highly likely that the promises made by the developers which were cited in the Reddit post above will not be held to be advertising. Traditional video advertising of a video game will also commonly contain a blanket disclaimer stating that the gameplay pictured may not be representative of gameplay at launch. It should be noted that one of the first pieces of promotional material for No Man’s Sky, published on Hello Games’ YouTube account on December 8, 2013, contains no such disclaimer, and is the basis of many of the claims of false promises brought by the community.
So what if all of this were to be found advertising?
If it were to be found that all tweets and videos directly from a game’s developer regarding the game, which directly constituted the basis for a consumer to reasonably believe the game would play a certain way qualify as advertising, then what? On the federal level, there’s not much to be done. For all the talk about the FTC and its rules, their methods of correcting false advertising don’t apply themselves well to video games.
First, they can issue a cease and desist order. But this corrective action is emblematic of the outdated views of advertising. Cease and desist orders are great ways to get an advertisement off radio, TV, or print, as those mediums are ones where the same ad will be continually played/issued to the terms of the ad buy. But it fails to be corrective recourse when a tweet made by a developer six months before a game comes out constitutes the “false advertisement”. Those claiming injury due to false advertisement don’t seem to be claiming that Hello Games and Sony are still advertising the game falsely, so there is no grounds for those advertisements to be halted. The FTC ordering Hello Games to delete tweets and videos which portray a game different than the one shipped would likewise do little to correct the perceived harm.
The FTC can also order corrective advertising, or require the inclusion of a disclosure. Similar to the cease and desist, this is not a worthwhile recourse for false advertisement in video games. The issue is that the damage is done before the product can actually be consumed; by the time corrective advertisement would be enforced (likely months after a game’s release), there is no effective market of potential consumers, due to the front-loaded nature of video game sales. It would also do nothing to correct the injury to those who have already purchased the game.
Lastly, there can be civil penalties, the likes of which were discussed above when sought in the Aliens: Colonial Marines case. That case failed to have their class certified, which serves as poor precedent for any such an action going forward. Even if a class were to be certified, what is the end result? It almost certainly won’t amount to a full refund to every consumer, as any reasonable calculation of damages won’t come to the full cost of the game. The damage claimed is subjective; consumers had one expectation for the game, and the game delivered was different. But it was still a game, and it still had a great deal of similarity with the game promised.
So what do we do?
In short? Stop pre-ordering games. This statement is not an original one. It has been made by many, many, many outlets. But it is still a good personal policy! There has been a merging within the video game community of a person’s interest in an upcoming game, with the financial success of that game. Those who believe a game will be good wish to be an early and vocal adopter of the game. Developers and publishers know this, and will continue to use it to drive early sales. There may be a time when an administrative agency, either in the United States or abroad, adapts their policy to include all of the modernizations to our definition of advertising. But until that happens, there is little to no consumer protection for what so many call “false advertising” in video games.
You can vocally support a video game before its release. You can tell people that the game looks fantastic, and speak of how excited you are about it. But there is no great loss in not being one of the first people to actually consume the game. Yes, we live in a hyper-immediate world, where as soon as something is available, it is immediately dissected and discussed. Remember that No Man’s Sky was leaked, and even that was surrounded by conflicting statements about whether the leaked version was the final version of the game. This was only a week or so before the game’s actual release. This fact, combined with the number of day-one patches to games, should make gamers weary of being the first to consume anything. If you want to be an early adopter, your day 2 purchase counts just as much as your pre-order made four months in advance, but with the added benefit of reading reactions of the gaming media and those brave enough to knowingly shoulder the risk of buying a bad game on day one, sight unseen. But, as it currently stands, there is no valid consumer protection for a game that fails to deliver on its promises, other than simply waiting to purchase the game until it has been released and reviewed.
