People file lawsuits for everything, even too-hot cups of coffee. But when Edelson LLC filed a lawsuit in California a couple days ago alleging false advertising for Aliens: Colonial Marines, perhaps it was a signal to actually reflect, and not just crack a few jokes.
The lawsuit alleges that Aliens: Colonial Marines developer Gearbox, and publisher Sega, engaged in false advertising to the public. How? Because the footage shown at conventions like E3, and trailers, was not representative of the actual product.
To be objective, this suit comes across more as pointless complaining; if Aliens wasn’t so severely bad, this lawsuit would never have been filed, even if it still was deceptive. Yet there may actually be a genuine raison d’être for the case.
For one thing, it forces developers to rethink how they communicate with their consumer base. The lawsuit cites numerous tweets and comments from Gearbox CEO Randy Pitchford, where he claims that the footage and trailers were all “actual gameplay footage.”
But does this actually make a case? After reviewing the website for the Federal Trade Commission (FTC), which is responsible for pursuing false advertising claims, it may depend on how we define advertisements.
First off, the FTC pursues cases that are either “deceptive” or “unfair”. These are both under the umbrella group of “false advertising”, but they have different criteria.
An ad is deceptive if it fulfills both of the following criteria:
- It misleads consumers acting reasonably under the circumstances
- In addition, it must be important to a consumer’s decision to buy a product
An ad is unfair if it:
- Causes “substantial consumer injury” that can’t be avoided,
- And that “injury” isn’t outweighed by the benefit to consumers
With those definitions in mind, it’s pretty clear that the “unfair” argument is far weaker. No plaintiff can prove that a bad game is equivalent to “substantial injury”, let alone prove that it can’t be avoided. It’s too easy for a developer to claim that consumers could always choose to not buy the product.
No, the merit of this lawsuit falls on whether the ad can be proven to be deceptive.
Can it? Probably yes.
The plaintiff can easily demonstrate that all the publicly-released footage is not representative of the real game, and thus that it misleads consumers.
A reasonable consumer assumes that the trailers are representative of the game. That’s an expectation that game developers/publishers implicitly agree to honor. If they didn’t, we as consumers would never trust anything that developers said. We demand that they play it straight with us, and when that cardinal rule is broken, as Aliens: Colonial Marines did, a torrent of backlash, hatred, and stigma is instantly unleashed. Consumers feel betrayed by Gearbox and Sega, and it’s going to take a long time for each respective company to regain its previous prestige.
It’s also true that E3 footage and trailers are key ways that consumers inform themselves of products. It’s not the only way – critic reviews are also a key factor – but critic reviews aren’t even part of this case.
The lawsuit seeks reparations for all consumers who pre-ordered the game or bought it on Day 1. Critic reviews of Aliens: Colonial Marines weren’t released until the release date. As such, the only resources available to consumers were what Gearbox and Sega released – the deceptive footage, the non-representative trailers. They thus played a uniquely crucial role in driving consumers’ decision-making.
It’s fairly clear to me, personally, that the lawsuit does have merit. Hopefully, the plaintiff will succeed. But this brings up a number of interesting things to consider:
What constitutes advertising?
The lawsuit cites tweets from Gearbox CEO Randy Pitchford. While any communication (emails, documents, etc.) is admissible in court, it remains to be seen whether an executive’s twitter account can be seen as advertising for his company’s products.
In the aftermath, Mr. Pitchford blocked most negative tweets about Aliens, mainly replying to positive, praiseful ones. As such, a lot of his twitter page from the immediate aftermath is a mix of effusive praise and promises to investigate claims.
Twitter is generally seen as more of a corporate social media sphere than Facebook. While a company’s twitter account or facebook page is clearly part of their advertising strategy, the classification of a person’s account is more of a gray area. On one hand, it’s someone’s personal account, with posts to friends and random statuses. On the other, an executive will often use his twitter platform to promote his company’s brand and products, as Mr. Pitchford has done. (For example: he posted keys to Borderlands 2 content. Clearly a corporate move.)
Can someone’s twitter account be taken as advertising, since that person is closer to the product in development than anyone else, and thus is in a position to influence others through his statements about that product? Possibly. It’s something the courts haven’t quite worked out yet.
How do Critics Interact with Developers/Publishers and Consumers regarding Games?
There’s always been a perception that gaming websites are slaves to the developers and publishers who pay for advertising on their websites. In addition, reviews often don’t come out until just before a game’s release, allowing the publisher free rein to rake in pre-orders.
Yes, there are interviews, and hands-on demos, but these are generally unequivocal praise. Any criticism is saved for the actual review, because websites may feel pressured not to alienate a developer before the review copy is handed over.
When we have, as Jim Sterling has said in Jimquisition, a “pre-order culture”, where publishers focus on maximizing pre-orders while consumers have little information, what is the responsibility of game critics to their readers? How do they act when reviews are no longer the main thing they deliver to readers, and their hands-on demos, their interviews, and pre-release praise ends up influencing gamers in a potentially bad way? If they hold criticisms for the final review, while people are pre-ordering based on these praiseful articles and interviews?
How do we Address False Advertising in Gaming?
Aliens: Colonial Marines has shown that developers are occasionally willing to break a tacit understanding with consumers for short-term gain. But most of the FTC’s methods of redress don’t apply well to the videogame industry.
They have three main listed methods:
- Cease and Desist Orders – basically, a company must stop running a deceptive ad. But games have a short shelf-life; their sales are mostly accomplished in the first 3 months of release, and the FTC would never investigate and then file the order in time for it to be relevant. The publisher would’ve stopped running the ads long beforehand.
- Corrective Advertising/Disclosures – advertisements already state that gameplay doesn’t have to be identical to shown footage. Nobody cares. We still take footage as identical – at least at that point in development, anyway. But what’s the point? It’s a needless expense that serves no purpose. Again, after 3 months, few people buy a game, and corrective advertising does nothing to help betrayed consumers. Similarly, there are so few prospective consumers, that it isn’t worth it. (And they’d have access to all the backlash, and can factor that into their consumption decisions anyway)
- Civil Penalties/Consumer Redress/Monetary Compensation – this makes the most sense, and it’s what the lawsuit is calling for. But there’s an inherent problem: How does one quantify damages?
- Do you refund the cost of the game?
- Do you (foolhardedly) attempt to quantify the disparity?
- Do you try to measure the depth of the feeling of betrayal?
There isn’t much of a precedent for this. The FTC pursues advertisements that are generally more long-term, like Reebok shoes that claim to improve muscle tone, or the Acai berry hoax.
In any case, see for yourself the disparity between the demo and the final product. How would you quantify this?