Sued From Orbit: Gearbox & Sega Facing Aliens Lawsuit

By Craig Pearson on May 1st, 2013 at 1:00 pm.

Sue-ga.

Did Sega and Gearbox create a false impression of the final quality of Aliens: Colonial Marines? That’s now a legal matter, for lawyers to battlerap about and judges to scorecard (lawsuits are much more entertaining in my head). Multi-faceted games site Polygon has obtained a lawsuit that was filed yesterday, claiming that both companies falsely advertised their troubled Alien troubler, showing off demos to the public that were unrepresentative of the released game.

Citing lawfirm Edelson LLC, on behalf of plaintiff Damion Perrine, (ooh, I feel all legal – get me a gavel. No, a bigger one!), the suit alleges that the review embargo lifting on the same day that the game was released meant that people who bought it before then would have no inclination that the demonstrations would not resemble the final game. It’s a notion that holds some weight, as the lovely Videogamer pointed out.

“Each of the ‘actual gameplay’ demonstrations purported to show consumers exactly what they would be buying: a cutting edge video game with very specific features and qualities,” quoth the lawsuit. “Unfortunately for their fans, Defendants never told anyone — consumers, industry critics, reviewers, or reporters — that their ‘actual gameplay’ demonstration advertising campaign bore little resemblance to the retail product that would eventually be sold to a large community of unwitting purchasers.”

The suit is seeking damages for people that bought the game before the release date. I didn’t buy it, but I would like to have the time I spent playing it refunded, and the sad hole it left in my heart repaired. Thanks.

Well done, Polygon. Have a biscuit.

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151 Comments »

  1. Chalky says:

    It would be nice to see this succeed – blatant misrepresentation of bad videogames prior to release has become more and more frequent and this is one of the worst examples. Perhaps a lawsuit or two will mean less gamers fall victim to scams like this, and developers think twice before cashing in on a half finished and flawed product.

    • trjp says:

      and how, pray, do you plan to police this so that someone doesn’t sue over EVERY SINGLE GAME released then?

      If it became the norm to take legal action over every perceived difference between what the typical over-entitled gamer expects and what they think they got – it will quickly become uneconomic to make games at all.

      Which would be a bad thing I suspect?

      How do you define a ‘bad video game’ in words a court can understand – clue: you couldn’t in a month of wet wednesdays…

      • frightlever says:

        It’d sink a bunch of indie publishers who can’t even afford to engage a lawyer let alone fight a lawsuit.

        When did we start believing advertising bullshit anyway? Standards of truth and decency are great in theory, but it’s really just more intervention by the nanny state to protect guileless innocents who probably shouldn’t be allowed out on their own and certainly not without a crash helmet and oven gloves.

        • trjp says:

          I’m waiting for the guy above to describe what’s wrong with ACM in a way which makes it clear to someone who doesn’t understand games at all, why it was so bad and why people were ‘tricked’ into buying it.

          That should be interesting.

          • Terragot says:

            The lawsuit references the promotional material not matching the final product’s quality. There’s a fair comparison video up on youtube somewhere. I don’t think anyone is saying sue a game for what we wish it should have been, but when a game flaunts “game play demo” it probably should be gameplay.

            But then again we get into grey areas. Would Valve be liable for this, as half-life 2 didn’t contain much of the promotional videos they used upon release?

            hmm

          • trjp says:

            Just to be clear – assuming you ‘prove’ this misrepresentation

            What if they say “that was a version of the game running on our in-house hardware which is very powerful. We realised, later in development, that most of our customer’s PCs and consoles would not be able to run this level of detail and so we were forced to scale it back to ensure that the product met other expectations such as loading times, environmental size and variety of textures. If you look at other games you will find this not an uncommon practice – we aim high but we cannot always offer that experience to every customer and we do not want to offer a game which would be unplayable to customers with less powerful hardware”

            Sounds reasonable to me.

            The only way you could prove deliberate misrepresentation is if EVERY video looked better than the final game – one or two, especially early, videos would not be enough proof.

          • Bhazor says:

            @TRJP

            If it wasn’t from the game that was to be sold then it wasn’t gameplay footage.

          • trjp says:

            Your idea requires a time machine – or are you advocating no “actual gameplay footage ” be put on anything before release?

          • Shuck says:

            @Bhazor: But any actual game footage, especially from early in development, is going to be different than what’s actually released. That’s just how it goes – the game gets changed. Things get taken out, things get reworked to run on consoles. In this case, radically reworked at the last minute (so last minute that even some of the developers were unaware of the changes made) to run on consoles. The alternative would have been a game that didn’t actually run. Granted, this last minute change broke some things that shouldn’t have been broken (which is what people have a right to be upset about), but the lawsuit is silly.

          • P.Funk says:

            @shuck

            Misrepresentation through advertizing is a legitimate issue that often enough bites companies in other industries. Gaming is peculiar in that publishers have basically been allowed to govern their own little fiefdom so far and run rough shod over the consumer.

            A few lawsuits over obvious attempts to blind the consumer to the product could conceivably keep the publsihers a bit more honest about how they choose to push a product. Take the recent revelations about the new Thief game in development. Apparently millions were spent JUST to create a completely unplayable presentation that couldn’t even support AI enemies. I’d say thats a pretty clear cut attempt at cynical advertizing.

          • ckpk says:

            I’m resonably sure that there weren’t ANY videos that represented the final product before the actual launch of the game, and coupled with the review/info embargo until the release date, it’s resonable to say that the customer couldn’t get accurate information about the product before buying it. I’d say that’s false advertising through never giving enough info to know what the game is actually like.

        • Rooster says:

          There aren’t many indie developers who engage in years long marketing campaigns using mocked up footage all the while claiming it’s actual gameplay who then go on to impose a review embargo so that nobody finds out they were lying until after release. That kind of behaviour would probably cost more than the lawyer they’d need to hire to defend themselves.

          • trjp says:

            The law doesn’t quite work like that tho – if you establish a precedent of being able to sue for demo footage which is “worse looking” than the final game, everyone will have to tread carefully.

            Whether you ‘intend’ to mislead or just show something you cannot pull off as a full game – whether you label it as “gameplay footage” or not – are decisions you’d have to take some care over.

          • Lanfranc says:

            Isn’t the problem here that the demo footage was *better* looking than the final gameplay? I.e. misleading advertising.

          • Captain Joyless says:

            trjp,

            that’s now how the law works, you are not a lawyer, and you have no clue what you’re talking about. just stop trying.

          • Shuck says:

            The footage wasn’t “mocked up” though. That was the game engine they were using, running actual game content. But both of those things changed, as they do. And the review embargo? So what? Game companies aren’t under any compulsion to allow reviews beforehand. The reviews eventually came out, people could have waited for them before buying the game. Buyers are upset because they bought a game without knowing anything about it except what they gleaned from early promotional material (which – surprise! – is not representative of final gameplay). If you deliberately buy a pig in a poke, you don’t have much of a basis for complaining if it only has three legs.
            Gearbox screwed up in a number of ways, but let’s not blame them for the failings of game buyers, too.

          • Ergates_Antius says:

            @shuck
            People are upset because they bought a product based on the advertising then found out it was not as advertised. You can say “they should have waited” all you want, but caveat emptor does not absolve companies of their responsibility not to produce misleading advertising.

          • nicster says:

            indeed, the only issue i see is their advertising (in the UK) , which could fall foul of the Advertising Standards Authority. They might give Sega a wrist slap for their advertising, but generally dont do anything.

        • laotiana says:

          http://www.youtube.com/watch?v=KCzeoYo1sMU&feature=related
          Yes, I don’t know if this suit is likely to work or the right way to go about it, but something that might smash the stupid press demos once and for all would be nice.

      • Bishop says:

        You’ve focused far far too much on the word bad and not enough on the word “misrepresentation”. As a game developer when I have to make gameplay trailers I shockingly using fraps to record actual gameplay footage. What happened with Colonial Marines looks like they made a CGI trailer, told everyone it was in game footage and then pushed those art assets into the slap dash final game. I’ll repeat for clarity. The issue here is calling something “gameplay footage” when it’s not “gameplay footage”. It might happen alot but that doesn’t make it morally right.

        Edit: Or legal.

        • trjp says:

          So if they say “that was gameplay footage using actual assets but technical limitations forced us into removing them from the game” – where do you go now then?

          It’s not a legal requirement to retract any marketting materials is it?

          I think I could prove in about 2 mins flat that almost everything advertised is exaggerated a bit – at the same time I could probably show some media from almost every game where it looks better than it would on – say – my PC

          and god forbid they decide to say “ah, it all depends on your PC” – we’ll be in-court for decades…

          • Bhazor says:

            It’s as if you’ve never heard of the Advertising Standards Authority.

            It’s the reason you don’t have vitamins advertised with the slogan “We stop you from dying”.

          • Bishop says:

            Yes, some adverts exaggerate slightly. The extent is the issue and it’s difficult to draw the line, that’s where the legal system steps in. In this case they clearly tried to mislead by silencing all previews and cooking up fake gameplay videos. Where we would go is not putting “ingame footage” on videos that aren’t “ingame footage”. The path to not going to court is simply to not make shit up.

            Also it doesn’t “depend on your PC” because you cannot reach the graphical fidelity advertised on any PC. This again is the issue covered in the article. That you cannot. get. the. game. to. look. like. the. one. advertised. period.

          • trjp says:

            and we’re off with the crap metaphors and logical fallacies…

            You’re not allowed to make claims for specific effects which haven’t been proven – but that’s not nothing, whatsoever, to do with this!?

            Here you’re saying ‘a video you showed looks better than the final game does’ – “looks better” is almost impossible to define in legal terms, it’s down to your own perception of something.

            So my question stands – how to do propose we stop people suing EVERY developer who doesn’t meet their perception of the game?

          • trjp says:

            @Bishop nothing you’ve said is legally provable in court – and even if you got some to accept that the videos are ‘better than the game’ – that they ‘misrepresent’ the game – I could show 100s of other games which have done the same and so – erm?

            It’s good to see no-one in this thread has a career in the legal trade ahead of them at least ;)

          • analydilatedcorporatestyle says:

            Bhazor, after recently returning from Central Africa I was shocked to find out whilst in the Congo NO ONE drank Umbongo http://www.youtube.com/watch?v=wYj5o4kQsXs These advertisers should be taken to task with their blatant lies!

          • Blackseraph says:

            @trjp

            I certainly hope that you won’t go in a legal trade either, since you seem to be one of those people who thinks letter of the law is more important than spirit of the law.

          • trjp says:

            IANAL – never claimed to be one, I’m just making 2 points

            1 – that this sort of case is BAD for gaming
            2 – that I don’t think you can prove they deliberately misled anyone (I dont’ think they did – I just think there was a trail of incompetence, mismanagement and resulting underachievement)

            I don’t have to prove that in court – the people arguing for this is a good thing to do DO have to prove it – and in doing so they COULD cause this to become a problem for other developers.

          • Bhazor says:

            @ TRJP

            You mean developers might have to rely on using actual in game footage for trailers advertised as gameplay? However will we survive?

          • Brun says:

            who thinks letter of the law is more important than spirit of the law

            Hate to break it to you but as far as the justice system is concerned the letter of the law is what matters. This works both ways (for and against “the little guy”) – see Aereo, a small company that uses thousands of tiny antennas to transmit broadcast TV signals from the New York metro area over the internet. Normally this kind of thing is illegal without paying rebroadcast fees to the big networks (like cable companies do), but since their system operates by having one antenna per person, it is technically legal and doesn’t count as a “public performance” (i.e. a violation of copyright). It’s based on a precedent set by Cablevision which had a similar system but with DVRs instead.

            When Aereo was sued by News Corp. (yeah, THAT News Corp, the one I’m sure you all hate so much) along with a few other major media networks, one of the appellate judges (the dissenting opinion in the 2-1 ruling in Aereo’s favor) complained that Aereo’s system was technologically convoluted and unnecessarily complex, and that the complexity was driven solely by the need to fall under the precedent set by Cablevision (i.e., to exploit a loophole). That judge was technically correct – the design of the system of tiny antennas (one per user) was driven solely by the need to remain legal, not by any technological consideration. In other words, he complained that Aereo was violating the spirit, if not the letter, of the law. But in this case, the letter of the law saved Aereo, because that’s what matters.

            I don’t see anyone complaining about News Corp. getting screwed by the letter of the law…do I?

          • analydilatedcorporatestyle says:

            God forbid! This may actually make developers release demos. For us as gamers this is a bad thing, all the money that could have been spent on PR and misleading advertising would instead be spent on the game engine!

            Another nail in the coffin for gaming!

            One day we will say ‘I remember the Halo adverts, actors pretending to be ingame characters. Them’s were proper full on day’s were them’s’

          • UmmonTL says:

            Personally I am interested in how this thing turns out although I don’t hold much hope of there really being much legal consequence. Still, the bad PR all this generates is already beneficial to the industry in that it might make developers think twice before misrepresenting their game.
            I tried to look into the legal side a bit but as an amateur all I could find was that false advertising is defined more around mislabeling products to either lie about contents or misrepresent them (E.g. a soft drink hiding sugar content by naming several different kinds of sugar). I’m not sure if this can be applied to games and gameplay trailers.

            But as far as I know any developer could already get sued for stuff like this or other issues which, invented or real, would cause enough legal costs many indie developers probably couldn’t afford. Wasn’t there something a few years back where a company claimed all sorts of copyright infringements on games claiming they had thought of the game ideas beforehand?

          • trjp says:

            Bhazor – you’re just being a contrarian prick – stop it please.

            You’re not even involved in the discussion, you’re just taking pot shots – grow up ffs

          • tormos says:

            “LISTEN TO ME, I AM KNOW LAW, KNOW WHAT LAW SAY, KNOW WHAT GOOD 4 GAMER”
            -tjrp a few posts ago (roughly)

            “you’re just being contrarian, grow up ffs”
            -tjrp after arguing against an entire thread for 3 hrs

        • vanosofmanos says:

          This can’t be emphasized enough, really. It’s not so much that the game was bad (though the pain of that still stings), it’s that it was blatantly misrepresented. I seem to recall part of the massive implosion that was A:CM’s release included admission, or some evidence, that the demo that was shown and used as the selling point was designed using an entirely different engine, and was completely fabricated to hide how bad it was. There’s more than enough evidence of it: just look at the demo side by side with actual game play. When even the gaming press says you’ve misrepresented your game, you know you messed up.

          I’m not exactly the biggest fan of lawsuits, but as a gamer I’m more than a little sick of seeing what the big companies do. In most other industries, if you misrepresent your product and people find out, you crash and burn. You may make a sale here and there, but at the end of the day, you’re going to be held accountable for it one way or the other. Sega and Gearbox aren’t even the biggest culprits here, but it’d be nice for a message to be sent at least once. Even if it’ll just be promptly ignored by people like EA and Activision.

          • trjp says:

            I find the idea that a developer would create an entire prototype in a ‘different engine’ just to make the game look better than it ever would to be fucking bonkers.

            I find the idea that developers change engines for other reasons quite common in the industry – and most don’t advertise the fact.

            I’m not trying to support the game here – I’m just trying to keep this argument focussed on an actual real example of what’s wrong which can be used in court in a way which doesn’t cause every developer to fear legal action because a sprite was “a bit shinier” in the demo.

          • Milky1985 says:

            It wasn’t created on a different engine, it was the same engine but they had to scale it back massively. One of the reasons given was that it basically didn’t even run on the PS3 as it was massively overusing memory (guessing it would work on dev kits but no chance it would work on normal kits). I guess they just did the classic thing of rather than have the 360/PS3 versions different from the PC version they dragged that one down with the rest of them. It wasn’t a target render or anything but it was not running on consoles at all.

            TBH until there’s a law saying that you MUST us in engine footage for the console you are advertising (so no using PC version for the videos/screenshots ROCKSTAR, or at least annouce the PC version release date, as we know those GTA5 shots are not console) this sort of BS will carry on happening in marketing anyway :/

          • Brun says:

            I wouldn’t exactly call it common for developers to change engines or massively scale things back, but it does happen every now and then. Remember the E3 gameplay trailer for Halo 2? It was pretty amazing, but that level (and many of the features showcased therein) never appeared in the game – only some of the assets were used. The developers realized midway through developing the game that the original Xbox simply couldn’t handle what they were making, and had to essentially restart the design from scratch at considerable expense.

            So what we ended up with was a trailer and some marketing materials that ended up not accurately representing the game. Pretty similar to what we’ve got here. It doesn’t seem fair for GBX and Sega to suffer just because their end product was terrible (vs. Halo 2, which was quite good).

      • waaaaaaaals says:

        How about they get done for false advertising, which is one of those laws that exists already.

        Also putting an end to the more ridiculous use of embargos would be something better for almost everybody, I believe the embargo for this game ran till the morning of it’s release or something like that.

        • trjp says:

          Explain to me in detail how what they did was

          a – ‘false’ advertising (use the definitions in the legal statute)
          b – that what they did isn’t already common with other games (which would rule it acceptable here)

          • Chris D says:

            Which legal statute? You need to specify a country at least.But it’s disingenuous to demand that everyone has to study law before they’re allowed to disagree with you. Especially when your argument is displaying no legal knowledge itself.

            Failing to meet gamers expectations may be nebulous and undefinable. Failing to meet the standards you promised in your own advertising is not.

          • trjp says:

            Someone is claiming ‘false advertising’ as being ‘a law’ – since they know that, it would be nice to see them frame the problem in that context – rather than just using the words and expecting to win the argument with them.

            If they can’t do that – all they’re doing is ‘trying to sound clever’ – I’m actually trying to argue that lots of court cases over ‘perceived visual quality’ will harm gaming and that a bit of common-sense is all people need.

          • aepervius says:

            well for one in my country false advertising is pretty simple : if you advertise your product as having capability it will not have for the majority of the user, or not present in normal standard usage, then you are going to run afoul of the advertising office. And teh scripting, the capability were definitively not available to *anybody* whatsoever. Which is why by the way your “but they could pretend to have done it on a super computer” would not work. But, the fine they apply are piddly and always a ridiculously small amount and not worth it IMHO.

          • trjp says:

            Well done – you get to codify ‘capability’ in terms of how a game looks for a court of law

            Kill yourself now and save the pain

          • cowardly says:

            You know, for someone who accused another of being a “contrarian prick” and of taking “pot shots” just a bit higher up, you sure seem to be doing a lot of it.
            I very much agree that there is no way this’ll end up going through, and that though one cannot really defend Gearbox’s game and the way it was presented in any way, the intrinsic vagueness of false advertising laws means that unless a very blatant, intentional lie is what is advertised, no real action can be taken.
            Clearly, to solve this problem, one should just stop preordering games, be wary, and wait for reviews. Review embargoes suck, and the kind of messed-up managing of affairs that spawn such horrors as ACM should go, but the solution is for customers to stop being stupid, not for the law to intervene.
            Of course, that shouldn’t stop Polygon from trying if they want to ^^ I wouldn’t go so far as to immediately assume that if Polygon win this case, it’ll immediately mean that the false advertising laws will stop all forms of advertising about games and bring about the end of indie developers and the apocalypse and whatnot (hmm, it seems I’m taking potshots too…). Likely, any positive outcome for Polygon (as unlikely as it might be) would be a more subtle thing.

      • Drake Sigar says:

        The promo gameplay demo was not representative of the final product. Now, as you’re no doubt going to point out, it’s a demo, a work in progress. Indeed, I’ve seen entire demo areas which weren’t in the full game, but this is way beyond that. The lighting, graphics, animations, set pieces, textures, backgrounds, AI mood – there’s just no resemblance here. It’s likely the biggest discrepancy between demo and full game that I’ve ever seen.

        • trjp says:

          So – as I said above – if they say ” we were forced to make changes in-line with what would run on the range of PCs and consoles our customers were using” – where do you go from there.

          Do we force developers to publish lengthy lists of cut/reduced features from every video/demo they show or does the fact that’s actually quite common in the industry make it OK?

          It’s not hard to argue that no-one HAD to buy the game before or at release – that waiting just 1-2 days would have told them everything they needed to know and so we don’t really have a massive case of misrepresentation.

          I was recently told that a new chocolate bar was ‘delicious’ – I tried the first one I saw and it was rank – do I have a case? ;)

          • Drake Sigar says:

            If they gave you a taste test, then sold you a totally different, cheaper to make, and less tasty chocolate bar in the exact same wrapping but didn’t bother to tell you, yeah you might have a case.

            Gamers could’ve waited for reviews? Irrelevant. That’s not even remotely part of this discussion. Cut content may be common, but not to the extent which I just pointed out. Once again, I mention it’s likely the biggest discrepancy between demo and full game that I’ve ever seen. That alone is a staggering thought to me, considering some of the crap the gaming industry has inflicted in recent years. If it doesn’t bring into question it’s legality in your mind, I have to wonder what will? How far does a developer have to go to push that button? Because as it stands your answer seems to be “pretty freakin’ far.”

          • trjp says:

            My point is that one person’s delicious is another’s horrible – and yet food companies are allowed to call their products delicious.

            That’s as much ‘false advertising’ as making a game look a bit shinier – perhaps more so as it can be tested I guess?

            We’re so far into the realm of the subjective here that the Lord of Subjective just sent me a questionaire!

          • The Random One says:

            That is not a case of “we said this game was awesome and many people were of the subjective opinion it wasn’t”. It was a case of “we showed this game as having features such as dynamic lighting, and it didn’t”. To stretch your metaphor, it wasn’t calling a piece of candy ridiculous, it was showing a photo of it broken in two and full of pieces of peanut inside when the real candy has no peanuts.

      • Chalky says:

        Yes, what sort of world would we be living in if we made false advertising illegal. How silly of me to suggest that businesses should be prevented from intentionally misrepresenting the quality of their goods in order to trick people out of money.

        • trjp says:

          Ah the logical fallacies are raining-in now – so you’d like developers to not show ANYTHING for fear of being taken to court because it was ‘different’ to the final product then?

          False advertising is making claims which are clearly and demonstrably untrue – we’re talking here of ‘quality’ and a personal perception of that

          This could go on and on but could we please rein-in the hyperbole, appeals to emotion and other crap?

          • Chalky says:

            The developers took pre-rendered fake footage and wrote “actual gameplay” on it. That’s false advertising. You appear to have difficulty understanding this but I’m not entirely sure why.

            When you advertise something, and the thing you are advertising is a lie, that is false advertising. This is what they did.

            What don’t you understand?

            You seem happy to accept “it’s prerelease footage!” as some sort of excuse – but prerelease footage is meant to look WORSE than the final product because it’s NOT FINISHED YET. That’s acceptable. That’s what normally happens.

            The only time where pre-release “gameplay” footage looks significantly better than what is released is when that footage was faked. The developers have said the footage was faked, everyone knows the footage was faked. There’s no argument about that.

          • JFS says:

            trjp, you sound like you wanted to go to Law School but weren’t accepted. You’re calling other people wrong while not having anything substantial or “legal” to say yourself. Even if you did, though, it’s not up to you to judge. That’s what courts are for.

          • trjp says:

            “the footage in question m’lud was taken from our in-house development and at the time was representative of the actual game – sadly, due to technical issues beyond our control, the final scale was scaled-back in visual quality to ensure it worked in other ways for all our customers”

            That’s one or two videos explained-away in a moment.

            If it was ALL the videos over a longer period – that might not work – I’ve no idea how many of the videos you have an issue with tho, so back to you.

          • Chalky says:

            “the footage in question m’lud was taken from our in-house development and at the time was representative of the actual game – sadly, due to technical issues beyond our control, the final scale was scaled-back in visual quality to ensure it worked in other ways for all our customers”

            Except that’s also a lie. The footage was never actual gameplay. It couldn’t have played like that on a final system and was entirely staged.

            Are you honestly saying “they could get around the fact that they lied by lying again when they get to court”?

          • trjp says:

            How would you prove that to be a lie? You’d need either

            a – a time machine and some spying equipment
            b – a couple of people involved in the production of the video to admit it

            If you have b you might have something – they’d also have no career left of course but you might have something…

          • Chalky says:

            Witnesses? In a court case? What is this madness.

          • Ernesto25 says:

            “so you’d like developers to not show ANYTHING for fear of being taken to court because it was ‘different’ to the final product then?”

            Hence review embargo’s before release stopping even the most complimentary sites telling everyone it was tosh. Yeah they *really* wanted to show what the FULL GAME was like then. Even if it fails consumers should be able to challenge for their rights rather than just sit there and take it.

          • Bhazor says:

            @trjp

            So you oppose the use of witnesses as it means that they then won’t be able to work again because developers/publishers would be able to abuse their employees by going against countless legal and moral precedents and victimising a criminal witness?

          • Consumatopia says:

            “How would you prove that to be a lie?”

            It’s a civil trial, not criminal, so you don’t have to prove it beyond reasonable doubt, you just need a preponderance of evidence (more evidence than the other side has). It’s not that the defendants can just make some excuse and the plaintiffs have to prove its a lie–the defendants need to provide some evidence backing up their story.

            And there’s a discovery process, so the plainiffs would be able to collect more evidence in the course of a trial, if it actually went that far.

          • Milky1985 says:

            “Except that’s also a lie. The footage was never actual gameplay. It couldn’t have played like that on a final system and was entirely staged.”

            It was actual gameplay and could be played on the PC, it just couldn’t be played on any none Dev consoles as it was overspec on memory if I remember correctly from all that was said about it at the time.

            Unfortunately we might not like it, but as long as they said “work in progress, not Representative of final product” they can basically do what they want. Laws need changing around games advertising to stop this, and the “graphics representative of game footage” stuff that Bioshock infinite did :p

      • Premium User Badge oceanclub says:

        Let’s not revert to the “slippery slope” argument. There’s a vast difference between a game simply being buggy and, as shown earlier, blatant and utter misrepresentation. The Aliens situation is far from the norm.

        P.

        • trjp says:

          2 problems here

          1 – it’s happened before often enough
          2 – courts of law have a knack of making rulings when they get applied MUCH more widely than you’d really like them to be (in the interests of fairness, clarity and making more money out of court cases)

          You want a ruling which makes a developer liable for saying they’ll offer more than they actually do.

          What you’ll get is a law which opens the floodgates to every over-entitled idiot to sue because the sun shafts aren’t sublimated enough…

          • The Random One says:

            Courts of law also have the power to diverge from precedent if they feel a particular case is different enough, and then that becomes the new precedent.

          • Nicodemus Rexx says:

            I’m just imagining the hypothetical future in which this happens… Peter Molyneux would get sued back to the stone age. >_>”

      • belgand says:

        I think the key thing is that they presumably didn’t include one of those now nearly-ubiquitous “this is a game still under development and does not necessarily represent the finished product” warnings you see on demo videos. Usually it’s because they expect it to look better, but now it seems like it might become more common as a cover your ass move.

        Always nice that we can have more largely-unnecessary boilerplate legal warnings just because someone did something stupid and got sued over it.

      • cunningmunki says:

        Its not about theoretical expectation, it’s about a product being falsely advertised. You don’t need to describe the differences between the advertised product and the actual product when you have visual evidence.
        A victory would set an interesting precedent, though. Not just for video games, film trailers would potentially be open to the same scrutiny. But I don’t actually think that would be a bad thing.

      • Mephz says:

        fairly simple really, don’t make a trailer for your game that looks different from the game. If the devs are too dumb to be able to do this then they shouldn’t be making games in the first place. I hope they win, I’d much rather see us the consumer get a tool to exploit than see the developers continue to exploit us with garbage market schemes like this. This is not ok with me, you don’t make a version for super computers, show that as actual gameplay, then strip everything out of it in order to make normal computers be able to play it at all. And no I did not buy this game, but I’m rooting them on for a win all the same. May gearbox and sega crash and burn.

      • Baboonanza says:

        This isn’t about the poor quality of the game so much as the misrepresentation prior to release. The lawsuit will aim to prove that there was a deliberate effort by saga and/or gearbox to mislead buyers. Even if they use the excuse that stuff had to be removed from the game later for technical reasons there is still the question of whether they should have known in advance that this was likely, in which case it could still qualify as misrepresentation.

        In addition an actual court case would probably involve access to internal emails which could easily clarify matters. It’s hard to see how such evidence could be anything but damning given that someone must have known what a clusterfuck te game was when they released the trailers.

    • Muzman says:

      Yes, I don’t know if this suit is likely to work or the right way to go about it, but something that might smash the stupid press demos once and for all would be nice.
      Heck I wager most devs would be happy to be rid of them. Look at the recent news about NewThief. They spent all their time on the demo apparently.

      • trjp says:

        Creative people spend loads of time showing what they could do if they were given enough time and money – shock horror…

        Can we not show such utter ignorance of how you get a game made, please?

        • Muzman says:

          Can you be less of an obtuse ass? We shall see.
          None of these things I’m talking about were specs or proofs of concept or pitches for publishers, they were items of publicity. If publishers need to be artificially impressed part way through production it’s not my ignorance you need to worry about, it’s theirs.

    • markelven08 says:

      up to I looked at the bank draft that said $5552, I be certain that my mom in-law truley making money parttime at there labtop.. there brothers friend has been doing this 4 only about 17 months and just now paid for the morgage on there mini mansion and got a great Volkswagen Golf GTI. read more at wow65.com
      (Go to site and open “Home” for details)

  2. analydilatedcorporatestyle says:

    This action is class!!

  3. woodsey says:

    Couldn’t happen to a nicer bunch.

    • Vorphalack says:

      I can think of a few who would be more deserving of financial mauling at the hands of a savage pack of lawyers. Personally I don’t hate Gearbox, i’ve only ever bought Borderlands 2 from them and that was well ported, polished and simple mindless fun. However, they do deserve to lose this law suit for attempting to deceive the public. I just hope it doesn’t destroy the studio and they actually learn from their mistake.

      • Screamer says:

        Gearbox are actually the ones that started this whole mess. SEGA should actually be suing them for taking large amounts of their money, funding Borderlands 2 with it, and delivering an outsourced turd. Why that hasn’t happened is strange, a water tight contract favoring Gearbox most likely.

  4. db1331 says:

    I would also hope that gamers would learn a lesson about preordering to get a different MP skin. Honestly, the real issue here is review embargoes. What a sleazy practice. If your game isn’t something you can’t wait to get into the hands of a reviewer so they can tell everyone how great it is, you shouldn’t be making games.

  5. MajorManiac says:

    I would also like to see some legal-wrist-slapping for games which were unplayable on release due to always-online servers falling over.

  6. Bhazor says:

    Huh Bioshock got away with the “Prerender advertised as gameplay footage” trick. Guess that just had the benefit of being a good game.

    • db1331 says:

      I wasn’t aware of this. What did they show and then later not deliver upon?

      • Erinduck says:

        It didn’t. Bioshock Infinite showed a demo like 2 years ago at E3 and then kept people updated continually throughout the development cycle, showing the changes that were being made and even explained that that video was more to show the tone and feel of parts of the game. People who bring up Bioshock Infinite are cherry-picking.

        • Milky1985 says:

          He is talking about the advert shown on TV, that was in the same style and possibly even in engine (on a high spec PC) , but no in game models were used, animations not used in game were used and and was not gameplay footage or even anything that happened in game.

          People who bring up Bioshock Infinite are picking examples of when this happens in advertising. Another example, Gears of War 3 and its “graphics are Representative of actual game-play” rubbish that they used to show per-rendered stuff.

          Hell I imagine GTA 5 will be guilty of this, as they have not yet announced a PC version afaik and I doubt the 330/PS3 versions will look as good/be as smooth as the current trailers are implying.

          • Erinduck says:

            Except there were a glut of other advertisements. This isn’t remotely the same.

          • Brun says:

            Dunno about you but in the States the Bioshock Infinite TV spot was always shown with the words “Not Gameplay Footage” at the bottom.

  7. phenom_x8 says:

    Why has nobody done this towards EA Sim City ?
    I mean, Sega are great PC Publisher that tends to keep quality among their PC franchises (Total War,FM 2013 ) and always provides us with not so bad/functional PC port (Sonic Racing All Star,Nights Jetset Radio and sonic series). They even saves Company of Heroes 2 development by bought it from THQ while pouring more cash so that Relic would have more fund to polish it.
    I wouldn’t mind if they just sued Gearbox and leaves SEGA out of it because its already suffered enough by losing some cash from licensing Aliens franchise and then put it in the wrong hands who spend their money from something else (and act as a lazy broker who pass their works/contracts to another studios while someone trust them with it)

    • trjp says:

      Could you show us where Sim City is ‘misrepresented’ then?

      or do you think that just because people got their knickers in a knot about ‘a feature on the box which was actually real’ we should have a court case which has nothing to do with this one?

      • Milky1985 says:

        “Could you show us where Sim City is ‘misrepresented’ then?”

        It was advertising as simulating everything and everything being connected, but as commercial is not actually reliant on industry (industry needs a place to ship goods, but commercial buildings do not actually need goods to function) and a few other things it could be classed as misrepresented. Oh and the fact that PEOPLE DON’T HAVE HOUSES and just move into a new one each day when they leave work. Kinda broken for a game advertising as a city building simulation.

      • phenom_x8 says:

        Sorry that I cannot show you about it.
        But, if you are an avid RPS reader, theres a lot of article (by John) that can show you about it.
        How they said that online are not separated from Sim City because a big part of its process done remotely at EA servers, meanwhile some modder proves that it isn’t right by played it offline and then RPS got confirmation from valid source that online arent trully necessary. How about cheetah speed that being thrown away a few days after lunch or how some people unable to play the game when it launched ? And recently they insist that this game is a MMO so it has rights to be online (not due to DRM) and had some trouble when launched but I’m pretty sure that they never advertise the game as MMO city builder.

        Ah, I dont know , maybe my mind just playing trick with me. Maybe all that I’ve been read all this time about Sim City just a mere daydream .
        CMIIW.

        • Milky1985 says:

          “but I’m pretty sure that they never advertise the game as MMO city builder. ”

          Oddly they would be in more trouble if they did, as its missing major things that its required to be a Massively multiplayer online game. Its not Massively for a start because 16 is not massive.

          They would be extra guilty of misrepresentation then!

  8. Arithon says:

    I hope this succeeds. As someone who bought the game on pre-order based on the “in-game footage” from demos at the E3. We were promised a cutting edge, atmospheric PC game and got a retarded console shooter from 2007 with broken A.I.
    It was blatant misrepresentation to advertise one game and deliver totally another.
    Look at this video http://www.youtube.com/watch?v=4w3vlks9lYY
    It in no way matches the released title. Other than the subject matter. It’s like being shown BioShock Infinite and sold the DOOM3 Alpha.
    The only person happy about this game is Maxis, because it gives them competition for Sim City as the worst game release of the 21st century.

  9. db1331 says:

    I think a just punishment would be to sit everyone responsible down and make them play Aliens: Colonial Marines.

  10. trjp says:

    We need to step back a bit here so I’m starting a separate ‘thread’.

    You do realise that court cases like this exist purely because a legal firm feels there’s a chance that the accused will offer some form of settlement to ‘shut them up’???

    I doubt any case like this expects to actually get to court – someone is simply looking for a fast buck.

    My concern is that it’s not going to do any ‘good’ for gaming – at best someone gets a payout, at worst we’ll see developers more cagey to show game footage and perhaps even scaling back their ambition to avoid being called-out when it’s not possible to make it run on YOUR SHITTY PC ;)

    • Chris D says:

      The game doesn’t need to be able to run like that on every PC.

      It just needs to be able to run like that on someone’s PC.

      It doesn’t.

      • trjp says:

        But it MAY have run that well at some point on some PC – it clearly did or they planned it to, at least (like most developers – they were aiming high at one point)

        At what point were they supposed to issue a retraction and say “it’s gonna look a bit shitter – sorry but all your PCs suck”??

        Does this problem of a ‘vast’ different in quality exist in every pre-release video/demo or just some? Unless it’s in most, I really don’t see you having an argument here.

        • Chris D says:

          The demo may have run like that but the full game never has. It doesn’t matter how powerful your PC is, they sold an entirely different piece of code.

          Yes issuing a retraction is exactly what they should have done when they realised they weren’t going to be able to deliver what was promised. If not then they might at least have released footage that was more representative of the game. Or just not have had a review embargo so people knew what they were getting beforehand.

          As it is they factually misrepresented the quality of the product they were selling. It’s in no one’s interests that publishers or developers should be allowed to do that.

        • blackii7 says:

          from everything you’ve said it’s clear you know nothing about how games actually work since gearbox aren’t some type of PC gods they didn’t build a new PC out of magic and pixie therefore they use components that are available to other people so anyone with a high spec machine could run it like it was if the footage was from the actual game as it was at some point secondly you don’t need to downgrade all the textures just cause the starting ones look too good you make another set of the same textures at a lower quality that’s why most good games have graphics options so you can use lower quality stuff that is less demanding secondly upon release and if i’m not mistaken up until this day the game is unplayably buggy the AI is non existent and the textures at the highest settings on a really top of the line PC don’t look half as good as the demo and “gameplay” videos they released so stop using blatantly stupid arguments

    • darkliht says:

      Oh look the resident white knighting troll who only lives to bicker with people.

    • P.Funk says:

      I wonder where someone like you ever thinks the law serves a purpose.

      Your arguments are all over the map, seeming to be whichever convenient train of thought you can muster to contradict any and all points that don’t cater your… whatever it is view point on the law.

      I think you’re just one of those people who has a stick up his butt about some perceived corruption of the institutions of society and/or the people who cynically try to cheap or lie their way out of someone else’s due gains or some bullshit. The irony is that you defend peopel who do just that, but why I have no clue.

      I assume you have no problems then with false advertizing? You have no problem with all those people who lie to seniors to basically steal their life savings from them? You have no problems with sophisticated forms of theft that succeed through the acquisition of someone’s consent to something altogether different than what is in fact occurring?

      You’re one of those people who you never even argue real logic with, but you spend the entire argument trying to establish the terms of the conversation, you know establishing basic building blocks of what the rest of us call reality. You seem to have a fluid relationship with reality. Like, you think the legal system is fucked, which it is, but somehow you then feel that we can just ignore it or write it off or flat out lie our way through it?

      At the end of the day, people like you are why democracy is flawed. It relies on your ilk to make informed decisions, but there’s nothing informed about your world view. You’re just a belligerent hypocritical little troll who probably couldn’t muster half the courage to say this if you had to say it to a real person’s face. You’d look like too much of an idiot in a crowd saying this.

  11. Dowr says:

    Expo demo’s always look better than the final release, this is a very common practice in the gaming indsutry. So why are Gearbox/Sega the only ones being punished for it?

    • Erinduck says:

      Because the expo demo was all that was actually shown and other expo demos are followed up by gameplay footage that actually ends up making it into the game and they typically don’t impose a review embargo until the day before release to keep people from cancelling their preorders. This isn’t just a case of “that one demo looked bad” but a case of a pretty clear systematic approach to keep people from realising their game was shitty.

      Aliens: Colonial Marines is a pretty obvious example of a series of deceptions to lock people into their prepurchases.

    • Arithon says:

      Because they dishonestly claimed the demo WAS the game. Other developers usually say “oh this is an early build” and show off the release version.
      SEGA/GearBox showed off the E3 demo AS the final game, the put an embargo on reviews prior to release to cover up the lie.

      • Milky1985 says:

        To plays Devils Advocate for a second, unless the version shown also came with the fact that game is boxed and just awaiting shipping Gearbox probably do have the defense that its an expo and way before release.

        Its stupid and shouldn’t happen but they may have a defense. IMO all companies are just as guilty as each other for misadvertising games if you see any TV adverts nowerdays :(

  12. Rollin says:

    Just make review-embargos against the law once it’s a week before release. That way by the time it releases, everyone can see the metacritic score on the Steam page next to the buy button and hence won’t buy awful games anymore.

  13. Rossi says:

    Theres some kind of ‘lawsuit’ filed by some disgruntled fan for every game ever released.

    I don’t think this had a chance of succeeding. There were previews that had some scathing criticism.

  14. Milky1985 says:

    Review embargoes as i know it were originally designed so that magazines would have a chance to get there reviews up and ready the same time as websites cause of lead time differences. As this doesn’t happen now (as embargoes now end on release of game not magazine release days) can’t we just scrap the damn things so consumers actually can see what they are buying.

    Its actually BETTER for publishers, at the moment they are hiding behind EULA’s saying no refunds etc etc , but the more this happens the more legal challenges they will get and at one point a judge will point out that EULA’s mean jack all and we are legally entitled to consumer rights if something isn’t fit for purpose or as advertised. then they will have nothing to stop the wave of refunds that will happen every single time someone encounters a single bug.

    They have to work with us consumers not against us.

  15. R J K says:

    I have a hard time believing that this lawsuit has much of a chance of succeeding. Without getting too deep into the weeds of the various relevant California Code sections, I think the following section gives a good sense of what the plaintiff will need to demonstrate in order to make their case:

    1770. (a) The following unfair methods of competition and unfair or
    deceptive acts or practices undertaken by any person in a
    transaction intended to result or which results in the sale or lease
    of goods or services to any consumer are unlawful:
    [...]
    (7) Representing that goods or services are of a particular
    standard, quality, or grade, or that goods are of a particular style
    or model, if they are of another.
    [...]
    (9) Advertising goods or services with intent not to sell them as
    advertised.

    The questions for the judge to determine are whether “gameplay footage” counts as a representation of the final game’s “standard, quality or grade” and whether the implication of “gameplay footage” is that the final product will contain a reasonable facsimile of the content shown earlier. If the answer to one or both of those questions is “yes”, then the court will have to determine how close counts as close enough for the purposes of not running afoul of the law.

    I suspect that while gameplay footage may (but won’t necessarily) count as a representation of the final game’s standard, quality or grade, the amount of latitude given will be quite generous. I think it will be difficult to convince a (probably) non-gamer judge that the differences between the gameplay footage and final product are that significant. There are absolutely technical and practical differences between the two, but it isn’t as though people were expecting CryEngine 3-level graphics, and got something that looked like it used Unreal Engine 2. I’m just guessing here, and welcome someone else reviewing the jurisprudence to prove me wrong, but I think that that’s the kind of drop in quality that the court will look for.

    As for whether misleading gameplay footage runs afoul of subsection (9), my guess would be that it doesn’t. I think a judge is likely to find that gameplay footage is meant to be demonstrative of the kinds of things that will be in the final game. It is not necessarily a representation of something that is actually going to be in the game.

    Edit: Also, with respect to subsection (9), I think the development story that Gearbox et al. had to scale back assets because of technical limitations is relevant. The plaintiff would need to prove (likely using internal communications) that Sega and Gearbox knew when they released the demo that the hardware they were developing for would be incapable of rendering scenes with the same fidelity.

    • Lanfranc says:

      Any chance of a jury trial? Should make for an interesting voir dire, at least.

      “Sir, are you a “gamer”? Would you consider yourself “hardcore”? Which games have you played the most in the past?”

      • Premium User Badge Lord Custard Smingleigh says:

        Would you please explain to the jury exactly what is meant by “wtfbbqpwn”?

        • analydilatedcorporatestyle says:

          Your key assignation is just plain wrong Sir, WRONG!! Ctrl to crouch!!

      • cowardly says:

        Get the jury to play ACM as evidence… and watch as they gouge their eyes out! There may be some problems with this…

    • Captain Joyless says:

      Reading the model code sections tells you pretty much nothing about the viability of a particular claim. You have to consider the statutory language in conjunction with the state’s case law, as well as the facts alleged in the complaint.

      • R J K says:

        Thank you, Captain Obvious. I’m not about to let a lack of information slow my speculative roll, sorry!

        • Captain Joyless says:

          Fair enough – it’s just that most people are going to look at your first line ie, this lawsuit doesn’t have much of a chance, and not realize that your conclusion is based on very little.

      • analydilatedcorporatestyle says:

        Absque hoc actus reus arguendo Sega and Gearbox de lege ferenda wil have to say we got caught at ‘crimen falsi’

        See, look! I have used legal terms to make me look proper clever too!!

    • meatshit says:

      If the people who filed the suit are serious, there will be a discovery process where they get access to all the companies’ emails, correspondence and meeting documentation. If it ends up there’s some evidence that Gearbox and Sega intentionally made a sham demo to mislead people, they can and should get their asses handed to them.

  16. roryok says:

    Classic RPS. One short note about a court case followed by pages and pages of comments from angry commenters explaining to each other how the legal system can or can’t be applied to games.

    Go outside for fuck sake! It’s sunny out!

    • Vorphalack says:

      Here in Yorkshire, we phrase that as ”Go outside for fuck sake! It’s sunny out somewhere, probably not within 100 miles of this cloud infested, god forsaken slate grey hovel we call home”.

      • roryok says:

        well, it was sunny here today in the west of Ireland, its so rare. I guess I let it get to my head. Especially since I was working all day looking out at it.

    • Captain Joyless says:

      Gaming news websites need to start hiring legal correspondents or stop posting stories about lawsuits involve games. Reading these is so fucking painful – there’s not even a link to the complaint. This is like saying “look, someone made an awesome game!” without actually telling us the name of the game.

      • Ernesto25 says:

        That i agree with

      • cowardly says:

        How about some sort of middle ground? There aren’t that many legal cases flying about that cashing out for a legal correspondant would be that sensible, but completely ignoring these cases would be stupid, really. A bit of research is all that’s needed to get a reasonable amount of good information. In this case, I’ll agree with you that that has not been done, though.

        But saying “get an expert or don’t talk about it” is a problematic argument. If I am not to have the news reported properly (which is of course ideal), I prefer having news that I can criticise and analyse and follow up on (or read critical comments about ^^) than having no news at all.

        • Captain Joyless says:

          I’m not saying “get an expert,” just that there should be some basic awareness of how to report about legal news.

          1. if it’s a lawsuit, you should link to the complaint
          2. you should identify the jurisdiction the case was filed in (eg, American federal court, a particular state’s courts, or some British or European court)
          3. you should identify the parties – “plaintiff Damion Perrine” is presumably some poor schmuck who bought ACM, but that’s never even really explained.

          This is BASIC reporting: what, where, and who. Yet it isn’t being done here.

    • analydilatedcorporatestyle says:

      I want to touch the Physx cloth in ACM, even in the sun, even on a Radeon!

      @roryok I think the term you are looking for is Barrack-room lawyers. However this IS open to discussion, it’s a ‘Class Action’ without the class. A studio and publisher are being taken to task in a really fuckin expensive legal case, the costs could run into tens of millions and you’re like, ‘meh’

      *slow hand clap* for the roryok, gerrin son, it’s above us but not above you to tell us ‘it’s above us’

    • Premium User Badge Stellar Duck says:

      At the time of writing there are 2 pages. That’s hardly pages and pages. That’s page and page. Not quite the same.

      • analydilatedcorporatestyle says:

        He needs a bigger font to read!

      • Ernesto25 says:

        Guess you could say classic rps”high and mighty” reader with overexageration Damn i wish i could be him. *pages and pages* only ever seem to come about when they talk about sexism

      • tormos says:

        we have officially reached “pages and page” status without any sign of weirdly intense white knighting for a shitty game dying down.

        • Premium User Badge Stellar Duck says:

          White knighting? Really?

          How does that loathsome expression even apply here?

      • roryok says:

        If I start at the top of the first ‘page’ of comments I have to press Page Down 18 times before I’m at the bottom, and that’s before I get to ‘page’ 2. Further, the RPS comments system never splits replies up, so if a comment receives a hundred or so replies they’ll all only count toward one page.

        I can’t believe I’m defending my use of the phrase ‘pages and pages’ to some stranger in a comment thread. I should take my own advice

        • Premium User Badge Stellar Duck says:

          Right you are. Which is why I noted the number of comments when I wrote my previous post. 99, with mine presumably being number 99 at that time.

          Most of those were in the same thread and consisted of a number of users engaging in a discussion they seemed to find interesting.

          The reason I made my reply was (and still is) that I find your reaction quite surprising. This is a site for people that are interested in video games and the stuff surrounding that so a bunch of comments on a fairly high profile recent fiasco can hardly be surprising and certainly not anything that warrants the good old ‘Go out in the sun!’ line.

          • roryok says:

            certainly not anything that warrants the good old ‘Go out in the sun!’ line.

            If you think ‘go out in the sun’ is just a line people use in internet arguments then you’ve missed the point.

    • kud13 says:

      It’s snowing outside.

      On the first day of fucking MAY

      I hate Central Canada

      • SkittleDiddler says:

        Dude, just last week my region got the worst snowstorm on record. Last night we got seven inches of snow and are expecting seven more. I feel your pain.

        Fuck going outside.

  17. jorygriffis says:

    When I started reading this headline I was super excited but as I continued to read that feeling gave way to frustration. I wish it wasn’t a consumer group filing this suit, not only because I’d hate to see a legal precedent for games changing during development, but because it’s pretty likely a cash-grab and not a serious claim.

    What I really want is for Sega to sue Gearbox for delivering such a dismal quality product!

  18. Lemming says:

    on the one hand, first world problems. On the other, Gearbox need to be taught a harsh lesson. Sega, not so much.

  19. analydilatedcorporatestyle says:

    Fuck SEGA’s shit! Williams need to reenter the fray and defend the gamer!!

  20. SominiTheCommenter says:

    Get the damn lawyers out of my games!
    There are enough Bobby Koticks and Jack Thompsons around, now we need lawyers to define how a trailer is not game footage?
    Gullible people buy crap everyday, whatcha gonna do, sue them?

    Ken Levine promised Bioshock would be released for Vita during E3 and it didn’t. Wan’t to sue him too?

  21. kud13 says:

    hmmm

    Best possible outcome: this get appealed all the way to SCOTUS. and one of the writing judges says something about how people shouldn’t pre-order games, as obiter dicta (part of the opinion that’s not legally binding).

    Then all the advocates of anti-pre-orders will be able to say: See? Even the Supreme Court says you should stop pre-ordering!

    As for the actual case: it’ll depend on the facts. In order to prove fraud (which is largely what this’ll be), They’ll need to show intent to mislead the public–if GB says “well, we had this great prototype, but had to scale it back out of necessity to make it run”, it’s tough to say if there’ll be any duty found on them to let teh consumers know they’ve scaled back, so as to avoid misleading the consumers who have pre-ordered based on previous footage. “Buyer Beware” is still pretty well entrenched as a principle, consumer protection laws notwithstanding.

    Then there’s a whole “games as a sevice” angle to consider…. hmmm

    This case COULD mean a lot. or it could come down to nothing. It’ll really all depend on how much info they can dig up from the dev process during discovery.

    • SkittleDiddler says:

      I’d be happy enough if the outcome of a SCOTUS ruling were to make the pre-order option illegal. That will never happen, but a conscientious consumer can always dream, right?

      • kud13 says:

        No court will ever go that far. Freedom of contract is one of paramount policy principles.

        Remember, in the common law system, courts don’t really change the law. They merely rule on how it is interpreted. Even if something is blatantly unjust (but not unlawful), the court still needs a reason in the existing framework to jump through 4 million hoops to arrive to the desired outcome (unless it can justify using equity). Which is where the lawyers come in. If they can’t find a suitable precedent or analogy, it doesn’t matter how much each individual judge feels for the gypped customer, the most it can do is repeat multiple times in the ruling “the legislature needs to do something about this”.

  22. joelreyes says:

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  23. Premium User Badge darkChozo says:

    Comment system failed me. I always seem to get 404s galore when it happens, so I’m gonna guess it’s not my fault.

  24. drvoke says:

    How about letting them give their justifications in court, and let the legal system run its course instead of coming up with a lot of complex justifications on their behalf in the comments section of a games website? What purpose does water-carrying on their behalf serve?

  25. DanMan says:

    If this means that future media will contain a hint along the lines of “Game still in development. May not represent final product”, then I’m all for it.

  26. AlienMind says:

    Wanna know the reason?
    “what Timegate had made wouldn’t run on PS3″
    - http://www.rockpapershotgun.com/2013/02/ 26/ripleying-yarns-more-on-colonial-marines-strange-history/